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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Windel v. Carnahan (9/23/2016) sp-7128

Windel v. Carnahan (9/23/2016) sp-7128

           Notice:   This opinion is subject to correction before publication in the P                        ACIFIC  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  

                                                                                                                                

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                        THE SUPREME COURT OF THE STATE OF ALASKA                                          



KEVEN  WINDEL  and  MARLENE                                        )  

WINDEL,                                                            )           Supreme  Court  No.  S-15801  

                                                                   )  

                                  Appellants,                                                                                              

                                                                   )           Superior Court No. 3PA-05-01317 CI  

                                                                   )  

                       v.                                                                           

                                                                   )           O P I N I O N  

                                                                   )  

                    

THOMAS CARNAHAN,                                                                                                            

                                                                   )          No. 7128 - September 23, 2016  

                                                                   )  

                                  Appellee.                        )  

                                                                   )  



                                                                                                                   

                                     

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

                                                                                              

                       Judicial District, Palmer, Vanessa White, Judge.  



                                                                                                                      

                       Appearances:              Kenneth  P.  Jacobus,  P.C.,  Anchorage,  for  

                                                                                                               

                       Appellants. Chris D. Gronning, Bankston Gronning O'Hara,  

                                                           

                       P.C., Anchorage, for Appellee.  



                                                                                                                     

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

                                                                                      

                       Bolger, Justices.   [Fabe, Justice, not participating.]  



                                              

                       MAASSEN, Justice.  



                                               

I.         INTRODUCTION  



                                                                                                                                               

                       This case has returned to us for review of the superior court's decision of  



                                                                                                                                     

attorney's fees issues following our remand in Windel v. Mat-Su Title Insurance Agency,  



                           1  

                                                                                                                                           

Inc.  (Windel I).              The underlying lawsuit involved the validity of an easement that  



           1           305 P.3d 264 (Alaska 2013).                        Windel I    encompassed claims against a title                    



                                                                                                                           (continued...)  


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

Thomas Carnahan claimed extended over property belonging to Keven and Marlene                                                                                                                                                                                                                                                                                                                       



Windel,  as  well   as   Carnahan's   responsibility   for   damage   allegedly   caused   by  



improvements within that easement. The substantive issues were resolved in Carnahan's                                                                                                                                                                                                                                                                                                  



favor in                                Windel I  , but we remanded the case to the superior court for its reconsideration                                                                                                                                                                                                                                        



of attorney's fees issues.                                                                                                         On remand, the superior court awarded attorney's fees to                                                                                                                                                                                                                                         



Carnahan under Alaska Civil Rule 68, finding that, when the case was viewed in its                                                                                                                                                                                                                                                                                                                                                 



entirety, he had prevailed and had done better than his offer of judgment.                                                                                                                                                                                                                                                                                                       



                                                                   The Windels again appeal.                                                                                                              They argue that the superior court erred in its                                                                                                                                                                           



analysis of Rule 68, failed to decide whether Carnahan's offer of judgment was valid,                                                                                                                                                                                                                                                                                                                              



and erred in disregarding objections to specific billing entries in Carnahan's claim for                                                                                                                                                                                                                                                                                                                                        



fees.   We conclude that the superior court did not err in its Rule 68 analysis or in its                                                                                                                                                                                                                                                                                                                                          



attorney's fees award, and we therefore affirm the judgment of the superior court.                                                                                                                                                                                                                                                                                                                                         



II.                               FACTS AND PROCEEDINGS                                                    



                                 A.                                First Appeal And Our Decision In                                                                                                                                                        Windel I   



                                                                   On their first appeal in 2011, the Windels challenged the superior court's                                                                                                                                                                                                                                                               



rulings that Carnahan's claimed easement across their property was valid, that Carnahan                                                                                                                                                                                                                                                                                                         



was not responsible for the easement's continued maintenance, and that Carnahan was                                                                                                                                                                                                                                                                                                                                         

                                                                                                                                                                                                                                                                                     2           In  Windel I we affirmed the  

entitled to an award of attorney's fees under Rule 68.                                                                                                                                                                                                                                                                                                                                                                         



                                  1(...continued)  



                                                                                                                                                                                                                                                                            

insurance company that are no longer at issue on this appeal.  



                                 2                                Id.  at 270.                                         Rule 68 provides, in essence, that when a party offers to allow                                                                                                                                                                                                                              



the entry of judgment for specified                                                                                                                                                        terms, the other party rejects the offer, and the                                                                                                                                                                                  

offering party goes on to achieve a result more favorable than the terms of its offer, the  

                                                                                                                                                                                                                                                                                                                                                                                                                                

offering party will be deemed the prevailing party and will be entitled to an enhanced                                                                                                                                                                                                                                   

award of attorney's fees compared to that recoverable under Alaska Civil Rule 82.  

                                                                                                                                                                                                                                                                                                                                                                                                            



                                                                                                                                                                                                                  -2-                                                                                                                                                                                                   7128
  


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

                                                                                                      3  

superior court's ruling that the easement was valid                                                     and held that the superior court did                             



not err in declining to hold Carnahan responsible for the easement's future maintenance                                                               

                                       4   But we remanded the case to the superior court for reconsideration  

and improvements.                                                                                                                                

of attorney's fees.5  

                            



                           On appeal the Windels had made alternative arguments about attorney's  

                                                                                                                                                           



fees, involving both Rule 68 and Rule 82.  The Rule 68 arguments stemmed from an  

                                                                                                                                                                           



offer of judgment Carnahan made in 2006, a year after the Windels filed suit.  The offer  

                                                                                                                                                                      



of  judgment  had  four  essential  terms:                                          (1)  a  declaratory  judgment  that  Carnahan's  

                                                                                                                                                        



claimed easement was valid; (2) payment to the Windels of $10,000 in trespass damages;  

                                                                                                                                                             



(3) an award of attorney's fees and costs to the Windels; and (4) dismissal of Carnahan's  

                                                                                                                                                         

counterclaims.6                   The Windels did not accept the offer.7  

                                                                                                                  



                           The Windels' first Rule 68 argument on appeal was based on a partial  

                                                                                                                                                                  



settlement  agreement  reached  in  early  2009,  after  the  superior  court  had  ruled  on  

