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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Weilbacher v. Ring (3/8/2013) sp-6757

Weilbacher v. Ring (3/8/2013) sp-6757

        Notice: This opinion  is subject to correction  before publication  in the PACIFIC REpORTER. 

        Readers are requested to bring errors to the attention ofthe Clerk ofthe Appellate  Courts, 

        303 K Slreet, Anchorage, Alaska 9950 1, phone (907) 264-0608, fax (907) 264-0878,  email  


RONALD V . WEILBACHER,                        ) 

                                              )       Supreme Court No.  S-14180 

                  Appellant,                  ) 

                                              )       Superior Court No. 3K.N-07-00283 CI 

        v.                                    ) 

                                              )       OPINION 

FLOYD RING,  SANDRA RING,                     ) 

WADE HENRY, and JANE HENRY,                   )       No.  6757 -  March 8, 2013 


                  Appellees.                  ) 


               Appeal from the Superior Court ofthe State ofAlaska, Third 

               Judicial  District,  Kenai,  Charles  T.  Huguelet,  Judge,  and 

               Peter G. Ashman, Judge pro tern. 

               Appearances:         Kenneth    W.    Legacki,    Anchorage,      for 

               Appellant.    George M. Kapolchok, George Kapolchok Law 

               Offices, Inc., Anchorage, for Appellees. 

               Before:     Carpeneti,  Chief Justice,    Winfree,    and  Stowers, 

               Justices, and Matthews, Senior Justice.'        [Fabe, Justice, not 

               participating. ] 

               MATTHEWS,  Senior Justice. 

        *      Sitting by  assignment made  under  article  IV,  section        11 of the  Alaska 

Constitution and Alaska Administrative Rule 23(a). 

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


                This  case   involves   a  three-way   transfer   of boat   tie-up  spaces   in  a 

 recreational  subdivision.    The main  issue  is whether the  court erred in requiring  the 

joinder  of one of the people  involved in the transfer as  an indispensable party .          We 

 conclude that the court did not err because appropriate relief could not be afforded in the 

 absence  of the  person    in  question.   We  also  conclude  that  the  case  was  properly 

 dismissed  because  the  plaintiff refused  to    comply  with  the  court's  order requiring 

joinder . 

 II.    FACTS 

               Poachers Cove Subdivision is a planned unit development organized under 

Alaska' s Uniform Common Interest Ownership Act.!  Itis comprised ofboth recreational 

 lots and "guide lots."  Each guide lot is allotted two tie-up spots for boats.      Some of the 

tie-up spots are directly on the Kenai River and others are in a lagoon. 

               In  1999 appellant Ronald Weilbacher owned guide lots 71 , 72, and 74.  In 

the owners' association records tie-ups 26 and 48 were designated for lot 71 ; 27 and 47 

were  designated  for  lot 72 ; and  24  and 79  were  designated  for  lot 74 .     Weilbacher 

 decided to  sell lots 71  and 72 but he wanted to keep  tie-up  26 because  it was  on the 

Kenai River next to  a boat  launch ramp  and  in his  view this  location was  especially 

 desirable.   Weilbacher  sold  lots  71   and  72  and  attempted  to  reallocate  the  tie-ups 

 associated with these lots and the lot he retained in transactions that ultimately led to the 

 litigation in this case. 

               On August 6, 1999,Weilbacher sold lot 71 to appellees Floyd Ring, Sandra 

Ring, Wade Henry, and Jane Henry for a cash sum of $25,000.  All parties agreed that 

the Ring/Henrys  would  receive  tie-up  spots  27  and 48,  and the  escrow  instructions 

               AS 34.08.010 et seq. 

                                                -2-                                           6757 

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

signed by Weilbacher and the Ring/Henrys so state.  On September 2,1999, Weilbacher 

sold lot 72 to Edward Berube for $40,000.  The parties agreed that Berube would receive 

tie-up spots 79 and 48; the escrow instructions signed by Weilbacher and Berube reflect 

this agreement, as does the warranty deed. 

               The  fact  that  tie-up  space 48  appears  to  have  been  conveyed twice  by 

Weilbacher is not the source ofthe controversy in this case.  According to       Weilbacher, 

after the sale to the Ring/Henrys but before the sale to Berube, Sandra Ring asked ifthey 

could  have  tie-up  47  rather  than  tie-up  48  (both  were  side-by-side  in  the  lagoon). 

Weilbacher agreed.  According to Weilbacher, Sandra Ring said she would take care of 

the change with the owners' association and he assumed that this had been accomplished 

at the time he made the sale to Berube.  The Ring/Henrys used tie-up 47 and Berube used 

tie-up  48  until  2008  when  a representative  of the  owners'    association  said  that  the 

RinglHenrys should use tie-up 48 and Berube should use tie-up 47 so that the actual use 

of these  tie-ups  would  be   consistent with  the  association records.    Berube  and  the 

Ring/Henrys made the switch and apparently regard it as inconsequential. 

