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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Beecher v. City of Cordova (1/19/2018) sp-7218

Beecher v. City of Cordova (1/19/2018) sp-7218

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

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

CAROL  BEECHER  and                                              )  

PERRY  BEECHER,                                                  )          Supreme  Court  No.  S-16445  



                                                                 )          Superior Court No. 3CO-02-00011 CI  



                                                                 )          O P I N I O N  



CITY OF CORDOVA,                                                                                                    

                                                                 )         No. 7218 -  January 19, 2018  


                                Appellee.                        )  




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


                      Judicial District, Cordova, Daniel Schally, Judge pro tem.  


                      Appearances:             Carol  Beecher  and  Perry  Beecher,  pro  se,  


                      Anchorage,  Appellants.                      Holly  C.  Wells  and  Jack  R.  


                      McKenna, Birch Horton Bittner & Cherot, Anchorage, for  



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


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


                      MAASSEN, Justice.  



                      A city evicted commercial tenants from city-owned land and was granted  


a money judgment against them for unpaid rent and sales taxes.  The tenants left behind  


various improvements, as well as items of personal property related to their operation of  


a marine fueling facility on the land. The city pursued collection of its money judgment  

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

  for several years before suspending its efforts; about eight years later it resumed its                                                                                                                                                                                                                                                                                                                                                                                                               

  attempts to collect.                                                                                            The tenants, contending that they had reasonably assumed by the                                                                                                                                                                                                                                                                                                                   

 passage of time that the judgment had been satisfied, moved for an accounting of their                                                                                                                                                                                                                                                                                               

  left-behind property and the amount still owing on the judgment.                                                                                                                                                                                                                                                             

                                                                               The city informed the superior court that it had executed only on bank                                                                                                                                                                                                                                                                                                                                    

  accounts and wages and that several improvements had reverted to city ownership and                                                                                                                                                                                                                                                                                                                                                                                                             

 therefore did not count against the judgment.                                                                                                                                                                                                                         It claimed not to know what happened to                                                                                                                                                                                             

 the rest of the property the tenants identified as having been left behind.  The superior                                                                                                                                                                             

  court found the city's response sufficient and allowed execution to continue.                                                                                                                                                                                                                                                                                                                        

                                                                               The tenants appeal, arguing that they were entitled to a better accounting   

  of their left-behind property and that the city is estopped from contending that the                                                                                                                                                                                                                                                                                                                                                                                                             

judgment is still unsatisfied.                                                                                                                                        We agree in part.                                                                                          We hold that it was the city's burden to                                                                                                                                                                                  

 produce evidence of the property's disposition and that it failed to carry this burden. We                                                                                                                                                                                                                                                                                                                                                                                                      

  also hold that there are genuine issues of material fact about whether the city is estopped                                                                                                                                                                                                                                                                                                                                                                      

  from   contending   that   the   judgment   remains   unsatisfied.     We   therefore   reverse   the  

  superior court's order accepting the accounting and allowing execution to continue; we                                                                                                                                                                                                                                                                                                                                                                                                              

 remand for further proceedings in the superior court.                                                                                                                                                                                                                           

 II.                                    FACTS AND PROCEEDINGS                                                                

                                        A.                                     Facts  

                                                                               Carol and Perry Beecher entered into a ground lease with the City                                                                                                                                                                                                                                                                                                                                                            of  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                          1                They  

  Cordova   in   1997  to  operate   a   marine   fueling   facility   on   City-owned   land.     

                                        1                                      The Beechers executed the lease and operated the marine fueling facility                                                                                                                                                                                                                                                                                                                      

 through two closely-held corporations, Balance, Inc. and Sound Development, Inc. The                                                                                                                                                                                                                                                                                                                                                                                                          

 Beechers are jointly and severally liable with the corporations on the judgments at issue                                                                                                                                                                                                                                                                                                                                                                                                

  on this appeal, however, and the corporations' separate existence is not relevant to our                                                                                                                                                                                                                                                                                                                                                                                                         


                                                                                                                                                                                                                                                     -2-                                                                                                                                                                                                                                    7218

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


eventually fell behind on the rent.  In January 2002 the City delivered a notice to quit,  


informing  the  Beechers  that  they  owed  $30,527.22  in  past-due  rent  and  had  until  


February 4 to bring it current.  The notice warned that the lease would terminate if the  


Beechers did not meet the February 4 deadline.  But the Beechers did not pay the past- 


due rent or vacate the property, and in March the City delivered an updated notice to  


quit.  This notice informed the Beechers that the lease had terminated on February 4; it  


also reminded the Beechers that, pursuant to paragraph 9 of the lease, they had 90 days  


from  termination  -  until  May  5  -  to  remove  any  improvements,  which  would  


otherwise become the property of the City.  The City also recorded notices of sales tax  


liens against the Beechers' corporations, covering all their real and personal property in  


the Cordova Recording District.  


