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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Burke v. Maka (3/15/2013) sp-6759

Burke v. Maka (3/15/2013) sp-6759

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

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        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  


DANIEL L. BURKE and LUISA E.                      ) 

BURKE,                                            ) 

                                                  )   Supreme Court No. S-14202 

                       Appellants,                ) 

                                                  )   Superior Court No. 3AN-09-05610 CI 

        v.                                        ) 

                                                  )   O P I N I O N 

NESAVOU MAKA, FUNGANI A.                          ) 

MAKA, and ALBERTA F. MAKA,                        )   No. 6759 - March 15, 2013 


                       Appellees.                 ) 


               Appeal from the Superior Court of the State of Alaska, Third 

               Judicial District, Anchorage, Mark Rindner, Judge. 

               Appearances:      Todd J. Timmermans, Hartig Rhodes LLC, 

               Anchorage, for Appellants. James M. Gorski, Hughes Gorski 

                Seedorf     Odsen     &    Tervooren,     LLC,     Anchorage,     for 


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

                Stowers,   Justices. 

               WINFREE, Justice. 


               Daniel and Luisa Burke (the Burkes) own a home in Anchorage.  Nesavou 

Maka,     Fungani    Maka,   and   Alberta   Maka    (the  Makas)    are  the  Burkes’    next-door 

neighbors.   The Burkes and the Makas have a common driveway approximately 20 feet 

wide over a shared property line.   The Burkes wanted to build a fence down the middle 

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of this driveway.     However, a preexisting covenant to provide access granted the two 

lots’ owners reciprocal access to the common driveway. 

                The Burkes filed suit to quiet title, seeking a declaratory judgment that the 

covenant was invalid and gave the Makas no legal right to use the Burkes’ portion of the 

driveway. The Makas asserted several affirmative defenses, including laches. Following 

a   bench   trial,   the   superior   court   found   the   Burkes   used   the   driveway   as   shared;   the 

Burkes were aware the Makas believed the driveway to be shared; and the Burkes caused 

the Makas prejudice by failing to object to the Makas’ visible use between 2004 and 

2009.   Based on those findings, the superior court ruled that laches barred the Burkes 

from    challenging     the  covenant’s    validity   and  dismissed     the  Burkes’    claims   with 


                The Burkes appeal, arguing that the superior court’s findings of fact are 

clearly erroneous.     Because the superior court’s findings are not clearly erroneous and 

those facts support the application of laches, we affirm the superior court’s decision. 


        A.      Factual Background 

                1.       The properties 

                The Burkes own property (Lot 9A) on Nathan Drive in Anchorage and use 

it as an assisted-living home for the elderly.  The Makas own the adjacent property (Lot 

9B) and use it as their residence. 

                Both properties are set back from Nathan Drive as “flagpole lots” — a 

flagpole lot is a rear lot (the “flag”) with road access by a long narrow driveway (the 

“flagpole”).     The lots have adjacent 20-foot Nathan Drive frontages and are served by 

a common paved driveway approximately 20 feet wide.                 The superior court found that 

the driveway overlaps both properties and that vehicles accessing either lot use both 

sides of the property line.     No physical barriers separate the lots. 

                                                 -2-                                            6759

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                2.      Initial development of Lots 9A and 9B 

                Residential contractor Maurice Matthews purchased a tract of land and 

recorded   the   deed   in   January   2001.   Matthews   subdivided   the   tract   into   five   lots, 

including Lots 9A and 9B.  Given the configuration of these two lots, Matthews built a 

common driveway down their shared property line.  He reasoned that a single driveway 

would be less expensive than two and would increase the available yard space. 

                3.      Initial sale of Lot 9A and creation of the covenant 

                Matthews sold Lot 9A to Daniel Steffan in November 2001.                  Prior to the 

sale, a final as-built diagram of Lot 9A showed the driveway parallel to and adjoining 

the flagpole section of Lot 9B. Matthews testified that Steffan would have been provided 

the survey at closing.  Matthews asserted that either he or his real estate agent disclosed 

that Lots 9A and 9B shared the driveway. 