               What did prove to be ofconsequence was the attempted reallocation oftieĀ­ 

up 26 from lot 71 to lot 74.   Despite the agreement ofthe Ring/Henrys that they would 

receive  tie-up  27  rather  than  tie-up  26  with  their  purchase of lot  71,  the owners' 

association records were never changed to reflect this agreement.  Weilbacher testified 

that he thought that the Ring/Henrys would take care ofnotifying the association board 

concerning the tie-up reallocation.    Floyd Ring testified that he asked Weilbacher to go 

to the board with him on the morning ofthe sale to get approval ofthe tie-up change but 

Weilbacher  declined.     Wade  Henry,  who  was  an  officer  and  board  member  of the 

owners' association, testified that it was his understanding that ifa switch was necessary, 

Weilbacher was responsible  for making the  switch before  selling the  lot.       Mr. Henry 

further testified that he  "was unaware that we were not  getting  . . . the  slot that was 

                                              -3-                                        6757 

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

originally assigned to lot 71."  The owners' association records were also not changed 

with respect to the tie-ups for lot 72 that Weilbacher and Berube agreed to. 

              Soon after Berube purchased  lot 72 he began using tie-up  27,  evidently 

because  he  discovered  that  tie-up  27  was  still  allocated  to lot 72 in the owners' 

association records.  Because Berube parked in tie-up 27, the Ring/Henrys used tie-up 

26 in  1999 and 2000.    In 2001  Weilbacher began parking at tie-up  26.      This  left the 

Ring/Henrys without access to a river tie-up.  SandraRing wrote to the board requesting 

that the board resolve the conflict.  Following numerous similar requests, the board met 

with the Ring/Henrys and Weilbacher on August 29, 2006.  After reviewing documents 

submitted by Weilbacher and Sandra Ring the board decided that tie-up 26 would remain 

assigned to lot 71.  The minutes of the board meeting state that a letter would be  sent 

containing the following decision: 

              Boat  Slip 26  is  assigned to Lot 71  per the drawing entitled 

              "Poachers Cove Boat Slip Assigmnents for Along the River 

              Front"   and   which    was  prepared    for  Poacher's   Cove 

              Associates by Charles Forbes and [sic] 4/19/90.  Past  PCOA 

              Boards ofDirectors have never approved assignment of Slip 

              26 to any other lot as required by PCOA rules requiring two 

              signatures  of parties   making   a transfer.   Board   records 

              currently  indicate that  Slip 26  is  assigned to  Lot  71. The 

              Board reaffirms that Boat Slip 26 is assigned to Lot 71. 

The letter was sent and this suit followed. 


              On April 6, 2007, Weilbacher filed a complaint in the Kenai superior court 

against the  owners'  association  and the  Ring/Henrys.    Weilbacher's  claim for relief 

against the Ring/Henrys sought rescission of the sale of lot 71  based on mistake.      His 

claim  against the  owners'  association was  for maliciously  interfering with  the  sales 

contract between Weilbacher and the Ring/Henrys by ordering Weilbacher to give tie-up 

                                            -4-                                       6757 

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

 26  to  the  RinglHenrys.   The  only  explicit  relief  sought  by  Weilbacher  against  the 

 owners' association was, as an alternative to rescinding the sales contract, an order that 

 the owners' association rescind its action reafflnning that tie-up 26 was allocated to lot 

 71.  Weilbacher also requested costs a'ld attorney's fees and included a catch-all request 

 for "such other and further relief as the [c]ourt deems equitable andjust." 

               The owners' association and the RinglHenrys answered, generally denying 

 that Weilbacher had any right to relief.  In addition, the RinglHenrys pled a counterclaim 

 alleging that Weilbacher sold lot 72 to an innocent third party and included in that sale 

 tie-up  27  even though he  had already transferred tie-up  27 to the RinglHenrys.      The 

 counterclaim   alleged  that  Weilbacher    committed    fraud  and  misrepresentation    in 

transferring slip 27 twice causing loss ofuse damage to them.  Weilbacher answered the 

 counterclaim denying its material allegations. 