                                                                                                                                                                          



summary judgment that Carnahan's claimed easement was valid.  Under the settlement  

                                                                                                                                                           



agreement the parties dismissed their remaining damages claims against each other  

                                                                                                                                                                    



except with regard to the Windels' recently raised nuisance abatement claim, which  

                                                                                                                                                                   



allegedthey weredamagedwhenwork within theeasement exacerbated ponding on their  

                                                                                                                                                                       



             3             Id.  at 270-73.
   



              4            Id.  at 274.
   



              5
           Id. at 281.  

                                                  



              6            Id.  at 268.   



              7            Id.  



                                                                                     -3-                                                                             7128
  


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

                   8  

property.   For the nuisance abatement claim, the parties agreed to hire an independent                                                               



engineer to evaluate its basis and recommend a resolution; if either party declined to                                                                                    



accept the engineer's recommendation they would submit the claim to the judge for                                                                                       

                  9   The Windels argued in the first appeal that this partial settlement agreement  

decision.                                                                                                                                                 



resolved all claims for attorney's fees incurred up to early 2009, when they asserted their  

                                                                                                                                                                      



nuisance abatement claim.  

                                                         



                           The Windels' second Rule 68 argument was that if the partial settlement  

                                                                                                                                                          



agreement did not resolve the attorney's fees issues, it was error for the superior court  

to decide that Carnahan beat his offer of judgment.10  

                                                                                                             



                           The Windels' Rule 82 arguments addressed the superior court's decision  

                                                                                                



that the case could be divided into two segments for purposes of attorney's fees: the first  

                                                                                                                                                                       



"concerning the validity of the easements and associated damages issues, and the second  

                                                                                                                                                                 

solely regarding the nuisance claim."11  The superior court decided that Carnahan was  

                                                                                



the prevailing party in the first segment because he beat his offer of judgment but that  

                                                      

                                                                                             12   The Windels argued that for Rule 82  

neither party prevailed in the second segment.                                                                                                                           

                                                                            



purposes the case should be considered not as separate segments but as a whole, and that  

                                                                                                                                                                       



under such an analysis neither party prevailed because one main issue, the validity of the  

                                                                                                                                                                         



easement, was resolved in Carnahan's favor and the other main issue, nuisance, was  

                                                                                                                                                                      



              8            Id.  at 269.
   



              9            Id.
  



              10
          Id. at 277.  

                                                 



              11           Id.  at 276 (quoting the superior court's order).                               



              12           Id.  



                                                                                    -4-                                                                             7128
  


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

                                                                 13  

resolved in the Windels' favor.                                      Alternatively, the Windels maintained that under a                                                      



bifurcated analysis they should have been considered the prevailing parties because the                                                                                  



case's first segment settled (and Carnahan was therefore entitled to no fees for it) and                                                                                



                                                                                                                                                          14  

they prevailed in the second part, which involved only their nuisance claim.                                                                                   



                           In  Windel  I "we  first  reject[ed]  the  Windels'  argument  that  the  2009  

                                                                                                                                                                     



settlement agreement resolved attorney's fees for the litigation up to the point of the  

                                                                                                                                                                         

settlement."15   Noting that an amendment to the settlement agreement stated that "[t]he  

                                                                                                                                                                    

final judgment will be subject to motions for costs and attorney's fees, and to appeal,"16  

                                                                                                                                                            



we determined that the agreement "clearly reflect[ed] that the parties expected and left  

                                                                                                                                                                         



open questions of which party would be entitled to recover costs and attorney's fees for  

                                                                                                                                                                          



both the litigation up to the settlement agreement and the anticipated future litigation  

                                                                                                                                                             

                                                                                                   17     We  therefore  concluded  that  the  

over  the  equitable  nuisance  abatement  claim."                                                                                                                      

                                                                                   



settlement agreement did not preclude Carnahan from recovering attorney's fees for the  

                                                                                                                                                                          

entire litigation.18  

              



                           We then considered whether the superior court had correctly determined  

                                                                                                                                                         



that  Carnahan  beat  his  offer  of  judgment  as  to  the  first  part  of  the  litigation.                                                                          We  

                                                                                                                                                                        



remanded the Rule 68 issue to the superior court, concluding that "on the record before  

                                                                                                                                                                   



us it [was] impossible to determine whether (1) it was permissible to limit the application  

                                                                                                                                                         



              13           Id.  at 277.   



              14  

                                  

                           Id.  



              15  

                                  

                           Id.  



              16           Id. at 278 (emphasis in original).  

                                                                           



              17  

                                  

                           Id.  



              18  

                                       

                           Id. at 279.  



                                                                                     -5-                                                                             7128
  


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

of Rule 68 to a bifurcated portion of the superior court proceedings, and (2) Carnahan   



                                               19  

 'beat' his offer of judgment."                                                                                         

                                                    Noting that the purpose of Rule 68 is "to encourage  

 settlements and avoid prolonged litigation,"20 we held that "an offer of judgment must  



                                                                21  We observed that Carnahan had "attempted  

encompass every claim in the litigation."                                                                               

                                                



to comply" with the requirement that "an offer of judgment [must] include all claims  

                                                                                                                              



between the parties and be capable of completely resolving the case by way of a final  

                                                                                                                                  

judgment if accepted"22 by including language in his offer that "seem[ed] broad enough  

                                                                                                                             



to include not only Carnahan's post-offer assertion of a counterclaim for easement- 

                                                                                                                        



interferencedamages,but also theWindels' post-offer assertion ofnuisancedamages and  

                                                                                                                                   

equitable  abatement  relief."23                   We  concluded  that  the  superior  court's  decision  to  

                                                                                                                                     



bifurcate the litigation for attorney's fees purposes was "unexplained and appear[ed]  

                                                                                                                



                                                                            24  

contrary to our stated interpretation of Rule 68."                               

