Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
®, the DeskTop In-and-Out Board makes your office run smoother.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Schweitzer v. Salamatof Air Park Subdivision Owners, Inc. (9/13/2013) sp-6825

Schweitzer v. Salamatof Air Park Subdivision Owners, Inc. (9/13/2013) sp-6825

         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  



CRAIG SCHWEITZER, AIRFLOW                                 )  

LEASING, LLC, and DON REESOR,                             )    Supreme Court No. S-14170  


                           Appellants,                    )  

                                                          )    Superior Court No. 3KN-05-00407CI  

         v.                                               )  

                                                          )    O P I N I O N  

SALAMATOF AIR PARK                                        )  

SUBDIVISION OWNERS, INC.,                                 )  

                                                          )    No. 6825 - September 13, 2013  

                           Appellee.                      )  


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


                  Judicial District, Kenai, Carl Bauman, Judge.  

                  Appearances:   Craig Schweitzer, pro se, Kenai, Appellant.  


                  William  Walton,  Walton,  Theiler,  &  Winegarden,  LLC,  


                  Kenai, for Appellant Airflow Leasing, LLC.  Don Reesor, pro  


                  se,  Las  Vegas,  Nevada,  Appellant.    Robert  J.  Molloy  and  

                  Kristine  A.  Schmidt,  Molloy  Schmidt  LLC,  Kenai,  for  


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

                  Stowers, Justices.  

                  WINFREE, Justice.  


                  A judgment debtor challenges the superior court's denial of an Alaska Civil  


Rule 60(b) motion  to  set aside an order permitting the sale of an airplane seized to  


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


execute on the judgment against him.   At the time of seizure, the airplane was in the  


process of being reconstructed and did not have certain identifying information attached  


to  it.    Third  parties  claimed  an  interest  in  the  seized  airplane.    After  an  evidentiary  

hearing the superior court determined that the judgment debtor had an interest in the  


airplane and permitted its sale.  But at that point the underlying judgment was paid by  


one of the third parties, and the execution sale did not occur.  The judgment debtor,  


joined by the third parties, filed a Rule 60(b) motion to set aside the order regarding  


ownership of the airplane. The superior court denied the Rule 60(b) motion and awarded  


attorney's fees to the judgment creditor and against the judgment debtor and the third- 

party claimants.  


                    Appealing the denial of the Rule 60(b) motion, the judgment debtor argues  


that the superior court's ownership decision is void for lack of subject matter jurisdiction  


because federal law  grants the Federal Aviation Administration sole power to "identify"  

aircraft.    He  also  argues  that  the  superior  court  improperly  modified  statutory  sale  


procedures, erred by not concluding that newly discovered evidence supported relief  

from the ownership decision under Rule 60(b)(2), and erred by awarding execution- 

related attorney's fees to the judgment creditor.  The third parties join in the judgment  

debtor's  appeal.    For  the  reasons  discussed  below,  we  affirm  the  superior  court's  




                    This appeal arises out of execution of judgment proceedings.  In January  


2009 the superior court entered a money judgment against Craig Schweitzer in favor of  


                                                                                                           The  Association  

 Salamatof  Air  Park  Subdivision  Owners,  Inc.  (the  Association). 

          1         See Schweitzer v. Salamatof Air Park Subdivision Owners, Inc., 278 P.3d  


 1267, 1269-71 (Alaska 2012) (describing underlying litigation).  

                                                                -2-                                                            6825  

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


conducted a judgment debtor examination to determine whether Schweitzer had assets  


                                                                                                          airplane parts  

available to satisfy the judgment.  Schweitzer testified that certain Otter 


in his airplane hangar belonged to Airflow Leasing, LLC, but that he did not know the  

Otter's serial or N number3 or who owned Airflow Leasing.  

                   The Association obtained a writ of execution and a process server seized  


a partially rebuilt Otter airplane and some parts from Schweitzer's hangar.  Schweitzer  


filed a claim of exemptions asserting that he had no ownership interest in the airplane,  


which he said was "De Havilland DHC-3 Otter N26DE, Serial #26."  Attached to the  


                                                                                                      and executed by  

claim of exemptions was an affidavit, made pursuant to AS 09.35.130 


Don Reesor on behalf of Airflow Leasing; Reesor claimed that the seized airplane was  


Otter N26DE and was owned by Airflow Leasing.  Airflow Leasing later requested an  

evidentiary hearing on its ownership interest in the seized property.  