                    The Beechers still did not vacate the premises, and in April the City filed  


a complaint against them in the superior court seeking eviction, foreclosure of the sales  


tax liens, and a money judgment for both the past-due rent and unpaid sales taxes.  The  


court ordered an eviction and later entered a money judgment against the Beechers in the  


amount of $118,759.61.  The court also ruled that "by virtue of the lease" the City had  


gained "color of title" to any improvements remaining on the premises.  The claim for  


lien foreclosure was apparently dropped; the record contains no further reference to the  


tax liens.  


                    The Beechers then vacated thepremises, but they left behind some personal  


property, including fuel tanks, vehicles, trailers, parts, and appliances.  Nearly a year  


later, the City's attorney, in a March 2003 memo to the City manager, recommended that  


the City attempt to clarify ownership of this left-behind property.  In April the superior  


court ordered debtor's examinations to occur in May. The City filed creditor's affidavits  


stating that it would attempt to satisfy the judgment by levying against the Beechers'  


bank accounts, a tug boat, a "Landing craft," two undeveloped tracts of real property, a  

                                                                -3-                                                         7218

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"Fuel Truck," a "Backhoe," the "Marine fuel facility," and a "Gas Station."  In July the  


clerk of court issued writs of execution.  


                     Of the items identified in the creditor's affidavits,  the City executed only  


against the Beechers' bank accounts. It eventually recovered more of the judgment from  


their wages and permanent fund dividend checks.  But in 2005, with the bulk of the  


judgment still unpaid, the City ceased its collection efforts.  


                     Eight years went by; then in January 2013 the City obtained and recorded  


a renewal judgment.  After learning that the City was again garnishing their wages,  the  


Beechers sent the City a letter asking for an accounting of the judgment and the City's  


collection        activities   to        date,     specifically   requesting               "bill(s)      of   sale,"   public  


advertisements, and "dates of sales [of] any and all property seized and sold by the City."  


The City did not respond, so the Beechers retained a lawyer and repeated their request.  


Their second letter to the City described the Beechers' "equipment located at the Marine  


Fuel facility [as] including fuel trucks, tanker trailers, . . . assorted parts, tools, a Cat 235  


excavator, and other pieces of equipment," and asked, "What happened to these items?  


Were they sold?  Was the amount of the sale deducted from the judgment?"  The record  


again shows no response from the City.  

           B.        Proceedings  


                     The Beechers next filed a motion in superior court for an accounting of the  


City's  collection  efforts  and  the  outstanding  amount  of  the  judgment.                                        The  City  


responded with an affidavit from its finance director, Jon Stavig.  Stavig stated that the  


City had executed on the Beechers' bank accounts and wages, and he submitted a record  


of those amounts, which added up to over $34,000.  He averred "[u]pon information and  


belief" that the City had sold certain "improvements" fromthe Beechers' fueling facility,  


"which included the floating fuel dock and gangway ramp," but that improvements  


belonged to the City pursuant to paragraph 9 of the lease and therefore their sale did "not  

                                                                -4-                                                         7218

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


reduce the amount owed under the [j]udgment."  Stavig reported that the City had not  


executed on the tug and landing craft identified in its 2003 creditor's affidavit as possible  


subjects for execution; instead, the two vessels had been foreclosed upon and sold at  


auction by a ships' mortgage lender.  And Stavig also reported that two parcels of real  


property listed in the creditor's affidavit had been foreclosed upon by other lenders.  


Finally,  Stavig  attested  that  "the  City  remains  open  to  examining  any  evidence  or  


documentation [the Beechers] may have demonstrating thesaleofequipment or property  


by the City as the City's accounting has been limited [to] its own records."  


                    In response, the Beechers  filed  a list of all the personal property they  


alleged had been left behind on the leased property - including fuel trucks, parts vans,  


trailers, tanks, a "Jitney boat," and other "[p]arts and supplies," all of which they valued  


at $75,000 - and argued that the City must have sold it without crediting the proceeds  


toward the judgment.  The Beechers also submitted photographs, which their attorney  


represented as showing "a tank and office retained by the City but not credited towards  


the judgment."   The City responded by reiterating that it had seized and sold only  


"improvements" and that it had no legal obligation to execute against any particular item  


of the Beechers' personal property.  