               After  some   discovery   the  owners'   association   moved   for  summary 

judgment.     The  essence  of the   association's  motion  was   that  the association, not 

 individual property  owners,  owns the tie-ups  and  controls their  allocation; therefore 

 Weilbacher had  no  authority to  transfer  them.    The  association in  its  memorandum 

 supporting its motion for summaryjudgment referred to a February  1988 letter sent by 

Poachers Cove developer and then-president Dave Keating, who wrote that "tie-ups will 

pass with the  sale of any lot to a new owner" and explained that "if anyone wishes to 

trade on tie-up locations, we will accept a letter stating the swap, and will require both 

 signatures of the lot owners of ... record."    The association's legal theory was: 

               Because the tie-ups are common elements, and not part ofthe 

               [0]wners' "property," only [the association] has the authority 

               to  assign   and  transfer  the   use  rights.    Accordingly, 

               Weilbacher had no authority to transfer "ownership" of the 

               tie-ups by deed or otherwise, and his attempt to do so is void. 

                                             -5-                                       6757 

----------------------- Page 8-----------------------

                       Ā·  .  . Because  Weilbacher    could  not  have   legally 

               contracted  to  transfer  ownership  of the tie-ups,  he  cannot 

               prevail  against  [the association]  on  a claim  for  intentional 

               interference with a contract purporting to do so. 

               Weilbacher opposed the association's motion for summaryjudgment.             He 

argued primarily that at the time of the sale tie-ups were freely exchanged between lot 

owners  and  all  that  was  required  was  notice  to  a board  member rather  than  board 


               While the  association's motion for summary judgment was pending the 

association  moved  for  the joinder    of Edward  Berube  claiming  that  Berube  was  an 

indispensable party without whom the  case  could not be properly  adjudicated.            The 

Ring/Henrys joined in this motion and Weilbacher opposed it. 

               The trial court granted the  association's motion for summary judgment. 

The court reasoned that the contract to transfer the boat tie-ups was invalid because it 

"conveys an interest in boat tie-ups [Weilbacher] did not have."       Since the contract was 

not valid, it could not be interfered with.    Subsequently the court ruled that there were 

no remaining claims against the association and dismissed the association from the suit. 

               The court  also  determined that Berube was  an  indispensable party  and 

ordered   Weilbacher     to  join  Berube    within   15   days.    Weilbacher    moved     for 

reconsideration  of this  order claiming that he  could not  in  good faith  bring  a claim 

against Berube in light of the court's fmding that the contract between Weilbacher and 

the Ring/Henrys was void.      This motion was denied by operation oflaw because it was 

not ruled on by the  superior court within the applicable 30-day period prescribed by 

Alaska Civil Rule 77(k)(4).     Weilbacher did not comply with the order to join Berube 

and Berube was not made a party to the case. 

               Weilbacher moved for summaryjudgment on the issue of rescission.             He 

contended that since the court ruled that the contract concerning lot 71 was not a valid 

                                              -6-                                          6757 

----------------------- Page 9-----------------------

contract the only alternative was rescission.  The superior court denied this motion ruling 

that the court had only " invalidated or voided" the portion  of the contract concerning 

reallocation of the boat tie-ups, not the sale of the lot. 

              In July 2010 the superior court held a three-day trial.    In his pretrial brief 

Weilbacher argued that the Ring/Henrys had breached the sales contract by asking the 

board  to  change  the  boat  tie-up assignments   contrary  to  the sales  agreement.    He 

requested that the Ring/Henrys "should at least be equitably estopped from taking over 

boat tie-up 26, or the contract should be rescinded ifthey are not happy with the boat slip 

assignments agreed to at the time of the sale ... ."   The Ring/Henrys in their trial brief 

noted that they had abandoned their counterclaim, and argued that there were no grounds 

for rescission of the transaction with Weilbacher based on mutual mistake. 

              At the trial Weilbacher continued to press for enforcement of the contract 

with respect to the tie-ups.  He concluded his opening statement defming the issues for 

trial as follows: "So the question is, Your Honor, is do we get 26 when we leave here 

or do we get the land back.    It's their call. Are they going to -  because under Alaska 

law  when  the  parties  have  a  contract the  Court  is  to give  the expectations  of the 


              At the conclusion ofthe trial the court in a five-page decision declined to 

enforce the tie-up allocation agreed to by the parties because Weilbacher had refused to 

make Berube a party to the case.  The court also declined to rescind the contract because 

Weilbacher had failed to follow the owners' association procedures for transferring tie- 


              The court wrote, in relevant part: 

                     Boat   tie-ups  #26  and   #27  are  favored   boat  slips 

              because  they  are  located next  to  the boat ramp  and public 

              parking.  Mr. Weilbacher wanted #26 because it was the first 

                                             -7-                                       6757 

----------------------- Page 10-----------------------

 slip off the boat ramp,  and he believed it would benefit his 

 guide business. 

        Mr. Weilbacher agreed to sell the RingslHenrys a lot 

 with a favored tie-up.  The tie-up was assigned to another lot 

 ... conveyed to  Mr.  Berube.    Testimony  showed that Mr. 