                Matthews signed a deed, a notice of completion, and a building certification 

on Friday, November 2, and each signature was notarized by the closing agent.  Steffan 

signed   closing   documents   the   same   day.    Steffan   also   signed   a   purchase   agreement 

addendum stating, “Closing date to be extended to on or before November 7, 2001.”  The 

escrow instructions define “close of escrow” as “the date of recording.” 

                The following Monday, November 5 — before the deed to Lot 9A was 

recorded — Matthews filed with the municipal land use office a covenant granting the 

two lot owners reciprocal driveway access.   He signed the covenant as the owner of both 

Lots 9A and 9B and left it with municipal staff.           One day later, on Tuesday, November 

6, Steffan’s deed to Lot 9A was recorded.  The municipality neither signed nor recorded 

the covenant until several years later. 

                Jillanne Inglis, a municipal employee specializing in access covenants, 

testified that the covenant allows the owners of Lots 9A and 9B to use the entirety of the 

common driveway to access their lots. Likewise, Matthews, Steffan, and Nesavou Maka 

                                                  -3-                                            6759

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all testified that they understood the owners of Lots 9A and 9B had equal reciprocal 

rights to use the entire driveway. 

                 4.      Sale of Lot 9B to the Leyneses and sale of Lot 9A to the Burkes 

                 Matthews   completed   construction   of   a   home   on   Lot   9B   and   sold   the 

property to David and Angeline Leynes in March 2002.   Matthews testified that he used 

the shared driveway while building the house on Lot 9B.  Matthews and David Leynes 

both testified that they considered the sale of Lot 9B to convey rights to use the entirety 

of the driveway as shared. 

                 Daniel Burke testified that he was looking for Anchorage property to use 

as an assisted-living facility. The Burkes purchased Lot 9A from Steffan in March 2004. 

The Burkes had no discussions with Steffan about the driveway.  Steffan provided the 

Burkes a real property disclosure statement prior to the sale. 

                 In   February   2004,   about   six   weeks   before   Steffan   sold   Lot   9A   to   the 

Burkes,     a  municipal     agent   signed    and   recorded     the  covenant     that  Matthews      had 

submitted in 2001.        No witness had an explanation for the delay.               Daniel Burke and 

Steffan both testified they were unaware of the covenant when Lot 9A was sold.  But the 

Burkes   stipulated   that   they   were   put   on   constructive   notice   of   the   covenant   by   its 

recording before the sale, even though the covenant was not noted by their title insurer. 

                 The Burkes resided on Lot 9A for several months while planning to convert 

the   home   to   an   assisted-living   facility.  Though   Daniel   Burke   testified   he   was   not 

actually aware of the covenant, he also testified that he did not protest the Leyneses’ 

driveway use. 

                 5.      Sale of Lot 9B to the Makas 

                 About a year and a half after the Burkes purchased Lot 9A, the Leyneses 

listed   Lot   9B   for   sale. The   Leyneses   learned   of   the   covenant,   which   had   not   been 

disclosed in their title insurance policy because it had not been recorded until after they 

                                                    -4-                                              6759

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purchased Lot 9B in 2002.  David Leynes testified that the covenant was consistent with 

his understanding of the shared rights to the driveway and did not affect his marketing 

or sale of the property. 

                In    contemplation      of  the   sale,  the   Leyneses     completed      a  disclosure 

statement.     Under   the   inquiry   “Are   you   aware   of   features   of   the   property   shared   in 

common   with   adjoining   property   owners   .   .   .   ?”   the   Leyneses   underlined   the   word 

“driveways.”  The Leyneses also checked “yes” in response to questions asking if there 

were   any   easements   affecting   the   property   and   whether   there   were   any   subdivision 

conditions, covenants, or restrictions. 

                The Burkes were interested in acquiring the Leyneses’ property and in 

November        2005   offered    to  purchase    it. The     Leyneses     submitted    a  counteroffer, 

providing the Burkes a report describing Lot 9B as “on a flag lot with shared driveway.” 

Immediately beneath this description is a stamp initialed by the Burkes.                  Daniel Burke 

testified that by initialing the document he acknowledged the information on the form 

had been provided to him, but that he did not read it. 