                                                                      



                     We observed that because of the "open bifurcation question," we were  

                                                                                                                                 

                                                                                                              25   If the offer of  

unable to determine whether Carnahan had beat his offer of judgment.                                                                  

                                                                                                



judgment properly applied to the entire litigation, then the superior court's comparison  

                                                                                                                      



of the offer to the litigation only up to the time of the partial settlement would have been  

                                                                                                                                 



           19        Id.   



           20        Id.  (citing  Mackie  v.  Chizmar,  965  P.2d   1202,   1205  (Alaska   1998)).  



           21        Id.   at   279-80   (citing  Progressive   Corp. v. Peter   ex   rel.  Peter,   195   P.3d  



 1083,   1088  (Alaska  2008)).   



           22        Id.  at  280  (quoting  Progressive  Corp.,   195  P.3d  at   1088).  



           23        Id.  (footnote  omitted).  



           24        Id.  (citing  Progressive  Corp.,   195  P.3d  at   1088).  



           25        Id.   



                                                                  -6-                                                           7128
  


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

           26  

error.            We   also   noted   that   if   on   remand   the   superior   court   considered   the   entire  



litigation for purposes of the comparison, it should consider efforts Carnahan made                                                                                 



voluntarily in 2007 to abate potential damage to the Windels' property as well as "the   



additional court-ordered nuisance remediation" that resulted from the superior court's                                                                           

later decision of the Windels' nuisance abatement claim.                                                           27  



                           Finally, we addressed the issue of Rule 82 fees in case the superior court  

                                                                                                                             

found on remand that Carnahan was not entitled to fees under Rule 68.28   We noted that  

                                                                                                                                                                        



there was "considerable tension" in the superior court's treatment of the attorney's fees  

                                                                                                                                                                        



issues when it first considered the litigation as a whole - determining that Carnahan  

                                                                                                                                                            



prevailed on the "main issue" of the validity of the easement - but then decided that the  

                                                                                                                                                                          

case  could  be  bifurcated  and  treated  as  two  segments.29                                                            We  pointed  out  that  the  

                                                                                                                                                                         



bifurcation "suggests the [superior] court then considered the litigation to include two  

                                                                                                                                                                        

main issues": the validity of the easement and the Windels' nuisance abatement claim.30  

                                                                                                                                                                                 



We also observed that "[t]here should be little dispute" that Carnahan prevailed on the  

                                                                                                                                                                         



issue of the easement's validity; we suggested, however, that "if, as it seems, the superior  

                                                                                                                                                               



court considered the equitable nuisance abatement claim as another main issue, . . . it  

                                                                                                                                                                           



may be difficult to sustain a determination that neither party prevailed on this issue" in  

                                                                                                                                                                            



              26           Id.  



              27           Id.   



              28           Id.  

                                  



              29  

                                       

                           Id. at 280-81.  



              30  

                                  

                           Id.  



                                                                                     -7-                                                                             7128
  


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

light of Carnahan's 2007 voluntary remediation work and the additional remediation                                                        

ordered by the court, both of which would seem to work in the Windels' favor.                                                                     31  



                         We  concluded  that  "the  complex  competing  concerns  and  interests  in  

                                                                                                                                                            



determining the prevailing party or parties" warranted remand to the superior court. We  

                                                                                                                                                          



asked the superior court to "render sufficient findings of fact and conclusions of law [on  

                                                                                                                                                          

remand] in the event further appellate review prove[d] necessary."32  

                                                                                                      



            B.           Superior Court Proceedings After Remand  

                                                                                              



                         On remand, in a lengthy written order issued in August 2014, the superior  

                                                                                                                                                 



court interpreted our decision in Windel I to hold that it had erred in considering the case  

                                                                                                                                                        



as two segments subject to separate analyses. The superior court instead considered the  

                                                                                                                                                           



litigation as a whole and ruled in favor of Carnahan, concluding that under Rule 68  

                                                                                                                                                           



Carnahan "fared better at the end of [the] litigation than in his January 2006 Offer of  

                                                                                                                                                            



Judgment."  

                       



                         As we had directed, the superior court took into account the voluntary and  

                                                                                                                                                          



court-ordered  remediation  costs in  determining how well Carnahan  fared.                                                                      But the  

                                                                                                                                                          



superior court disagreed with our description of one of the relevant facts. In Windel I we  

                                                                                                                                                           

stated that Carnahan had voluntarily constructed the 2007 culvert.33                                                         But on remand the  

                                                                                                                                                           



superior court found that "[u]pon careful review of the record, it appears that [Carnahan]  

                                                                                                                                            



did not build the 2007 culvert."  Because "the building of the 2007 culvert was not a  

                                                                                                                                                              



voluntary remediation effort attributable to [Carnahan]," the superior court determined  

                                                                                                                                           



            31          Id.   



            32  

                                

                        Id.  



            33  

                                                                         

                        Id. at 269, 278, 280, 281.  



                                                                             -8-                                                                      7128
  


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

                                                               

that Carnahan only had to spend $4,000 - the amount of the additional court-ordered  



remediation.  



                                                                                                                             

                    The superior court then conducted apoint-by-point comparison of the offer  



                                                                                                                              

of judgment and the entire litigation. The court ruled that Carnahan prevailed on the first  



                                                                                                         

term of his 2006 offer of judgment, which would have declared that the easement was  



                                                                                                                    

valid, because the court granted him summary judgment on that issue.  The court next  



                                                                                                                            

determined that Carnahan prevailed on the third term of his offer, which would have  



                                                                                                                       

provided for judgment in the Windels' favor for attorney's fees and costs, on grounds  



                                                                                                                              

that the Windels "were not prevailing parties as to any important aspect of the case and  



                                                                                                                                

were not entitled to seek attorney's fees or costs."  With respect to the fourth term of  



                                                                                                               

Carnahan's offer, the court found that Carnahan "agreed to withdraw his counterclaims  



                                                                                                      

as part of the [partial settlement agreement], just as he had offered in his 2006 offer of  



                                                                                                                      

judgment," presumably meaning that the court found this point to be a wash:  Carnahan  



                                                                                                                              

did no better or worse than his offer. And finally, with respect to the nuisance claim that  



the settlement agreement had reserved for further negotiation or decision, the superior  



                                                                                                                     

court found that Carnahan prevailed because the $4,000 he had to spend in additional  



                                                                                                                               

remediation was sufficiently less than the $10,000 he offered to pay the Windels in his  



              

offer of judgment.  