 Weilbacher    should/could  have   approached  the   Poacher's 

 Cove Owners Association and requested that the tie-ups be 

 allocated  pursuant  to  his plan  before  the transactions  to 

 transfer the lots. Ifthe Poacher's Cove Owners Association 

 had  approved  the   boat  tie-up  transfers from   one  lot to 

 another, Mr. Weilbacher could have conveyed tie-up #27 to 

 the RingslHenrys    with  lot 71.   Mr.   Weilbacher   did  not 

 approach the Poacher's Cove Owners Association prior to the 

 sale and tried to  reallocate the tie-ups that he  did not  own 

with  escrow  documents.     When  faced  with  Mr.  Berube's 

 claim to #27, Mr. Weilbacher expected the RingslHenrys to 

 fight  it  out with  Mr.  Berube  and Poacher's  Cove  Owners 


        At trial,  Mr.  Weilbacher continued to  argue that the 

boat  tie-ups  should  be  allocated  according  to  the  escrow 

 agreements.    He  argued that  if the  tie-ups  were  allocated 

 according to the  escrow documents, he would still have no 

 duty to remove  or even speak to Mr. Berube -      it would be 

up to the RingslHenrys to enforce their interest in tie-up #27. 

He continued to assert that ifthe escrow documents failed to 

transfer the tie-ups (as determined by the court on summary 

judgment),  the  entire agreement should be invalidated, and 

the RingslHenrys should return lot 71 with tie-up #26 to him. 

       Mr. Weilbacher tried to keep #26 and convey #27, but 

failed  to follow  ... Poacher's  Cove  Owners  Association 

procedures    for transferring  boat  tie-ups.    In effect, he 

conveyed #26 to the RingslHenrys and #27 to Mr. Berube. 

The  court  cannot  determine  or  take  action  to enforce  the 

intent  of  all the parties  to the  transaction  because   Mr. 

Weilbacher stubbornly refused to bring Mr. Berube into the 

                               -8-                                       6757 

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

               lawsuit.  The essence ofthe contract between Mr. Weilbacher 

               and the RingslHenrys, however, was for the sale ofa lot with 

               a favored tie-up.  There is no reason to rescind the contract 11 

               years  later because  Mr.  Weilbacher  failed  to  take  steps to 

               keep tie-up #26 for himself.  Judgment is entered on behalf of 

              the defendants. 

               Following  the  trial court's  decision  the case  was  reassigned  from  the 

Honorable    Charles  T.  Huguelet,   Superior  Court  Judge,  to  the  Honorable  Peter  G. 

Ashman,  Superior Court Judge pro  tern.      The RinglHenrys requested a  fee  award of 

$31,900 which was 50 percent oftheir actual attorney's fees.      This was an enhancement 

over  the  normal   30  percent  of actual  attorney' s  fees  that  would  be  awarded  for  a 

successful defense.2   The RinglHenrys contended that the enhanced fees were justified 

because,  among  other reasons,  Weilbacher had  refused  to join  Berube .      Weilbacher 

opposed this motion, but it was granted.      Judge Ashman found that Judge Huguelet's 

reference to Weilbacher's "stubborn refusal" to join Berube "constitutes a finding that 

plaintiff engaged in bad faith or vexatious conduct." 


              On   appeal   Weilbacher  presents    SIX issues  for review.    They   are, as 

expressed in his brief: 

                      I.     The trial court erred in ordering the joinder  of 

              Edward Berube as an indispensable party to the lawsuit after 

              the court ruled that the clause at issue in both contracts was 

              void as a matter oflaw. 

                      2.     The Rings/Henrys, after executing the contract 

              and   undertaking    a  course   of  action  to undermine     the 

              consideration ofthe contract, breached the contract,justifying 

              rescission of the contract. 

       2      See Alaska R. Civ. P.  82(b)(2). 

                                             -9-                                          6757 

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

                         3.      The RingslHenrys, after executing the contract 

                 and then seeking to have the court void the consideration in 

                 the contract, breached the contract, mandating rescission of 

                 the contract. 

                         4.      The    contract    should    have    been    rescinded 

                because there was a mutual mistake when the parties believed 

                the boat slips could be reassigned by Ronald Weilbacher. 

                         5.      The trial court erred in referring to evidence that 

                was nonexistent before the court at trial. 

                         6.      The   trial  court   erred   in  granting    enhanced 

                 attorney  fees  because  Ronald  Weilbacher  could not  bring 

                Edward Berube in as an indispensable party when the court 

                voided  the  material  clause  in  the  contract to  be  enforced 

                against him. 

        A.       Standard Of Review 

                The issues presented on this appeal involve questions of law, fmdings of 

fact, and discretionary decisions of the superior court.           This court reviews questions of 

law using its independentjudgment. 3          Determinations offact are reviewed deferentially. 


