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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Keenan v. Meyer (7/20/2018) sp-7259

Keenan v. Meyer (7/20/2018) sp-7259

           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  

                                                                                                                          

           corrections@akcourts.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                       



MICHAEL  J.  KEENAN  and                                        )  

DOLORES  A.  KEENAN,                                            )          Supreme  Court  No.  S-16176  

                                                                )  

                                Appellants,                                                                                          

                                                                )          Superior Court No. 3AN-12-08714 CI  

                                                                )  

                     v.                                                                        

                                                                )          O P I N I O N  

                                                                )  

                                   

JACKSON MEYER and                                                                                            

                                                                )          No. 7259 - July 20, 2018  

                    

KANDICE MEYER,                                                  )  

                                                                )  

                                Appellees.                      )  

                                                                )  



                                   

                     A                                                                                                 

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

                                                                                               

                     Judicial District, Anchorage, Andrew Guidi, Judge.  



                                                                                                              

                     Appearances: Katherine Demarest, Dorsey & Whitney LLP,  

                                                                                                           

                     Anchorage, and Jeffrey M. Feldman, Summit Law Group,  

                                                                                    

                      Seattle, Washington, for Appellants.   Thomas P. Amodio,  

                                                                                                         

                     Debra  J.  Fitzgerald,  and  Robert  W.  Corbisier,  Reeves  

                                                                        

                     Amodio, LLC, Anchorage, for Appellees.  



                                                                                                          

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

                                                          

                     and Carney, Justices.  



                                            

                     MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                 

                     Landowners  sued  their  neighbors  over  use  of  a  well  and  an  access  



                                                                                                                                     

easement, and the neighbors counterclaimed for damages caused by interference with  



                                                                                                                                        

their water rights and loss of access to their cabin.  The superior court ruled in favor of  


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

the neighbors following trial and awarded them compensatory loss-of-use damages, as                                                                                                                                            



well as full attorney's fees based in part on a finding that the landowners had engaged                                                                                                                        



in vexatious and bad faith conduct.                                                                 The landowners appeal.                                               We conclude that the                               



superior court did not clearly err in the findings underlying its damages award and that                                                                                                                                   



it did not abuse its discretion in its award of full attorney's fees to the neighbors.                                                                                                                                    We  



therefore affirm the judgment.                        



II.               FACTS AND PROCEEDINGS                  



                  A.               Keenan And Wade Subdivide Their MacDonald Spit Property.                                                                                               



                                   Michael Keenan and Hugh Wade co-owned about five acres of property                                                                                                         

                                                                                                                               1      The property is unique in the Spit  

near Seldovia at the base of MacDonald Spit.                                                                                                                                                                             



community because its access routes do not cross any beaches and can be used by  

                                                                                                                                                                                                                              



highway-legal vehicles.  Motorized access to other properties on the Spit is primarily  

                                                                                                                                                                                                            



limited to all-terrain vehicles (ATVs).  

                                                                               



                                   In 1993 Keenan and Wade subdivided the property into three lots, Lots 1,  

                                                                                                                                                                                                                                



2, and 3, and sold Lots 1 and 2, retaining joint ownership of Lot 3.  The subdivision plat  

                                                                                                                                                                                                                            



called for a public access easement along the southern border of all three lots.  As part  

                                                                                                                                                                                                                           



of the sale of Lot 1, Keenan and Wade executed a written memorandum agreement with  

                                                                                                                                                                                                                         



the new owners, committing to build a year-round ATV and pedestrian trail within the  

                                                                                                                                                                                                                             



public access easement and to allow a water well to be drilled near the easement; the  

                                                                                                                                                                                                                             



subdivided lots would "share equally in the right to the water."  Keenan testified that he  

                                                                                                                                                                                                                               



intentionally failed to havethememorandumagreement notarized, believing that it could  

                                                                                                                                                                                                                     



not then be recorded and he would not be bound by it.  The Lot 1 owners recorded it  

                                                                                                                                                                                                                                 



anyway.  

                        



                  1  

                                                                                                                                                                                                                                

                                   Appended to this opinion is one of the maps used by the superior court to  

                                                 

explain the case's background.  



                                                                                                               -2-                                                                                                                7259  


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

                                                 A trail known as the Beach Access Trail was constructed along the public                                                                                                                                                                               



access easement, deviating from the easement at one point in Lot 3 to get around an                                                                                                                                                                                                                                   



impassable rocky bluff.                                                                 Subdivision residents and other property owners and lessees in                                                                                                                                                                  



the area customarily used the Beach Access Trail, usually by ATV or foot, despite its                                                                                                                                                                                                                                 



deviation from the public easement.                                                             



                                                 During this time Keenan and Wade reached Lot 3 by taking the western                                                                                                                                                                             



portion of the Beach Access Trail to where it forked into another trail - the Southern                                                                                                                                                                              



Original Trail - that cut across the southeastern corner of Lot 2. After the Lot 2 owners                                                                                                                                                                                                         



constructed a gravel pad in the corner of their lot, Keenan and Wade crossed the gravel                                                                                                                                                                                                                 



pad before entering Lot 3 via the remnant of the Southern Original Trail, which became                                                                                                                                                                                                             



known as Jerry's Trail.  The Lot 2 owners also used Jerry's Trail to reach their house.   



                         B.                      Keenan And Wade Subdivide Lot 3.                                                                                                       



                                                 In 1995 Michael Keenan and his wife Dolores built a second house on the                                                                                                                                                                                            



southern portion of Lot 3, accessible by highway-legal vehicles via the Beach Access                                                                                                                                                                                                                 



                                                                                                                                                                                                                                                                                                    2  

Trail.   By 1999 Keenan and Wade had entered into a de facto partition of Lot 3,                                                                                                                                                                                                                       which  

                                                                                                                                      3      Wade was named the owner of the northern part,  

                                                                                                                                                                                                                                                                                                               

Keenan sought to formalize in 2004. 

Lot 3A-1, and Keenan was named the owner of the southern part, Lot 3A-2.4                                                                                                                                                                                                                           A 2006  

                                                                                                                                                                                                                                                                                                            



court order recognized that Keenan and Wade had agreed to reciprocal easements and  

                                                                                                                                                                                                                        



directed the parties to file "any necessary documents to preserve said easements, and  

                                                                                                                                                                                                                                                                                                                 



access to water."  In 2008, presumably in order to comply with the court order, Wade  

                                                                                                                                                                                                                                                                                                          



granted Keenan a view easement, and Keenan granted Wade water rights and an access  

                                                                                                                                                                                                                                                                                                        



easement.  The water rights agreement purported to grant Wade rights to water from the  

                                                                                                                                                                                                                                                                                                                    



                         2                       See Keenan v. Wade                                                          , 182 P.3d 1099, 1102 (Alaska 2008).                                                                               



                         3  

                                                                

                                                 See id.  



                         4                       See id.  

                                                                



                                                                                                                                                           -3-                                                                                                                                               7259
  


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

well on the Keenans' land.  The access easement established a ten-foot-wide easement  

                                                                                                                      



along the western boundary of Lot 3A-2 (the Keenans' half) that would "run[] with the  

                                                                                                                               



land."  The written grant of the access easement was executed and recorded.  But at the  

                                                                                                                               



time the easement was granted, only the northern part of it, coinciding with Jerry's Trail,  

                                                                                                                            



was in use; the southern part, bordering the Keenans' land, was mostly undeveloped.  