                    The superior court, finding that a hearing on the Beechers' motion was  


unnecessary, ruled largely in favor of the City.  The court concluded that the finance  


director's affidavit "provided a satisfactory accounting of[theCity's]collectionefforts,"  


agreed that the Beechers were "not entitled to a credit for the value of the marine fuel  


facility improvements," and lifted a temporary stay on the City's collection efforts. The  


Beechers moved for reconsideration, arguing that any "proper accounting . . . must  


include" the specific items of property they had identified as left behind, highlighting  


those items of personal property identified in the 2003 memorandumto the City manager  


and including a picture of a fuel tanker they claimed was in current use by the City.  But  

                                                               -5-                                                         7218

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

the superior court denied reconsideration and awarded attorney's fees and costs to the   


                         The Beechers appeal.       

III.         STANDARD OF REVIEW                 


                         We review questions of law using our independent judgment.                                                                  

                                                                                                                                            We review  



findings of fact for clear error.                            We will find clear error only if "after a review of the  


record as a whole, we are left with a definite and firm conviction that a mistake has been  



IV.         DISCUSSION  

                         The Beechers urge us to hold that the City did not provide an adequate  


accounting because it failed to directly address the disposition of the personal property  


left behind at the marine fueling facility.   According to the Beechers, some of this  


property did not qualify as "improvements" that would revert to the City under the terms  


of the lease, and the City had an obligation to follow through on the implication of its  


2003 creditor's affidavits that it would execute on the listed property and apply the  


proceeds to the judgment. The Beechers claimthat the City unjustly enriched itself when  


it took possession of these items without crediting the Beechers for their value.  


                         We  agree  that  the  City's  accounting  was  inadequate.                                                   The  Beechers  


produced evidence tending to show that  the City took possession of their personal  


property; it was then the City's burden to produce evidence accounting for it.  


            2            State v. Schmidt              , 323 P.3d 647, 655 (Alaska 2014).                   



                         Resurrection Bay Auto Parts, Inc. v. Alder, 338 P.3d 305, 307 (Alaska  


2014) (quoting Fred Meyer of Alaska, Inc. v. Bailey, 100 P.3d 881, 883-84 (Alaska  




                         Id. (quoting Fred Meyer of Alaska, Inc., 100 P.3d at 883-84).  

                                                                              -6-                                                                      7218

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

                  A.                It Was Error To Find The City's Accounting Satisfactory.                                                                          

                                    A motion for an accounting seeks a kind of discovery or "compulsory                                                                                             

disclosure"; if granted, the motion requires an adverse party to account for and surrender                                                                                                                    


money   or  property   that   belongs   to   the   moving   party.     Because   a   request   for   an  


accounting assumes that the "party seeking relief" cannot determine on its own "how  


much - or, in fact, whether - any money is being held" by the nonmoving party, the  

burden of production does not "rest upon [the moving party], but . . . shift[s] to the                                                                                                                                         

 [nonmoving party] once facts giving rise to a duty to account have been alleged and                                                                                                                                         



                                 To shift this burden, the moving party must show that "a relationship exists"  


between itself and the nonmoving party "that requires an accounting, and that some  

                                                                                                                                                                            7   Once these elements  



balance is due . . . that can only be ascertained by an accounting." 

are  established,  the  burden  is  on  the  nonmoving  party  to  produce  the  requested  


information, money, or property.8  


                                                                                            As with other discovery devices, an accounting is not  


proper when a party engages in "a fishing expedition, and alleges facts that are mere  

                  5                 Garcia v. Koch Oil Co. of Tex.                                                  , 351 F.3d 636, 641 (5th Cir. 2003) (quoting                                                 

Rosenak v. Poller                              , 290 F.2d 748, 750 (D.C. Cir. 1961));                                                            see also Bradshaw v. Thompson                                                       ,  

454 F.2d 75, 79 (6th Cir. 1972)                                                      ; Teselle v. McLoughlin                                          , 92 Cal. Rptr. 3d 696, 715-16                                

(Cal. App. 2009);                               Failor v. MegaDyne Med. Prods., Inc.                                                                 , 213 P.3d 899, 905 (Utah App.                                       


                  6                 Garcia, 351 F.3d at 641 (quoting Rosenak, 290 F.2d at 750).  


                  7                 Teselle, 92 Cal. Rptr. 3d at 715 (citing Brea v. McGlashan, 39 P.2d 877,  


                                                                                                         ITKIN, C              ALIFORNIA  PROCEDURE    819 (5th ed.                                                           

 880 (Cal. Dist. App. 1934); 5 B. E. W 





                                    Garcia, 351 F.3d at 641.  