                Daniel Burke testified that he did not respond to the Leyneses’ counteroffer, 

losing interest in part because he felt there were too many restrictions and easements on 

the property.     Lot 9B remained on the market until the Makas purchased it in January 

2006.   Before their purchase, the Makas received the disclosure statement the Leyneses 

had prepared.     Nesavou Maka testified that his real estate agent gave him a copy of the 

covenant and told him he would have shared access over the entirety of the driveway. 

The Makas’ title insurer also disclosed the existence of the covenant. 

                6.       Subsequent status 

                Daniel Burke testified that he called the municipality four times inquring 

about building a fence in the driveway along the property line.                On the fourth call, the 

municipality      told  him    that  the  covenant     prevented     him   from    building   the   fence. 

                                                   -5-                                              6759

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Municipal   covenant   specialist   Inglis   testified   that   if   the   owners   of   Lots   9A   and   9B 

wanted to put in two separate driveways, the municipality would have no objection to 

rescinding the covenant, but that the municipality stood behind the covenant. 

                The Makas opposed the fence, primarily because it would restrict their 

ability to turn into their garage.   Nesavou Maka testified that a fence down the driveway 

would inevitably be hit because vehicles backing out of his property cross over the 

middle of the driveway. 

        B.      Procedural History 

                The Burkes filed suit to quiet title in March 2009, alleging that the covenant 

was invalid because of intervening transfers recorded between the covenant’s execution 

and recordation and that the Makas had no right to use any part of the Burkes’ property. 

The Makas answered, asserting the affirmative defenses of acquiescence to the Makas’ 

use of the shared driveway, prescriptive easement, adverse possession, and laches. 

                After    a  bench   trial,  the  superior   court   entered   findings    of  fact  and 

conclusions of law. The court concluded that laches barred the Burkes from challenging 

the covenant because of the following findings: the Burkes used the driveway as shared; 

the Burkes had notice that the Makas would believe the driveway to be shared; and the 

Burkes caused the Makas prejudice by failing to assert their claim to exclusive use. 

Alternatively the court concluded that the covenant was valid and that the Burkes did not 

qualify as bona fide purchasers without notice of the covenant.              The court rejected the 

Burkes’ proposed application of the Shelter Rule — a doctrine not adopted in Alaska but 

which the Burkes contended would provide them a right to void the covenant if the 

previous owner could have.         The court also concluded that even if the covenant were 

invalid, the Makas had established the elements of both a prescriptive easement and an 

implied easement to use the portion of the driveway on the Burkes’ property. 

                The court issued a final judgment establishing a mutual reciprocal easement 

                                                  -6-                                            6759

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and dismissing the Burkes’ claims with prejudice.            The Burkes appeal. 


        A.	     We Affirm The Superior Court’s Application Of Laches To Bar The 

                Burkes’ Claims. 

                Laches is an equitable defense available “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.”1                The 

application of laches may raise three issues for review.             The first issue is whether the 

doctrine of laches, as an equitable defense, may apply to the claim before the court.2 

This raises a question of law, which we review de novo.3              The second issue is whether 

the   facts   demonstrate   an   unreasonable   delay   and   a   resulting   prejudice.  This   raises 

questions of fact, which we review for clear error.4          Clear error exists when “we have a 

firm and definite conviction that a mistake has been committed.”5                 The third issue is 

whether, based on the facts, it was appropriate for the trial court to permit or deny laches. 

We review that determination for abuse of discretion,6  and we often explain that we will 

        1       Whittle v. Weber, 243 P.3d 208, 217 (Alaska 2010) (quoting State, Dep’t 

of Commerce & Econ. Dev., Div. of Ins. v. Schnell, 8 P.3d 351, 358-59 (Alaska 2000)). 

        2       See Gudenau v. Bang, 781 P.2d 1357, 1363 (Alaska 1989) (“Laches is an 

equitable defense inapplicable to actions at law.”). 

        3       Benson     v.  Benson ,   977    P.2d   88,  93   n.2  (Alaska    1999)    (explaining 

availability of equitable defenses, including laches, is question of law reviewed de novo). 

