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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Thomas Taffe and Devony Lehner v. First National Bank of Alaska (9/27/2019) sp-7411

Thomas Taffe and Devony Lehner v. First National Bank of Alaska (9/27/2019) sp-7411

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

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

                                                                                                                        

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

                                                                                                                           

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



THOMAS  TAFFE  and                                               )  

DEVONY  LEHNER,                                                  )     Supreme  Court  No.  S-16854  

                                                                 )  

                                Appellants,                                                                                      

                                                                 )     Superior Court No. 3HO-13-00213 CI  

                                                                 )  

           v.                                                                              

                                                                 )    O P I N I O N  

                                                                 )  

                                                                                                                   

                                                

FIRST NATIONAL BANK OF                                           )    No. 7411 - September 27, 2019  

ALASKA,                                                          )  

                                                                 )  

                                Appellee.                        )  

                                                                 )  



                                                                                                               

                                                  

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

                                                                                      

                      Judicial District, Homer, Anna Moran, Judge.  



                                                                                                                  

                      Appearances:   Thomas Taffe and Devony Lehner, pro se,  

                                                                                                                  

                      Homer,  Appellants.                  Bruce  A.  Moore  and  Andrew  B.  

                                                                                                                  

                      Erickson, Landye Bennett Blumstein LLP, Anchorage, for  

                      Appellee.  



                                                                                                        

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

                                           

                      and Carney, Justices.  



                                           

                      WINFREE, Justice.  



I.         INTRODUCTION  



                                                                                                                                         

                      Borrowers brought suit alleging that their lending bank had engaged in  



                                                                                                                            

fraudulent real estate lending practices.  The bank responded that statutes of limitations  



                                                                                                                              

barred  the  borrowers'  fraud  claims.                        Following  an  evidentiary  hearing  to  establish  


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

relevant dates for the statutes of limitations inquiry, the superior court entered judgment                                                                                                        



and awarded attorney's fees in the bank's favor. The borrowers appeal, arguing that the                                                                                                                            



superior court erred in its factual and legal determinations and otherwise violated their                                                                                                                      



due process rights.                                Seeing no error or due process violation in the superior court's                                                                                     



rulings, we affirm its decisions.                      



II.              FACTS AND PROCEEDINGS                 



                                  Thomas Taffe and Devony Lehner borrowed money from First National                                                                                                 



Bank of Alaska to develop a Homer planned community subdivision, with some tracts                                                                                                                            



                                                                                                                        1  

reserved for conservation and outdoor activities.                                                                                                                                                            

                                                                                                                             This 2006 loan was secured by a deed  



                                                                                                                                             

of trust covering the entire property.  Taffe and Lehner first subdivided the land into a  



                                                                                                                                                                                                               

group of lots with a single remainder tract. Once they recorded the subdivision plat, First  



                                                                                                                                                                                                                    

National recorded a new deed of trust covering only the subdivided lots, releasing its  



                                                                                                   

security interest in the remainder tract.  



                                                                                                                                                                                                             

                                  In 2008 Taffe and Lehner obtained a second loan fromFirst National, using  



                                                                                                                                                                                                                

it to retire the first  loan and develop additional lots.   They recorded a second plat  



                                                                                                                                                                                                     

subdividing the remainder tract into additional lots and several new tracts. First National  



                                                                                                                                                                                                                  

recorded a deed of trust - signed by Taffe and Lehner - covering the entirety of the  



                                                                                              

subdivision except lots already sold.  



                                                                                                                                                                                                             

                                  By  early  2009  Taffe  and  Lehner  became  concerned,  expecting  First  



                                                                                                                                                                                                                      

National to have released its security interest in the unsubdivided tracts as it had done in  



                                                                                                                                                                                                              

the first transaction.  Late in 2009 Taffe and Lehner wanted to sell one tract to raise  



                                                                                                                                                                                                                  

money for loan payments and other expenses.  Taffe and Lehner had to negotiate the  



                                                                                                                                                                                                          

tract's releasefromFirst National's deed oftrust securityinterest;First National's release  



                                                                                                                                                                                              

terms included restrictions on Taffe and Lehner's use of the sale proceeds.  



                 1  

                                                                                                                                                                          

                                  See AS 34.08.030 (providing for planned community declaration).  



                                                                                                          -2-                                                                                                          7411  


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

                                                                                                                              

                    Taffe  and  Lehner  struggled  to  meet  the  loan's  repayment  terms  and  



                                                                                                                             

requested an extension, ultimately executing a change in terms agreement with First  



                                                                                                                              

National in February 2010; despite Taffe and Lehner's continued objection that First  



                                                                                                                       

National's deed of trust was not intended to cover the unsubdivided tracts, the collateral  



                                                                                                                             

expressly remained the same.  Following an additional extension, in November 2012  



                                                                                                                   

First National sent a default notice stating its intent to foreclose on unsold subdivided  



                                                                                                                            

lots and two unsubdivided tracts. An amended foreclosure notice in January 2013 stated  



                                                                                                                               

that First National also intended to foreclose on the additional unsubdivided tracts still  



                                                                                                                                  

covered by the 2008 deed of trust.  When Taffe and Lehner ultimately were unable to  



                                                                                                                                  

pay the loan, First National foreclosed and acquired the unsold land by offset bid at  



                                     

auction in April 2013.  



