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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mark N. Wayson v. William E. Stevenson (8/12/2022) sp-7614
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.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
MARK N. WAYSON, )
) Supreme Court No. S-17874
Appellant, )
) Superior Court No. 3AN-17-05729 CI
v. )
) O P I N I O N
WILLIAM E. STEVENSON, )
) No. 7614 - August 12, 2022
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Thomas A. Matthews, Judge.
Appearances: Mark N. Wayson, pro se, Sutton, Appellant.
Taylor B. McMahon, Law Offices of Royce & Brain,
Anchorage, for Appellee.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
BORGHESAN, Justice.
I. INTRODUCTION
This appeal arises from a long-running dispute between neighbors over
access to the Matanuska Glacier. The dispute concerns an easement that leads from the
Glenn Highway over residential property to a parcel of land used as a jumping-off point
for a glacier tourism business. After years of disagreement over issues related to road
maintenance, traffic, safety, and trespass on the homeowner's property by visitors to the
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glacier, the homeowner erected a sign stating "No Glacier Access" near the entrance to
the road.
The business owner filed suit, and the homeowner counterclaimed for
defamation based on inflammatory allegations madein thecomplaint. Thesuperior court
largely ruled in favor of the business owner. It held that he has a right to use the
easement for his glacier tourism business, that his road maintenance work was
reasonably necessary and did not unreasonably damage the homeowner's property
despite minor increases in the width of the road, and that the "No Glacier Access" sign
had unreasonably interfered with his use of the easement. The superior court also
dismissed the defamation counterclaims and awarded attorney's fees to the business
owner. We affirm the superior court's judgment in full.
II. FACTS AND PROCEEDINGS
A. Facts
1. Pre-1977 history of the land
The easement in question begins at theGlenn Highwaynear thecommunity
of Glacier View, proceeds south across a residential property and over the Matanuska
River, and leads to a parcel on the south side of the river near the Matanuska Glacier.
1 In
The area has historically been home to the Ahtna Athabascan people.
the twentieth century settlers in the area began staking land claims under the authority
of various federal programs. Some properties were claimed as homestead sites for
1 See William E. Simeone et al., The Ahtna Homeland, 17 ALASKA J.
ANTHROPOLOGY 102, 103 (2019). It is unclear when, exactly, the parcels at issue in this
case became habitable. The glacier filled the Matanuska Valley during the Wisconsin
glaciation and then began a cycle of retreating and advancing near its present terminus
sometime prior to 8,000 years ago. See John R. Williams & Oscar J. Ferrians, Jr., Late
RCTIC 83, 83-90
Wisconsin and Recent History of the Matanuska Glacier, Alaska , 14:2 A
(1961).
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residential occupancy, while others were claimed as trade and manufacturing (T&M)
sites for commercial use.
The Kimball family - including John (Jack) and Vernon - moved to the
area in 1964 and began making land claims to parcels on both sides of the river. Vernon
claimed land on the north side of the river while Jack claimed land on the south side.
Jack had both a residential homestead site and a commercial T&M site. On his
properties Jack established a lodge, store, and other enterprises promoting tourism at the
glacier, including a guided tour business.
Jackand other local residents built Keith's Road, which started at theGlenn
Highway, crossed the river, and led to parcels on the south side of the river. The south
end of the Keith's Road bridge abutted Jack's T&M site, and Jack charged a fee to pass
through his property. The bridge soon washed out, and a new one was built farther
downstream, away from Jack's property.
In 1970 Jack built a second road and bridge to provide access to his
property. This second road connected Mile 102 of the Glenn Highway to the glacier by
crossing Vernon's property, then the river, then Jack's property. Jack cleared the road
to the face of the glacier. He charged a fee to use this road for glacier access.
2. The 1977 deed of easement
After Jack built the road and bridge, Vernon allowed Jack to cross his
property without a written easement. Yet Jack insisted on getting a written easement.
2 The
In 1977 Vernon executed a deed granting Jack an easement to cross his property.
deed conveyed to
2 Vernon executed a second deed in 1979 granting another Kimball brother
an easement to cross his property. Because we resolve the access issues raised in this
appeal exclusively on the basis of the 1977 easement, we do not address the 1979 deed.
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[Jack,] his successors and assigns forever, a right-of-way and
easement with the right, privilege and authority to [Jack], his
successors and assigns, to use without restrictions, for
purposes of ingress and egress, the road, roadway or means
of access to, from and across, presently situated and
constructed on . . . Lots Seven (7), Eight (8), Nine (9), and
Ten (10) . . . .
It is understood by [Vernon] that execution of this Easement
shall entitle [Jack], his successors and assigns forever, to use
the existing roadway on the above described property,
without restriction, to cross over and gain access to adjacent
or adjoining lands as [Jack] may deem necessary or
appropriate.
3. Arrival of Cook Inlet Region, Inc., Wayson's and Stevenson's
acquisitions of the land, and subsequent conflicts
As part of the implementation of the 1971 Alaska Native Claims Settlement
3 (ANCSA), the Alaska Native Corporation Cook Inlet Region, Inc. (CIRI) selected
Act
land in the area, including portions of the glacier itself, for ownership.
In 1992 William Stevenson began renting Jack's property on the south side
of the river. Eight years later Stevenson and Jack entered into a written lease for 552
acres of Jack's property, including the Glacier Park Lodge. Stevenson ran the lodge as
well as several other tourism businesses involving the glacier. In 2017 Stevenson
(through one of his businesses) signed a long-term lease with CIRI to access CIRI lands
for his glacier tours.
Stevenson began to maintain the easement road when he started renting
fromJack and has continued to do so. Maintenance activities include fixing potholes and
plowing snow, most of which goes over the edge of the road. The road has been
3 43 U.S.C. §§ 1601-1629h.
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involved in three rockslides, which Stevenson cleaned up by bulldozing the fallen rocks
off the road.
Between 1989 and 1991 Mark Wayson acquired four of Vernon's lots,
including two he purchased directly from Vernon. Wayson's deed from Vernon
references the 1977 deed, stating that the lots Wayson purchased were
FURTHER SUBJECT TO a general easement granted to
[Jack] for ingress and egress affecting the portion of the said
premises and for the purposes stated therein, and incidental
purposes thereto as disclosed by instrument recorded
March 21, 1977 . . . .