          2        "Otter" refers to a de Havilland DHC-3   aircraft, built in Canada in the  

1950s and 1960s.  

          3        An "N number" is the Federal Aviation Administration's (FAA) registration  

number for United States registered aircraft.  See  14 C.F.R. §§ 45.23(a), 47.15 (2012).  

          4        AS 09.35.130 provides:  

                   If property levied upon is claimed by a third person as the  


                   person's property by an affidavit of title to the property, or  


                   right to the possession of the property and the ground of the  


                   title or right, stating the value of the property, and delivered  


                   to the person making the levy, that person shall release the  


                   property.  However, the plaintiff, on demand of the person,  

                   may  give  the  person  an  undertaking  executed  by  two  

                   sufficient sureties in a sum equal to double the value of the  

                   property levied upon.  The undertaking shall be in favor of  

                   and shall indemnify the third person against loss, liability,  


                   damages, and costs, by  reason of the taking or sale of the  


                   property by the person.  

                                                             -3-                                                      6825

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


                    After holding the requested evidentiary hearing, the superior court issued  


extensive written findings of fact and conclusions of law about the seized property.  The  


court found that the Association had seized a partially reconstructed single-engine Otter  


                                                                                                             It found that the  

with "no aircraft data plate, no airframe data plate, and no log books." 

seized Otter was reconstructed using parts from two different airplanes, Otter 398 and  

Otter 26.6  It found that Schweitzer was the owner of Otter 398 and Airflow Leasing was  


the owner of Otter 26.  The court found that Otter 398 previously was outfitted with a  



turbine engine and an up-gross STOL kit.                         The court found that Otter 26 previously was  


outfitted with a piston engine and without an up-gross STOL kit.  The court found that  


the seized airplane was equipped with a mount for a turbine engine and an up-gross  


STOL kit.  The court found that the seized Otter was "the partially re-built Otter 398 to  

which the tail section  from Otter 26 was affixed."  


                     The  superior  court  concluded  that  Airflow  Leasing  had  the  burden  of  


proving it owned the airplane because it did not have possession of the Otter at the time  


of seizure,  and that Airflow Leasing had failed to meet its burden.  The court concluded  


          5          Federal law requires an airplane manufacturer to attach   to an aircraft a  

fireproof identification plate containing certain information and restricts removal of this       

identification plate.  14 C.F.R. §§ 45.11-.13 (2012).  According to testimony at the  

evidentiary hearing, an airplane's log books contain information about both flight and  

repair history.  

          6          398 and 26 are the serial numbers of the respective aircraft.  



                    An "up-gross" modification increases the aircraft's maximum gross weight  


capacity.  A "STOL" (short takeoff and landing) kit is designed to increase the aircraft's  


short field takeoff and landing capabilities.  Both require physical modifications to the  


          8         See Keltner v. Curtis, 695 P.2d 1076, 1080 (Alaska 1985) (holding that  

when third party claims property in judgment debtor's possession, third party has burden  


                                                                -4-                                                          6825

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

that the Otter could be sold to satisfy the judgment against Schweitzer.   Modifying  

statutory execution procedures, the court then:  (1) delayed the sale so the parties could  


find the airplane data plate and log books for Otter 398; (2) required the process server  


to re-advertise the new sale date "in a manner that is reasonably likely to reach interested  


wrecked Otter buyers globally"; and (3) ordered that any excess proceeds be paid into  

the  court  registry,  rather  than  to  Schweitzer,  to  give  others  who  might  claim  an  

ownership interest in the airplane an opportunity to be heard.  

                    In June 2010 Reesor paid the Association $85,000 to satisfy the underlying  

judgment against Schweitzer and assumed possession of the seized airplane and parts.  

No execution sale was held.  


                    After the superior court's decision, the Association asked the court to enter  


a partial final judgment on the ownership issue and to award it attorney's fees as the  

prevailing party in the contested evidentiary hearing.  The Association sought fees jointly  


and severally against Schweitzer, Reesor, and Airflow Leasing, relying on AS 09.35.130  


and AS 09.38.080(e) as well as Rules 82 and 89.  Airflow Leasing opposed and asked  


the court to award it attorney's fees as the prevailing party because the court found that  


Airflow Leasing was the owner of Otter 26.  Airflow Leasing argued in the alternative  


that because the proceeding was a post-judgment collection action, no one was entitled  

to attorney's fees.  