                                                                                                                               

                    Finding that Carnahan beat his offer of judgment when considering the  



                                                                                                                              

litigation in its entirety, the superior court concluded that he was eligible for Rule 68 fees  



                                                                                                             

and directed him to recalculate his fee request.  Carnahan immediately complied.  The  



                                                                                                     

Windels eventually filed an untimely "Opposition to Carnahan's Claimed Attorney's  



                                                                                                                              

Fees," arguing (1) that he was not entitled to attorney's fees under Rule 68; (2) that  



                                                                                                                         

Rule 82 applied instead and resulted in a lower award; (3) that certain billing entries  



                                                                -9-                                                        7128
  


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

 should be disallowed as unrelated to the litigation; and (4) that Carnahan's claimed costs                                                                                                                                                                                                                                                                                                                                                                                                             



 should also be reduced.                                                                                                                       



                                                                                In November 2014 the superior court awarded fees pursuant to Rule 68 in                                                                                                                                                                                                                                                                                                                                                                   



the amount of $119,989.50, at the same time granting the Windels' two outstanding                                                                                                                                                                                                                                                                                                                                                                             



motions for extensions of time to oppose the award. The court did not address the issues                                                                                                                                                                                                                                                                                                                                                                                                          



raised in the Windels' opposition except to note that their "objections to other minor fees                                                                                                                                                                                                                                                                                                                                                                                                                   



were expressly waived on appeal and by plaintiffs' failure timely to object prior to the                                                                                                                                                                                                                                                                                                                                                                                                                           



 court awarding fees to Carnahan in 2010."                                                                                                                                                                                                                        



                                         C.                                     Issues Presented In This Appeal                                                                                                                               



                                                                                The   Windels   raise   these   issues   on   appeal:     (1)   When   the   litigation  is  



properly analyzed, did Carnahan do better than his offer of judgment so as to be entitled                                                                                                                                                                                                                                                                                                                                                                                                



to an award of attorney's fees under Rule 68?                                                                                                                                                                                                                                           (2) Did the superior court err by failing                                                                                   



to decide questions we noted but did not decide in                                                                                                                                                                                                                                                                    Windel I   :    (a) whether Carnahan's                                                                                                    



 offer of judgment was void to begin with because it was made to the Windels jointly and                                                                                                                                                                                                                                                                                                                                                                                                                        



unapportioned, and (b) whether an offeror may tender an offer of judgment and then later                                                                                                                                                                                                                                                                                                                                                                                                                    



 assert additional claims that change the litigation such that it may be unfair to base an                                                                                                                                                                                                                                                                                                                                                                                                                            



 attorney's fees award on the original offer?                                                                                                                                                                                                                         Finally, (3) did the superior court err when                                                                                                                                                                                   



it declined to exclude certain specific billing entries from its attorney's fees calculation?                                                                                                                                                                                                                                                                                                                                                                



III.                                     STANDARDS OF REVIEW                                                                                                   



                                                                                "We exercise our independent judgment in reviewing the superior court's                                                                                                                                                                                                                                                                                                                                     



interpretation of Rule 68, as well as in calculating a judgment's value to determine                                                                                                                                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                                                        -10-                                                                                                                                                                                                                                              7128
  


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

                                                                            34  

whether it exceeded an offer of judgment."                                       A court's factual findings, including           

whether waiver occurred, are reviewed for clear error.                                     35  



IV.	       DISCUSSION  



                                                                                                                                             

           A.	        The Superior Court Did Not Err In Its Award Of Attorney's Fees To  

                                                                          

                      Carnahan Under Civil Rule 68.  



                                                                                                                                        

                      The Windels contend that the superior court erred in its August 2014 award  



                                                                                                                                              36  

                                                                                                                                                   

of Rule 68 attorney's fees by failing to properly follow our decision in  Windel I. 



                                                                                                                                  

Specifically, they argue that the superior court, in comparing the 2006 offer of judgment  



                                                                                                                                         

with the results of the litigation, erred by:  (1) failing to consider the cost of the 2007  



                                                                                                                                            

culvert as a monetary payment by Carnahan to the Windels, to be set off against the  



                                                                                                                                            

$10,000 he offered to pay in the offer of judgment; (2) holding that the cost of the  



                                                                                                                                 

additional court-ordered remediation was only $4,000; and (3) failing to put a monetary  



                                                                                                                                      

value  on  the  interference-with-access  claim  that  Carnahan  gave  up  in  the  partial  



           34         Id.  at  277  (quoting Dearlove  v.   Campbell,  301  P.3d   1230,   1233  (Alaska  



2013)).    



           35         Luker   v.   Sykes,   357   P.3d   1191, 1195 (Alaska   2015)   ("[W]e   review   the  



superior  court's  factual  findings  for  clear  error  .  .  .  ."  (citing  Price  v.  Eastham,  75  P.3d  

1051,   1055   (Alaska  2003)));  Donahue  v.  Ledgends,  Inc.,   331  P.3d   342,   346   (Alaska  

2014)  ("A  superior  court's  determination  whether  waiver  occurred  is  a  question  of  fact  

that  we  review  for  clear  error."  (quoting  Sengul  v.  CMS  Franklin,  Inc.,  265  P.3d  320,  324  

(Alaska  2011))).    



           36         The Windels do not challenge the superior court's decision on remand to  

                                                                                                                                              

consider the litigation as a whole rather than as two segments.  In Windel I we noted that  

                                                                                                                                           

the court's decision to bifurcate the litigation was "unexplained and appear[ed] contrary  

                                                                                                                                    

to  our  stated interpretation  of Rule  68," but  we  did not  go  so far  as to  say that  the  

                                                                                                                                            

superior court could not ultimately decide to follow the same approach on remand.  305  

                                                                                                                                           

P.3d at 280.  Its decision not to, however, is certainly consistent with our direction in  

                                                                                                                                              

Windel I .  

                  



                                                                     -11-	                                                              7128
  


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

 settlement.    We conclude, however, that the superior court did not err in its Rule 68                                                                 



 analysis.  