The easement road bisects Wayson's property; his house and other improvements lie on
the north end of the road closest to the Glenn Highway.
Stevenson and Wayson have disputed their property rights for the past two
decades. Wayson has expressed concern about the stability of his home's foundation;
the safety of the roadway, including rocks falling from the cliff above the road; and the
liability he may incur if a traffic accident were to happen. Wayson also objects to the
scope of Stevenson's maintenance of the roadway, asserting that Stevenson is
impermissibly expanding the roadway surface and pushing waste and debris onto
Wayson's property. Wayson eventually posted a "No Glacier Access" sign along the
easement road, prompting Stevenson to bring their dispute to court.
B. Proceedings
1. Declaratory and injunctive relief
In March 2017 Stevenson filed a complaint for declaratory relief against
Wayson, alleging that Wayson had interfered with Stevenson's use of the easement.
Wayson answered; although he did not deny the existence of the easement, he
counterclaimed for relief that would restrict Stevenson's use of the easement. In
particular, Wayson requested that the court order the easement closed for non-residential
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use until Stevenson provided liability coverage for Wayson and took certain safety
measures, including installing highway guardrails on both sides of the easement and
posting safety-related signage along the road. Wayson also asked the court to order that
Stevenson use a different route for his clients to access "any destination across CIRI
lands, the Matanuska Glacier, and [any] other non-dominant estate," and to order that
Stevenson stop maintaining the easement in ways that brought debris onto Wayson's
property or undermined its foundation. Wayson further alleged that Stevenson had
"abuse[d]" the easement by "renting out [Wayson's] property" to an automobile
company for a vehicle commercial. Finally Wayson counterclaimed for defamation
based on an allegation in Stevenson's complaint that Wayson had interfered with the
easement by appearing nude or undressed near the easement.
Stevenson moved for a preliminary injunction on several of the disputed
issues. After four days of testimony the superior court partially granted the preliminary
injunction in July 2017. The court ruled that Stevenson could use the easement road for
commercial purposes. The court also ruled that Wayson could post signs that protected
his property at the roadway, but not signs saying "No Glacier Access" or something to
similar effect. The court reasoned that such a sign would likely interfere with
Stevenson's use of the easement, but that Wayson was entitled to warn others of "the
road's inherent risks to motorist(s) to limit [Wayson's] liability." Hearing no evidence
to support Stevenson's public nudity allegation, however, the court declined to issue a
preliminary injunction prohibiting Wayson "from being in any state of undress on his
property."
2. Defamation claims
The parties engaged in extensive motion practice concerning the allegation
in Stevenson's complaint that Wayson had appeared nude or undressed near the
easement. The superior court ultimately ruled the allegations in the complaint to be
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privileged and dismissed Wayson's defamation counterclaim on summary judgment in
May 2019.
Wayson had earlier moved to amend his counterclaim to add a third-party
defamation claim against Stevenson's lawyer, Chadwick McGrady. The superior court
initially denied leave to amend, but on reconsideration allowed Wayson to file the third-
party claim based on statements McGrady made to a newspaper reporter. The
defamation case against McGrady, a Colorado resident, was removed to federal court,
where it was dismissed under the fair report privilege. 4
3. Superior court's findings of fact and conclusions of law
A trial was held over six days in May and June 2019. The superior court
issued findings of fact and conclusions of law in January 2020, amending them in April
2020 after granting Stevenson's motion for reconsideration.
The court ruled that Stevenson could use the easement road for commercial
activity: namely, to promote his tourism business and provide access to Matanuska
Glacier. However, the court determined that Stevenson's use of the roadway to film a
vehicle commercial several years prior was beyond the scope of the easement because
it was not incidental to ingress or egress.
The superior court also ruled that the deed of easement did not establish a
definite width. Therefore the court reasoned that the easement's width is that reasonably
necessary for the enjoyment of the servitude. The court then found that Stevenson's road
maintenance - using a road grader to smooth the surface, plowing snow and other
4 Wayson v. McGrady, No. 18-CV-00163, 2019 WL 3852492, at *4-7 (D.
Alaska June 25, 2019) (holding that McGrady's comments, as "fair 'abstract or
abridgment' " of nudity-related material in Stevenson's complaint and not made "solely
for the purpose of causing harm to" Wayson, were protected by fair report privilege
(quoting Fairbanks Publ'g Co. v. Francisco , 390 P.2d 784, 793-96 (Alaska 1964))).
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debris off the side of the road, and pushing rocks over the downhill side of the road -
is reasonable and necessary to Stevenson's enjoyment of the easement and that marginal
increase in the width of the roadway over time resulting from these maintenance
activities does not unreasonably burden or damage Wayson's property. Furthermore,
reasoning that "trees and brush are routinely cut back along the edge of a roadway
easement," the court concluded that this type of "clearing or incidental damage is
consistent with Stevenson's obligation to maintain the roadway."
The superior court further ruled that Stevenson was not trespassing on
Wayson's property and that Wayson had interfered with the easement by placing a sign
that said "No Glacier Access." The court issued a separate order that same day on
Stevenson's request for a permanent injunction, in which it described permissible
language that Wayson could put on signage along the easement road.
4. Superior court's order on attorney's fees
In August 2020 the court determined that Stevenson was the prevailing
party and awarded him $50,000 in attorney's fees. The court reasoned that the litigation
could be broken up into three main categories: the preliminary injunction, the
defamation issue, and issues related to the easement. The court stated that there was
"little dispute" that Stevenson prevailed on the preliminary injunction issue. The court
then explained that Stevenson prevailed on the defamation issue, which was the focus
of much of the motion practice in the case, noting that Wayson prevailed on only one
point: being permitted to file a third-party defamation complaint against McGrady.
Finally, the court ruled that although Wayson prevailed on the issue of whether he had
interfered with the easement apart from posting a "No Glacier Access" sign, Stevenson
prevailed on the other issues related to the easement: Stevenson obtained rulings that the
easement allowed his commercial use and road maintenance activities and that those
maintenance activities and his use of the road to provide access to the glacier did not
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constitute trespass. The court concluded that on the whole, Stevenson prevailed on the
majority of issues in the case and "his view of the scope of the easement was upheld."
Wayson appeals.
III. STANDARDS OF REVIEW
"We review the superior court's factual findings for clear error, which
occurs when a review of the entire record leaves us with a definite and firm conviction
5
that a mistake has been made."