                    In September 2010 Schweitzer filed a Rule 60(b) motion for relief from the  


superior court's ownership decision, along with a letter from the FAA giving Reesor  


permission to install a replacement identification plate on Otter 26.  Schweitzer argued,  

under  Rule  60(b)(4),  that  the  ownership  decision  was  void  because  federal  law  

          8         (...continued)  

of proving ownership).  

                                                              -5-                                                           6825  

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

preempted the court's jurisdiction to "identify" the seized aircraft.  He also argued, under  


Rule 60(b)(2), that new evidence, primarily the FAA letter, also supported setting aside  

the ownership decision.  Airflow Leasing joined in Schweitzer's Rule 60(b) motion.  


Schweitzer also opposed the Association's motion for attorney's fees resulting from the  


evidentiary hearing related to ownership, arguing that, because the judgment was void,  

the Association could not be the prevailing party.  

                    The superior court denied the Rule 60(b) motion in December 2010 and  


awarded  attorney's  fees  to  the  Association  against  Schweitzer  relating  only  to  the  


Rule 60(b) proceedings.  The superior court awarded Rule 82 enhanced attorney's fees  


to the Association against Reesor and Airflow Leasing for work related to the evidentiary  

hearing and Rule 82 non-enhanced attorney's fees for the time period May through  


November 2010.  On December 29, 2010 the court entered a partial final judgment on  

the seized property's ownership.  

                    Schweitzer  appeals  the  denial  of  the  Rule  60(b)  motion,  the  court's  


modification of the sale procedure, and the attorney's fees award.  Reesor and Airflow  

Leasing join in Schweitzer's appeal and rely on Schweitzer's briefing.  


                    Typically,  the  superior  "court's  ruling  on  an  Alaska  Civil  Rule  60(b)  


motion is reviewed for abuse of discretion; it will not be disturbed unless we are left with  


'the  definite  and  firm  conviction  on  the  whole  record  that  the  judge  ha[s]  made  a  



mistake.' "   But "no question of the [superior] court's discretion is presented by a Rule  



60(b)(4) motion because the validity of a judgment is strictly a question of law." 

          9         Williams  v.  Williams,  252  P.3d  998,  1004   (Alaska  2011)  (alteration  in  

original) (quoting Thomas v. Thomas, 581 P.2d 678, 679 (Alaska 1978)).  

          10       Aguchak v. Montgomery Ward Co. , 520 P.2d 1352, 1354 (Alaska 1974).  

                                                             -6-                                                           6825  

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

a Rule 60(b)(4) motion alleging a lack of subject matter jurisdiction is reviewed de  



                    "We  review  a  trial  court's  prevailing  party  determination  for  abuse  of  



discretion, which we find only if the determination is 'arbitrary, capricious, manifestly  


unreasonable,   or   improperly   motivated.'   "                          We   review   the   superior   court's  



interpretation of court rules de novo.                  Interpretation of a statute is a question of law that  



we review using our independent judgment.                            We "adopt the rule of law that is most  

persuasive in light of precedent, reason, and policy."15  

IV.           DISCUSSION  


          A.           The Superior Court Had Subject Matter Jurisdiction And Correctly  


                    Denied The Rule 60(b)(4) Motion.  


                    Schweitzer, joined by Reesor and Airflow Leasing, argues that the superior  


court erred in denying his Rule 60(b)(4) motion because the ownership judgment is void  


for  lack  of  subject  matter  jurisdiction.                     Conceding  that  the  superior  court  had  


jurisdiction to determine ownership of the seized airplane, he nonetheless claims that  

          11       See Barlow v. Thompson, 221 P.3d  998, 10                      01  (Alaska 2009) ("Whether a  

superior court has jurisdiction is a question of law that we review de novo." (citing  

Atkins v. Vigil , 59 P.3d 255, 256 (Alaska 2002))).  

          12       HP Ltd. P'ship v. Kenai River Airpark, LLC , 270  P.3d 719, 727 (Alaska  

2012) (quoting Taylor v. Moutrie-Pelham, 246 P.3d 927, 928-29 (Alaska 2011)).  