                         1.          The superior court properly considered the 2007 culvert.                                        



                                                                                                                                                           37  

                         We assumed in               Windel I    that Carnahan had constructed the 2007 culvert.                                                



                                                                                                                                                       

Based on that assumption, we noted that in the past we have "rejected the argument that  



                                                                                                                                                     

voluntary payments and partial settlements must be ignored when comparing a final  



                                                                                                                                        

judgment to a previous offer of judgment"; we therefore held that the cost of constructing  



                                                                                                                                                    

the 2007 culvert should factor into the superior court's analysis on remand as an offset  



                                                           38  

                                                                                                                                                 

to Carnahan's offer of judgment.                               The Windels argue that the superior court on remand  



                                                                                                                     

 failed to take the 2007 remediation into account, but the record shows otherwise.  The  



                                                                                                                                              

 court found as a factual matter that Carnahan did not build the 2007 culvert and therefore  



                                                                                                                                                          39  

                                                                                                                                                                

                                                                                                                                    

the construction "was not a voluntary remediation effort attributable to [Carnahan]." 



                                                                                                                                                 

The superior court's finding that Carnahan did not after all construct the 2007 culvert  



                                                                                                          40  

                                                                                                              

 finds support in the evidence and is not clearly erroneous. 



            37          Id.  at 269, 278, 280, 281.                     



            38          Id.  at  280  (first  citing  Dearlove,  301  P.3d  at  1234-35;  then  citing  

                                                                                                                                                  

Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083, 1088-90 (Alaska 2008)).  

                                                                                                                                        



            39           According to the superior court, its "review of the two-day trial held on the  

                                                                                                                                                         

 equitable nuisance abatement claim along with the parties' filings shows that some  

                                                                                                                                                    

unidentified third party installed the [2007] culvert."  

                                                                                                  



             40          The parties do not agree on who built the culvert, and neither seems to  

                                                                                                                                                          

know. The Windels claim that "[t]he Condo Association obtained a culvert and assisted  

                                                                                                                                                

Kev[e]n Windel in placing the culvert in the ground" while "acting for Carnahan."  

                                                                                                                                                                

 Carnahan, on the other hand, contends that "[n]either [the] Windels nor Carnahan played  

                                                                                                                                                  

 any role in the installation" of the culvert and that "[t]he work was personally performed,  

                                                                                                                                          

 and the costs of the culvert [were] incurred and absorbed, by an individual resident of the  

                                                                                                                                                         

                                                                                                                                     (continued...)  



                                                                           -12-                                                                     7128
  


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

                       The Windels argue that it does not matter who built the culvert because                                         



"Carnahan caused the problem and                              should have paid                for the 2007 culvert - it had a                      

                                                                                                    41  are not to be omitted in a  

cost."    (Emphasis added.)                    But while voluntary payments                                                                        

                                      42  the  Windels  point  to  no  authority  for  the  proposition  that  

Rule  68  comparison,                                                                                                                         

                



voluntary remediation efforts undertaken by someone else - such as, in this case, an  

                                                                                                                                                 



unknown third party -should count against the offeror. Relatedly, the Windels contend  

                                                                                                                                        



that if the cost of the 2007 culvert is not counted against Carnahan, it should be counted  

                                                                                                                                        



as a benefit to them, factored into the comparison in their favor.  But they provide no  

                                                                                                                                                 



legal support for this proposition either.  

                                                          



                       Penalizing an offeror and rewarding an offeree for payments made by a  

                                                                                                                                             

third party could discourage settlements, undercutting the purpose of Rule 68.43                                                                 A  

                                                                                                                                                 



would-be offeror could be dissuaded from making an offer of judgment if the offeror's  

                                                                                                                                      



chance of beating the offer were subject to the unpredictable acts of third parties who,  

                                                                                  



intentionally or otherwise, provide benefit to the offeree. We conclude that the superior  

                                                                                                                                       



           40(...continued)  



                              

neighborhood."  



           41  

                                                                                                                                                 

                       In  Windel I, "we express[ed] no opinion on the superior court's use of  

Carnahan's   remediation   costs   as   a   functional   equivalent   to   a   benefit   or   damages  

                                                                                                                                                       

awardable to the Windels" because the issue was not before us.  305 P.3d at 280 n.45.  

                                                                                                                                                 

Once again the issue is not squarely presented, and again we express no opinion on it.  



           42          Dearlove, 301 P.3d at 1235 ("Rule 68 is not intended to benefit an offeror  

                                                                                                                                         

who unilaterally satisfies a portion of the other party's claim in a way that is not reflected  

                                                                                                                                       

in the final verdict." (citing Mackie v. Chizmar, 965 P.2d 1202, 1205 (Alaska 1998))).  

                                                                                                                                                       



           43          See Progressive Corp.,  195  P.3d  at 1088  ("The goal of Rule 68  is to  

                                                                                                                                                 

encourage settlement and avoid litigation." (citing Fernandes v. Portwine, 56 P.3d 1, 9  

                                                                                                                                                   

(Alaska 2002))).  

                              



                                                                       -13-                                                                 7128
  


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

court did not err when it refused to count the estimated cost of the 2007 culvert as a                                                                                                                                                                                              



payment by Carnahan to the Windels for purposes of its Rule 68 analysis.                                                                                                                                           



                                           2.	                   The   superior   court   properly  took   account   of   the   additional  

                                                                 court-ordered remediation.                                                                      



                                           The Windels next argue that the superior court erred in its Rule 68 analysis                                                                                                                                       



when it found that Carnahan "paid approximately $4,000 for the additional remediation                                                                                                                                                             



efforts ordered by [the superior] court:                                                                                         the building of an additional culvert, and the                                                                                               



construction of swales or t-ditches for both of the culverts."                                                                                                                                          The Windels argue that                                              



because the additional court-ordered remediation had not been completed as of the filing                                                                                                                                                                               



of this appeal, we should remand the issue again so the superior court can determine the                                                                                                                                                                                      



actual cost of the additional remediation once it is completed - and only then decide                                                                                                                                                                              



                                                                                                                                                                                                                                                                    44  

whether the 2006 offer of judgment has been bettered and which party prevailed.                                                                                                                                                                                            We  



                                            

decline to do so.  



