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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fannon v. Polo (2/8/2019) sp-7332

Fannon v. Polo (2/8/2019) sp-7332

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

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

          corrections@akcourts.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                    



LINK  C.  FANNON,                                                  )  

                                                                   )    Supreme Court No. S-16724  

                                                                                                        

                               Appellant,                          )  

                                                                   )    Superior  Court  No.  3PA-14-01915  CI  

          v.                                                       )  

                                                                                            

                                                                   )    O P I N I O N  

                         

NOLA POLO, PERSONAL                                                )  

                                                                                                              

                                         

REPRESENTATIVE OF THE                                              )    No. 7332 - February 8, 2019  

                                 

ESTATE OF JUNE SCHEELE,                                            )  

                                                                   )  

                               Appellee.                           )  

                                                                   )  



                                                                                                          

                                  

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

                                                                                        

                     Judicial District, Palmer, Kari Kristiansen, Judge.  



                                                                                                          

                     Appearances: WayneG. Dawson, DawsonLawGroup,LLC,  

                                                                                                         

                     Anchorage, for Appellant.  Danny W. Burton, Eagle River,  

                           

                     for Appellee.  



                                                                                                    

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

                                         

                     and Carney, Justices.  



                                         

                     WINFREE, Justice.  



I.        INTRODUCTION  



                                                                                                                         

                     The primary issue in this appeal is whether the superior court correctly  



                                                                                                                               

interpreted two property restrictions, one found in asubdivision declaration and theother  



                                                                                                                        

in  a  deed's  greenbelt  covenant,  to  ultimately  determine  that  the  deed's  greenbelt  



                                                                                                                          

covenant  is  enforceable.                  We  conclude  that  the  superior  court  correctly  applied  


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

interpretation rules by looking at the instrument language without regard to extrinsic                                                                                                                  



evidence and correctly ruled that the subdivision declaration did not preclude the deed's                                                                                                                     



greenbelt covenant.                                 We therefore affirm the superior court's decision.                                                         



II.              FACTS AND PROCEEDINGS                  



                 A.               Facts  



                                  Between 1984 and 1986 August Scheele obtained requisite permitting to                                                              



create Scheele Solid Subdivision in Wasilla. The subdivision consists of seven lots; one                                                                                                                              



lot - Lot 1, Block 1 - has a water well historically supplying the other lots through a                                                                                                                                     



subdivision water system.                       



                                                                                                                                                                                                                      

                                  In 1990 August and the other owners of the Scheele Solid Subdivision lots  



                                                                                                                                                                   

entered into a covenant (the Declaration) prohibiting using the lots for:  (1) residential  



                                                                                                                                                                                                         

housing; (2) the sale of alcoholic beverages; (3) junkyards, dumps, or rubbish disposal  



                                                                                                                                                                                                                     

or storage; and (4) churches and places of worship.  The Declaration also provided that  



                                                                                                                                                                                             

all current and future owners could enforce the restrictions "through any proceedings,  



                                                                                                                                                           

at law or in equity," specifically including injunctive relief.  



                                                                                                                                                                                                                          

                                  In 1992 August conveyed the five lots he owned, including Lot 1, Block 1,  



                                                                                                                                                                                                                 

to himself and his wife, June Scheele, as tenants by the entirety. August died a few years  



                                                                                                                                                                                                       

later.  In 1998 June conveyed Lot 1, Block 1 to a new owner; they signed a separate  



                                                                                                                                                                                                                                

agreement for the new owner to assume responsibility for the well and water system.  



                                                                                                                                                                                                                

The quitclaim deed for Lot 1, Block 1 was signed by the buyer; the deed was made  



                                                                                                                                                                                                    

subject to assumption of the water system obligations and the following restrictive  

                        1  covenant (Greenbelt Covenant):  

greenbelt                                                                         



                 1                A greenbelt is "[a]n undeveloped area of land around a city, esp. one set                                                                                                            



                                                                                                                                                                                                           LACK 'S  

aside for parks or farmland or preserved as natural wilderness."                                                                                                         Greenbelt, B 

LAW DICTIONARY (10th ed. 2014).                                          

                                                



                                                                                                            -2-                                                                                                   7332
  


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                    Allowed Uses.   Lot 1, Block 1 Scheele Solid Subdivision  

                                                                                                 

                    may not be used for any purpose other than use as a greenbelt  

                                                                                                        

                    and use for continued maintenance and operation of the water  

                                                                                                 

                    system located thereon.  For the purposes of this covenant,  

                                                                                                             

                    "greenbelt" means maintenance of trees and natural cover in  

                                                                                              

                    those areas and of the kind, as presently exist. In interpreting  

                                                                                                  

                    this  covenant,  a  court  should  resolve  doubts  in  meaning  

                                                                                                          

                    against the free use of land, rather than in favor of the free  

                                                             

                    use of land.  (Emphasis in original.)  