The findings ofthe trial court must stand unless they are clearly erroneous .                An Alaska 

Civil Rule  82 award of attorney's fees is reviewed for abuse of discretion.5                 Abuse of 

discretion exists "if the award is arbitrary, capricious, manifestly unreasonable  or the 

result of an improper motive .'';;      To the extent that an award of enhanced fees involves 

        3       Skaflestadv. Huna  Totem Corp., 76 P.3d 391 , 395 (Alaska 2003) . 

        4       Id. 

        5       Hopperv.  Hopp er,       171 P.3d  124,  129 (Alaska 2007). 

        6       Hughes v. Foster       Wheeler Co., 932 P .2d 784, 793 (Alaska  1997). 

                                                  -10-                                             6757 

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

a detennination ofthe merits of a litigation position, we review the legal merits de novo 

and any underlying relevant findings of fact for clear error.7 

       B. 	    The  Court Did Not Err In  Ordering Th~ Joinder Of Berube As An 

               Indispensable Party. 

               Under Alaska Civil Rule  19(a) a person should be joined as a party if "in 

the  person's   absence    complete    relief   cannot  be  accorded    among    those   already 

parties  ...."  Under subsection (b) of Rule  19 if a person who should be joined under 

Rule  19(a) cannot be made a party, the court should determine "whether in equity and 

good conscience the  action should proceed  among the parties before it,  or should be 

dismissed, the absent person being thus regarded as indispensable."s 

       7 	     Johnson v.  Johnson, 239 P.3d 393, 399 (Alaska 2010). 

       S 	     Civil Rule  19(a) &  (b) provides: 

                      (a)     Persons  to Be Joined  if Feasible.      A person 

               who is subject to service of process and whose joinder will 

               not deprive the court ofjurisdiction over the subject matter of 

               the action shall be joined as a party in the action if(l) in the 

               person's absence complete relief cannot be accorded among 

               those  already  parties,  or (2)  the  person  claims  an  interest 

               relating to the subject ofthe action and is so situated that the 

               disposition of the action in the person's absence may (i) as a 

               practical  matter  impair  or  impede  the  person's     ability  to 

               protect that interest or (ii) leave any of the persons already 

               parties  subject  to  a  substantial  risk of  incurring   double, 

               multiple, or otherwise inconsistent obligations by reason of 

               the claimed interest.    If the person has not been joined,  the 

               court  shall  order that  the  person  be  made  a party.    Ifthe 

               person  should join    as  a plaintiff but refuses  to  do  so,  the 

               person may  be  made  a defendant,  or,  in a proper  case,  an 

               involuntary plaintiff.  Ifthejoined party objects to venue and 

              joinder  of that party would render the venue  of the  action 

               improper, that party shall be dismissed from the action. 


                                              -11-	                                        6757 

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

               Weilbacher's  argument that  Berube  w as  not  an  indispensable  party  is 

encompassed in the following paragraph in his brief: 

                      If the trial  court had not ruled  in favor  of Poachers 

               Cove  and  the  RingslHenrys  on their motion  for  summary 

              judgment that Mr. Weilbacher did not have the authority to 

               reassign  boat  slips,  then  Mr.  Berube  would  have  been  an 

               indispensable party.   However, once the trial court ruled that 

               the  PCOA Board had the ultimate  authority to  assign boat 

               slips, and Mr. Weilbacher did not, then the clause assigning 

               boat  slips in the  sales contracts for Lots  71  and 72 thereby 

               became void and nonenforceable.        There was no longer any 

               cause of action that could be enforced against Mr. Berube . 

               (Emphasis in original.) 

               The  premise    of Weilbacher's  argument  is  that  because  the  board  had 

ultimate   authority  to  approve   or  disapprove  the   transfer   of tie-ups  the  contracts 

reassigning tie-ups that he had made with the RinglHenrys and Berube were meaningless 

and incapable of enforcement.      But this premise is false.   Merely because a third party 

       8       (.. .continued) 

                      (b)     Determination by Court Whenever Joinder 

               Not Feasible.    If a person as described in subsection (a)(1)Ā­ 

               (2) hereof cannot be made a party, the court shall determine 

               whether  in  equity  and  good  conscience  the  action  should 

               proceed among the parties before it, or should be dismissed, 

               the absent person being thus regarded as indispensable.  The 

               factors to be considered by the court include:      fITst, to what 

               extent ajudgment rendered in the person's absence might be 

               prejudicial to the person or those already parties; second, the 

               extent to which, by protective provisions in thejudgment, by 

               the shaping ofrelief, or other measures, the prejudice can be 

               lessened or avoided; third , whether a judgment rendered in 

               the person ' s absence will be  adequate; fourth,  whether the 

               plaintiff  will have   an  adequate   remedy    if the  action  is 

               dismissed for nonjoinder . 