                                                                                                                                                                                                                                                          

                                           In  January  2010,  following  the  evidentiary  hearing  on  the  nuisance  



                                                                                                                                                                                                                                                                             

abatement issue, the superior court ordered Carnahan to install an additional culvert and  



                                                                                                                                                                                                                                                              

swales or t-ditches by August of that year.  But in later email correspondence through  



                                                                                                                                                                                                                                                                              

their attorney, the Windels made clear that they wanted Carnahan to delay work on the  



                                                                                                                                                                                                                                                                          

remediation while they appealed the underlying issue of the easement's validity.  The  

                                                                                                                                                                                                                        45   And as Carnahan  

                                                                                                                                                                                                                                                         

parties agreed to put off the work pending the outcome of Windel I. 



notes, our decision in  Windel I came after the 2013 construction season, so the next  

                                                                                                                                                                                                                                                                         



opportunity for installation of the second culvert and t-ditches was in 2014.  Carnahan  

                                                                                                                                                                                                                                                        



                      44                   The Windels twice asked us to stay this appeal pending performance of the                                                                                                                                                           



additional remediation and determination of its actual cost.                                                                                                                                     We denied their requests.                               



                      45                   In their opening brief in Windel I, the Windels conceded that the additional  

                                                                                                                                                                                                                                                        

remediation had not yet taken place "[b]y agreement between the parties."  Carnahan's  

                                                                                                                                                                                                                                                  

brief on this appeal reflects the same understanding.  

                                                                                                                         



                                                                                                                                      -14-	                                                                                                                             7128
  


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

got a new bid that year in the amount of $4,100 - an increase of just $100 from the                                                                                                                                                                                                                                                                                                                                                                                                     



2010 estimate.                                                                       



                                                                            According to the Windels, the cost today would be significantly higher,                                                                                                                                                                                                                                                                                                              



because new engineering studies are required and the localgovernment has imposed new                                                                                                                                                                                                                                                                                                                                                                                               



requirements   on   the   construction.     The   Windels   assert   that   "Carnahan   could   have  



 avoided    a[n]y   consequences    of    delay    by    performing    the    required    remediation  



immediately" and argue that the superior court should determine the actual cost after the                                                                                                                                                                                                                                                                                                                                                                                                 



remediation is completed and only then determine whether Carnahan has bettered his                                                                                                                                                                                                                                                                                                                                                                                                       



 offer of judgment.                                                                                       



                                                                            Carnahan counters that the eventual cost of the additional remediation is                                                                                                                                                                                                                                                                                                                                           



irrelevant and that the court was correct to use the unrebutted estimate he submitted in                                                                                                                                                                                                                                                                       



2010, when he first moved for attorney's fees.  He argues that "[d]etermining whether   



 [he] 'beat' his offer of judgment requires a determination of what the remediation cost                                                                                                                                                                                                                                                                                                                                                                                           



 [was]   at the time of the final judgment                                                                                                                                                                                              ,  i.e., during the 2010 construction season."                                                                                                                                                                                                                        



 (Emphasis in original.) He maintains that the fact that the additional remediation had not                                                                                                                                                                                                                                                                                                                                                                                             



been completed by the time final judgment was entered "does not alter the analysis of                                                                                                                                                                                                                                                                                                                                                                                                         



whether Carnahan had beaten his offer of judgment at the end of the litigation."                                                                                                                                                                                                                                                                                                                                                                                       



                                                                            Carnahan's analysis is persuasive.                                                                                                                                                                  An attorney's fees award at the end of                                                                                                                                                                        



 a case should not be put on indefinite hold until the parties have accomplished whatever                                                                                                                                                                                                                                                                                                                                                             



it is that the superior court has ordered them to do.                                                                                                                                                                                                                                       The Alaska Civil Rules contemplate                                                                                                       



that issues of attorney's fees and costs will be submitted to the trial court within ten days                                                                                                                                                                                                                                                                                                                                                                                   

                                                                                                        46                The Windels' suggested procedure could inordinately delay the  

 of final judgment.                                                                                                                                                                                                                                                                                                                                                                                                                                                                     



                                      46                                    See  Alaska R. Civ. P. 79(b) (providing that "the prevailing party must file                                                                                                                                                                                                                                                                                                                               



 and serve an itemized and verified cost bill . . . within 10 days after the date shown in the                                                                                                                                                                                                                                                                                                                                                                                           

                                                                                                                                                                                                                                                                                                                                                                                                                                (continued...)  



                                                                                                                                                                                                                                           -15-                                                                                                                                                                                                                                 7128
  


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

resolution of disputes, require parties and judges to revisit long-dormant case files, and                                                                                                                                                                                                                                        



encourage bad-faith                                                              delays.     Here,   the superior                                                                                 court accepted                                               the $4,000                                     estimate  



Carnahan submitted at the conclusion of litigation at the trial court level, an estimate the                                                                                                                                                                                                                                        



Windels did not oppose.                                                                         There is no evidence in the record to suggest the estimate was                                                                                                                                                                   



not a reasonable one at the time.                                                                                               The superior court did not err when it relied on it for                                                                                        



purposes of the Rule 68 comparison.                                                                                                               



                                                    3.	                       The    superior    court    did    not    err    by    failing    to    take    into  

                                                                              consideration the claims the Windels and Carnahan gave up in                                                                                                                                                                                              

                                                                              the partial settlement agreement.                                                         



                                                    The Windels' third claim of error in the superior court's decision to apply                                                                                                                                                                                           



Rule 68 deals with the claims for damages that each side gave up as part of the 2009                                                                                                                                                                                                                                        



partial settlement agreement.                                                                                      The Windels contend that their trespass claims against                                                                                                                                          



Carnahan, which they gave up, were worth nothing since the superior court had already                                                                                                                                                                                                                              



decided on summary judgment that Carnahan's                                                                                                                                         claimedeasement wasvalid;hetherefore                                                                                     



gained no benefit from the claims' dismissal.                                                                                                                                           On the other hand, they contend that                                                                                                    