                                                                              

The Greenbelt Covenant provides for enforcement  



                                                                                                       

                    by the grantor, by any owner of land within Scheele Solid  

                                                                                                         

                    Subdivision, by any person owning land within one-half mile  

                                                                                                      

                    or  any boundary of Lot 1, Block 1 . . . or by any public  

                                                                                                            

                    agency, and which may be enforced through injunction or  

                                                                                              

                    any other remedy available at law or in equity.  



                                                                                                                               

June passed away in November 2012 and her daughter, Nola Polo, was appointed as the  



                                                              

personal representative of June's estate.  



                                                                                                                               

                    In April 2014 Link Fannon acquired Lot 1, Block 1, along with the well and  



                                                                                                                             

water system, from an owner subsequent to June Scheele's 1998 transaction.  The deed  



                                                                                                                               

to Fannon made no mention of the Greenbelt Covenant. Fannon intended to increase the  



                                                                                                                 

well's  production  to  service  at  least  another  ten  acres  of  neighboring  commercial  



                                                                                                                           

property  and  to  "sell bulk  water"  to  the  Department  of  Transportation  for  a  Parks  



                                                                                                                  

Highway upgrade.  Fannon then began clear-cutting trees on Lot 1, Block 1.  



          B.        Proceedings  



                                                    

                    1.        Preliminary injunction  



                                                                                                                               

                    In June 2014 June's estate brought suit against Fannon for violating the  



                                                                                                                         

Greenbelt Covenant's terms; the estate sought damages, a preliminary injunction against  



                                                                                                                     

further clear-cutting, and an affirmative injunction to restore trees. The estate requested  



                                                                                                                              

expedited consideration of its request for a preliminary injunction. After hearings in July  



                                                               -3-                                                         7332
  


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

and August, the superior court entered a preliminary injunction barring further tree  

                                                                                                                              



clearing but required the estate to post a $60,000 bond before the injunction took effect.  

                                                                                                                          



                    Fannon answered the complaint, counterclaiming, among other things, that  

                                                                                                                              



the Greenbelt Covenant conflicted with the Declaration. Fannon did not assert that either  

                                                                                                                           



covenant was ambiguous.  

                                          



                    The estate moved for partial summary judgment in March 2015, arguing  

                                                                                                   



that no genuine issues of material fact precluded the court from granting a permanent  

                                                                                                                    



negative injunction.   Fannon requested additional time to respond, which the court  

                                                                                                                           



granted.   By April the estate's attempts to post a bond to effectuate the preliminary  

                                                                                                                  



injunction  had  failed.              The  court  granted  Fannon's  motion  to  lift  the  preliminary  

                                                                                                                 



injunction, and Fannon resumed clear-cutting trees on the lot.  

                                                                                         



                    2.        Motion to determine rule of law  

                                                                             



                    The estate asked the court to determine the rule of law on several issues,  

                                                                                                                          



including  interpretation  of  the  covenants.                        The  court  understood  the  estate  to  be  

                                                                                                                               



requesting the following rulings:  (1) "intent is not relevant in interpreting covenants"  

                                                                                                



and (2) "interpretation of covenants is a question of law."  

                                                                                         



                    Fannon opposed the motion and simultaneously cross-moved for summary  

                                                                                                                      



judgment, asserting that no genuine issues of material fact precluded the court from  

                                                                                                                   



determining  that  the  Greenbelt  Covenant  was  void  because  it  contradicted  the  

                                                                                                                              



Declaration's plain meaning and its drafters' intent. Fannon repeatedly asserted that the  

                                                                                                                               



Declaration is unambiguous and restricts the lots to commercial use only, but he made  

                                                                                                                            



no argument about the Greenbelt Covenant's ambiguity.  

                                                                      



                                                                -4-                                                        7332
  


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

                                 The   court   partially   granted   the   estate's   motion,   ruling   that   the   law  



articulated in                  HP Ltd. Partnership v. Kenai River Airpark, LLC                                                                        controlled interpretation   



                                         2  

of the covenants.                             