          13       Enders v. Parker , 66 P.3d 11, 13 (Alaska 2003).  

          14       Anderson  v.  Alyeska  Pipeline  Serv.  Co. ,  234  P.3d  1282,  1286  (Alaska  


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

          16        Rule 60(b)(4) provides:   "On motion and upon such terms as are just, the  

court may relieve a party or a party's legal  representative from a final judgment, order,  

or proceeding [if] . . . the judgment is void . . . ."  

                                                             -7-                                                             6825

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

"[w]hen the trial court moved beyond determination of ownership and into the arena of  


 [airplane] identification, it entered into a field totally preempted by federal jurisdiction."  

He  argues  that  Alaska  statutes  do  not  confer  jurisdiction  on  the  superior  court  to  

"identify"  airplanes.    He  does  not  explain  what  "identification"  is  in  the  context  of  

federal aviation law or how it differs from the common meaning of "identification."  


                    The Association responds that Schweitzer and Airflow Leasing placed the  

airplane identity issue before the superior court in the claim of exemptions and that  


Alaska statutes provide for determination of issues related to exemptions.  It also argues  


that  there  is  no  conflict  between  Alaska  statutes  and  federal  aviation  law,  and  that  

Congress did not intend to preempt state court airplane-ownership decisions.  


                    The superior court is the court of general jurisdiction in Alaska.                               We have  


previously  recognized  that  the  superior  court  has  the  inherent  power  to  resolve  


ownership disputes related to property seized to satisfy a judgment and does not require  


specific statutory authorization to do so.                       No one here questions the superior court's  

power to determine ownership of the seized airplane, yet the question of ownership  

essentially was all the superior court decided.  


                    When the airplane was seized, the data plate had been removed.  As a result  


the superior court could not use this information in determining who owned the seized  


property.  Schweitzer and Airflow Leasing took the position that the seized airplane was  


Otter 26 and asked the superior court to recognize it as such; Schweitzer does not point  


to any argument made before the superior court asking it to defer to the FAA on the issue  

          17        AS  22.10.020(a)  ("The  superior  court  is  the  trial  court  of  general  

jurisdiction, with original jurisdiction in all civil and criminal matters . . . .").  

          18        Keltner v. Curtis , 695 P.2d 1076, 1079 & n.4 (Alaska 1985).  

                                                              -8-                                                            6825  

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

of identifying the airplane.19  

                   The evidentiary hearing's purpose was to consider Reesor and Airflow  


Leasing's claim that Airflow Leasing owned the seized property, which they identified  


as  Otter  26.    After  taking  evidence,  the  superior  court  determined  that  Reesor  and  


Airflow Leasing owned Otter 26  and that the tail of Otter 26 was part of the seized  


airplane.  To protect Airflow Leasing's interest, the superior court modified the sale  

process by requiring that any excess money from the sale be paid into the court registry  

rather than to Schweitzer directly.  

                   Although the superior court decided that the "former tail section of Otter  


26" became part of Otter 398 and that the seized property was "the partially re-built Otter  


398," it did not, as Schweitzer claims, "attempt[] to direct" the installation of a data plate  


on the seized aircraft.  Instead it recognized that the seized airplane was composed of  

parts of two different airplanes; found that Airflow Leasing owned Otter 26, the tail  


section of the seized airplane; and rejected Schweitzer's testimony that he no longer  

owned Otter 398.  Because Schweitzer owned Otter 398, the superior court concluded  

the Otter could be sold to satisfy the judgment.  Neither Schweitzer nor Reesor and  

Airflow Leasing appealed the merits of the superior court's ownership decision.  


                   Schweitzer  argues that sections of 14 C.F.R. Part 45 preempt any state  


identification of aircraft.  Federal regulations govern a manufacturer marking an aircraft  


with  identification  and  restrict  alteration  of  that  identification.                         But  nothing  in  the  

regulations expressly prohibits a state court from looking beyond the registration number  

          19       The record reflects that the FAA was aware of the contested ownership  

proceeding and asked the attorneys for the Association and Airflow Leasing to inform  


the court that the FAA had "no position" about the aircraft's  identification at the time  

of the ownership hearing.  

          20        14 C.F.R. §§ 45.10-45.16 (2012).  