Carnahan's claim against them for interference with his access, which he also gave up                                                                                                                        



in the settlement, was worth the full $20,000 he claimed as damages in his amended                                                                                                                                                                                                                          



answer, and when he agreed to dismiss that claim the Windels reaped a benefit in that                                                                                                                                                                                                                                            



monetary amount. Thus, they argue, what they gained in the litigation was significantly                                                                                                                                                                                                         



                          46(...continued)  



                                                                                                                                                                                                                                                                                                                                   

clerk's certificate of distribution on the judgment" and that the "[f]ailure of a party to file  

                                                                                                                                                                                                                                                                                                                                 

and serve a cost bill within 10 days, or such additional time as the court may allow, will  

                                                                                                                                                                                                                                                                                                                           

be construed as a waiver of the party's right to recover costs"); Alaska R. Civ. P. 82(c)  

                                                                                                                                                                                                                                                                                                                               

(providing that a motion for attorney's fees "must be filed within 10 days after the date  

                                                                                                                                                                                                                                                                                                                                        

 shown in the clerk's certificate of distribution on the judgment" and that "[f]ailure to  

                                                                                                                                                                                                                                                                                                                        

move for attorney's fees within 10 days, or such additional time as the court may allow,  

                                                                                                                                                                                                                                                                                     

 shall be construed as a waiver of the party's right to recover attorney's fees").  



                                                                                                                                                                -16-	                                                                                                                                                        7128
  


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

greater than the $10,000 Carnahan offered to pay them as part of his offer of judgment.                                                                                                                                                                                                                                                                            



                                                      The logic of this argument is too attenuated for us to accept. It assumes not                                                                                                                                                                                                               



only that Carnahan's counterclaim had merit but also that it had at least the monetary                                                                                                                                                                                                                                  



value Carnahan assigned to it in his amended answer.                                                                                                                                                                                 But on this appeal, as in the                                                                    



 superior court, the Windels do not explain why the claim should be given the value                                                                                                                                                                                                                                                     



Carnahan alleged it had.                                                                              And because Carnahan agreed to drop the claim, neither its                                                                                                                                                                                     



merit nor its value was ever determined.                                                                                                                           The superior court did not err by rejecting this                                                                                                                             



argument.  



                                                      4.	                        We affirm the superior court's Rule 68 attorney's fees award.                                                                                                                                                                                



                                                      Because we reject the Windels' various challenges to the superior court's                                                                                                                                                                                                    



analysis of Rule 68 attorney's fees on remand, we affirm the award.                                                                                                                                                                                                               The superior court                                      



followed our decision in                                                                                  Windel I   , appropriately considered the entire litigation for                                                                                                                                                                         



purposes of its analysis, and did not err in concluding that Carnahan remained the                                                                                                                                                                                                                                                               



prevailing party.                                                    



                           B.	                         The   Windels   Have   Waived   The   Argument   That   The   Offer   Of  

                                                      Judgment                                             Was                        Invalid                                 Because                                    It              Was                         Made                             Jointly                                And  

                                                      Unapportioned.  



                                                      The Windels argue that the superior court erred by failing to address the  

                                                                                                                                                                                                                                                                                                                                                  



validity of Carnahan's offer                                                                                            of judgment,                                             an   issue we touched                                                                      on  in  a footnote in                                                    



 Windel I                            .    We expressly left it to the superior court to address in the first instance                                                                                                                                                                                                       



whether "Carnahan's offer of judgment is void because it was made to [Keven and                                                                                                                                                                                                                                                                



                                                                                                                                                                                                                                                                                                                                                         47  

Marlene Windel] jointly and un-apportioned" -                                                                                                                                                       should the issue be raised on remand.                                                                                                                          



                                                                                                                                                                                                                                                                                                                                  

                                                      The Windels barely raised this argument on remand and now have briefed  



                                                                                                                                                                                                                                                                                                                                                   

it inadequately on appeal; like the superior court, we therefore decline to address it.  As  



                           47                          Windel  I,  305  P.3d  264,  279  n.39  (Alaska  2013).  



                                                                                                                                                                        -17-                                                                                                                                                                                 7128  


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

they   did   in   the   superior   court,   the   Windels   argue   on   appeal   that   the   court   is  



"require[d] . . . to address the issue of whether or not an offer made by a single offeror                                                                                                                                                 

                                                                                                                                                                                                     48  and conclude that  

to multiple offerees is void," cite a single case without explanation,                                                                                                                                                                               



the issue "should be resolved in favor of the Windels by voiding the offer of judgment."  

                                                                                                                                                                                                                                                                   



We have held that "[i]ssues not properly raised or briefed at trial are not properly before  

                                                                                                                                                                                                                                             

this court on appeal"49 and that "where a point is given only a cursory statement in the  

                                                                                                                                                                                                                                                       

argument portion of a brief, the point will not be considered on appeal."50   Although the  

                                                                                                                                                                                                                                                       



Windels include a slightly more substantial argument on the issue in their reply brief,  

                                                                                                                                                                                                                                                



waiver due to inadequate briefing "is not correctable by arguing the issue in a reply  

                                                                                                                                                                                                                                             



                    48                  The   case   the   Windels   cite,   Brinkerhoff   v.   Swearingen   Aviation   Corp.,  



concluded that "[a]lthough problems of apportionment may not always be present, such                                                                                                                                                              

difficulties are prevalent enough to warrant a general exclusion of joint offers from the                                                                                                                                                              

penal   cost   provisions   of   Rule   68."     663   P.2d   937,   943  (Alaska   1983).     But   our  

 subsequent   case   law   explained   that   "[i]n   determining  whether   a   joint   offer   may  

nonetheless be valid, we consider two factors: (1) whether '[t]he settlement offer clearly                                                                                                                                                  

indicated all claims between the parties would be resolved if the offer were accepted';                                                                                              

and (2) whether apportionment difficulty actually exists."                                                                                                                    Alaska Fur Gallery, Inc. v.                                                 

First Nat'l Bank Alaska                                                , 345 P.3d 76, 99 (Alaska 2015) (quoting                                                                                  John's Heating Serv.                            

v.  Lamb, 46 P.3d 1024, 1042 & n.85 (Alaska 2002)).                                                                                                         The Windels do not address these                                                     

factors, despite their potential relevance to a case involving property-related claims by                                                                                                                                                               

tenants in the entirety.                  