                                3.               Motion to compel deposition of the estate's attorney  

                                                                                                                                                                 



                                 In September, by agreement of the parties, the court stayed its decision on  

                                                                                                                                                                                                            



the  two  summary  judgment  motions.                                                               Fannon  then  moved  to  compel  the  estate's  

                                                                                                                                                                                              



attorney's deposition and the production of any documents in his possession related to  

                                                                                                                                                                                                             



 Scheele Solid Subdivision. Fannon argued that the information was relevant because the  

                                                                                                                                                                                                           



attorney had drafted both the Declaration and the Greenbelt Covenant and therefore was  

                                                                                                                                                                                                         



the sole person who could testify to the deceased founders' intent.  Fannon contended  

                                                                                                                                                                                         



that the work product was not privileged because it "was not done in preparation or  

                                                                                                                                                                                                            



anticipation of litigation with [Fannon]," and he later argued that the estate had waived  

                                                                                                                                                                                                



the attorney-client privilege through its discovery responses.  

                                                                                                                                                      



                                 The superior court initially granted Fannon's motion to compel, agreeing  

                                                                                                                                                                                             



that the estate had waived the attorney-client privilege.  But when the estate moved for  

                                                                                                                                                                                                           



reconsideration, the court changed its decision.  The court held that because Fannon did  

                                                                                                                                                                                                          



not contend that the Declaration was ambiguous, "[e]xtrinsic evidence is irrelevant" and  

                                                                                                                                                                                                         



the estate's attorney's testimony about the founders' intent would be "inadmissible."  

                                                                                                                                                                                                                    



The  court  also  disagreed  with  Fannon's  assertion,  raised  for  the  first  time  in  his  

                                                                                                                                                                                                         



reconsideration opposition, that the Greenbelt Covenant was ambiguous.   The court  

                                                                                                                                                                                                    



                2                270 P.3d 719, 729 (Alaska2012) (stating                                                          that, ininterpretingcovenant, "the                                    



plain meaning governs" if covenant is unambiguous; if covenant is ambiguous it should                                                                                                           

be "construed within [its] own four corners . . . to effectuate the intent of the parties" to                                                                                                                

the extent that intent "serves to limit the scope and effect of the restriction" (quoting                                                                                                    

Hurst v. Victoria Park Subdivision Addition No. 1 Homeowners' Ass'n                                                                                                    , 59 P.3d 275, 278                

(Alaska 2002))).   



                                                                                                      -5-                                                                                             7332
  


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

                                                                                                                          

granted the estate's motion for reconsideration, and it denied Fannon's motion to compel  



                                                      

the estate's attorney's deposition.  



                                                                  

                     4.        Summary judgment order  



                                                                                                            

                     In March 2016 the court granted the estate's motion for partial summary  



                                                                                                                   

judgment and denied Fannon's.   The court ruled it would not consider "[e]xtrinsic  



                                                                                                                          

evidence of the covenantors' intents" for either restrictive covenant. Finding that neither  



                                                                                                                                  

covenant presented any ambiguity, the court limited its inquiry to the plain language of  



                       

the restrictive covenants.  The court rejected Fannon's contention that the Declaration  



                                                                                                                            

required the subdivision lots to be used only for commercial purposes; the court found  



                                                                                                                                  

that such a restriction was neither contained in the Declaration nor implied by the list of  



                                                                                                                                 

prohibited activities.  The court also found that the Declaration was not intended to be  



                                                                                                                         

"the exclusive source of restrictions on the lots" and thus did not prohibit lot owners  



                                                                                                                            

from imposing subsequent restrictions upon their land.  Because the Declaration "d[id]  



                                                                                                                        

not prohibit either of the activities protected by the [Greenbelt Covenant]" or "prevent  



                                                                                                                               

the further restriction of [the subdivision's lots]," the court held that the Declaration and  



                                                                                                                                

the Greenbelt Covenant did not conflict.  Concluding that the Greenbelt Covenant "is  



                                                                                                                                   

valid and enforceable" and finding that Fannon had violated it, the court entered a  



                                                                                                                          

permanent prohibitory injunction preventing Fannon from conducting activities outside  



                                                     

the Greenbelt Covenant's scope.  