                                                                                                                -7-                                                                                                       7218

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


 speculation."    But "the fact that it may be a considerable burden to render a proper                                                  


accounting does not eliminate the need to account where a duty to account exists."                                                                

                       The Beechers established the elements necessary to shift the burden of  


production  to  the  City.                     The  City  does  not  dispute  that  it  had  a  creditor-debtor  


relationship with the Beechers, and the Beechers submitted evidence that tended to show  


that the City held their personal property without accounting for its value.  The City has  


not disputed that the Beechers left behind the property identified in their motion for an  


accounting; in fact the March 2003 memo from the City attorney listed a number of vans,  


trailers,  trucks,  and  tanks  that  were  then  "located  on  the  site."11                                          The  City  claims,  


however, that it "should not be made to track down and account for every item that the  


Beechers abandoned on the property," and it argues that the Beechers have not shown  


"that the City ever sold [their] property or that any proceeds should be applied to the  



                       But this argument misplaces the burden of production.   "An action for  


accounting is not amenable to . . . summary adjudication upon a showing that [the  


moving party] does not possess and cannot reasonably obtain the evidence needed to  


            9           1A C.J.S.        Accounting    6 (2017) (citing                       In re Wilson          , 442 B.R. 10, 19           

 (Bankr. D. Mass. 2010)).       

            10         Id. (citing Andrikopoulos v. Broadmoor Mgmt. Co. , 670 P.2d 435, 439-40  


 (Colo. App. 1983);  2416 Corp. v. First Nat'l Bank of Chi., 415 N.E.2d 420, 434 (Ill.  


App. 1980)).  


            11         There  are  some  inconsistencies  among  the  various  itemizations  of  the  


personal property at issue. For example, the City attorney's memo lists "Five fuel tanker  


trailers," whereas the Beechers' submission in support of their motion for an accounting  


lists  only  four:            two  "tanker  truck[s],"  a  "fuel  truck,"  and  a  "tanker  trailer."                                         The  


Beechers' list includes an air compressor, a "Jitney boat," and winches that have no  


apparent counterparts on the City attorney's list.  


                                                                        -8-                                                                 7218

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

[obtain an] accounting, because the very purpose of the accounting is to obtain such                                                                                             


                            While "it may be a considerable burden" for the City "to render a proper  


accounting"  given  the  passage  of  time  since  the  original  judgment,  the  burden  is  


nonetheless on the City to explain what happened to the Beechers' personal property  



after the City took possession of the leased premises. 


               B.	           The City Has No Legal Obligation To Execute Against The Beechers'  


                             Personal Property.  


                             The  Beechers  argue  that  AS  09.35.030,  along  with  the  City's  2003  


creditor's affidavits identifying particular property as subject to execution, required the  


City to execute against the items it identified.  The statute provides that if a court issues  


a writ of execution "against the property of the judgment debtor," and if "the judgment  


directs particular property to be sold," the judgment creditor must "sell the particular  



[personal] property and apply the proceeds [to the] judgment."                                                                             The writs of execution  


in this case, however, did not "direct[] particular property to be sold." They instead  


simply authorized the City to "satisfy the judgment" with any "personal property subject  


to execution."  The City acted within this grant of authority when it executed on the  

               12	           Teselle, 92 Cal. Rptr. 3d at 716.                           



                             See  1A C.J.S. Accounting   6 (2017) (citing Andrikopoulos , 670 P.2d at  


440; 2416 Corp., 415 N.E.2d at 439-40).  The City correctly asserts that it had title to  

improvements and was not required to credit their value to the Beechers' judgment. But                                                                                              


accounting for the improvements does not satisfy the City's burden to account for  


personal property.  

                             The City also claims that the Beechers' motion for an accounting is barred                                                                       

by laches.             The City did not raise the issue of laches in the superior court, however, and                                                                               

we therefore do not consider it.                                