                                              -12-                                        6757 

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

must approve of a transfer of a privil~ge does not mean that  a contract to transfer the 


privilege is unenforceable .        Many privileges  (liquor licenses, taxi pennits,  or limited 

entry fishing permits  are familiar examples) may be transferred only upon approval of 

a goverrunent agency.        Yet contracts for their transfer are enforceable, conditioned on 

third-party    approval    of the  transfer .lo    Often  such  approval  may  not  be         arbitrarily 

        9        While the trial court at times used language of voidness and invalidity to 

describe the  assignment ofboat slips in the original contract, the trial court also required 

the joinder of Berube.       Weilbacher is correct that if the clause assigning the boat slips 

was  simply void or invalid, the joinder  of Berube would have been unnecessary .  But 

here the trial court required the joinder of Berube precisely because his presence in this 

action was necessary "to enforce the intent of all the parties."              The trial court's finding 

that Berube was an indispensable party should have served as notice to Weilbacher that 

the contract could be  enforced with respect to the boat slips, subject to the approval of 

the board. 

        10      See,  e.g.,  Watson Bros.  Transp. Co. v. Jaffa,        143 F.2d 340 (8th Cir.  1944): 

                         But a man's obligation under his lawful contract is not 

                a  whit  less  binding  upon  him  because  of the  fact  that  an 

                approval of the transaction must be had before the party to 

                whom he has obligated himself can receive full benefits . ... 

                The  mere  fact  that  a  contract  or transfer  is  subject to  the 

                 approval    of  a   public    agency    is  not   a  bar  to   a  decree 

                 compelling a party to  execute the documents necessary  for 

                the consummation ofthe contract or transfer.              This principle 

                 is well established in cases involving agreements to transfer 

                liquor licenses, which, like the transfer in question here, must 

                be validated by the licensing authority, ... in cases involving 

                the sale ofa stock exchange seat where the transfer is subject 

                to the approval of a committee of the exchange,  ... in cases 

                involving the transfer of a license to a market stall, where a 

                request  to  the  city authorities is required  for reissue  of the 

                license, ... and  where sale of a common carrier franchise is 

                subject to the approval of the state and federal commissions 


                                                   -13-                                              6757 

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

 withheld, or is subject to defined standards. 11 

               Board members and officers of a common ownership association have a 

 fiduciary  relationship  with  unit  owners.12  They  are  required  to act reasonably  with 

respect to owners.u    Thus board approval of the transfer oftie-up spaces between unit 

 oVl'ners could  not  have  been  unreasonably  or  arbitrarily  withheld.  In  addition,  the 

evidence showed that the board had never disapproved ofa proposed boat tie-up transfer 

that was properly presented and that the board's primary interest in requiring approval 

was to ensure accurate record keeping in order to avoid confusion. 14 

               Berube was  an  indispensable party  under Rule      19 because without his 

joinder the apparent intent ofthe contracting parties with respect to the transfer ofthe tieĀ­ 

ups in the two contracts could not be enforced.  What Weilbacher intended was a threeĀ­ 

way swap ofthe tie-ups.  As already noted, lot 71 would get lot 72's tie-up, No. 27.  Lot 

74 would  get lot 71 's tie-up, No.  26 .  And  lot 72 would  get lot 74's tie-up, No.  79. 

        10     (...continued) 

Id.  at 346-47 (citations omitted). 

        II    See, e.g., Simonds  Chevrolet v.   Gen. Motors,  564 F. Supp.  lSI  (D. Mass 

 1983)(reviewing for reasonableness franchisor auto manufacturer's decision to withhold 

consent to franchisee's  sale of auto dealership); Richmond Call. v. Scott-Nuckols  Co., 

 124 Va. 333 (Va.  1919) (installer of water and sewer systems excused from contractual 

requirement  to  produce    architect's  certificate  where  certificate  was  capriciously  or 

arbitrarily withheld). 

        12    See AS  34.08.330(a); Bennett v.     Weimar, 975 P.2d 691, 692-93  (Alaska 

 1999).  Cf Dunlap v. Bavarian  Vill.  Condo. Ass 'n, 780 P.2d  1012, 1015 (Alaska 1989) 

(claim of arbitrary and selective enforcement by association reviewed). 

        13    Bennett, 975 P.2d at 697 . 

        14    A  board  member  described the  board's role  in  the  approval process  as 

virtually a "rubber stamp." 