"[I]t is the province of the [superior] court to judge
6
witnesses' credibility and weigh conflicting evidence." "Wereviewthesuperior court's
7
legal conclusions de novo."
When reviewing an award of attorney's fees, we review the superior
8
An award of
court's award and prevailing party determination for abuse of discretion.
attorney's fees or a prevailing party determination is an abuse of discretion "only when
9
it is manifestly unreasonable."
5 Offshore Sys.-Kenai v. State, Dep't of Transp. & Pub. Facilities , 282 P.3d
348, 354 (Alaska 2012).
6 Estate of Smith v. Spinelli, 216 P.3d 524, 528 (Alaska 2009) (quoting
Peterson v. Ek, 93 P.3d 458, 463 (Alaska 2004)).
7 Offshore Sys.-Kenai, 282 P.3d at 354.
8 Boiko v. Kapolchok, 426 P.3d 868, 876 (Alaska 2018); Schultz v. Wells
Fargo Bank, N.A., 301 P.3d 1237, 1241 (Alaska 2013).
9 Boiko, 426 P.3d at 876 (quoting Cizek v. Concerned Citizens of Eagle River
Valley, Inc., 71 P.3d 845, 848 (Alaska 2003)); Schultz, 301 P.3d at 1241 (quoting All. of
Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 273 P.3d 1123, 1126 (Alaska
2012)).
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IV. DISCUSSION
Wayson's arguments on appeal fall into four categories relating to: (1) the
scope of the easement; (2) defamation claims; (3) an asserted federal Clean Water Act
claim; and (4) the award of attorney's fees. We address each category in turn.
A. The Superior Court Did Not Make Legal Or Factual Errors In Its
Rulings On The Easement.
1. The 1977 deed of easement allows Stevenson to use the easement
for commercial purposes.
The superior court ruled that Stevenson may use the easement to promote
his tourism business and provide access to the glacier. Wayson appears to argue on
appeal that the superior court erred by construing the 1977 deed of easement to permit
Stevenson's commercial activities.10 He contends that this interpretation "expand[s] the
scopeof the easement," impermissibly allowing Stevenson to use the road forhis tourism
business.
In Alaska "[t]he touchstone of deed interpretation is the intent of the parties
and where possible the intention of the parties will be given effect."11 We apply a three-
step test when interpreting a deed.12 We first examine "the four corners of the document
to see if it unambiguously presents the parties' intent."13 "Whether a deed is ambiguous
10 Wayson argued in the superior court that although the easement is "open
to those who are authorized . . . to use it," Stevenson is not permitted to use the easement
"in trespass."
11 Sykes v. Lawless, 474 P.3d 636, 643-44 (Alaska 2020) (quoting HP Ltd.
P'ship v. Kenai River Airpark, LLC, 270 P.3d 719, 727 (Alaska 2012)).
12 Id. at 644.
13 Id. (quoting McCarrey v. Kaylor, 301 P.3d 559, 563 (Alaska 2013)).
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14
is a question of law that we review de novo." "If the deed is open to only one
reasonable interpretation," we end our analysis there. 15
But if the deed is ambiguous, we will proceed to the second step and
16 "In this
"consider[] extrinsic evidence of the surrounding facts and circumstances."
second step, the 'inquiry can be broad, looking at "all of the facts and circumstances of
the transaction in which the deed was executed, in connection with the conduct of the
parties after its execution." ' "17 The superior court's factual findings based on its
analysis of extrinsic evidence are reviewed for clear error.18
Finally, "[i]f the parties' intent is still unclear after examining extrinsic
evidence," we will then consider rules of construction in interpreting the deed.19
In accordance with this test, we begin by examining the express language
of the 1977 deed. The deed grants Jack and "his successors and assigns forever" the
right to "use" the roadway "without restriction, to cross over and gain access to adjacent
or adjoining lands as [Jack] may deem necessary or appropriate." Although the deed
does not expressly mention commercial use, its language is certainly broad enough to
include it. The deed's language not only allows use "without restriction," it also
incorporates Jack's own judgment about what use is "necessary or appropriate." This
14 Id. (ellipsis omitted) (quoting Reeves v. Godspeed Props., LLC, 426 P.3d
845, 849 (Alaska 2018)).
15 Offshore Sys.-Kenai v. State, Dep't of Transp. & Pub. Facilities, 282 P.3d
348, 354 (Alaska 2012).
16 Sykes, 474 P.3d at 644 (quoting HP Ltd. P'ship, 270 P.3d at 727).
17 Id. (quoting Estate of Smith v. Spinelli, 216 P.3d 524, 528 (Alaska 2009)).
18 Id. (quoting Spinelli, 270 P.3d at 529).
19 Offshore Sys.-Kenai, 282 P.3d at 354.
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language cannot be reasonably read as limited to non-commercial use. Therefore the
deed is not ambiguous.
Even if the deed's language were ambiguous, "the facts and circumstances
20 leave no doubt that the parties intended the easement to
surrounding the conveyance"
include commercial use. As the superior court observed, the extrinsic evidence is clear
that Vernon intended to convey the easement to Jack to use in whatever way he wanted,
including for commercial glacier access. Jack had a commercial T&M site at which he
ran a lodge, store, and other enterprises promoting tourism at the glacier, and his glacier
guiding business was already in existence when Vernon conveyed the easement. These
facts support the inference that the easement was intended to be used for commercial
purposes, both generally and specifically for the purpose of providing access to the
glacier.
Vernon's pre-trial deposition testimony further shows that the scope of the
easement extends to commercial use. He testified that the purpose of the easement was
to give Jack "access to his property and the use of his business to get people to cross . . .
his land to go to the glacier" and "[s]o he could access his property and his business to
let anybody go to use his T&M or the glacier or any of that." Vernon also mentioned
that there were no limitations on the type of traffic that could use the road nor any
limitations on glacier-bound tourism traffic. In other words, the easement "was for Jack
[to] use . . . for anything he wanted to." No contrary evidence was presented.