               14            AS 09.35.030(1).  


                                                                                           -9-	                                                                                 7218

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

Beechers' bank accounts.                                                                        We reject the Beechers' argument that the City was legally                                                                                                                                         

required  to execute against their personal property.                                                                                                     

                                                 The Beechers also claim, however, that they reasonably and detrimentally                                                                                                                                                   

relied on the                                     implication of the City's 2003 creditor's affidavits that it intended to                                                                                                                                                                                          

execute on the listed property, and the City should therefore be estopped from claiming                                                                                                                                                                                                      

it had no obligation to do so.                                                                               The superior court made no findings of fact relevant to                                                                                                                                                 

estoppel, and we cannot decide this claim as a matter of law.                                                                                                                                                                        But the Beechers have                                                

raised genuine issues of material fact about their reliance on the City's statements and                                                                                                                                                    


                                                 We have recognized two forms of estoppel that may be relevant: equitable                                                                                                                                                                 

estoppel and quasi-estoppel.                                                                             Equitable estoppel requires proof of three basic elements:                                                                                                                                                           

(1)  "assertion of a position by conduct or word," (2) "reasonable reliance thereon," and                                                                                                                                                                                                                      

                                                                                            15   In addition, equitable estoppel "will be enforced only to the  

(3)  "resulting prejudice."                                                                                                                                                                                                                                                                                      

                                                                                                              16  This latter consideration "should play an important role  

extent that justice so requires."                                                                                                                                                                                                                                                                              


                                                                                                                                                                                            17        "[E]ven where reliance has been  

when considering estoppel against a municipality."                                                                                                                                                                                                                                                         


foreseeable, reasonable, and substantial, the interest of justice may not be served by the  


application of estoppel because the public interest would be significantly prejudiced."18  


                         15                     Jamison v. Consol. Utils., Inc.                                                                                 , 576 P.2d 97, 102 (Alaska 1978).                                                                                             

                         16                     Municipality of Anchorage v. Schneider                                                                                                                , 685 P.2d 94, 97 (Alaska 1984)                                                                 


(citing Glover v. Sager, 667 P.2d 1198, 1202 (Alaska 1983)).  

                         17                     Id.  

                         18                     Id.  

                                                                                                                                                       -10-                                                                                                                                                7218

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

Quasi-estoppel requires only that a party "assert[] a position so inconsistent" with one                   


previously taken in the same litigation "as to make the present claim unconscionable."                                                            

                      There is evidence to support a finding that the City "asserted a position"  


through both statements and conduct. In its creditor's affidavits it said it would "attempt  


. . . to satisfy the judgment by levying against" certain property, including the "Marine  


fuel facility" and a "Gas Station," terms which could be broadly construed to include all  


associated movable property.  As for its conduct, the City - after executing on bank  


accounts and wages - ceased all collection attempts for nearly eight years, which could  


lead a reasonable debtor  to conclude that the remainder  of the judgment had  been  


satisfied through sale of the Beechers' personal property.  It is also unclear from the  


sparse record before us whether the sales tax liens on the personal property played any  


role in the litigation and collection efforts.  


                      And if the City did in fact retain the Beechers' property for its own use  


without accounting for its value, as the Beechers allege, it may have been unjustly  


enriched to the Beechers' detriment; such evidence could be relevant to the prejudice,  


interests of justice, and unconscionability elements of the estoppel doctrines.  


                      While some evidence in the record thus tends to support the Beechers'  


position, we cannot resolve the estoppel claims as a matter of law.  The superior court  


on  remand  should  consider  whether  the  Beechers  have  established  the  necessary  


elements of either equitable estoppel or quasi-estoppel.20  


           19         Jamison, 576 P.2d at 102                    (quoting  Fast v. Fast             , 496 P.2d 171, 175 (Kan.           


           20         The Beechers also appeal the superior court's award of attorney's fees and  


the court's decision to lift a temporary stay on collection activities. Because we reverse  


the superior court's order on the Beechers' motion for accounting, we vacate the award  


of attorney's fees.   And because the stay on collection activities was contingent on  



                                                                     -11-                                                              7218

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

V.        CONCLUSION  

                   We REVERSE the superior court's order granting in part and denying in  


part the Beechers' motion for an accounting.  We REVERSE the superior court's order  


lifting  a  temporary  stay  on  the  City's  collection  activities,  VACATE  the  award  of  


attorney's fees, and REMAND to the superior court for further proceedings consistent  


with this opinion.  




resolving the Beechers' motion for an accounting, we also reverse the superior court's  


decision to lift the stay.  

                                                            -12-                                                       7218

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