                                                             -9-                                                      6825

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

to determine ownership, particularly when there is no identifying information on the  



aircraft at the time it is seized.                           In this case the court had to identify, in the common  


sense  of  the  word,  what  the  Association  had  seized  to  determine  whether  Airflow  


Leasing had an ownership interest in the property; the court did not usurp the FAA's role  


in regulating airplane safety                        or providing a central clearinghouse for recording interests  

in civil airplanes.23  


                        Congress  has  specifically  stated  that  a  certificate  of  registration  is  not  


evidence  of  ownership.                           And  the  record  shows  that  the  FAA  was  aware  of  the  


ownership litigation but took no position in the dispute.  Finally, as shown by the FAA's  

later  permission  to  place  a  replacement  data  plate  on  Otter  26,  the  superior  court's  


decision also did not stand as an obstacle to the enforcement or implementation of federal  



airplane identification regulations, which would be the basis for federal preemption. 


The superior court had subject matter jurisdiction to decide what the Association had  

seized and who owned it, and the court correctly denied the Rule 60(b)(4) motion.  

            21          Cf. Omni Holding & Dev. Corp. v. 3D.S.A., Inc.                                        , 156 S.W.3d 228, 239-40  

(Ark. 2004) (affirming trial court decision that determined ownership of airplane when     

data plates on two airplanes had been switched).  

            22          See Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 368-69 (3d Cir. 1999)  

(identifying purpose of FAA as regulating air safety).  



                        See Philko Aviation, Inc. v. Shacket , 462 U.S. 406, 411 (1983).  

            24          49 U.S.C. § 44103(c) (2006) ("A certificate of registration issued under this  

section  is  .  .  .  not  evidence  of  ownership  of  an  aircraft  in  a  proceeding  in  which  

ownership is or may be in issue.").  

            25          Cf.  Philko  Aviation,  462  U.S.  at  410  (citations  omitted)  (holding  that  


Federal          Aviation           Act       recording            requirement              preempted              state      laws        permitting  


undocumented or unrecorded transfers of aircraft because of direct conflict between  

federal and state laws).  

                                                                           -10-                                                                     6825

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

          B.          The Superior Court Did Not Abuse Its Discretion In Denying Relief  

                   From Judgment Under Rule 60(b)(2) Based On Schweitzer's Offered  



                   Schweitzer, joined by Reesor and Airflow Leasing, also argues two pieces  

of new evidence filed with his Rule 60(b) motion entitled him to relief from the superior  



court's ownership decision.                 The first is a letter from an FAA maintenance inspector  

approving the installation of a replacement data plate on Otter 26.  The second is a  


replacement data plate issued by the manufacturer for Otter 26.   The superior court  


denied  relief,  ruling  that  the  new  evidence  had  no  bearing  on  its  prior  ownership  



                   This court has held  that five elements must be met before a  movant  is  

                                                     27  "The newly discovered evidence must:  (1) . . .  


entitled to relief under Rule 60(b)(2).  

probably change the result on a new trial; (2) have been discovered since the trial; (3) be  


of such a nature that it could not have been discovered before trial by due diligence;  

(4) be material; (5) not be merely cumulative or impeaching."28  

                   We find no abuse of discretion in the superior court denying relief under  


Rule 60(b)(2).  As noted above, FAA registration is not evidence of ownership, and it  


          26          Rule 60(b)(2) provides:   

                   On motion and upon such terms as are just, the court may  

                   relieve a party or a party's legal representative from a final  

                   judgment, order, or proceeding for the following reasons: 

                              . . .  

                   (2) newly discovered evidence which by due diligence could  

                   not  have  been  discovered  in  time  to  move  for  a  new  trial  

                   under Rule 59(b) . . . .  

          27       Babinec v. Yabuki, 799 P.2d 1325, 1332-33 (Alaska 1990).  

          28          Id.  

                                                           -11-                                                      6825

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


is clear from the superior court's lengthy recitation of the basis for its ownership decision  


when denying Schweitzer's Rule 60(b)(2) motion that this evidence would not have  

changed the ownership decision on a new trial.29  

          C.           Whether The Superior Court Improperly Modified The Statutory Sale  

                    Procedures Is Moot.  