20 Id.
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We therefore affirm the superior court's determination that the 1977 deed
of easement was intended to allow Stevenson to use the easement for his glacier access
business.21
2. The easement is not void for illegality or as against public policy.
Wayson next argues that Stevenson's use of the easement for commercial
glacier access isillegaland violates publicpolicy because his guiding and glacier tourism
22
business may have involved trespassing on CIRI lands. Stevenson and CIRI entered
21 The superior court understood the easement to be in gross; that is, "assigned
to a specific person and . . . not run[ning] with the land." Reeves v. Godspeed Props.,
LLC, 426 P.3d 845, 850 (Alaska 2018). The court seemed to believe that if the easement
were appurtenant - meaning that it existed "to benefit the dominant estate" and ran with
the land - then it could not be used to access other properties. Id. In Reeves v.
Godspeed Properties we recited the rule articulated in section 4.11 of the Restatement
(Third) of Property that an easement appurtenant "may not be used for the benefit of
property other than the dominant estate." Id. (quoting HP Ltd. P'ship, 270 P.3d at 730
(quoting RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.11 (AM. L. INST .
2000))). Comments to that s ection of the Restatement indicate that it is a default rule
applying absent specific language by the parties and that parties "are free to determine
the extent of the use rights conferred on the beneficiary of a servitude." RESTATEMENT
(THIRD) OF PROPERTY: SERVITUDES § 4.11 cmts. a, b. The 1977 deed allows the grantee
to use the easement to "cross over and gain access to adjacent or adjoining lands." As
the superior court noted, this broad language permits the easement to be used for access
to land beyond contiguous parcels. Because the intent of the parties about the scope of
access is clear, it does not matter for purposes of this litigation whether the easement is
in gross or appurtenant. As a result, we need not address this question.
22 The superior court addressed this issue somewhat cursorily, noting that
even if Stevenson were trespassing over CIRI lands, this trespass would not be illegal
because the law recognizes prescriptive easements. ANCSA exempts from adverse
possession "all land and interests in land in Alaska conveyed by the Federal Government
pursuant to [ANCSA] to a Native individual or Native Corporation . . . so long as such
land and interests are not developed or leased or sold to third parties." 43 U.S.C.
§ 1636(d)(1)(A). The ownership status of the lands adjacent to the easement at specific
(continued...)
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into a lease agreement in 2017 that has extinguished the risk of potential trespass by
glacier-bound tourists.
The Restatement (Third) of Property provides that a servitude is "valid
23 "To create a valid
unless it is illegal or unconstitutional or violates public policy."
servitude, a land owner need only comply with the Statute of Frauds . . . and avoid
violating any statute, constitutional provision, or public policy limiting the rights and
obligations that can be made to run with the land."24 The party claiming a servitude is
invalid has the burden of showing that the easement is illegal or violates public policy.25
"An illegal servitude . . . is one that is prohibited by a statute or
governmental regulation."26 As explained above, the easement Vernon granted Jack
authorizes commercial use. There is nothing unlawful about an easement providing
access to a commercial tourism business. The fact that the business may not have been
operating with the proper permits at all times does not mean that the easement itself is
22 (...continued)
points in time is unclear from the record, and we cannot determine whether prescriptive
easements to cross them could have been established. But because we conclude that the
possibility of trespass on CIRI lands does not make the 1977 easement unlawful, it is
unnecessary to address this issue.
23 RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 3.1.
24 Id. cmt. a.
25 Id.
26 Id. cmt. c.
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27
unlawful. This easement is therefore not illegal simply because Stevenson may have
operated his business for a time without CIRI's authorization to use its lands.
We next turn to whether the easement violates public policy. The
Restatement provides examples of invalid servitudes violating public policy, including
if they (1) "[are] arbitrary, spiteful, or capricious;" (2) "unreasonably burden[] a
fundamental constitutional right;"(3) "impose[]an unreasonablerestraint on alienation;"
(4) "impose[] an unreasonable restraint on trade or competition;" or (5) "[are]
28 Wayson does not show that the easement in question has any of these
unconscionable."
features, and we cannot hold that an easement giving access to lands that might
subsequently be used as a jumping-off point to trespass on other lands is contrary to
public policy. There are less drastic remedies for trespass - for instance, owners of
lands trespassed upon can enforce their own rights - than completely invalidating an
easement that may sometimes be used to trespass, especially when, as here, the threat of
trespass has abated.
The easement is not void for illegality or as against public policy.
27 See Gillmor v. Wright , 850 P.2d 431, 438 (Utah 1993) ("[T]he correct
inquiry [in determining whether an easement is for a proper use] is not the legality of the
activity conducted on the property reached by the easement or right-of-way, but rather
whether a greater burden is imposed on the servient estate."); Clinger v. Hartshorn , 89
P.3d 462, 468 (Colo. App. 2003) (noting that whether historical users of easement had
proper commercial guide and outfitting licenses was "not a proper subject of inquiry
when determining permissible uses under an access easement").
28 RESTATEMENT (THIRD) OF PROPERTY: S ERVITUDES § 3.1; see also id. cmt. f
("Instead of attempting to limit allowable servitudes to those that are unlikely to pose
threats to the general welfare, or to those where the threat can be avoided by applying
established rules against restraints on alienation and competition, or attempting to
anticipate all the servitudes that might threaten the social harm, this section states the
overarching principle that lies behind all the particular rules that invalidate servitudes
and other property arrangements because of the risks they pose to the general welfare.").
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3. Marginal changes to the width of the road resulting from
reasonably necessary road maintenance are permitted by the
easement.
The superior court determined that Stevenson has the right to
"incidental[ly]" widen the easement while maintaining the road. The court found both
that the width of the easement is that reasonably necessary for enjoyment of the
servitude, and that the scope of the easement includes reasonable maintenance. The
court next found that the methods Stevenson employs to maintain the easement road -
including using a road grader to smooth the surface, plowing snow and other debris off
the side of the road, and pushing rocks over the downhill side of the road - are
reasonable and necessary to his enjoyment of the easement.
Wayson contests these conclusions, arguing that Stevenson's maintenance
activities areimpermissibly widening theroad and risking damageto Wayson's property.
To address Wayson's arguments, we ask whether (1) the deed controls the easement's
29
width,
and (2) Stevenson's maintenance activities are reasonably necessary and do not
30
unreasonably interfere with Wayson's property.
29 Andersen v. Edwards , 625 P.2d 282, 286 (Alaska 1981) ("The law appears
to be settled that where the width, length and location of an easement for ingress and
egress have been expressly set forth in the instrument the easement is specific and
definite." (quoting Aladdin Petrol. Corp. v. Gold Crown Props. , 561 P.2d 818, 822
(Kan. 1977))).