                                                                                                                               

                     The summary judgment ruling narrowed the issues, and the resulting trial  



                                                                                                                             

focused almost entirely on damages and affirmative injunctive relief. The superior court  



                                                                                                                                

found that the estate "failed to establish damages" or to provide a reason "why the  



                                                                                                                             

greenbelt should be restored."  The court reiterated that the Greenbelt Covenant is valid  



                                                                                                                             

and enforceable, referencing the order granting partial summary judgment.  The court  



                                                                                                                                

concluded  that  "[Fannon's]  plans  to  upgrade  the  water  system  c[ould]  still  be  



                                                                                                                             

accomplished without violating the [Greenbelt Covenant] by utilizing" an existing right- 



                                                                -6-                                                         7332
  


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

of-way easement granted to the Matanuska-Susistna Borough.  The court then entered  



another  permanent  injunction,  ordering  Fannon  to  "refrain  from  further  activities  

                                                                                                                                



inconsistent with the 1998 [G]reenbelt [C]ovenant."  

                                                                                        



                      Fannonrequestedclarification ofthesuperior court'sorder,asking whether  

                                                                                                                                   



certain activities qualified as "continued use and maintenance of the water system" and  

                                                                                                                                          



what it meant to "fully utiliz[e] the Borough's prior and current right of way easements."  

                                                                                                                                                 



The court ruled that Fannon's questions "were not at issue at trial and therefore are not  

                                                                                                                                          



properly before the [c]ourt."  

                                                 



                      Fannon appeals the court's decisions:  (1) granting the estate's motion for  

                                                                                                                                           



summary judgment and denying his; (2) denying his motion to compel the estate's  

                                                                                                                                   



attorney's deposition; and (3) denying his clarification request.  

                                                                                                          



III.       STANDARD OF REVIEW  

                                           

                      "We review grants of summary judgment de novo,"3  

                                                                                                                                          

                                                                                                                   "affirming if the  



                                                                                                                                

record presents no genuine issue of material fact and if the movant is entitled to judgment  

                                4  "The interpretation of a covenant is a question of law to which we  

                                                                                                                                           

as a matter of law." 

apply our independent judgment."5  Rulings on motions for reconsideration are reviewed  

                                                                                                                                 

for abuse of discretion.6  

                      



           3          Christensen v. Alaska Sales &Serv., Inc.                         , 335 P.3d 514, 516 (Alaska2014).                         



           4          Hagen v.          Strobel, 353          P.3d   799,   802   (Alaska 2015)                   (quoting   Kelly v.   



Municipality of Anchorage                    , 270 P.3d 801, 803 (Alaska 2012)).                          



           5          HP Ltd. P'ship, 270 P.3d at 726 (quoting Hurst, 59 P.3d at 277).  

                                                                                                                         



           6          See Engstrom v. Engstrom, 350 P.3d 766, 769 (Alaska 2015).  

                                                                                                                  



                                                                     -7-                                                              7332
  


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

IV.	      DISCUSSION  



                                                                                                                

          A.	       Fannon  Did  Not  Preserve  His  Argument  That  The  Greenbelt  

                                         

                    Covenant Is Ambiguous.  



                                                                                                                     

                    Fannon argues that the Greenbelt Covenant is "susceptible to multiple  



                          

interpretations":  one requiring courts to construe its provisions against the free use of  



                                                                                                                         

land; another "allowing the owner of Lot 1, Block 1, to develop and grow the water  



                                                                                                                      

system and distribution." Fannon contends the superior court erred by failing to identify  



                                                                                                                               

this ambiguity and "determine the scope and meaning of the full agreement in light of  



                                      

all available evidence."  



                                                                                                                                

                    But Fannon did not preserve this argument; he failed to properly raise it  



                                                                                                                       

before the superior court.  He made this argument only in his opposition to the estate's  



                                                                                                                            

motion for reconsideration of a discovery order. The court rejected the argument in that  



                                                                                                                             

context.  This was not error, as a court is not required to consider an issue raised for the  

                                                                                 7  Because Fannon failed to make  

                                                                                                                          

first time in the context of a motion for reconsideration. 



this  argument  at  any  other  point  unrelated  to  the  motion  for  reconsideration,  the  

                                                                                                                            



argument is forfeited, and we do not need to consider it on appeal.  

                                                                                         



          B.	       TheGreenbeltCovenantDoes Not Conflict WithTheDeclaration, And  

                                                                                                                           

                    Fannon's  Other  Arguments  About  The  Greenbelt  Covenant  Lack  

                                                                                                                         

                    Merit.  