                                             -14-                                      6757 

----------------------- Page 17-----------------------

Although  the  essential  features  of this  three-way  swap  were  reflected  in the  signed 

escrow  instructions  for  the sale  of lots 71  and  72,  Berube  refused  to abide  by  the 

agreement and insisted on using tie-up 27 .  He contended that he had purchased tie-up 

27.  In order to accomplish Weilbacher's goal of retaining tie-up 26, the RingfHenrys 

would have to receive their bargained-for tie-up 27.      But for them to receive No.  27, 

Berube would have to give it up and take No. 79 instead.  Berube could not be required 

to give up No. 27 without being made a party.     Although what he agreed to seems clear 

as reflected by the escrow instructions and the deed, it is possible that Berube might have 

a defense, and it is clear that he had to be afforded an opportunity to be heard before he 

could be ordered to comply with the agreement.       Thus joining Berube was necessary in 

order to enforce the expectations of the contracting parties. 

               Weilbacher argues that he had no claim against Berube and thus could not 

sue him.   This has no merit.   Weilbacher could have filed a claim against Berube that 

alleged the terms of the  sale of lot 72 as to the tie-ups,  and that Berube had breached 

those terms by failing to accept tie-up 79 and instead had claimed tie-up 27.     The claim 

could allege that this not only violated the sale agreement, it also interfered with the sale 

agreement between Weilbacher and tht RingfHenrys under which the RingfHenrys were 

to receive tie-up 27. 

              IfBerube had been brought in under such a claim, and the sale as to the tieĀ­ 

ups was ultimately shown to be in accordance with the escrow instructions and Berube's 

deed, the court could have ordered the parties to submit the proper forms required by the 

owners' association to accomplish the three-way swap ofboat tie-ups.  Ifthe parties had 

submitted the proper  forms , there  is  little  doubt but that  the  association would have 

approved the swap. 

                                            -15-                                       6757 

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

              The  superior  court  ordered  Weilbacher to join  Berube  within    15 days. 

Weilbacher timely  sought reconsideration  of this     order.  When reconsideration  was 

denied Weilbacher was required to join Berube or suffer dismissal for noncompliance: 

              Ifthe court fmds an absentee is needed for ajust adjudication 

              (that is,  a necessary or "required" party),  and if [the] court 

              also  finds  that joinder of the  absentee  is feasible, it will 

              usually give the plaintiff an opportunity to add the absentee. 

              Ifthe plaintifffails to do so, the court may dismiss the action 

              because of the plaintiff's noncompliance.     If it does not, the 

              court itself must order that the person be made a party.    The 

              Rule gives no discretion on this point)1SJ 

              We  conclude that the  court properly  ordered Berube to  be joined  as  an 

indispensable party under Civil Rule  19(a).  When Weilbacher failed to comply with the 

court's order, dismissal ofthe case was justified.  The fact that this dismissal took place 

at the close of the trial rather than before the trial is not  of consequence.  Either way 

dismissal would bejustified.  Hearing the testimony at the trial confirmed the conclusion 

implicit in the court's Rule  19 order that without Berube the court could not "determine 

or take action to enforce the intent of all the parties to the transaction." 

       C.     Weilbacher Was Not Entitled To Rescission. 

              Weilbacher's second, third,  and fourth  statement of issues presented for 

review claim that he was  entitled to rescission of the Ring/Henrys contract based on a 

       )5     4  MOORE'S  FEDERAL  PRACTICE        Ā§ 19.04(4)(a) (3d  ed.  2012)  (citations 


FEDERAL PRACTICE AND PROCEDURE  Ā§ 1604, p.  66 (3d ed. 2001): 

              Once  it  has  been  decided  that  a  person  whose joinder  is 

              feasible  should  be  brought   into the  action, the  claimant 

              should be given a reasonable opportunity to add that person. 

              Ifplaintiff fails to do so, the court should orderjoinder itself 

              or it may direct the action to be dismissed for noncompliance 

              with the original order. 

                                            -16-                                        6757 

----------------------- Page 19-----------------------

 breach on the part ofthe Ring/Henrys or on mutual mistake.  These claims have no merit 

 for several reasons. 

                 First, Weilbacher's rescission claim need not be reached because dismissal 

 of Weilbacher's claim wasjustified based on his refusal to comply with the court's order 

requiring him to join Berube as an indispensable party.16 

                 Second, the court did no ! find that the Ring/Henrys breached the contract 

 or that there was a mutual mistake justifying rescission.            The court instead found that 

there was no reason to rescind the contract. 

                Finally,  even if there had been a mutual mistake, rescission would have 

been inappropriate because reliefthat enforced the parties' intent was available.  In such 

circumstances the remedy ofrescission would have been, to use the words ofthe Second 

Restatement of Contracts, "unnecessary and unavailable.,,17 

        D.      The Court's Evidentiary Error Was Harmless. 

                Weilbacher contends that the court erred by relying on a letter that was not 

admitted  into  evidence.       The  letter  in  question  was  written  by  the  secretary  of the 

owners' association in 2003.        Itwas addressed "to whom it may concern" and stated that 


                See supra pp.     18-19. 