30 Id. ("If . . . the width, length and location of an easement for ingress and
egress are not fixed by the terms of the grant or reservation the dominant estate is
ordinarily entitled to a way of such width, length and location as is sufficient to afford
necessary or reasonable ingress and egress." (quoting Aladdin Petrol. Corp. , 561 P.2d
at 822)); see also RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.8(2) ("The
dimensions [of a servitude] are those reasonably necessary for enjoyment of the
servitude.").
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a. The width of the easement is not specific and definite.
Wayson's argument raises the initial question of whether the width of the
easement is determined by the deed. If the deed does establish a precise width, widening
the easement is not permitted.
"[W]here the width, length and location of an easement for ingress and
egress have been expressly set forth in the instrument the easement is specific and
31
definite," and its terms control.
In Labrenz v. Burnett, for example, we held that a
subdivision map "unambiguously describe[d]" a "thirty-foot" driveway easement that
32
a property owner had over his neighbors' land.
In contrast, the width of Stevenson's easement is not expressly set forth in
the instrument. The 1977 deed refers to the location of the easement - the existing
roadway - but does not contain any numerical dimensions. Moreover, the fact that the
existing roadway had a specific width at the time the deed was executed does not mean
that the parties intended the easement to always remain strictly the same width.33
Although Wayson contends that language in the deed, such as the terms "presently
situated and constructed"and"existing roadway,"specifies theprecisedimensions ofthe
easement, this argument is unpersuasive.
Nor arewepersuaded by Wayson's argument that the superior court should
have determined a specific width for the easement by relying on preliminary plats from
31 Id. (quoting Aladdin Petrol. Corp., 561 P.2d at 822).
32 218 P.3d 993, 1000 (Alaska 2009).
33 Cf. Andersen , 625 P.2d at 284, 287 (holding that contract reserving "a 100
foot right-of-way" was "ambiguous as to whether it refers 'to the width of the way, or
is merely descriptive of the property over which the grantee may have such a way as may
be reasonably necessary' " (quoting Hyland v. Fonda, 129 A.2d 899, 904 (N.J. Super.
Ct. App. Div. 1957))).
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the archives of an engineering firm commissioned by Jack in 1978. Even if the plats
specified the width of the road at the time they were drawn - the year after the 1977
easement was granted - they provide no insight into the width intended by the parties.
Vernon himself testified that, even if the road was mostly one lane at the time of the
deed, there was no intended width.
Where a contract is silent on an issue, a court may supply reasonable terms
34 Accordingly, the court did not err by ruling that the
to fulfill the parties' expectations."
easement does not have a precise width and that the width of the roadway is that
reasonably necessary for the enjoyment of the easement.
b. Stevenson's maintenance activities are reasonably
necessary and do not interfere with Wayson's property.
Because the width of the easement is not fixed by the deed, we must
examine whether Stevenson's maintenance activities - which have allegedly widened
the road over time - make use of Wayson's property in a way that "is reasonable for
enjoyment of the servitude."35 We must also examine whether the maintenance activities
unreasonably interferewith Wayson's property.36
Whether thewidening oftheeasement
is reasonably necessary or constitutes unreasonable interference with the enjoyment of
Wayson's servient estate are discretionary determinations that we review for abuse of
discretion.37
34 Ellingstad v. State, Dep't of Nat. Res., 979 P.2d 1000, 1008 (Alaska 1999).
35 Price v. Eastham, 254 P.3d 1121, 1129 (Alaska 2011) (quoting
RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.13 cmt. b).
36 Id. (citing RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.13
cmt. b).
37 See Sykes v. Lawless, 474 P.3d 636, 645 (Alaska 2020) ("We must decide
(continued...)
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As an initial matter, we see no clear error in the superior court's factual
findings that Wayson's property had not been damaged by Stevenson's maintenance
activities, including grading and compacting the road and plowing snow and other debris
38 The superior court noted that "Wayson presented no testimony
off the side of the road.
to show that . . . his property . . . was damaged by [Stevenson] shoving the dirt, gravel,
rocks, snow and ice over the edge of the road and onto the downhill slope." Wayson
does not challenge this factual finding on appeal.
Based on these uncontroverted factual findings, the superior court did not
abuse its discretion by determining that any "[i]ncidental widening of the road" from
Stevenson's maintenance activities is reasonably necessary. Testimony at trial indicated
that Stevenson's maintenance activities are consistent with standard maintenance
practices for similar roads. Stevenson testified that during maintenance, materials get
pushed over the side. He insisted, however, that any incidental widening of the road is
so incremental that it is "[n]ot enough to even measure." He also noted that after a
rainstorm the road is "narrower than it will be after you do it once the material settles."
A civil engineer from the consulting company that created the preliminary plats
corroborated Stevenson's testimony, indicating that the width of the road will vary due
to maintenanceactivities. This testimony supports thesuperiorcourt'sdetermination that
Stevenson's maintenance activities - and the resulting marginal increase in road width
37 (...continued)
whether the superior court abused its discretion by determining [the servient estate
owner] could install two locked gates [over the access easement].").
38 "We review the superior court's factual findings for clear error, which
occurs when a review of the entire record leaves us with a definite and firm conviction
that a mistake has been made." Offshore Sys.-Kenai v. State, Dep't of Transp. & Pub.
Facilities, 282 P.3d 348, 354 (Alaska 2012).
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----------------------- Page 20-----------------------
-are reasonably necessary. Stevenson may therefore perform this maintenance so long
as he does not unreasonably interfere with Wayson's property.
And Wayson did not prove that unreasonable interference is occurring.
"What constitutes unreasonable interference will depend largely on the circumstances,
particularly the purpose for which the servitude was created and the use of the servient
39 "The
estate made or reasonably contemplated at the time the easement was created."
manner, frequency, and intensity of the use may change over time to take advantage of
developments in technology and to accommodate normal development of the dominant
estate or enterprise benefitted by the servitude."40 The only damage from Stevenson's
maintenance activities that Wayson identified in his testimony is to the trees and brush
on the side of the road. But the superior court found that because "trees and brush are
routinely cut back along the edge of a roadway easement . . . such clearing or incidental
damage is consistent with Stevenson's obligation to maintain the roadway." Wayson
does not challenge the factual basis for this finding. Having no reason to doubt the
factual basis for this finding, we conclude the superior court did not abuse its discretion
by determining that Stevenson's maintenance activities do not unreasonably damage
Wayson's property.