                    Fannon  contends  that  because  June  added  the  Greenbelt  Covenant  

                                                                                                                  



"unilaterally," and because the Covenant benefits a residence outside the subdivision at  

                                                                                                                               



the  expense  of  the  subdivision's  commercial  purpose,  the  Greenbelt  Covenant  is  

                                                                                                                              



incompatible and conflicts with the Declaration's express intent.  But we see no error in  

                                                                                                                               



the superior court's interpretation of the interaction between the two covenants, nor its  

                                                                                                                              



          7         See McCarter v. McCarter, 303 P.3d 509, 513 (Alaska 2013) (holding  

                                                                                                                     

argument raised for first time in motion for reconsideration waived).  

                                                                                          



                                                              -8-	                                                           7332  


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

conclusion   that   they   are   compatible.     "Where   the   language   of   a   covenant   is   not  

ambiguous, the plain meaning governs."                                                                         8  



                                     The superior court, after concluding that no ambiguity existed in either the  

                                                                                                                                                                                                                                     



Declaration or the Greenbelt Covenant, appropriately limited its analysis to the plain  

                                                                                                                                                                                                                               

meaning of both covenants.9  The Declaration's text does not delineate an "express intent  

                                                                                                                                                                                                                              



to limit the subdivision to commercial use only," as Fannon contends.  The Declaration  

                                                                                                                                                                                                             



makes clear that the subdivision is non-residential, but it does not prohibit a lot's use as  

                                                                                                                                                                                                                                        



a  greenbelt.                           Nor  does  the  Declaration  emphasize  that  courts  should  construe  the  

                                                                                                                                                                                                                                   



document's  intent  to  maximize  each  lot's  commercial  productivity.                                                                                                                               Perhaps  most  

                                                                                                                                                                                                                               



significantly, the Declaration does not reference the water system on Lot 1, Block 1 at  

                                                                                                                                                                                                                 



all, or place any mandates on its use or disuse.  

                                                                                                                                 



                                     We further conclude, contrary to Fannon's contention that the Greenbelt  

                                                                                                                                                                                                                  



Covenant and the Declaration are incompatible, that the Greenbelt Covenant does not  

                                                                                                                                                                                                                                    



conflict with the Declaration. By its plain language, the Greenbelt Covenant merely adds  

                                                                                                                                                                                                                                 



a new restriction on Lot 1, Block 1 - a restriction on which the Declaration is silent.  

                                                                                                                                                                                                                                                



                  8                 HP Ltd. P'ship                            , 270 P.3d at 729 (quoting                                               Hurst, 59 P.3d at 278).                          



                  9                  See id.            at 729 ("Covenants are construed within their own four corners."                                                                              



(quoting Hurst, 59 P.3d at 278)); 20 AM. J   UR. 2                                                                             D  Covenants, Etc.                                170 (2015) ("Where                  

                                                                                                   

the language of a restrictive covenant is plain and unambiguous, a court is limited to                                                                                                                                                 

applying   the   words   of   the   agreement   and   is   prohibited   from   considering   extrinsic  

evidence regarding the parties' intent . . . .").                                                             



                                     Fannon argues that the superior court erred by granting the estate's motion                                                                                                          

for reconsideration and denying his motion to compel the estate's attorney's deposition.                                                                                                                                                        

But extrinsic evidence like the information Fannon sought in the deposition - details                                                                                               

about   the   Declaration's   drafters'   intent   -   is   irrelevant   because   the   Declaration  is  

unambiguous.   See HP Ltd. P'ship                                                            , 270 P.3d at 729. We thus see no error in the superior                                                                   

court's determination                                         that the deposition                                     was   "not reasonably calculated                                                           to   lead   to  

admissible evidence," and we do not reach Fannon's remaining arguments about the                                                                                                                                                    

estate's waiver of the attorney-client privilege.                                                     



                                                                                                                   -9-                                                                                                          7332
  


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

The Greenbelt Covenant does not require that other lots in the subdivision also preserve                                                 



tree   cover   nor   does   it   grant   the   purchaser   of   Lot   1,   Block   1   "rights   .   .   .   that   are  

                                                                                                         10   It also does not lift the  

inconsistent with rights granted earlier" in the Declaration.                                                                              



Declaration's prohibitions on building a junkyard, residence, liquor store, or church, and  

                                                                                                                                                 



is therefore not in contravention of the Declaration.  