                                                                                                                               

                    Taffe  and  Lehner  -  self-represented  -  subsequently  contested  the  



                   

foreclosure proceeding in superior court.  They filed a complaint for declaratory relief  



                                                                                                                    

in November 2013, primarily seeking to set aside the foreclosure sale and subsequent  



                                                                                                                         

title  transfers.        In  March  2014  they  amended  their  complaint  to  add  fraud  claims,  



                                                                                          

including that First National fraudulently induced them to take the second loan.  Taffe  



                                                                                                                             

and Lehner alleged that First National had promised to execute a new deed of trust  



                                                                                                                                  

secured by only the unsold subdivision lots after they recorded the second plat and to  



                                                                                                                             

release the unsubdivided tracts as it had done when they recorded their first plat.  Taffe  



                                                                                                                  

and Lehner alleged that the second loan's terms violated their reasonable expectations  



                                                                                                                    

and that the deed of trust was an ambiguous adhesion contract that should be interpreted  



                                                                                                          

in their favor.  Taffe and Lehner again amended their complaint in December 2014,  



                                                                                                                   

seeking additional declaratory relief and stating a variety of fraud claims.  



                                                                -3-                                                         7411
  


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

                           Following motionpracticeanddiscovery, TaffeandLehner suggestedtheir                                                                      



                                                                                                                       2  

fraud claim against First National was fraud in the execution,                                                                                                         

                                                                                                                         rather than the fraud in the  



                                                                                                                                                        

inducement alleged in their complaint.  In July 2015, after Taffe and Lehner apparently  



                                                                                                                                                                      

abandoned their claimto set aside the foreclosure, the superior court dismissed Taffe and  



                                                                                                                                                                   

Lehner's requests for declaratory relief regarding the foreclosure and ruled that their  



                                                                                                                                                           

remedies  were  limited  to  damages.                                        In  July  2016  the  court  granted  First  National  



                                                                                                                                                                

summary judgment on most of Taffe and Lehner's remaining claims.  The court denied  



                                                                                                                                                             

summary judgment on the contractual ambiguity claim, ruling that there was a genuine  



                                                                                                                                                                    

dispute whether the deed of trust was fully integrated, and on the fraud claim that First  



                                                                                                              

National misrepresented the terms of the 2008 deed of trust.  



                                      

                           First National subsequently sought to extinguish the remaining claims as  



                                                                                                                                                        

barred by statutes of limitations.  "[T]he ordinary operation of the statute of limitations  

                                                                                                              3   But under Alaska's discovery  

                                                                                                                                                          

looks to 'the date on which the plaintiff incurs injury.' " 



rule, the statute of limitations does not begin to run until "a reasonable person has  

                                                                                                                                                      



enough information to alert that person" to a potential cause of action or to "begin an  

                                                                                                                                                                        

inquiry to protect his or her rights."4  

                                                         



             2             Fraud in the execution refers to executing a legal instrument, based on the                                                                 



fraudulent misrepresentation of another, wholly different from the instrument a person                                                                         

was led to believe was being executed.                                         17A C.J.S.             Contracts   202 (2019).                           



             3            Jarvill v. Porky's Equip., Inc., 189 P.3d 335, 338 (Alaska 2008) (quoting  

                                                                                                                                                            

Russell v. Municipality of Anchorage, 743 P.2d 372, 375 (Alaska 1987)).  

                                                                                                                                    



             4            Reasner v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,  

                                                                                                                                                                

394 P.3d 610, 614 (Alaska 2017) (quoting Mine Safety Appliances Co. v. Stiles, 756 P.2d  

                                                                                                                                                                    

288, 291 (Alaska 1988)).  

                                    



                                                                                   -4-                                                                            7411
  


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

                     Applying the discovery rule to the two-year statute of limitations for tort              



            5  

claims,                                                                                                                                 

              First National argued that Taffe and Lehner should have been prompted to  



                                                                                                                                   

inquire whether it intended to fulfill its alleged promise as early as August 2008, when  



                                                                                                                            

First National did not execute a new deed of trust after the second plat was recorded;  



                                                                                                                           

probably no later than February 2010, when they executed a change in terms agreement  



                                                                                                                                    

that did not alter the collateral; and certainly by October 2011, when they sent First  



                                                                                         

National a memorandum apparently contending that it should release its liens to allow  



them to sell unsubdivided tracts.  Because more than two years elapsed between these  



                                                                                                                           

occurrences andTaffeand Lehner's November 2013complaint,FirstNationalcontended  



                                                                                                        

that the statute of limitations barred the fraud in the inducement claim.  