                    The superior court found good cause to modify the sale procedures codified  


at AS 09.35.110, .140, .150, and .160.  Based on Schweitzer's disclaimer of interest in  


the Otter and Airflow Leasing's ownership of Otter 26, the superior court modified the  


procedure under AS 09.35.110 by ordering any excess sale proceeds to be paid into the  


court's registry.  It also modified the procedure outlined in AS 09.35.140, .150, and .160  


by requiring that the sale proceed no earlier than 45 days from the decision's distribution  


date and requiring the Association to advertise the sale "in a manner that is reasonably  

likely  to  reach  interested  wrecked  Otter  buyers  globally."    It  appears  that  the  

modifications  to  the  process  were  intended  to  increase  the  sale  value  of  the  seized  

property, to the benefit of all parties.  


                    Schweitzer, joined by Reesor and Airflow Leasing, argues that the superior  

court's modifications constitute reversible error.  The Association responds that this issue  


is waived for inadequate briefing and is moot.  Because we hold this issue is moot, we  

do not consider the Association's alternative arguments.  

                    The seized Otter actually was not sold at an execution sale.  Reesor paid the  


Association $85,000 to satisfy the judgment against Schweitzer and took possession of  


the Otter.  "A claim is moot if it is no longer a present, live controversy, and the party  



                    We therefore do not reach the question whether newly discovered evidence  


under Rule 60(b)(2) must have existed at the time of the original trial.  Cf. Nat'l Labor  


Relations Bd. v. Jacob E. Decker & Sons , 569 F.2d 357, 364 (5th Cir. 1978) (stating  

general federal rule that "evidence must be in existence at the time of the trial").  

                                                              -12-                                                                  6825  

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



bringing  the  action  would  not  be  entitled  to  relief,  even  if  it  prevails."                               Because  


Schweitzer, Reesor, and Airflow Leasing have not shown they would be entitled to relief  


even if they prevailed on this issue, it is moot.  The superior court's modification of the  

sale procedure also does not impact prevailing party status, so we have no reason to  

consider it in reviewing the attorney's fees awarded here.31  

          D.        The Court Did Not Err In Awarding Attorney's Fees.  

                    1.        Fees against Schweitzer  

                    Schweitzer argues that the Association cannot be considered the prevailing  


party because the superior court had no subject matter jurisdiction to enter its April 2010  


ownership decision - we rejected this argument above.  He also argues that attorney's  


fees cannot be awarded in post-judgment proceedings and his involvement in the hearing  


on his claim of exemptions cannot support an award of attorney's fees against him.  


                    The  superior  court  awarded  the  Association  $3,000  in  attorney's  fees  


against Schweitzer for the time period of September 9, 2010, through November 2010.  

This time period began with Schweitzer's Rule 60(b) motion; the superior court awarded  

fees against Schweitzer only for the time that he actively participated in the litigation.  


                    In Torrey v. Hamilton we stated that Rule 82 "only provides compensation  


for attorney's services performed up to the time of the judgment"; Rule 82 cannot serve  

as a basis for awarding post-judgment attorney's fees against a judgment debtor for  

          30        Schweitzer v. Salamatof Air Park Subdivision Owners, Inc., 278 P.3d 1267,   

1272  (Alaska  2012)  (quoting Fairbanks  Fire  Fighters  Ass'n,  Local  1324  v.  City  of  

Fairbanks , 48 P.3d 1165, 1167 (Alaska 2002)) (internal quotation marks omitted).  



                    See id. at 1272-73 (considering otherwise moot issue to evaluate prevailing  

party status for attorney's fees).  

                                                             -13-                                                        6825

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



collecting on the judgment.                  Schweitzer relies on Torrey to argue that the superior court  


erred in awarding fees against him.  But, as we have recognized previously, Torrey does  


                                                                                           Torrey applies to attorney's  

not prohibit all awards of post-judgment attorney's fees.  


fees  awarded  under  Rule  82,  but  Torrey  is  not  controlling  here  because  there  is  an  

independent statutory basis for the attorney's fees award.34  


                     Schweitzer initiated the relevant post-judgment proceedings by filing a  


putative claim of exemptions, alleging that he had no ownership interest in the seized  


airplane.  After the ownership hearing the superior court issued an order denying his  


claim of exemptions.  Alaska Statute 09.38.080(e), part of the Alaska Exemptions Act,  


authorizes a court to award "costs" to the prevailing party in a hearing on a claim of  



exemptions.             We have held that when encountered in a statute, "the term 'costs' is  

          32         872 P.2d 186, 187-88 (Alaska 1994).  