                                                                                                                                     



Wade continued to use Jerry's Trail and never further developed the rest of the easement  

                                                                                                                      



along the Keenans' land.  

                                        



          C.        The Meyers Take Ownership Of Lot 3A-1.  

                                                                                 



                    In 2010 Wade sold Lot 3A-1 to Jackson and Kandice Meyer.  The Meyers  

                                                                                                                         



believed that the 1994 memorandum agreement (among Keenan, Wade, and the Lot 1  

                                                                                                    



owners) granted water rights to the well on Lot 3A-2 to all subdivision properties,  

                                                                                                



including theirs.   They confirmed that a series of easements granted them motorized  

                                                                                                                    



access from Jakolof Bay Road, and they understood that the Lot 1 and 2 owners and the  

                                                                                                                               



Keenans  drove  to  their  properties  using  highway-legal  vehicles;  the  Meyers  also  

                                                                                                                             



understood that Wade had driven to Lot 3A-1 via Jerry's Trail.  

                                                                                                 



                    The Meyers promptly began renovating the cabin on Lot 3A-1.   In the  

                                                                                                                               



course of the renovations, in late 2010 or early 2011, the Meyers disconnected the  

                                                                                                                               



Keenans' sewage pipe; this caused a backup in the Keenans' house, and, as the superior  

                                                                                                                       



court later found, "did not contribute to good feelings between the neighbors."  

                                                                                                      



                    The Meyers' renovations required the regular transportation of equipment  

                                                                                                                    



and materials to their property.  They primarily used Jerry's Trail for this until, in July  

                                                                                                                             



2011, the Lot 2 owner informed them "that he was closing their access across Lot 2  

                                                                                                                                  



based on pressure from others in the MacDonald Spit community."  Turning instead to  

                                                                                                                                 



the unused access easement along the western edge of the Keenans' lot, the Meyers  

                                                                                                                        



discovered that it would not be passable without significant improvement.  

                                                                                                                   



                                                               -4-                                                         7259
  


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

                      In  the fall of 2011  the Meyers cleared  the access easement and  made  

                                                                                                                                   



improvements to the Lot 3 well, rotating the well house to reduce its encroachment on  

                                                                   



the easement.  But in spring 2012 the Keenans rotated the well house to again encroach  

                                                                                                                              



on the easement.  The Keenans also placed a burn barrel in the easement, blocked the  

                                                                                                                                        



northern end with large rocks, and posted signs at each end declaring it could only be  

                                                                                                                                         



used for pedestrian traffic.  The Meyers dropped their attempts to develop it.  

                                                                                                                         



           D.	        The Keenans Initiate Legal Action Regarding The Meyers' Use Of The                                              

                      Access Easement And Water Rights.  

                                                                         



                      In April 2012 the Keenans sent the Meyers a letter threatening legal action  

                                                                                                                                   



if the Meyers further developed the access easement.  The Keenans asserted that use of  

                                                                                                                                         



the easement was limited to pedestrian traffic, and then only when tidal conditions  

                                                                                                                           



prevented  use  of  the  Beach  Access  Trail  in  conjunction  with  another  trail,  to  the  

                                                                                                                                       



northeast of the Meyers' lot, known as the Crossover Trail.  The Meyers stopped using  

                                                                                                                                    



the access easement altogether, but they also consulted a lawyer and by letter asserted  

                                                                                                                 



their right to continue making reasonable improvements to it.  

                                                                                                 



                      In July 2012 the Keenans filed a complaint seeking a permanent injunction  

                                                                                                                            



that  would  prohibit  the  Meyers  from  modifying  the  access  easement,  as  well  as  

                                                                                                                                        



compensatory  damages  for  the  "destruction  of  the  trees,  brush  and  foliage"  in  the  

                                                                                                                                       



easement.  They also sought a declaration that the Meyers had no rights to water from  

                                                                                   



the Lot 3 well. The Meyers counterclaimed for an injunction protecting their right to use  

                                                                                                                                       



the access easement for motorized traffic, for a declaration of their water rights, and for  

                                                                                                                                        



compensatory damages.  The superior court dismissed the water rights claims in June  

                                                                                                                                     



2013 for lack of subject matter jurisdiction; by that time, the Meyers had a water rights  

                                                                                                                                   



application pending with the Department of Natural Resources (DNR).  

                                                                                                       



                      In late October 2013 the Keenans cut off the Meyers' water supply.  The  

                                                                                                



Meyers filed suit to have the water restored; the case was dismissed with instructions that  

                                                                                                                                       



                                                                    -5-	                                                            7259
  


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

                                                                                                                               

the Meyers could amend their answer and counterclaims to include the claim in the  



                                                                                                                        

Keenans' 2012 lawsuit.   In December 2013 the DNR issued a permit to the Meyers  



                                                                                                                        

granting them water rights to the Lot 3 well as long as they could obtain "legal access"  



                                                                                                                      

to the well. But the Keenans did not restore the Meyers' water supply until late February  



                                                                                                                           

2014.  That spring, Keenan also constructed a new, larger well house, intruding much  



                                                                                                                               

farther into the access easement.   The superior court would later  conclude that the  



                                                            

increased intrusion "was no accident."  



                                                                                            

          E.        The Superior Court Rules In Favor Of The Meyers.  



                                                                                                                           

                    The superior court held a four-day bench trial in January and March 2015,  



                                                                                                                         

issued a decision in August, and issued a more expansive set of supporting factual  



                                                                                                                              

findings and conclusions of law in December. The court concluded that the Meyers had  



                                                                                                                              

a right to use the access easement for "pedestrian, ATV, and car/light truck travel," and  



                                

that they had access to the Lot 3 well by implied easement, easement by estoppel, and  



                     

easement by necessity.  



                                                                                                  

                    The court also awarded the Meyers compensatory damages:  $42,000 for  



                                                                                                                           

the loss of use of their house for the four-month period they were without water ($350  



                                                                                                                          

per day for four months) and $33,150 for the loss of use of the access easement during  



                                                                                                  

the pendency of the litigation ($25 per day from the time of the first letter threatening  



                                                                                                                       

legal action to the date of final judgment). The court declined to award punitive damages  



                                                                                                                                 

because they had not been pleaded or placed at issue in the pretrial proceedings; it  



                                                                                                                            

observed, however, that punitive damages would have been merited if they had been  



                                                                                                                       

pleaded, because the Keenans' actions "were outrageous, were done with bad motives,  



                                                                           

and showed reckless indifference to the Meyers' rights."  



                                                                                                                             

                    The Meyers moved for attorneys' fees, and the superior court granted them  



                                                                                                                               

full reasonable fees in the amount of $157,418.  The court enhanced the baseline fee  



                                                                                                                         

award set out in Alaska Civil Rule 82(b)(1) to 75% of full fees by applying several  



                                                               -6-                                                         7259
  


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

factors of Rule 82(b)(3); it then concluded that the remaining 25% of full fees should                                                                                         



also be awarded because of the Keenans' vexatious or bad faith conduct during the                                                                                                     



litigation.  



                             TheKeenans appeal thecompensatory                                                  damagesaward and                           theawardoffull              



attorney's fees.   



III.           STANDARDS OF REVIEW                         



                             "[D]eciding the amount of compensatory damages is the job of the finder                                                                            



                                                                                                       5  

of fact" and is therefore reviewed for clear error.                                                                                                                                    

                                                                                                           "So long as the trial judge 'follows the  



                                                                                                                                                                        

correct rules of law, and [the judge's] estimation appears reasonable and is grounded  



                                                                                                                                                    6  

                                                                                                                                                  

upon the evidence, [the judge's] finding will remain undisturbed.' " 



                                                                                                                                                                                       

                             "We review an award of attorney's fees under Alaska Civil Rule 82 for  

                                             7   We will only find an abuse of discretion if an award is "arbitrary,  

                                                                                                                                                                       

                    

abuse of discretion." 

capricious, manifestly unreasonable, or the result of an improper motive."8  

                                                                                                                                                                    "[B]ecause  



                                                                                                                                                                          

an enhanced fee award under Rule 82(b)(3)(G) 'calls into question [a party's] litigation  



                             

conduct and the potential merits of [the party's arguments and defenses], we assess de  



                                                                                                                                                                           

novo the legal and factual viability of [the party's claims] and review relevant findings  



                                                     9  

                                                   

of fact for clear error.' " 



               5             Burton v. Fountainhead Dev., Inc.                                           , 393 P.3d 387, 393 (Alaska 2017).                            



               6  

                                                                                                                                                                                 

                             Pluid v. B.K., 948 P.2d 981, 983 (Alaska 1997) (quoting Morrison v. State,  

                                                                              

516 P.2d 402, 405 (Alaska 1973)).  



               7             Keenan, 182 P.3d at 1105 (citing Ashley v. Baker , 867 P.2d 792, 796  

                                                                                                                                                                                    

(Alaska 1994)).  

                   



               8             Johnson v. Johnson, 239 P.3d 393, 399 (Alaska 2010) (quoting McGee v.  

                                                                                                                                                                                          

McGee, 974 P.2d 983, 987-88 (Alaska 1999)).  

                                                                                      



               9             Herring v. Herring, 373 P.3d 521, 528 (Alaska 2016)  (second alteration  

                                                                                                                                       

                                                                                                                                                                (continued...)  



                                                                                            -7-                                                                                   7259
  


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

IV.	      DISCUSSION  



                    The  Keenans  challenge  the  superior  court's  award  of  compensatory  

                                                                                                            



damages, arguing that the award was unsupported by the evidence and that part of it  

                                                                                                                                



constituted an impermissible double recovery. They also challenge the superior court's  

                                                                                                                       



award of full attorney's fees to the Meyers.   We conclude that the superior court's  

                                                                                                                       



findings of fact are not clearly erroneous and that they support its damages award; we  

                                    



also conclude that the court did not abuse its discretion in its award of attorney's fees.  

                                                                                                                          



          A.	       The   Superior   Court   Did   Not   Clearly   Err   In   Its   Award   Of  

                                                                                                                            

                    Compensatory Damages.  

                                             



                    The superior  court awarded compensatory damages in  two  categories.  

                                                                                                                                   



First, it awarded damages based on "a reasonable rental rate for the Meyers' house" for  

                                                                                                                              



the four months their water was cut off, calculated at $350 per day from October 27,  

                                                                                                               



2013 to February 24, 2014.  Second, the court awarded damages for the inconvenience  

                                                                                                            



of being unable to use the access easement for 1,326 days, calculated at $25 per day from  

                                                                                                                           



April 26, 2012, when the Meyers received a letter from the Keenans threatening legal  

                                                                                                                          



action over their use of the easement, to December 7, 2015, when judgment was entered.  

                                                                                                                                   



The Keenans challenge both these awards, arguing that they are unsupported by the  

                                                                                                                             



evidence.          They  also  argue  that  the  superior  court's  calculation  results  in  an  

                                                                                                                             



impermissible double recovery because it compensates the Meyers for loss of access to  

                                                                                                                               



the property for four months for which they are also compensated for loss of use of the  

                                                                                                                             



house.  

            



          9         (...continued)  



                                                                 

in original) (quoting Johnson, 239 P.3d at 399).  



                                                              -8-	                                                           7259  


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

                               Loss-of-use damages may be awarded when a property owner has been                                                                                            



                                                                                                      10  

temporarily deprived of the property's use.                                                                                                                                 

                                                                                                             "[R]ental value . . . is one permissible  

                                                                                                               11   Damages may also be "measured by  

                                                                                                                                                                                                  

                                                                                                    

standard for measuring damages for loss of use." 



the 'reduction of the rental or usable value of the property' during the pendency of the  

                                                                                                                                                                                                

injury."12   "The plaintiff bears the burden of proving damages, but once the existence of  

                                                                                                                                                                                                   



damage has been established, the amount of loss need not be proved with mathematical  

                                                                                                                                                                        

precision."13  

                               



                               1.	            The   superior   court   did   not   clearly   err   in   its   assessment   of  

                                              damages for the loss of use of the Meyers' house                                                                      .  



                               The Keenans raise three challenges to the court's award of damages for the                                                                                       



Meyers' loss of use of their cabin.  First, they contend that "the number of days used in  

                                                                                                                                                                                                   



the [court's] calculation . . . was far too high given the evidence in the record" because                                                                                           



"the Meyers did not use the property every day of the year, particularly during the winter                                                                                               



months."     But   their   argument   is   not   supported   by   the   law.     Section  931  of   the  



Restatement (Second) of Torts, which we followed in                                                                          Ben Lomond, Inc. v. Campbell                                            ,  



                                                                                                                                                                                              

states that a property owner is entitled to damages for loss of use of property even if "the  



                10             RESTATEMENT  (SECOND) OF  TORTS     931  (AM.  LAW  INST .   1979).  



                11            Burgess  Constr.  Co.  v.  Hancock,  514  P.2d  236,  238  (Alaska   1973).  



                12             Scribner   v.   Summers,   138   F.3d   471,   472   (2d   Cir.   1998)   (per   curiam)  



(quoting  Guzzardi  v.  Perry's  Boats,  Inc.,  460  N.Y.S.2d  78,  82  (N.Y.  App.  Div.  1983)).   



                13             City  of  Seward  v.  Afognak  Logging,  31  P.3d  780,  787  (Alaska  2001)  (citing  



Conam  Alaska  v.  Bell  Lavalin,  Inc.,  842  P.2d  148,  154  (Alaska  1992));  cf.  CTI  Int'l,  Inc.  

v.  Lloyds  Underwriters,  735  F.2d  679,  684  (2d  Cir.   1984)  (noting  that  under  New  York  

law,  "a  showing  of  actual  financial  loss  is  not  an  element  of  the  property  owner's  prima  

facie  case"  for  loss  of  use,  so  even  "in  the  absence  of  evidence  from  either side  as  to  

actual  financial  loss  attributable  to deprivation  of  use  of  the  property,  the  owner  may  

recover  compensation  for  loss  of  use").  



                                                                                                -9-	                                                                                       7259
  


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

owner in fact has suffered no harm through the deprivation, as when he was not using                                     



the subject matter at the time or had a substitute that he used without additional expense                                                                                                            

                     14     Ben Lomond involved a claim for loss of use of equipment; we noted our  

to him."                                                                                                                                                                                                          



earlier rejection of a requirement that the injured party prove "that in fact he hired a  

                                                                                                                                                                                                                       

replacement . . . before he can establish loss of use [damages]."15  Here, the Meyers were  

                                                                                                                                                                                                               



entitled to recover for their loss of the cabin's use even though their primary home was  

                                                                                                                                                                                                                 



elsewhere and even though they declined to spend money on a replacement property.  

                                                                                                                                                                                                                             



The Keenans' actions affected not just the Meyers' actual use of the cabin but also their  

                                                                                                                                                                                                               



right to use and enjoy it when and as they wished.  

                                                                                                           



                                  It is true that "[t]he use to which the . . . land is commonly put and the time  

                                                                                                                                                                                                                



of year in which the . . . deprivation occurs are . . . to be taken into consideration as far  

                                                                                                                                                                                                                   

                                                                                                                                                                                                          16     The  

as these factors bear upon the value of the use to the owner or the rental value."                                                                                                                              

                                                                                                                                                                                        



Meyers conceded that most MacDonald Spit properties are used only in the summer. But  

                                                                                                                                                                                                                  



the superior court found that the Meyers' cabin had amenities that made it comfortable  

                                                                                                                                                                                            



even in the winter.  And the Meyers presented evidence that they would have used the  

                                                                                                                                                                                                                   



cabin in the winter if they had had water; Jackson Meyer testified that his family would  

                                                                                                                                                                                                           



have "been there a lot that winter" because it was such a good snow year.  The Keenans  

                                                                                                                                                                                                     



                 14               691 P.2d 1042, 1045-46 (Alaska 1984) (quoting R                                                                              ESTATEMENT  (SECOND)  



OF TORTS  931 cmt. b (A                                         M. L       AW  INST . 1979));                          see also Pope v. Heritage Cmtys., Inc.                                                           ,  

                          

717 S.E.2d 765, 774-75 (S.C. App. 2011) (deciding there was no reversible error in                                                                                                                                   

findingcommonality                                   between permanent residentsand non-permanent                                                                               residents seeking   

loss-of-use damages; finding no error in crediting expert's theory "that a non-permanent                                                                                           

resident was entitled to the same loss-of-use damages as a permanent resident" because                                                                                                                 

loss of use may be "based on habitability, not on occupancy").                                                               



                 15              Ben Lomond, 691 P.2d at 1045 (alterations in original) (quoting Burgess  

                                                                                                                                                                                                      

Constr. Co., 514 P.2d at 238).  

                                                                              



                 16               RESTATEMENT  (SECOND) OF  TORTS    931 cmt. b (A                                                                                 M. L       AW. I   NST . 1979).   



                                                                                                        -10-                                                                                                  7259
  


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

dispute the credibility of this testimony, but the superior court found it credible and we                                                                                                                                                                                                                          



see no reason to disturb its conclusion.                                                                                                         



                                                 TheKeenans' second challengeto theloss-of-useaward for thecabin is that                                                                                                                                                                                          



the   estimated  rental   rate   of   $350   a   night,   based   on   rental   rates   for   a   somewhat  



comparable home, "could only have been [based on] a summer rate"; they contend the                                                                                                                                                                                                                                 



rate should have been significantly less in winter. The Keenans based their argument on                                                                                                                                                                                                                               



what "[c]ommon experience and logic both make plain," but they point to no evidence                                                                                                                                                                                                           



in the record that supports a lower winter rate.                                                                                                                            The superior court's number was based                                                                                        



on Jackson Meyer's testimony that the most comparable home he could find in the area                                                                                                                                                                                                                           



was in the nearby community of Halibut Cove; that property had one bedroom (as                                                                                                                                                                                                                                     



opposed to the Meyers' two-bedroom cabin), did not have direct beach access, and                                                                                                                                                                                                                                



rented for $300 per night.                                                                     The Keenans did not cross-examine Meyer on the rental rate.                                                                                                                                                     



Though the Keenans imply that the difference between summer and winter rental rates                                                                                                                                                                                                                          

                                                                                                                                                        17  Given the superior court's detailed findings  

is a judicially noticeable fact, we disagree.                                                                                                                                                                                                                                                    



regarding the rental rate and the absence of contradictory evidence, we can see no clear  

                                                                                                                                                                                                                                                                                                             



error in the number it selected.  

                                                                                 



                                                 Finally, the Keenans argue that the damages award for loss of use of the  

                                                                                                                                                                                                                                                                                                                   



cabin was unwarranted because the Meyers could still "easily access the house" and,  

                                                                                                                                                                                                                                                                                                              



"[h]ad they wanted, . . . could have hauled water with them."  But we see no clear error  

                                                                                                                                                                                                                                                                                                             



in the superior court's finding that "fresh water is necessary to the reasonable enjoyment  

                                                                                                                                                                                                                                                                                        



of the Meyers' property - the Meyers' [h]ouse includes a fully plumbed bathroom and  

                                                                                                                                                                                                                                                                                                                 



kitchen."   In fact, Michael Keenan conceded in his testimony that he "shut off . . .  

                                                                                                                                                                                                                                                                                                                    



realistic use of [the Meyers'] house" when he cut off their water supply for the winter.  

                                                                                                                                                                                                                                                                                                                                  



                         17                      Alaska R. Evid. 201(b) ("A judicially noticed fact must be one not subject  

                                                                                                                                                                                                                                                                                                     

to . . . reasonable dispute . . . .").  

                                                                                                    



                                                                                                                                                        -11-                                                                                                                                                                7259  


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

In sum, the superior court's findings of fact support its award of damages for the Meyers'                                                                                                                                                                                                                                                                                                                                                   



loss of use of their cabin while they were without water.                                                                                                                                                                                                                                                              



                                                                          2.	                                 The superior court did not clearly err in assessing damages for                                                                                                                                                                                                                                                                                            

                                                                                                              the Meyers' loss of use of the access easement.                                                                                                                                                                    



                                                                          The Keenans also challenge the court's award of damages for loss of use                                                                                                                                                                                                                                                           



 of the access easement.                                                                                                          They argue first that there was no evidence the Meyers ceased                                                                                                                                                                                                                                                       



using the access easement in April 2012, when the court's damage calculation began;                                                                                                                                                                                                                                                                                                                                                                 



instead, they contend, the Meyers did not suffer the "inconvenience" of using the more                                                                                                                                                                                                                                                                                                                                                                        



 circuitous route until at least June 2014, when they "actually began using the Crossover                                                                                                                                                                                                                                                                                                                                          



Trail" instead to access their property.                                                                                                                                                                              But the Meyers did present evidence that they                                                                                                                                                                                               



were deprived of full use of the easement because of the Keenans' threat to sue. Jackson                                                                                                                                                                                                                                                                                                                                                      



Meyer testified that his family stopped using the access easement in April 2012, after                                                                                                                                                                                                                                                                                                                                                                           



receiving the attorney's letter threatening legal action.                                                                                                                                                                                                                                                 And Michael Keenan conceded                                                                                                 



that   the   Meyers   "agreed   not   to"   make   improvements   to   or   drive   ATVs   across   the  



 easement during the pendency of the litigation because of the Keenans' request for an   



injunction.  



                                                                         Again, the law does not require the Meyers to show that they actually                                                                                                                                                                                                                                                                                               



would have used the easement every day for which they claim damages; they need only                                                                                                                                                                                                                                                                                                                                                                               



 show   that   they   were   deprived   of   their   lawful   right   to   make   reasonable   use   of   the  

                                                       18                Because the evidence supports the superior court's conclusion that the  

 easement.                                                                                                                                                                                                                                                                                                                                                                  



                                     18                                  See Burgess Constr. Co.                                                                                                              , 514 P.2d at 238 (rejecting argument that plaintiff                                                                                                                                                                             



must establish that he hired a replacement vehicle before he can establish loss of use of                                                                                                                                                                                                                                                                                                                                                                                      

the vehicle);                                                          Moylan v. Dykes                                                                                     , 226 Cal. Rptr. 673, 680 (Cal. App. 1986) ("When a                                                                                                                                                                                                    

person interferes with the use of an easement he deprives the easement's owner of a                                                                                                                                                                                                                                                                                                                                                                                                

valuable property right and the owner is entitled to compensatory damages.");                                                                                                                                                                                                                                                                                                                                                                  Holmes  

v.  Raffo, 374 P.2d 536, 541 (Wash. 1962) ("The value of an article to its owner . . . lies                                                                                                                                                                                                                                                                                                                                                               

in his right to use, enjoy, and dispose of it.	                                                                                                                                                                                                           These are the rights of property which                                                                                                                                                       

                                                                                                                                                                                                                                                                                                                                                                                                                   (continued...)  



                                                                                                                                                                                                                                   -12-	                                                                                                                                                                                                                         7259
  


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

Meyers made such a showing, we affirm its award of loss-of-use damages related to the                                                                                                                                                                                                                                                                                                                                                                                                        



 access easement.   



                                                                             3.	                                   The superior court's award of compensatory damages for both                                                                                                                                                                                                                                                                                                    

                                                                                                                   loss of use of the easement and loss of use of the house did not                                                                                                                                                                                                                                                                                                       

                                                                                                                   constitute an impermissible double recovery                                                                                                                                                                                                                                    .  



                                                                             The Keenans also argue that awarding damages "for loss of use of the                                                                                                                                                                                                                                                                                                                                         



property under both a lack of water theory and a lack of access theory" during the four                                                                                                                                                                                                                                                                                                                                                                                               



months from late October 2013 to late February 2014 "constitutes an impermissible                                                                                                                                                                                                                                                                                                                       



 double recovery."                                                                                        They argue that "[t]he access easement has no independent value                                                                                                                                                                                                                                                                                                     



 except as a means to get to the cabin," and if the lack of water made the cabin unusable,                                                                                                                                                                                                                                                                                                                                                             



then the Meyers cannot have been further harmed by the lack of access to an unusable                                                                                                                                                             



 cabin.    



                                                                             But loss of use of the easement did not entirely preclude the Meyers from                                                                                                                                                                                                                                                                                                                            



using their cabin, and loss of use of the cabin did not preclude the Meyers from using the                                                                                                                                                                                                                                                                                                                                                                                                   



rest of their property.                                                                                                     As the Meyers point out, even without running water they could                                                                                                                                                                                                                                                                                    



 still benefit from convenient vehicle access, "for example, to work on the property."                                                                                                                                                                                                                                                                                                                                                                                                                           



Despite the overlapping time periods, these were two distinct injuries which merited                                                                                                                                                                                                                                                                                                                                                                             



 distinct damages awards; the superior court did not err in calculating damages separately                                                                                                                                                                                                                                                                                                                                                           



 for each injury.                                



                                       18                                    (...continued)  



                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

 ownership vests in him, and whether he . . . avails himself of his right of use does not in  

                                                                                                                                                   

the least affect the value . . . .").  



                                                                                                                                                                                                                                             -13-	                                                                                                                                                                                                                                 7259
  


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

               B.	             The Superior Court Did Not Abuse Its Discretion By Awarding The                                                                                               

                               Meyers Full Attorney's Fees.                               



                               The superior court found that "the Meyers reasonably and necessarily                                                                          



incurred legal fees in the amount of $157,418" and that as prevailing parties they were                                                                                                     



                                                                                                                                 19  

"entitled to a baseline Rule 82 award of . . . $11,024.89."                                                                                                                                    

                                                                                                                                      But the court also found that  



                                                                                                                                                                                                  

this number should be enhanced under Rule 82(b)(3), which lists factors relevant to  



                                                                                                                                                                                                

whether "a variation [from the baseline fee] is warranted."  The court considered six  



                                                                                                                                                                               

factors:  (1) the complexity of the litigation; (2) the reasonableness of the attorneys'  



                                                                                                                                                                              20  

                                                                                                                                                                                              

hourly  rates;  (3)  the  reasonableness  of  the  attorney  hours  expended;                                                                                                        (4)  the  



                                                                                                                                                                                               

reasonableness of the number of attorneys used; (5) the reasonableness of the claims and  



                                                                                                                                                                                          

defenses pursued by each side; and (6) vexatious or bad faith conduct.   The  court  



                                                                                                                                                                                                

determined that the first five factors merited an increase in the Meyers' fee award "to  



                                                                                                                                                                                               

75% of the fees they reasonably and necessarily incurred."  The court relied on the last  



                                                                                                                                         

factor, the Keenans' vexatious or bad faith conduct during the course of the litigation,  



                                                                                                                                                                                            

to award "the remaining 25% of [the Meyers'] reasonably and necessarily incurred legal  



                                                                                                                                                                                                

fees."  The Keenans acknowledge that the Meyers were entitled to some attorney's fee  



                                                                                                                                                                                         

award, but they challenge the justifications the superior court used to enhance the award  



                                                                           

to 100% of full reasonable fees.  



               19              This amount reflects 20% of the first $25,000 awarded plus 10% of the                                                                                            



remainder, as prescribed by the fee schedule outlined in Rule 82(b)(1).                                                                        



               20              "[T]he reasonableness of the attorneys' hourly rates and the number of  

                                                                                                                                                                                                  

hours  expended"  is  a  single  factor  under  Rule  82(b)(3)(C),  but  the  superior  court  

                                                                                                                                                                                          

analyzed "[t]he reasonableness of the attorneys' hourly rates" and "[t]he reasonableness  

                                                                                                                                                                     

of the attorneys' time charges" as separate factors.  

                                                                                                                      



                                                                                               -14-	                                                                                       7259
  


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

                                         1.	                The   superior   court   did   not   abuse   its   discretion   by   using  

                                                            Rule   82(b)(3)(C)   (reasonableness   of   hourly   rates   and   hours  

                                                            expended) and (D) (reasonableness of number of attorneys) to                                                                                                                                  

                                                            support a fee enhancement.                 



                                        The Keenans first argue that two of the Rule 82(b)(3) factors - (C) (the                                                                                                                                     



 reasonableness of the billing rate and the hours billed) and (D) (the reasonableness of the                                                                                                                                                            



 number of attorneys used) - do not support a fee enhancement; instead, they contend,                                                                                                                                                  



 these factors can appropriately support only a reduction. But they cite no support for this                                                                                                                                                          



 proposition, and our case law contradicts it.                                                                                            We concluded in                                         Ware v. Ware                                 that a   



judge's "citation of factor (C) (the reasonableness of the fees and hours expended) . . .                                                                                                                                                                   



                                                                                                                                                                                                                 21  

 as supporting an enhanced award [was] not an abuse of discretion."                                                                                                                                                                                        

                                                                                                                                                                                                                           And there is  



                                                                                                                                                                                                                                               

 nothing about the language of the rule itself - which allows a "variation" of the award  



                                                                                                                                                                                                                                                    

 "upon consideration of the factors listed" - that limits use of any of the factors to only  



                                                                                                    22  

                                                                    

 enhancements or only reductions. 



                                                                                                                                                                                                                                         

                                        The Keenans do  not challenge on appeal the superior  court's specific  



                                                                                                                                                                                                                                        

 findings that the Meyers' case was efficiently staffed, that the Meyers were charged  



                                                                                                                                                                                                                                      

 "exceptionally reasonable" rates for the Anchorage market, or that the Meyers' attorneys  



                                                                                                                                                                                                                                         

 billed them for a reasonable number of hours. Having made these findings, the superior  



                                                                                                                                                                                                                                                       

 court acted within its discretion when it relied on factors (C) and (D) to enhance the  



                                      

 Meyers' fee award.  



                    21                   161   P.3d   1188,   1200   (Alaska   2007)   (affirming  an   award   of   80%   of  



 attorney's fees);                               see also Crittell v. Bingo                                              , 83 P.3d 532, 536-37 (Alaska 2004) (affirming                                                            

 enhanced attorney's fee award based in part on reasonableness of attorney's hours and                                                                                                                                                                

 hourly rates).   



                    22                  Alaska R. Civ. P. 82(b)(3).  

                                                                                             



                                                                                                                           -15-	                                                                                                                  7259
  


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

                     2.	        The   superior   court   did   not   abuse   its   discretion   by   using  

                                Rule    82(b)(3)(A)    (complexity)    and    (F)    (reasonableness    of  

                                parties' positions) to support a fee enhancement                                   .  



                     We   have   repeatedly   upheld   trial   courts'   authority   to   consider  case  

                                                                                                                 23  The Keenans  

complexity when deciding whether to enhance attorney's fee awards.                                                           



appear to concede that this case was complex.  They argue, however, that the case's  

                                                                                                                                 



complexity belies the superior court's concurrent finding of unreasonableness; if their  



positions were really so "unreasonable," they argue, "this litigation would not have taken  

                                                                                                                                   



four years or required the level of evidence, briefing, trial testimony, and lengthy judicial  

                                                                                                                                



decisions that ultimately ensued."  

                                                        



                     But unreasonable positions can make a complex case more difficult than  

                                                                                                                                     



it needs to be.  In Cole v. Bartels we affirmed an enhanced fee award after concluding  

                                                                                                                          



that the superior court did not abuse its discretion by finding that a case was complex and  

                                                                                                                                      

that the nonprevailing party's claims and defenses were unreasonable.24                                                In  Ware we  

                                                                                                                                       



affirmed an enhanced fee award that was based in part on a finding that the plaintiff's  

                                                                                                                            

assertion of unreasonable claims increased the litigation's difficulty and complexity.25  

                                                                                                                                             



The superior court in this case did not abuse its discretion by relying simultaneously on  

                                                                                                                                        



factors (A) and (F).  

                          



                     The Keenans also challenge the superior court's finding that some of their  

                                                                                                                                    



positions were unreasonable:  (1) insisting that the access easement could be used only  

                                                                                                                                    



           23         Ware,   161  P.3d  at   1200.  



           24        4  P.3d  956,  960-61  (Alaska  2000).  



           25         161  P.3d  at  1199-1200;  see  also  Crook  v.  Mortenson-Neal,  727  P.2d  297,  



306  (Alaska   1986)  (affirming  an  enhanced  award  based  on  the  superior  court's  finding  

that "[d]efendants   insisted   on   litigating   a  weak   and   incredible   defense"   that   "caused  

plaintiff  justifiably  to  expend  considerable  effort  on  motions  and  trial  practice").  



                                                                  -16-	                                                            7259
  


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

for foot traffic and only during extreme tides, despite having themselves granted and                                                                                                                                                          



recorded an easement that "runs with the land" and does not contain those restrictions;                                                                                                                                 



(2)  claiming that the Meyers cut mature trees on the easement despite the absence of                                                                                                                                                              



supporting evidence; and (3) denying the Meyers the use of the well despite the fact that                                                                                                                                                      



the Meyers' predecessor used it and the well had "all the earmarks of a community well."                                                                                                                                                                     



The Keenans argue that although they did not ultimately succeed on these issues, their                                                                                                                                                      

arguments were nonetheless "legitimate."                                                                                26  



                                       The Keenans' first argument - that there was a legitimate dispute about  

                                                                                                                                                                               



whether the access easement could be used for more than just foot traffic at high tide -  

                                                                                                                                                                                                                                                   



was contradicted by the grant of the easement itself; it was drafted and signed by Michael  

                                                                                                                                                                                                                                   



Keenan, it contained no restrictions, and it expressly ran with the land.  The Keenans  

                                                                                                                                                                                                                                 



argue that the reasonableness of their position on this point is nonetheless proven by the  

                                                                                                                                                                                                                                                 



doggedness with which they maintained it. But as we have noted before, consistency in  

                                                                                                                                                                                                                                                     



argument does not prove reasonableness; a party's "insist[ence] on litigating a weak and  

                                                                                                                                                                                                                                                



incredible [position] to its highly predictable conclusion" may justify an enhanced fee  

                                                                                                                                    

award.27                      The fact that the Keenans persisted in their claim required both parties to  

                                                                                                                                                                                                                                                   



expend considerable time, expense, and effort litigating (as the Keenans themselves  

                                                                                                                                                                                                                         



describe it) "the nature of the property, the suitability of the Crossover Trail as a primary  

                                                                                                                                                                                                                                 



means of access, community norms involving vehicular travel, and the intent of the  

                                                                                                                                                                                                                                                



parties who created the easement."  We see no reason to disturb the superior court's  

                                                                                                                                                                                                                                     



                   26                  See Marathon Oil Co. v. ARCO Alaska, Inc.                                                                                        , 972 P.2d 595, 605 (Alaska                                



 1999) (nonprevailing party's challengeto                                                                             an arbitration award "raised a                                                    legitimate issue"   

so factor (F) could not be used to justify an enhanced fee award).                                                                                                    



                   27                  Crook, 727 P.2d at 306; see Ware, 161 P.3d at 1200 (affirming application  

                                                                                                                                                                                                                          

of factor (F) when a party "persisted in her claims despite" evidence which "clearly  

                                                                                                                                                                                                                                  

refuted" the party's claims).  

                                                          



                                                                                                                       -17-                                                                                                                 7259
  


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

finding that the Keenans staked out and held firmly to an unreasonable position on the                                                                                                                                                                                                                                                                              



access easement which contributed to the cost of the litigation.                                                                                                                                                                                                              



                                                         The    Keenans   also    dispute    the    superior    court's    finding    that    they  



unreasonably "insisted that the Meyers had no right to cut vegetation over the access                                                                                                                                                                                                                                                                 



 [easement] and claimed, without any credible evidence, that the Meyers had cut large,   



mature trees."                                                 The Keenans argue that the court's ruling "amounts to punishing one                                                                                                                                                                                                                               



party . . . because one detail of its presentation-'mature trees'-was rejected by the                                                                                                                                                                                                                                                                               



finder   of fact."                                                    But the Keenans'                                                                     claim that the Meyers were going                                                                                                                               overboard   in  



brushing out the easement was at the heart of their original complaint, including their                                                                                                                                                                                                                                                                       



requests for injunctive relief and treble damages.                                                                                                                                                                    And though the Keenans presented                                                                                 



 some evidence on this issue - Michael Keenan's testimony, several photographs, and                                                                                                                                                                                                                                                                               



evidence that the Meyers had offered the Keenans firewood produced from brushing the                                                                                                                                                                                                                                                                                 



easement - the superior court did not find their position credible.                                                                                                                                                                                                                             The court rejected                              



Michael Keenan's testimony as imprecise, found that "[t]he stumps that he generally                                                                                                                                                                                                                                                      



alluded to in the photographs" appeared to have been cut years before the dispute arose,                                                                                                                                                                                                                                                                 



and found that the vegetation cut by the Meyers grew back by the next summer, "leaving                                                                                                                                                                                                                                                        



the area virtually indistinguishable from when the Meyers had cut it" and resulting in,                                                                                                                                                                                                                                       



at most, "negligible" harm to the easement. "[T]he superior court [i]s in the best position                                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                28          The court's credibility findings  

to evaluate the [parties'] demeanor and credibility."                                                                                                                                                                                                                                                                                         



 support its conclusion that the Keenans' claim about the Meyers' clearing activities in  

                                                                                                                                                                                                                                                                                          



the easement was unreasonable.  

                                                                             



                                                         Finally, the Keenans challenge the superior court's conclusion that the  

                                                                                                                                                                                                                                                                                                                                                                   



Keenans "lacked a reasonable basis for denying use of the well to the Meyers."  The  

                                                                                                                                                                                                                                                                                                                                                              



Keenans argue that their position was reasonable because their agreement with Wade  

                                                                                                                                                                                                                                                                                                                                  



                             28  

                                                                                                                                            

                                                          Crook, 727 P.2d at 306.  



                                                                                                                                                                                 -18-                                                                                                                                                                                            7259  


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

gave him only a personal right to the well water.                                                                                                                                                         But they supported this claim with                                                                                            



arguments the superior court could reasonably conclude were inconsistent and meritless.                                                                                                                                                                                                                                                                       



As   the   superior  court   described   their   argument,   they   were   not   bound   by   a   1994  



memorandum agreement granting Lots 1, 2, and 3 equal rights to the well because                                                                                                                                                                                                                                          



Michael Keenan expected the agreement would not be recorded, but at the same time                                                                                                                                                                                                                                                       



they intended the agreement to be enforceable against the other lot owners in the event                                                                                                                                                                                                                                             



the Keenans' well proved unproductive and they had to look to one of their neighbors                                                                                                                                                                                                         



for water.                               Moreover, the superior court found that Keenan, "an experienced attorney,"                                                                                                                                                                                               



 should have known better than to "terminate[] the water supply in spite of a previous                                                                                                                                                                                                                             



court's order requiring him to maintain Lot 3A-1's access to the community well."                                                                                                                                                                                                                                                                             



Because the superior court did not err when it weighed Rule 82(b)(3) factors (A), (C),  



 (D), and (F) against the Keenans, we affirm its award of 75% of the Meyers' attorney's                                                                                                                                                                                                                           



fees.  



                                                      3.	                       The   superior   court   did   not   abuse   its   discretion   by   using  

                                                                                Rule 82(b)(3)(G) (vexatious or bad faith conduct) to support a            

                                                                                fee enhancement.   



                                                      The Keenans also challenge the superior court's use of Rule 82(b)(3)(G)                                                                                                                                                        



-   vexatious or bad faith conduct - to further enhance the 75% fee award to full                                                                                                                                                                                                                                                         



reasonable   fees.     The   court   properly   observed   that   in   order   to   support   such   an  



enhancement it must first find that the Keenans engaged in "bad faith conduct . . . [that]                                                                                                                                                                                                                                  



occurr[ed] during the litigation, not during the underlying transaction that is the subject                                                                                                                                                                                                                                   

                                                                       29          Accordingly, the court concluded that the Keenans took actions  

of the litigation."                                                                                                                                                                                                                                                                                                         



outside  of  court  that  nonetheless  constituted  "a  heavy-handed  attempt  to  unfairly  

                                                                                                                                                                                                                                                                                                                        



pressure their adversary in the course of the litigation." The court cited the facts that "the  

                                                                                                                                                                                                                                                                                                                                          



Keenans[] intentionally cut off [the Meyers'] water supply more than a year after this suit  

                                                                                                                                                                                                                                                                                                                                            



                           29                         Cole, 4 P.3d at 961 n.24.  

                                                                                                                                    



                                                                                                                                                                      -19-	                                                                                                                                                                             7259  


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

was filed" and then, when "they resumed supplying water, the Keenans stepped up their                                                                                                                                                                             



 obstruction of the access easement . . . [by] construct[ing] a new and much larger well                                                                                                                                   



house, which intruded 'to a substantially greater extent' " into the easement.                                                                                                                                   



                                          The Keenans dispute that the court's findings adequately support a fee                                                                                                                                                      



 award under factor (G). They argue first that factor (G) requires a finding of "dishonesty                                                                                                                                                



 of belief or purpose" or an "absence of good faith" and contend that the Meyers made                                                                               



no such showing.                                           But the trial court is "in the best position to determine whether a                                                                                                                                              

                                                                                                                                                                                    30   Following trial the superior  

party's behavior was excessively litigious or in bad faith."                                                                                                                                                                                           



 court  here  found  that  the  evidence  established,  "clearly  and  convincingly,  that  the  

                                                                                                                                                                                                                                                                     



Keenans' actions - in particular, prohibiting the Meyers from improving and using the  

                                                                                                                                                                                                                                                                       



 [a]ccess [e]asement and then unilaterally terminating the water supply to Lot 3A-1 -  

                                                                                                                                                                                                                                                                        



were outrageous, were done with bad motives, and showed reckless indifference to the  

                                                                                                                                                                                                                                                                       



Meyers' rights."  The court cited both Michael Keenan's contravention of a prior court  

                                                                                                                                                                                                                                                                



 order that required him to preserve "access to the community well" for Lot 3A-1 and his  

                                                                                                                                                                                                                                                                        



 efforts to "deny the enforceability of [the 1994 memorandum agreement] he drafted  

                                                                                                                                                                                                                                                         



when it became inconvenient." In its fee order the court also noted the suspicious timing  

                                                                                                                                                                                                                                                            



 of the Keenans' actions in shutting off the water supply and then "step[ping] up their  

                                                                                                                                                                                                                                                                  



 obstruction of the access easement" during the litigation.  These unlawful actions, the  

                                                                                                                                                                                                                                                                      



 court found, were intended to maintain pressure on the Meyers as the Keenans' litigation  

                                                                                                                                                                                                                                                                                    



                     30                   Reid v. Williams                                     , 964 P.2d 453, 461-62 (Alaska 1998) (citing                                                                                                    Hanson v.   



Kake Tribal Corp.                                         , 939 P.2d 1320, 1331 (Alaska 1997));                                                                                  Stone v. Int'l Marine Carriers,                                    

Inc., 918 P.2d 551, 558 (Alaska 1996);                                                                                       Wickwire v. McFadden, 633 P.2d 278, 281 n.6                                                                                              

 (Alaska 1981)).   



                                                                                                                                  -20-                                                                                                                           7259
  


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

adversaries.   We are not persuaded that the court's findings of bad faith were clearly                                                                                



                      31  

erroneous. 



                            We turn to the second part of the Keenans' argument:  that the vexatious  

                                                                                                                                                



or bad faith conduct on which the superior court relied did not occur in the litigation. We  

                                                                                                                                                                               



have held that the use of factor (G) to enhance a fee award must depend on conduct  

                                                                                                                                                                     



"during the litigation" and cannot depend on conduct "during the underlying transaction  

                                                                                                                                                               

that is the subject of the litigation."32                                          We have further emphasized that the conduct  

                                                                                                                                                                     



"must be such that the parties are prevented from litigating the action on an equal  

                                                                                                                                                                         

plane."33  

                    



                            The Keenans do not appear to dispute that cutting off the Meyers' water  

                                                                                                                                                                          



supply and expanding the well house to impede the access easement were actions taken  

                                                                                                                                                                          



"during the litigation."  They argue, however, that these were not actions taken in the  

                                                                                                                                                                               



litigation, but rather "were actions taken consistent with the Keenans' positions about the  

                                                                                                                                                                               



legal rights that were the subject of this litigation."   But regardless of whether the  

                                                                                                                                                                              



Keenans' actions were taken out of court and were consistent with their pre-litigation  

                                                                                                                                                          



positions, we cannot fault the superior court's conclusion that they were taken during the  

                                                                                                                                                                               



course of the litigation specifically to "unfairly pressure their adversary."  The court's  

                                                                                                     



factual findings support its conclusion.  Despite knowing that the Meyers' cabin was  

                                                                                                                                                                             



              31            See Garrison v. Dixon                           , 19 P.3d 1229, 1235 (Alaska 2001) (holding that                                                  



because the evidence supported trial court's "factual findings that the case was litigated                                                                           

in bad faith," "the superior court did not abuse its discretion in awarding full, actual                                                                                 

attorney's fees under Rule 82").                         



              32            Cole, 4 P.3d at 961 n.24; see also Hopper v. Hopper, 171 P.3d 124, 127,  

                                                                                          

 133-34 (Alaska 2007) (reversing fees award because appellee's bad faith conduct related  

                                                                                                                                                                        

to drafting of a dissolution agreement, not to conduct during the later litigation to set  

                                                                                                                                                                               

aside the agreement).  

                    



              33            Kowalski v. Kowalski, 806 P.2d 1368, 1373 (Alaska 1991).  

                                                                                                                                           



                                                                                      -21-                                                                                 7259
  


----------------------- Page 22-----------------------

dependent on the Lot 3 well, the Keenans cut off the water supply in the middle of                                                                                           



litigation. When                   the Meyers filed an amended counterclaimand                                                   moved for a preliminary  



injunction to regain water access,                                 theKeenans                restored the water but maintained pressure                          



on the Meyers by building the well house further into the easement.                                                                        The superior court          



could reasonably conclude, as it did, that these bad-faith actions were taken specifically                                                                

                                                                                                                 34    As such they were properly  

to give the Keenans leverage in the ongoing litigation.                                                                                                         



considered in the context of Rule 82(b)(3)(G).  

                                                                                                  



                           4.	           The superior court did not improperly use a full attorney's fee  

                                                                                                                                                                           

                                         award as a substitute for punitive damages.  

                                                                                                                    



                           Finally, the Keenans argue that the superior court improperly used the  

                                                                                                                                                                           



award of full attorney's fees as a substitute for the punitive damages the Meyers failed  

                                                                                                                                                                      



to ask for in their complaint or to pursue during the litigation.  They contend this was  

                                                                                                                                                                         



improper because"feeawardsareintended to partially compensateprevailing parties and  

                                                                                                                                                                           



may not be used for any other purpose. Specifically, fee awards designed to punish  

                                                                                                                                                                   



litigants are forbidden."  

                                                   



                           The Keenans are correct that "Rule 82's primary purpose is to partially  

                                                                                                                                                                



compensate a prevailing party for attorney's fees incurred in enforcing or defending the  

                                                                                                                                                                            



party's rights," in recognition of the fact that "[i]f fees were not allowed, the prevailing  

                                                                                                                                                             

party would suffer a loss in spite of its victory."35  

                                                                                                                                                                             

                                                                                                         "It is not the purpose of Rule 82 to  



                                                                                                              36  

                                                                                                         

penalize a party for litigating a good faith claim . . . ."                                                                                                

                                                                                                                   But while we have "expressed  



              34	          Northlake  Mktg.  & Supply,  Inc.  v.  Glaverbel,  S.A.,  72  F.  Supp.  2d  893,  908  



(N.D.  Ill.   1999)  (finding that a  party's  "extrajudicial  conduct  .  .  .  amounts  to  bad  faith  

conduct"  for  purposes  of  damages  and  attorney's  fee  award).  



              35           State v. Native  Vill. of Nunapitchuk, 156 P.3d 389, 397-98 (Alaska 2007).  

                                                                                                                                                                    



              36            Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974), superseded by statute  

                                                                                                                                                                    

                                                                                                                                                      (continued...)  



                                                                                     -22-	                                                                             7259
  


----------------------- Page 23-----------------------

concern that 'financially ruinous' fee awards against                                        good faith         civil litigants could deter        



                                       37  

access to the courts,"                                                                                                                             

                                            we have regularly affirmed full fee awards against bad faith  



                38  

                                                                                                                                              

litigants.          We have explained that full fee awards against bad faith litigants are unlikely  



                                                   39  

                                                                                                                       

                                                        and  an  enhanced  award  for  bad  faith  conduct  helps  

to  deter  good  faith  claims, 



                                                                                                                                                      

compensate the prevailing party for effort and expense that may have been avoidable had  



                                                                                                                                                        

the other party acted in good faith.  For these reasons, in Crittell v. Bingo we rejected an  



                                                                                                                                           

argument - identical to the Keenans' - that "the superior court's award of enhanced  



                                                                                           40  

                                                                         

fees was an unlawful award of punitive damages." 



                        As evidence that the superior court was wrongly motivated, the Keenans  



                                                                                                                                            

point to the reference in its fees order to its earlier decision rejecting punitive damages  



                                                                                                                                                       

because they had not been pleaded.  The court noted its earlier finding that some of the  



                                                                                                                                              

Keenans' actions "were outrageous, were done with bad motives, and showed reckless  



                                                                                                                                                      

indifference  to  the  Meyers'  rights."                                But  the  court  adequately  explained  why  the  



                                                                                                                                                     

Keenans' actions warranted an award of full attorney's fees.  The court did not say that  



                                                                                                                                                  

it was awarding full fees in lieu of punitive damages, and we will not infer such an intent  



                                                                        

when the full fee award was itself well supported.  



            36          (...continued)  



                                                                                                             

on other grounds as stated in Nunapitchuk, 156 P.3d at 391 n.1.  



            37          Crittell v. Bingo           , 83 P.3d 532, 537-38 (Alaska 2004) (emphasis in original)                               



(quoting  Reid v. Williams                    , 964 P.2d 453, 462 (Alaska 1998)).                 



            38          See id.; Garrison v. Dixon, 19 P.3d 1229, 1234-35 (Alaska 2001); Keen v.  

                                                                                                                                                         

Ruddy, 784 P.2d 653, 657 (Alaska 1989).  

                                                                



            39          Crittell, 83 P.3d at 537-38.  

                                                           



            40          Id.  



                                                                          -23-                                                                     7259
  


----------------------- Page 24-----------------------

V.       CONCLUSION  



                  WeAFFIRMthesuperior court's awardsofcompensatorydamagesandfull  

                                                                                                               



attorney's fees.  

                       



                                                        -24-                                                7259
  


----------------------- Page 25-----------------------

APPENDIX
  



                                      7259  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


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