Because the superior court did not abuse its discretion by determining that
the maintenance activities described are reasonably necessary and do not unreasonably
interfere with Wayson's use of his property, any marginal widening resulting from these
activities is permitted by the deed of easement.
39 RESTATEMENT (THIRD) OF PROPERTY: S ERVITUDES § 4.10 cmt. h; see also
Labrenz v. Burnett , 218 P.3d 993, 1000 n.17 (Alaska 2009) (citing comment h).
40 RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.10.
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4. The superior court did not clearly err by finding that Wayson
interfered with Stevenson's use of the easement by posting a
"No Glacier Access" sign.
The superior court concluded that posting a "No Glacier Access" sign
interfered with Stevenson's right to reasonable use of the easement for ingress and
egress. Wayson argues that the superior court erred in this finding because he posted the
sign to avoid participating in Stevenson's use of the easement to "illegal[ly] . . . trespass"
onto CIRI's lands. "Whether a particular activity by the servient owner constitutes an
unreasonable interference is a question of fact" 41 42
that we review for clear error.
Testimony from local residents at the preliminary injunction hearing
supports the superior court's finding that "No Glacier Access" signs are "inherently
confusing and [would] likely interfere with Stevenson's business operations." The
Glacier View Community Council president testified that the sign was "damaging to [the
community's] lodges and B&Bs and cafes and trailer parks" and was "not good for
business." And a local store employee testified that visitors were inquiring about
Wayson's "No Glacier Access" sign and that some people would leave despite being told
that they could use the road to access the glacier. Because Stevenson has the right to use
the easement for commercial purposes, we cannot say that the superior court clearly
erred by finding this sign unreasonably interfered with Stevenson's use of the easement.
41 JON W. B RUCE &J AMES W. E LY, J R., T HE LAW OF EASEMENTS &L ICENSES
IN
LAND § 8:21 (2021).
42 Offshore Sys.-Kenai, 282 P.3d at 354 (citing Labrenz, 218 P.3d at 997).
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----------------------- Page 22-----------------------
B. The Superior Court Did Not Err In Addressing Wayson's Defamation
Claims.
1. The superior court did not err by dismissing Wayson's
defamation claims arising from Stevenson's complaint on the
basis of absolute privilege.
Stevenson's complaint for declaratory relief against Wayson alleged that
Wayson had interfered with the easement in various ways, including by appearing nude
near the easement. Wayson counterclaimed for defamation based on the public nudity
allegation.
The superior court ruled Stevenson's public nudity allegation to be
privileged and dismissed Wayson's defamation claim on summary judgment. The court
determined that the allegedly defamatory statement was protected by absolute privilege
because Stevenson made the statement "solely within th[e] judicial proceeding" and the
statement was "reasonably related to Stevenson's underlying easement claim." 43
Wayson argues that the superior court erred by granting the absolute
privilege to Stevenson and his attorneys with regard to the defamatory statements they
made about Wayson. Most of Wayson's arguments pertain to what he views as
"terroristic threats" by Stevenson made to "incite fear and . . . violence" against Wayson.
43 An attorney or party to a judicial proceeding is "absolutely privileged to
publish defamatory matter concerning another in communications preliminary to a
proposed judicial proceeding" as a part of a judicial proceeding the attorney or party is
participating in, "if the matter has some relation to the proceeding." RESTATEMENT
(SECOND) OF TORTS §§ 586-87 (A M. L. I NST . 1977); see also id. § 586 cmt. a ("The
privilege stated in this Section is based upon a public policy of securing to attorneys as
officers of the court the utmost freedom in their efforts to secure justice for their clients.
Therefore the privilege is absolute."). We have previously recognized this privilege. See
Zamarello v. Yale , 514 P.2d 228, 230-31 (Alaska 1973) (holding that party to property
dispute was immune from suit for slander or disparagement of title when party filed
quitclaim deed that had "direct relation to [the] claim of an interest in the property").
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----------------------- Page 23-----------------------
But although the superior court ruled that Stevenson's public nudity allegation was
protected by absolute privilege, it did not dismiss Wayson's arguments about
Stevenson's "threats" under the same rationale. Instead, as explained below, it rejected
as untimely the post-trial motion in which Wayson brought these allegations to the
court's attention.
Beyond this, Wayson essentially argues that the absolute privilege is
44 He appears to maintain that the
unconstitutional because it violates equal protection.
privilege allows lawyers to engage in extortionate behavior while being shielded from
consequences. This argument is unpersuasive for two reasons. First, all participants in
the legal process -not only lawyers - may claimthe absolute privilege.45 The absolute
privilege does not implicate the equal protection guarantee because no individuals
46 Second, the absolute privilege is not a complete shield
receive unequal treatment.
against responsibility for allegations in legal pleadings. Lawyers are responsible under
Alaska Civil Rule 11(b) for any unfounded allegations they make and may be disciplined
with monetary or other sanctions.47
44 Alaska Const. art. I, § 1 (providing that "all persons are equal and entitled
to equal rights, opportunities, and protection under the law").
45 Lawson v. Helmer, 77 P.3d 724, 727-28 (Alaska 2003).
46 See Planned Parenthood of the Great Nw. v. State, 375 P.3d 1122, 1135
(Alaska 2016) (explaining that the equal protection guarantee applies to people similarly
situated who are treated differently).
47 See Kollander v. Kollander, 400 P.3d 91, 96 (Alaska 2017) ("To comport
with Rule 11 'an attorney is obliged to make objectively reasonable efforts to ascertain
the facts of the case before making assertions of fact in court documents.' " (quoting
Copeland v. State, 70 P.3d 1118, 1122 (Alaska App. 2003))); see also Alaska R. Civ.
P. 95 (authorizing courts to impose fines or assess costs or attorney's fees upon attorneys
"for failure to comply with [the civil] rules").
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Wayson fails to show that the absolute privilege violates equal protection.
2. Wayson's defamation claims based on the police report are not
at issue in this appeal.
In a post-trial motion regarding the easement's width, Wayson alleged that
Stevenson made false statements to a police officer. Wayson claimed that Stevenson
made knowingly false statements that Wayson was threatening himwith "violent action"
and exhibiting increasingly unstable and violent behavior indicating that Wayson "was
about to commit a crime." According to Wayson, Stevenson made these statements to
supply a "justification" in a purported plot to shoot Wayson.
Wayson appears to contend that his discussion of these alleged statements
amounted to new claims of defamation against Stevenson and that the superior court
rejected these claims as absolutely privileged, as it did in dismissing Wayson's initial
48
defamation claim.
But the superior court instead rejected Wayson's post-trial motion,
which it correctly characterized as a motion for reconsideration, as untimely. This was
not an abuse of discretion; Wayson did not file his motion within ten days of the court's
49
amended findings of fact and conclusions of law. Wayson does not challenge that
ruling. Whether Stevenson's statements to the police were defamatory therefore is not
at issue in this appeal.
C. Wayson's Clean Water Act Argument Is Waived.
Waysonargues that thesuperior court'sruling that Stevenson maymaintain
the road effectively authorizes Stevenson to dump pollutants into the Matanuska River
48 Wayson's filings with the superior court did not request leave to amend his
counterclaims to add a new defamation claim based on these asserted threats. Instead he
asked the superior court to order a criminal investigation into Stevenson's conduct.
49 Alaska R. Civ. P. 77(k); Baseden v. State, 174 P.3d 233, 243 (Alaska 2008)
(holding superior court did not err in treating motion filed 19 days after ruling as
untimely).
-24- 7614
----------------------- Page 25-----------------------
50
without a permit, in violation of the federal Clean Water Act. But Wayson's briefing
does not indicate that a Clean Water Act claim was raised or addressed at trial. His sole
reference to the Act is to an Alaska Department of Environmental Conservation
publication pertaining to snow disposal that does not appear to have been admitted as an
exhibit. Because no claims based on the Clean Water Act appear to have been litigated
at trial, we conclude that Wayson's argument is waived. 51
D. The Superior Court Did Not Abuse Its Discretion By Awarding
Stevenson $50,000 In Attorney's Fees.
Wayson's final argument challenges four aspects of the superior court's
attorney's fees decision: (1) its refusal to award him attorney's fees; (2) its award of
attorney's fees to Stevenson when Wayson alleged Stevenson's attorneys submitted
fraudulent billings; (3) its ruling that Stevenson prevailed on the defamation issue; and
(4) its ruling that Stevenson prevailed on main issues of the case.
Attorney's fees are governed by Alaska Civil Rule 82, which permits the
superior court to award attorney's fees to the "prevailing party."52 "[T]he prevailing
party is the one who has successfully prosecuted or defended against the action, the one
who is successful on the main issue of the action and in whose favor the decision or
verdict is rendered and the judgment entered."53
"A prevailing party need not have
50 33 U.S.C. §§ 1251-1389.
51 Mullins v. Oates, 179 P.3d 930, 941 n.31 (Alaska 2008) ("[A] party may
not raise an issue for the first time on appeal." (quoting Brandon v. Corr. Corp. of Am. ,
28 P.3d 269, 280 (Alaska 2001))).
52 See Alaska R. Civ. P. 82(a) ("Except as otherwise provided by law or
agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's
fees calculated under this rule.").
53 BP Pipelines (Alaska) Inc. v. State, Dep't of Revenue, 327 P.3d 185, 191
(continued...)
-25- 7614
----------------------- Page 26-----------------------
received all the relief requested, and a party who recovers on only one of several claims
may still be the prevailing party." 54
"[B]oth the determination of prevailing party status and the award of costs
55 We review the
and fees are committed to the broad discretion of the [superior] court."
superior court's fee award and determination of which party prevailed for abuse of
discretion, vacating the award or determination "only when it is manifestly
unreasonable."56
1. The superior court did not abuse its discretion by deciding that
Stevenson prevailed on main issues of the case and was
therefore entitled to attorney's fees.
Wayson first disputes the superior court's award of attorney's fees to
Stevenson by asserting that he, not Stevenson, prevailed on the main issues in the
litigation, which he describes as: (1) whether the sign constituted interference with the
easement; (2) the defamation claim; and (3) his counterclaim involving the vehicle
commercial. He also asserts he is the prevailing party on the issues he is appealing.
53 (...continued)
(Alaska 2014) (quoting Schultz v. Wells Fargo Bank, N.A., 301 P.3d 1237, 1242 (Alaska
2013)).
54 Id. (footnote omitted).
55 Schultz, 301 P.3d at 1241 (quoting K & K Recycling, Inc. v. Alaska Gold
Co., 80 P.3d 702, 721 (Alaska 2003)).
56 Boiko v. Kapolchok, 426 P.3d 868, 876 (Alaska 2018) (quoting Cizek v.
Concerned Citizens of Eagle River Valley, Inc., 71 P.3d 845, 848 (Alaska 2003)); Schultz
v. Wells Fargo Bank, 301 P.3d at 1241; BP Pipelines (Alaska) Inc., 327 P.3d at 189
(quoting State v. Jacob, 214 P.3d 353, 358 (Alaska 2009)).
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To determine the prevailing party, the court must evaluate whether the party
57
obtained the relief sought. The superior court broke the case down into three segments
for purposes of prevailing party status: (1) the preliminary injunction; (2) the defamation
claims; and (3) the easement. It concluded that Stevenson was the prevailing party in all
three categories.
This conclusion is not an abuse of discretion. As the superior court noted,
this litigation began because Wayson put a "No Glacier Access" sign at the top of the
easement road, leading to Stevenson's lawsuit. The preliminary injunction hearing
followed. Although the court heard no evidence that Wayson had interfered with the
easement by appearing nude in public, it did ultimately grant in part Stevenson's request
for a preliminary injunction. Wayson was ordered to remove the sign.58 The court did
not abuse its discretion by determining that Stevenson was the prevailing party in this
stage of the litigation.
Stevenson was also the prevailing party on the defamation issue. Wayson
claims that when the court granted Stevenson's motion for a preliminary injunction it
found that he had not been publicly nude at any time on his deck or property, meaning
that Stevenson's statement in his complaint to that effect was false. As a result, Wayson
argues, he was the prevailing party on the defamation issue. But Wayson's argument
overlooks the legal rulings on his defamation claims. The superior court observed that
most of the litigation was related to Wayson's claims of defamation. It noted that there
57 Schultz, 301 P.3d at 1242.
58 The court noted that Wayson was "perfectly within his right to put up
[alternative] signs" containing messages that warn others of "the road's inherent risks to
motorist(s)," such as "Dangerous Road. Enter at Own Risk, You Might Be Killed." But
because the court's ruling required Wayson to remove the only sign he had actually
erected, we do not view the court's comments about permissible signage as inconsistent
with the conclusion that Stevenson obtained the relief he sought.
-27- 7614
----------------------- Page 28-----------------------
were at least seven substantive motions addressed to Wayson's claim for defamation.
Yet the only point on which he prevailed was that he was permitted to file a third-party
complaint against Stevenson's lawyer for defamation - a claim that was later dismissed
in federal court.
In addition, the superior court correctly noted that the defamation claims
were addressed only as a matter of law, not fact. Although Stevenson produced no
evidence to support the public nudity allegation and it is understandable that Wayson
mightfeel thatherefutedan unfounded allegation,Stevensonprevailedonlegalgrounds.
Stevenson had absolute privilege to make the allegedly defamatory statements during
litigation, and Wayson's claims were consequently dismissed. For these reasons, it was
not an abuse of discretion to conclude that Stevenson was "the one who [was] successful
on [this] main issue of the action and in whose favor the decision . . . [was] rendered and
59
the judgment entered."
Wayson did prevail on a few issues pertaining to the easement: He
obtained rulings that he had not interfered with the easement except by posting a "No
Glacier Access" sign; that using the easement road for the vehicle commercial was
beyond the scope of the easement; and that Stevenson was obligated to maintain liability
insurance protecting Wayson from potential liability caused by Stevenson's operations.
But Stevenson still prevailed on the majority of issues regarding the easement. For
example, the superior court ruled that he may use the easement for commercial purposes
and without restriction; that the scope of the easement includes his maintenance
activities; that his use of the easement does not constitute trespass; and that he need not
use Keith's Road to access his commercial business operations.
59
BP Pipelines (Alaska) Inc., 327 P.3d at 191 (quoting Schultz, 301 P.3d at
1241).
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----------------------- Page 29-----------------------
Because Stevenson prevailed on the main issues and on the majority of
issues in the case, 60
we conclude that the superior court did not abuse its discretion by
granting Stevenson prevailing party status and awarding him attorney's fees.
2. The superior court did not abuse its discretion by awarding
attorney's fees to Stevenson's attorneys despite Wayson's
allegation of fraudulent billings.
Wayson next argues that it was an abuse of discretion for the superior court
to award attorney's fees because one of Stevenson's attorneys allegedly defrauded an
insurance company and submitted fraudulent billings in the litigation against Wayson.
He seems to suggest that in light of these allegations, the superior court should have
stayed the case and referred Stevenson's attorney to the authorities for investigation of
61
fraudulent billings. We disagree. The superior court correctly noted that it has no role
in directing prosecutions. It is not an abuse of discretion for the superior court to decline
to exercise powers it does not have.
We also reject Wayson's argument to the extent that he means certain
billings should have been disallowed. The superior court ruled that Wayson's objections
to specific entries were inadequately briefed; Wayson does not challenge that ruling.
60 See id. ("A prevailing party need not have received all the relief requested,
and a party who recovers on only one of several claims may still be the prevailing party."
(footnote omitted)).
61 Wayson previously sought an order from this court for the criminal
investigation of the attorney for perjury and theft by deception. We denied Wayson's
request and instructed him to instead file a new appeal of final orders issued by the
superior court.
-29- 7614
----------------------- Page 30-----------------------
Wayson provides no record citations to support this argument and fails to present the
argument in coherent form; thus, it is waived for inadequate briefing. 62
3. Because Wayson is not the prevailing party, his argument that
the Alaska Constitution requires an award of attorney's fees to
him is moot.
Wayson contends that the superior court's failure to award him attorney's
fees and costs is unconstitutional because it violates his "equal right to 'the rewards' of
defending himself in court" under Article I of the Alaska Constitution. "An issue 'is
63
moot where a decision on the issue is no longer relevant to resolving the litigation.' "
Because we affirm the superior court's ruling that Stevenson was the prevailing party
and therefore entitled to attorney's fees, the resolution of this issue "would not result in
64
any actual relief" even if Wayson prevailed. Consequently, though we have repeatedly
65
rejected the claimthat non-attorney pro se litigants may collect attorney's fees, we need
not decidewhether thesuperior court violatedWayson's constitutional rights by denying
him recovery of attorney's fees and costs.
As a final note, we observe that the superior court's fee award dispels
Wayson's suggestion that the court was biased against him. The court varied the fee
62 Coppe v. Bleicher, 318 P.3d 369, 378-79 (Alaska 2014) (upholding
determination that certain issues were waived because argument "lacked citation to
authority or a legal theory to support it"); see also Hagen v. Strobel , 353 P.3d 799, 805
(Alaska 2015) ("[W]here a point is given only a cursory statement in the argument
portion of a brief, the point will not be considered on appeal." (quoting Glover v.
Ranney, 314 P.3d 535, 545 (Alaska 2013))).
63 Long v. Arnold, 386 P.3d 1217, 1223 (Alaska 2016) (quoting Maness v.
Daily, 184 P.3d 1, 8 (Alaska 2008)).
64 Alaska Ctr. for the Env't v. Rue , 95 P.3d 924, 929 (Alaska 2004).
65 E.g., Alaska Fed. Sav. &Loan Ass'n of Juneau v. Bernhardt , 794 P.2d 579,
581-82 (Alaska 1990); Shearer v. Mundt, 36 P.3d 1196, 1198 (Alaska 2001).
-30- 7614
----------------------- Page 31-----------------------
award to Stevenson's counsel downward to 22% from the standard 30% for submitting
66
"inefficient" filings to the court and engaging in "unprofessional" behavior.
We see
no evidence that the court treated Wayson unfairly at any point during the proceedings.
V. CONCLUSION
We AFFIRM the judgment of the superior court.
66 Alaska R. Civ. P. 82(b)(3) ("The [superior] court may vary an attorney's
fee award calculated under . . . this rule if, upon consideration of the factors listed
below," including "the attorneys' efforts to minimize fees" and "vexatious or bad faith
conduct," the court "determines a variation is warranted.").
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