          33        See, e.g., O'Connell v. Will, 263 P.3d 41, 46 (Alaska 2011) (holding that   

contractual fee provision authorized award of attorney's fees for collection of judgment).   

          34        See Torrey, 872 P.2d at 187-88 (explaining "the award in this case is not  

authorized under Civil Rule 82").  

          35        AS 09.38.080(e) provides:  

                     If any question arises as to the rights of an individual entitled  

                    to an exemption under this chapter, an interested person may  


                     file with the clerk of the court from which the process issued  

                     a  statement  of  the  claim  of  exemptions  and  the  question  

                    raised.  The statement shall be referred to the court as soon as  


                    practicable thereafter.  The court shall order that notice of a  


                    hearing be given.  After hearing the matter, the court shall  


                    make findings and issue an appropriate order.  The court may  

                     award to the prevailing party costs of a proceeding under this  



                                                               -14-                                                          6825

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

generally construed in Alaska to include attorney's fees."36  Although the superior court  


did not require Schweitzer to pay any attorney's fees related to the evidentiary hearing  

itself,   we   agree   with   the   Association   that   Schweitzer   "set   off   the   'disputed  

ownership/seized  property  fray'  "  by  filing  his  putative  claim  of  exemptions.    His  

Rule 60(b) motion sought to set aside the ownership decision, which was the outcome  


of  the  exemption  hearing;  the  superior  court  thus  was  authorized  to  award  the  

Association attorney's fees as the prevailing party on Schweitzer's putative claim of  

exemptions and his associated motion to set aside the ownership decision.  

                   2.       Fees against Reesor and Airflow Leasing  


                   We also affirm the award of attorney's fees against Reesor and Airflow  

Leasing.    Reesor  and  Airflow  Leasing  join  in  Schweitzer's  arguments  that  Torrey  


prohibits post-judgment awards of attorney's fees and that AS 09.35.130, the statute on  

which they based their ownership claim in the superior court, does not authorize post- 

judgment awards of attorney's fees.  The Association maintains that the trial court's  

determination  that  Reesor  and  Airflow  Leasing  were  the  "functional  equivalent"  of  

claimants in a replevin action was correct and should be the basis for affirming the  

attorney's fees award.  


                   Although Alaska law does not generally allow an award of fees against a  


judgment debtor for attorney's fees related to executing on a judgment absent a statutory  

or contractual provision authorizing an award of fees,37 Reesor and Airflow Leasing were  


not judgment debtors.  Instead, they were third-party claimants who affirmatively asked  

          36       Kenai Peninsula Borough v. Port Graham Corp. , 871 P.2d 1135, 1141   

(Alaska 1994).  

          37       See O'Connell, 263 P.3d at 46 (construing contract as permitting attorney's  


fees for collection efforts); Torrey, 872 P.2d at 187-88 (holding that costs of collection  


did not include post-judgment attorney's fees).  

                                                          -15-                                                     6825

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


the court to find that the seized airplane was Otter 26, find that Airflow Leasing owned  


it, and order the Association to return it. Their request for an evidentiary hearing and the  


ensuing litigation was effectively a new action with different parties; as we stated in  

Keltner  v.  Curtis ,  the  relief  sought  in  a  proceeding  on  a  third-party  claim  under  


                                                                      Rule 82 fees can be awarded to the  

AS 09.35.130  is similar to a replevin action. 


prevailing party in a replevin action.                   It seems likely that had Reesor and Airflow  

Leasing prevailed on the ownership claim, they would have been entitled to a Rule 82  


attorney's fees award, at the very least.                   Because the superior court did not abuse its  


discretion in finding that the Association was the prevailing party with respect to Reesor  

and  Airflow  Leasing's  ownership  claim,  its  Rule  82  fees  award  against  them  was  


V.        CONCLUSION  

                   We AFFIRM the superior court's judgment.  

          38       695 P.2d 1076, 1079 n.5 (Alaska 1985).

         39        Haskins v. Shelden , 558 P.2d 487, 495-96 (Alaska 1976).

          40       Cf. AS 09.35.130 (outlining indemnity provisions when third party claims

interest in seized property).  

                                                          -16-                                                        6825  

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights