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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Strong v. Williams (12/14/2018) sp-7321

Strong v. Williams (12/14/2018) sp-7321

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

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

JOHN  STRONG,                                                         )  


                                                                            Supreme Court No. S-16730  

                                Appellant,                            )  


                                                                            Superior Court No. 3AN-15-08446 CI  

           v.                                                         )  


                                                                           O P I N I O N  



WILLIAMS, and MUNICIPALITY                                                                                             

                                                                      )    No. 7321 - December  14, 2018  




                                Appellees.                            )  




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


                      Judicial District, Anchorage, Andrew Guidi, Judge.  


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


                      Anchorage,  for  Appellant.                    Samuel  C.  Severin,  Assistant  


                      Municipal   Attorney,   and   Rebecca   A.   Windt   Pearson,  


                      Municipal Attorney, Anchorage, for Appellee, Municipality  


                      of Anchorage.  Notice of nonparticipation filed by David W.  


                      Pease, Burr, Pease & Kurtz, Anchorage, for Appellees James  


                      Williams and Suzie Williams.  


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


                      and Carney, Justices.  


                      CARNEY, Justice.  

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

 I.            INTRODUCTION  

                             A man sued his neighbors, alleging that an access road on their property  


 caused flooding on his property.  After he reached a settlement with the neighbors, the  


man stipulated to a dismissal of his claims with prejudice.  Three years later the man  


 again sued the neighbors as well as the Municipality of Anchorage, alleging that the  


 flooding  had  continued  and  asserting  new  claims  of  nuisance,  trespass,  intentional  


 infliction of emotional distress, and breach of contract.   The superior court granted  


 summary judgment for the Municipality on the basis of either collateral estoppel or res  


judicata.  The man appeals; we reverse the grant of summary judgment and remand for  


 further proceedings.  




               A.            Facts  

                             John Strong has owned property in Anchorage since 1974. He alleges that  


his house and property have regularly flooded since the neighboring landowners built an  


 access road to their property in the 1980s.   The Municipality became aware of the  


 flooding by 1993.1  


                             James and Suzie  Williams  owned  the property  by 2010,  when  Strong  


 initiated his first lawsuit related to the flooding.   Strong sued them for trespass and  


nuisance and asked the court to order them to abate the flooding and award Strong  


 compensatory and punitive damages.  


               1             The parties dispute what occurred in 1993 and the superior court made no                                                                             

 findings related to it. Strong alleged that the Municipality "declared the dam a nuisance                                                                           

 and issued an abatement order."                                       The Municipality stated that it issued a notice to the                                                    

 owners of the neighboring property that the condition of the premises constituted a                                                                                                

nuisance and was subject to abatement by timely compliance.                                                                         

                                                                                         -2-                                                                                 7321

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


                    In March 2011StrongsignedaReleaseandSettlementAgreement releasing  


the Williamses fromany and all claims related to Strong's property damage or the access  


road.      He  released  the  claims  in  exchange  for  $7,500  and  an  agreement  that  the  


Williamses would upgrade the driveway according to agreed-upon specifications.  The  


agreement  stated  that  the  parties  intended  to  "release  all  individuals,  firms,  or  


corporations who could at any future date be possible defendants in any action arising  


out of the claims."  


                    Strong filed a stipulation to dismiss all claims with prejudice in July 2012.  


The superior court accepted the stipulation and dismissed the lawsuit.  

          B.        Proceedings  

                    In July 2015 Strong filed another complaint against the Williamses and  


added the Municipality of Anchorage. He again alleged that his property had frequently  


flooded  since  the  access  road  was  built  in  the  1980s.                            Strong  contended  that  the  


Municipality had declared the road a nuisance but had never enforced an abatement  


order. He brought claims of nuisance, intentional infliction of emotional distress (IIED),  


trespass, and breach of contract against the Williamses and the Municipality.  Strong  


asked the superior court to order the defendants to remove the access road and take steps  


to restore the flow of groundwater that it had obstructed.  He also asked the court to  


award  him  compensatory  damages  for  repairs,  mental  anguish,  and  the  costs  of  


addressing the flooding, as well as punitive damages and attorney's fees.  


                    The Municipality answered his complaint less than a month later, arguing  


that Strong's claims were barred by a number of doctrines, including res judicata and  


collateral estoppel.            Strong  admitted  in  response  to discovery  requests that he was  


seeking only equitable, not monetary, relief from the Municipality and was not claiming  


trespass or IIED against the Municipality.  


                                                               -3-                                                         7321

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

                      Nearly a year later the Municipality filed a motion for summary judgment                                


arguing   that   collateral   estoppel   (or   issue   preclusion)   barred  Strong's   claims.     The  


Municipality also contended that, because it was not a party to the earlier settlement  


between Strong and the Williamses, it could not be liable for any breach of contract  


claim.        Strong  opposed  the  motion  and  the  superior  court  heard  oral  argument  in  




                      The superior  court orally  ruled  that "[c]ollateral estoppel  applies with  


regard to claims based on everything that was settled to the same extent that it applies in  


favor of the Williams[es]" and that there could be no breach of contract claim against the  


Municipality because it was not a party to the settlement agreement.  The court gave  


Strong 30 days to amend his complaint to state a viable claim against the Municipality;  


he did not file an amended complaint.  


                      On April 12, 2017 the superior court issued a written decision granting  


summary judgment to the Municipality.   It relied on a different theory in its written  


decision than its oral decision to find that Strong's claims were precluded:  it held that  


res judicata barred Strong's nuisance and trespass claims against the Municipality and  


that collateral estoppel barred Strong's IIED claim.  The court also granted judgment to  


the Municipality on Strong's claim for breach of contract because the Municipality was  


not a party to the settlement agreement.  The court dismissed the Municipality as a party  


and entered final judgment in its favor.  


                      Strong appeals.  



                      When an appeal "involves a ruling on summary judgment and presents a  


question of law," we "apply a de novo standard of review, 'adopting the rule of law that  



                      The Williamses joined  in the Municipality's motion.  

                                                                    -4-                                                                  7321  

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


 is most persuasive in light of precedent, reason, and policy.' "                                                       "The question whether        

res judicata or collateral estoppel applies is a question of law, which we . . . review de                             


IV.          DISCUSSION  


                          Strong does not appeal the dismissal of his breach of contract claim and he  



 admitted  during  discovery  that  he  was  not  suing  the  Municipality  for  IIED.                                                                       We  


therefore consider only Strong's nuisance and trespass claims.  


                          The superior court gave two different explanations for granting summary  


judgment on the nuisance and trespass claims.  It relied on collateral estoppel in its oral  


 findings and res judicata in its written findings.  Because "[w]e may affirm a grant of  



                                                                                                                 we consider both theories.  

 summary judgment on any basis appearing in the record," 


We find that neither theory supports the grant of summary judgment and therefore  



             A.           Res Judicata Does Not Apply.  


                          The  trial  court  ruled  that  res  judicata  precluded  Strong's  trespass  and  


nuisance claims against the Municipality in its written decision. Neither party explicitly  


raises the issue of res judicata on appeal, but Strong implies that res judicata does not  


 apply because he argues there was a lack of privity between the Williamses and the  

             3           State Farm Mut. Auto. Ins. Co. v. Dowdy                                    , 192 P.3d 994, 998 (Alaska 2008)                    

 (quoting  State Farm Mut. Auto. Ins. Co. v. Lestenkof                                           , 155 P.3d 313, 316 (Alaska 2007)).                  

             4           McElroy v. Kennedy, 74 P.3d 903, 906 (Alaska 2003).  


             5            Strong admitted during discovery that he was not bringing a trespass claim  


 against the Municipality, but because the Municipality does not argue on appeal that he  


waived it, we will address it.  


             6           Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp., 189 P.3d 1032,  


 1036 (Alaska 2008).  


                                                                               -5-                                                                        7321

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

Municipality.   To address this argument we examine the doctrine of res judicata and its                                                                                

 application to this case.            

                           "A judgment is given res judicata effect by this court when it is (1) a final                                                           

judgment on the merits, (2) from a court of competent jurisdiction, (3) in a dispute                                                                          

                                                                                                                                                               7    The  

between the same parties (or                                  their  privies)   about the same cause of action."                                                    

Municipality was not a party to Strong's first lawsuit.   The lawsuit's dismissal with  


prejudice cannot have a res judicata effect against the Municipality because it does not  


 satisfy the third prong:  it does not involve the same parties or parties in privity.  We  


have stated that  


                           [A] non-party will be found to have been in privity with a  


                           party  to  a  prior  legal  proceeding  only  if  that  non-party  


                           "(1)  substantially  participated  in  the  control  of  a  party's  


                           presentation in the adjudication or had an opportunity to do  


                           so; (2) agreed to be bound by the adjudication between the  


                           parties; or (3) was represented by a party in a capacity such  


                           as trustee, agent, or executor."[8]  


None of these circumstances apply. Because the Municipality was not in privity with the  


Williamses, res judicata cannot apply.  


              B.           Collateral Estoppel Does Not Apply.  


                           We next examine whether collateral estoppel, also called issue preclusion,  


 applies.  We have stated:  


                           Collateral estoppel prohibits relitigation of issues actually  


                           decided in earlier proceedings where:  (1) the party against  


                           whom the preclusion is employed was a party to or in privity  


              7            Patterson v. Infinity Ins. Co.                           , 303 P.3d 493, 497 (Alaska 2013) (quoting                              

Angleton v. Cox                  , 283 P.3d 610, 614 (Alaska 2010)).                      

              8            State, Dep't of Health &Soc. Servs., Office of Children's Servs. v. Doherty,  


 167 P.3d 64, 73 (Alaska 2007) (quoting Powers v. United Servs. Auto. Ass'n, 6 P.3d 294,  


 298 (Alaska 2000)).  


                                                                                    -6-                                                                           7321

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

                              with a party to the first action; (2) the issue precluded from                                                            

                              relitigation is identical to the issue decided in the first action;                                                   

                              (3)   the   issue   was   resolved   in   the   first   action   by   a   final  

                             judgment on the merits; and (4) the determination of the issue                                                             

                                                                                                            [  ]  

                              was essential to the final judgment.                                           9 

 Strong argues that collateral estoppel does not apply because no issues were actually  


 litigated and decided by the dismissal.  We agree.  


                              We have held that a stipulation to dismiss claims with prejudice has "the  


 same res judicata effect as a final judgment after trial."10                                                                   The Municipality argues that  


we should apply this principle to our collateral estoppel analysis.   But in   Conitz v.  


Alaska State Commission for Human Rights  we recognized an important difference  


between the two doctrines:  "[I]t is not a requirement of res judicata that an issue was  


 actually litigated, only that there was an opportunity to litigate it."11  

                                                                                                                                                       On the other hand,  


 collateral estoppel requires that "the issue was resolved in the first action by a final  


judgment  on  the  merits." 12                                     The  issue  therefore  must  "actually  be  litigated."13                                                               In  


Jackinsky v. Jackinsky  we explained that the "settlement prevented any issues from  


 actually being litigated or determined."14  Citing the Restatement (Second) of Judgments  


 section 27, we observed that this section "provides that the determination of actually  


               9              State, Dep't of Revenue v. BP Pipelines (Alaska) Inc.                                                              , 354 P.3d 1053, 1068                

 (Alaska 2015) (quoting                              Ahtna, Inc. v. State, Dep't of Transp. &Pub. Facilities                                                              , 296 P.3d     

 3, 8 (Alaska 2013)).        

               10             Tolstrup v. Miller, 726 P.2d 1304, 1306 (Alaska 1986).  


               11             325 P.3d 501, 509 (Alaska 2014).  


               12             BP Pipelines (Alaska) Inc., 354 P.3d at 1068 (quoting Ahtna, Inc. , 296 P.3d  


 at 8).  


               13             See In re Adoption of A.F.M., 15 P.3d 258, 268 n.46 (Alaska 2001).  


               14             894 P.2d 650, 655 (Alaska 1995).  


                                                                                             -7-                                                                                     7321

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


litigated issues will have preclusive effect in later litigation."                                           We quoted from section        


                       When   an   issue   of   fact   or   law   is   actually   litigated   and  

                       determined             by      a    valid       and      final       judgment,            and      the  

                       determination is essential to the judgment, the determination                    

                       is   conclusive   in   a   subsequent   action   between   the   parties,  

                       whether on the same or a different claim.                               [16]  

In the case before us, just like in Jackinsky, the "settlement prevented any issues from  


actually being litigated or determined."  Thus the issues in Strong's complaint were not  


actually litigated.   The stipulation to dismiss Strong's claims did not determine any  


factual or legal issues that might apply to claims against the Municipality.  


                       We have previously recognized that "issue preclusion ordinarily does not  


attach [to a stipulation] unless it is clearly shown that the parties intended that the issue  


be foreclosed in other litigation."17                           The Release and Settlement Agreement does not  


demonstrate such an intent. The settlement agreement was a "full and final compromise  


and settlement of any and all claims, disputed or otherwise, arising out of the allegations  


resolved by the Release and Settlement Agreement."  (Emphasis added.)  It also stated  


that the parties intended to release all future possible defendants "in any action arising  


out of the claims settled."  This language demonstrates that the parties intended to settle  


the claims brought by Strong, not to finally determine the factual or legal issues in the  



            15         Id.  

            16         Id.  (quoting  Restatement  (Second)  of  Judgments    27  (1982)).  

            17         Morris  v.  Horn,  219  P.3d   198, 209  (Alaska  2009)  (alteration  in original)  

(quoting   18A   CHARLES   ALAN   WRIGHT,   ARTHUR   R.   MILLER   &   EDWARD   H.   COOPER,  

FEDERAL  PRACTICE AND  PROCEDURE    4443  (2d  ed.  2009)).    

                                                                         -8-                                                                  7321

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

                      Strong analogizes this case to                 Sowinski v. Walker             , where we considered the            

preclusive   effect   of   a   stipulation   and   settlement  agreement   on   a   subsequent   legal  



proceeding.             We found that the settlement, which provided that an access road was  




public land, did not determine the scope of the State's duty to maintain that road. 


Because no court had adjudicated the scope of the State's duty, we held that collateral  



estoppel could not apply.                    Similarly, in this case the settlement agreement in the earlier  


litigation does not determine the cause of the flooding or the scope of the Municipality's  


responsibility.  Without a determination of factual or legal issues in that action, there is  



no determination of those issues that can have a preclusive effect in this one. 

V.         CONCLUSION  

                      We REVERSE and REMAND for further proceedings in accordance with  


this opinion.22  


           18         198  P.3d   1134,   1140-43,   1147-48  (Alaska  2008).  

           19         Id.  at   1148.  

           20         Id.  

           21         We  do  not  address  the  parties'  arguments  about  other  elements  of  collateral  

estoppel  or  whether  it  was  an  abuse  of  discretion  to  apply  collateral  estoppel  under  the  

circumstances  of  this  case.   

           22         On remand the superior court may require Strong to clarify his claims and  


the relief he is seeking from the Municipality, as it remains unclear whether he has a  


viable claim against the Municipality.  


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