                    49                 Burts v. Burts, 266 P.3d 337, 344 (Alaska 2011) (alteration in original)  

                                                                                                                                                                                                                                      

(quoting Hagans, Brown &Gibbs v. First Nat'l Bank of Anchorage, 783 P.2d 1164, 1166  

                                                                                                                                                                                                                                                 

(Alaska 1989)).  

                                                 



                    50                 Id. (quoting Adamson v. Univ. of Alaska , 819 P.2d 886, 889 n.3 (Alaska  

                                                                                                                                                                                                                             

 1991)).  



                                                                                                                          -18-                                                                                                                   7128
  


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

                   51  

 brief."                  We therefore conclude that the validity of Carnahan's offer of judgment is not                                                                                                                                           



 properly before us for decision.                                                             



                    C.	                 The Windels' Argument That The Offer of Judgment Was Voided By                                                                                                                                              

                                        The Later Settlement Is Barred By The Law Of The Case Doctrine.                                                                                                                    



                                       The Windels also challenge the superior court's failure to address another                                                                                                                     



 issue we mentioned in a footnote in                                                                  Windel I  . Because the issue was not before us in that                                                                                    



 appeal, we expressed no opinion about "whether an offeror may tender an offer of                                                                                                                                                                    



judgment and then later assert additional claims that materially change the litigation so                                                                                                                                                            



                                                                                                                                                                                           52  

 that it might be unfair to enforce the original offer of judgment."                                                                                                                                                                              

                                                                                                                                                                                                  The issue is still not  



                                                                                                                                                                             

 before us, and therefore we again express no opinion on it.  



                                                                                                                                                                                                                               

                                       The argument the Windels make that purports to address this footnoted  



                                                                                                                                                                                                                                                   

 issue actually addresses something different:  where the litigation is changed not by the  



                                                                                                                                                                                                                                                

 assertion  of  new  claims  but  by  partial  settlement  of  the  original  claims.                                                                                                                                             And  this  



                                                                                                                                                                                                                                                              

 argument is virtually identical to one the Windels made in their reply brief in Windel I.  



                                                                                                                                                                                                                                     

 We addressed the issue at length in  Windel I, ultimately concluding that "the parties'  



                                                                                                                                                                                                                                               

 partial settlement agreement did not preclude Carnahan's motion for attorney's fees  



                                                                                                  53  

                                                                                      

 under either Rule 68 or Rule 82." 



                                                                                                                                                                                                                                                  

                                       The  law  of  the  case  doctrine,  which  is  "  'akin  to  the  doctrine  of  res  



                                                                                                                                                                                                                           

judicata,' generally 'prohibits the reconsideration of issues which have been adjudicated  



                    51                 Adamson , 819 P.2d at 889 n.3 (citing                                                                          Hitt v. J.B. Coghill, Inc.                                              , 641 P.2d   



 211, 213 n.4 (Alaska 1982)).                                                          



                    52                  Windel I, 305 P.3d at 280 n.42.  

                                                                                                                                    



                    53                 Id. at 279.  

                                                                       



                                                                                                                        -19-	                                                                                                                7128
  


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

                                                                                                                                                              54  

in a previous appeal in the same case.' "                                                                                                                             Because we rejected in                                                                         Windel I    the argument   



that the partial settlement agreement rendered the offer of judgment void, we do not                                                                                                                                                                                                                                              



consider it again here.                                                                     



                           D.                         The Windels Waived Their Challenges To Specific Billing Entries.                                                                                                                                                                                           



                                                      Finally, the Windels assert that Carnahan should not have been awarded                                                                                                                                                                                               



attorney's fees for certain services performed between 2005 and 2010 because they were                                                                                                                                                                                                                                                    



unrelated to this litigation.                                                                                  The first time the Windels raised these objections was in                                                                                                                                                                             



October 2014, when they filed their response to the superior court's order on remand and                                                                                                                                                                                                                                                       



Carnahan's recalculated fees request. When                                                                                                                                      thecourt                            madeits                           award in November 2014,  



it noted in a handwritten addendum that "[p]laintiffs' objections to other minor fees were                                                                                                                                                                                                                                                



expressly waived on appeal and by plaintiffs' failure timely to object prior to the court                                                                                                                                                                                                                                               



awarding fees to Carnahan in 2010."                                                                                      



                                                      Carnahan first submitted the relevant billing records in support of his 2010                                                                                                                                                                                                       



fees request; the Windels raised no objection at that time.                                                                                                                                                                             The superior court evaluated                                                   



the   parties'   submissions  and   in   September   2010   awarded   Carnahan   $49,902.60   in  



Rule 82 attorney's fees. The Windels did not raise any objections to specific time entries                                                                                                                                                                                                                                         



in their first appeal; in fact, we explicitly noted in                                                                                                                                                     Windel I  that the Windels were "not                                                                                             



contesting   the   amount   of   attorney's   fees   awarded   and   therefore   no   factual   issues  

                                                                                                               55            Because the Windels had a full opportunity to litigate  

remain[ed] to be decided."                                                                                                                                                                                                                                                                                                      



objections to specific billing entries at the time of the 2010 fees award but failed to do  

                                                                                                                                                                            



 so, we see no clear error in the superior court's determination that those objections are  

                                                                                                                                                                                                                                                                                                                                                 



waived.  



                           54                         Beal   v.   Beal,    209    P.3d    1012,    1016    (Alaska    2009)    (quoting   State  



 Commercial Fisheries Entry Comm'n v. Carlson                                                                                                                                                      , 65 P.3d 851, 859 n.52 (Alaska 2003)).                                                                                      



                           55                          Windel I, 305 P.3d at 277.  

                                                                                                                                             



                                                                                                                                                                       -20-                                                                                                                                                               7128
  


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

V.       CONCLUSION  



                 The superior court's award of  attorney's fees pursuant to Alaska Civil  

                                                                                                          



Rule 68 is AFFIRMED.  

               



                                                       -21-                                               7128
  

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