        4       See Foster v. State, 752 P.2d 459, 465 (Alaska 1988) (reviewing factual 

findings underlying laches defense for clear error). 

        5       Id. (quoting Pavlik v. State, Dep’t of Cmty. & Reg’l Affairs , 637 P.2d 1045, 

1047 (Alaska 1981)). 

        6       Whittle, 243 P.3d at 211-12. 

                                                  -7-	                                           6759

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not overturn the exercise of discretion “unless we have a definite and firm conviction that 

a mistake has been committed.”7         It may be more precise to ask “whether the reasons for 

the exercise of discretion are clearly untenable or unreasonable.”8 

                The Burkes challenge only the factual underpinnings of the superior court’s 

application of laches, arguing that they did not unreasonably delay in bringing suit and 

that the Makas failed to show prejudice.   The Burkes do not dispute the applicability of 

laches   to   the   claim   they   raised,   nor   do   they   otherwise   dispute   the   superior   court’s 

exercise of discretion in permitting the defense.            We focus our analysis, therefore, on 

whether the superior court’s findings of unreasonable delay and prejudice are clearly 


                The superior court found that when Lot 9B was placed on the market in late 

2005,   the   Burkes   worked   with   a   real   estate   agent   to   inspect   it   and   contemplated   a 

purchase offer.      At that time the Burkes were provided several disclosures, including a 

statement listing shared features with the word “driveways” underlined, and a report 

describing Lot 9B as “a flag lot with shared driveway.”             The report was initialed by the 

Burkes in November 2005.           Daniel Burke testified that his initials acknowledged the 

information on the form had been provided to him.                   The court also noted that upon 

commencement   of   this   litigation   the   Burkes   provided   the   Makas   with   supplemental 

disclosures,   including   the   statement   and   report   mentioned   above   and   a   copy   of   the 

covenant.   Each document described a shared driveway between Lots 9A and 9B.  The 

court noted that the Burkes had retained these documents.               Based on that evidence, the 

        7       See, e.g., id. (quoting  Young v. Williams, 583 P.2d 201, 204-05 (Alaska 

1978)) (internal quotation marks omitted). 

        8       See Lewis v. State, 469 P.2d 689, 695 (Alaska 1970) (applying “clearly 

untenable or unreasonable” standard to review discretion in admitting   evidence, but 

noting “[t]here is no general consensus as to what constitutes an abuse of discretion”). 

                                                   -8-                                             6759

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superior court found that as early as November 2005, the Burkes had received notice that 

Lot 9B was being marketed to prospective buyers as having a shared driveway. 

                The court found no indication that the Burkes informed the seller of Lot 9B 

or prospective buyers of their disagreement with the status of the driveway.                The court 

found that from the time they purchased Lot 9A in March 2004 until January 2009, the 

Burkes never asserted a right to the exclusive use of their side of the driveway and 

visibly used the driveway as shared. 

                The court found that the Makas relied on the title and on disclosures from 

their seller in assuming that they purchased Lot 9B with a shared driveway.                 The court 

found that by failing to make known their objection to the shared driveway, the Burkes 

deprived   the   Makas   of   information   material   to   their   purchase   of   Lot   9B   and   that 

deprivation prejudiced the Makas. 

                After reviewing the record and the superior court’s underlying findings, we 

are not left with a definite and firm conviction that the superior court mistakenly found 

unreasonable delay and prejudice.         We hold that the superior court’s ultimate findings 

of unreasonable delay and prejudice are not clearly erroneous, and because the Burkes’ 

appeal is limited to those findings, we affirm the superior court’s conclusion that laches 

bars the Burkes’ claims. 

        B.	     Affirming The Superior Court’s Application Of Laches Resolves The 


                Because we affirm the dismissal of the Burkes’ claims on the ground of 

laches, we do not need to address the Burkes’ arguments that the original covenant is 

invalid or non-binding; that a shelter rule allows the Burkes to assume the bona fide 

purchaser status of their predecessor; or that the Makas failed to establish the affirmative 

defenses of prescriptive or implied easement. 

                                                  -9-	                                           6759

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            The superior court’s decision is AFFIRMED. 

                                      -10-                                 6759

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