         17     See   RESTATEMENT         (SECOND)     OF   CONTRACTS        Ā§  152(2),   cmt.   d  and 

introductory note ( 1981) (where the intent ofthe parties may be enforced by reformation 

contract avoidance is unnecessary and unavailable).  See also Rash v.              UnitedStates, 360 

F.2d 940,944 (Ct.  Cl.       1966) ("[W]here reformation is possible,  it is the only remedy 

permissible,    since the  mistake  of the parties  related  to  their  expression  only,  and  a 

rescission  of the  contract would  be  an  unnecessary  violation  of their  intent.").             Cj 

 Commercial Recycling Ctr. v. Hobbs Indus., 228 P.3d 93, 98-99 (Alaska 2010) (" '[A]s 

a matter  ofjudicial  policy,'  we  seek to        'maintain  and  enforce  contracts,  rather than 

enable parties  to  escape from  the  obligations they  have  chosen to  incur.'  " (quoting 

Inman v.    Clyde Hall Drilling Co., 369 P.2d 498,500 (Alaska  1962))). 

                                                  -17-                                               6757 

----------------------- Page 20-----------------------

boat slip 26 was allocated to the owners oflot 71, the RinglHenrys .  As such, the letter 

merely reflected the uncontested fact that the original allocation oftie-up 26 as reflected 

in the association records for the  1999 5ales was never changed in the board records.  As 

this is an established fact in the present case the court's mention ofthe letter in question 

in its decision is harmless error. 

       E. 	    The  Court  Did  Not     Abuse   Its  Discretion  In  Awarding     Enhanced 

               Attorney's Fees. 

               Following the  entry ofjudgment  on the merits  the RinglHenrys filed an 

attorney's fees motion seeking enhanced fees under Civil Rule 82(b)(3) based, among 

other reasons, on Weilbacher's refusal tojoin Berube. Judge Ashman awarded enhanced 

fees . The ordernoted thatJudge Huguelet "cited [Weilbacher's] stubborn refusal to obey 

the  court's order as having  frustrated the meaningful progress  of the litigation."    The 

court concluded that Judge Huguelet had in essence found that Weilbacher engaged in 

"bad faith or vexatious conduct"justifying an enhanced fee under Civil Rule 82(b)(3).18 

        18 	   Civil Rule  82(b)(3) provides: 

                      (3)    The  court  may  vary  an  attorney's  fee  award 

               calculated under  subparagraph  (b)(1)  or (2)  of this  rule  if, 

              upon   consideration  of the   factors  listed  below, the  court 

               determines a variation is warranted: 

                      (A) 	  the complexity ofthe litigation; 

                      (B) 	  the length oftrial; 

                      (C)    the reasonableness ofthe attorneys' hourly rates 

              and the number ofhours expended; 

                      (D)    the reasonableness  of the number of attorneys 


                      (E) 	  the attorneys'  efforts to minimize fees; 

                      (F)    the reasonableness  of the claims and defenses 

              pursued by each side. 

                      (G) 	  vexatious or bad faith conduct; 


                                             -18-	                                      6757 

----------------------- Page 21-----------------------

                       Weilbacher  challenges  the  award  of enhanced  fees        only  on the 

ground that he had no viable claim against Berube following the trial court's ruling on 

the owners' association's summaryjudgment motion.              He argues that his conduct was 

not vexatious because the  court's joinder  order was unjustified.         As we have already 

concluded thatthe court properly order;!d Berube'sjoinder as an indispensable party, this 

argument fails. 


               This  is  an unusual  case .   By  all  appearances  if Weilbacher had joined 

Berube he could have won, not on his rescission claim, but by enforcing the expectations 

of the  parties.   Why  he    did  not join  Berube  is  difficult  to  understand.    But  once 

Weilbacher refused  to join  Berube  as  ordered by the  court the  litigation became  an 

exercise   in futility.  For  the  reasons   stated  the judgment     of the  superior  court  is 


        18     (...continued) 

                       (H)    the relationship  between the  amount  of work 

               performed and the significance of the matters at stake; 

                       (I)    the extent to which a given fee award may be so 

               onerous    to the  non-prevailing     party  that  it would   deter 

               similarly  situated  litigants  from  the  voluntary  use    of the 


                       (J)    the  extent to  which the  fees  incurred  by  the 

               prevailing party  suggest that they  had been  influenced by 

               considerations apart from the case at bar, such as a desire to 

               discourage claims by others against the prevailing party or its 

               insurer; and 

                       (K)    other equitable factors deemed relevant. 

                                               -19-                                           6757 

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