                                                                                            



                       Fannon's argument that the Greenbelt Covenant "dooms" other property  

                                                                                                                                        



owners to an eventual loss of their water supply and "is completely antithetical" to the  

                                                                                                                                                  



subdivision's commercial purpose is belied by the plain text of the covenant.   The  

                                                                                                                                               



Greenbelt Covenant allows for "use as a greenbelt and use for continued maintenance  

                                                                                          



and operation of the water system located thereon." (Emphasis added.)  Any owner of  

                                                                           



Lot 1, Block 1 may do what is reasonably necessary to prevent the well from falling into  

                                                                                                                                                 



disrepair or dysfunction and continue the subdivision's enterprises.  

                                                                                                                       



                       Fannon's  argument  that  the  Greenbelt  Covenant  is  void  because  it  

                                                                                                                                                    



constitutes a "unilateral revision to [a] common plan or general scheme of development"  

                                                                                                                               



is unavailing.  The Greenbelt Covenant does not amend, modify, or conflict with the  

                                                                                                                                                  



Declaration.  And June's putative intent to benefit property outside the subdivision is  

                                                                                                                                                    



irrelevant; a covenant is not invalid simply because it confers benefits upon a third party  

                                                                                                                                               

- in this case, the estate and future owners of the Blodgett Lake residence.11   That June  

                                                                                                                                               



            10         See  1R     ESTATEMENT  (THIRD) OF  PROP.: S                         ERVITUDES   4.12 (AM.L                    AW  INST .  



                                                                                                                                 

2000) ("Except as enabled by operation of a recording act, the creator of [a] servitude  

                                                                                                                                          

lacks the power to grant rights to later purchasers that are inconsistent with rights granted  

                   

earlier.").  



            11         See 1 R      ESTATEMENT  (THIRD)  OF  PROP.: S                         ERVITUDES   2.6 (A               M. L   AW  INST .  

                               

                                                                                                                                              

2000) (noting "the benefit of a servitude may be granted to a person who is not a party  

                                                                                                                                                     

to the transaction that creates the servitude"); see also cmt. e. (stating "the parties to a  

                                                                                                                                                  

transaction creating a servitude may freely create benefits in third parties, whether the  

                                                                  

servitude is a covenant, easement, or profit").  



                                                                        -10-                                                                  7332
  


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

personally benefitted from a restriction placed on her own property does not invalidate                                                                                                                                                                                                                                                             



the Greenbelt Covenant or place it in conflict with the Declaration.                                                                                                                                                                                                                                         



                                                           We   conclude   that   the   Greenbelt   Covenant   does   not   conflict   with   the  



                                                                                                                                                                                                                                                                                                                                           12  

Declaration, and we affirm the superior court's summary judgment ruling.                                                                                                                                                                                                                                                                           



V.                            CONCLUSION  



                                                            The superior court's decision is AFFIRMED.  

                                                                                                                                                                                                                                                                        



                              12                           Fannon asserts in his points on appeal that the superior court erred by                                                                                                                                                                                                                                                 



enjoining   him   from   engaging   in   further   activities  inconsistent   with   the   Greenbelt  

Covenant "without delineating                                                                                                           what futureuse,maintenanceor modification to the water                                                                                                                                                                          

 system is allowed under the injunction."                                                                                                                                            Fannon makes only a vague reference to this                                                                                       

line of argument in his opening brief, claiming that the injunction prohibits him from                                                                                                                                                                                                                                                                                    

"work[ing] on" or "repair[ing]" the water system.                                                                                                                                                                                        Because he failed to develop the                                                                                                        

argument in his brief, we will not consider it on appeal.   See Petersen v. Mut. Life Ins.  

 Co. of N.Y.                                     , 803 P.2d 406, 410 (Alaska 1990) ("Where a point is not given more than a                                                                                                                                                                                                                                                                

cursory statement in the argument portion of a brief, the point will not be considered on                                                                                                                                                                                                                                                                                            

appeal."). Even had Fannon developed this argument in his opening brief, we agree with                                                                                                                                                                                                                                                                                      

the superior                                             court that the questions he raised                                                                                                                             in his clarification                                                                    request  were not   

properly before the superior court, and it thus would be improper to consider them on                                                                                                                                                                                                                                                                                               

appeal.   See Harvey v. Cook, 172 P.3d 794, 802 (Alaska 2007) ("[I]ssues not properly  

raised in the trial court will not ordinarily be considered on appeal.").                                                                                                                                                                                                



                                                                                                                                                                                       -11-                                                                                                                                                                                7332
  

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