                                                                                                                                      

                     Applying the discovery rule to the three-year statute of limitations for  

                         6 First National argued that Taffe and Lehner should have been prompted  

                                                                                                                             

               

contract claims, 



to inquire about the terms of the 2008 deed of trust by late 2009, when they disputed the  

                                                                                                                                       



need for a release from First National to sell a tract, and no later than February 2010,  

                                                                                                                                  



when  they  executed  a  change  in  terms  agreement  that  did  not  alter  the  collateral.  

                                                                                                                                             



Becausemorethan threeyears elapsed between either occurrenceandTaffeand Lehner's  

                                                                                                                              



November 2013 complaint, First National contended that the statute of limitations barred  

                                                                                                                                  



their fraud in the factum claim.  

                                                    



                      Taffe and Lehner opposed, arguing that no injury occurred until November  

                                                                                                                           



2012, when First National sent its foreclosure notice, and that they therefore brought  

                                                                                                                               



their claims within the statutes of limitations. Taffe and Lehner disputed several of First  

                                                                                                                                    



National's assertions, but they presented no supporting evidence.  

                                                                                                           



           5         AS  09.10.070(a).  



           6         AS  09.10.053.  



                                                                   -5-                                                                 7411  


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

                                                                    Following   an   evidentiary   hearing,   the   superior   court   ruled   in   First  



National's favor on its statutes of limitations                                                                                                                                                                                    defenses.   The court found that Taffe and                                                                                                                                                       



Lehner knew enough to pursue a claim in 2009, when they questioned the need for a                                                                                                                                                                                                                                                                                                                                                               



release fromFirst National, and no later than February 2010, when they executed the first                                                                                                                                                                                                                                                                                                                                          



 change in terms agreement with First National with no change in collateral.                                                                                                                                                                                                                                                                                                                      The court   



 specifically found that by early 2009, Taffe and Lehner should have realized that First                                                                                                                                                                                                                                                                                                                                       



National "had a different view" of the agreement;                                                                                                                                                                                                   they had questioned                                                                                  First National why  



 a new deed of trust had not been issued. The court discounted as unreasonable Taffe and                                                                                                                                                                                                                                                                                                                                            



Lehner's arguments that they had no reason to believe First National did not intend to   



reduce its collateral. The court found that Taffe and Lehner "had all the information they                                                                                                                                                                                                                                                                                                                                       



needed   to   move   forward   with   the   [fraud]   claim   .   .   .   [by]   February  []   2010,"   and  



 concluded that their fraud claim was barred by both the two-year statute of limitation on                                                                                                                                                                                                                                                                                                                                                



torts and the three-year statute of limitations on contracts.                                                                                                                                                                                                                                          



                                                                    The superior court entered final judgment in First National's favor and                                                                                                                                                                                                                                                        



 awarded it attorney's fees and costs of roughly $54,000 under Alaska Civil Rules 82                                                                                                                                                                                                                                                                                                                                                     



                                      7  

 and 79.                                    



                                                                    Taffe and Lehner appeal, arguing that the superior court erred in both its  

                                                                                                                                                                                                                                                                                                                                                                                                                                          



 substantive decisions and its attorney's fees award in First National's favor.  

                                                                                                                                                                                                                                                                                                                                                                  



                                  7                                 Alaska R. Civ. P. 82 (providing that "the prevailing party in a civil case                                                                                                                                                                                                                                                                                  



 shall be awarded attorney's fees"); Alaska R. Civ. P. 79 (providing that "the prevailing                                                                                                                                                                                                                                                                                                         

party is entitled to recover costs . . . necessarily incurred in the action").                                                                                                                                                                                                                                                  



                                                                                                                                                                                                                     -6-                                                                                                                                                                                                       7411
  


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

III.	        DISCUSSION  



                                                                                                                                                   

             A.	          The Superior Court Did Not Err Or Violate Due Process Rights By  

                                                                                                                     8  

                                                                                                    

                          Conducting A Pretrial Evidentiary Hearing. 



                                                                                                                                                      

                          Taffe and Lehner argue that the superior court legally erred by resolving  



                                                                                                                                                   

at a pretrial evidentiary hearing the disputed facts about when the statute of limitations  



                                                                                                                                                        

for their claims began to run.  But we have stated on numerous occasions that superior  



                                                                                                                                                    

courts should hold pretrial evidentiary hearings to resolve whetherastatuteoflimitations  



                9  

                                                                                                                                                                    

has run.           The superior court therefore did not err by resolving these factual disputes at  



                              

an evidentiary hearing.  



                                                                                                                                                        

                          Taffe and Lehner also contend that at the evidentiary hearing the superior  



                                                                                                                                                           

court violated their constitutional due process rights by limiting the proceeding's length,  



                                                                                                                                                                  

assuming the role of fact finder, not determining incontrovertible facts, restricting the  



                                                                                                                                                                 

hearing to the statutes of limitations, and denying their right to a jury trial. But Taffe and  



                                                                                                                                                                

Lehner offer no specific facts to suggest that the hearing's length violated their due  



                                                                                                                                                         

process rights, and their other arguments stand in direct opposition to our case law.  



             8            Whether a trial court follows the correct legal framework is a question of                                                                



law reviewed de novo.                         Bibi v. Elfrink             , 408 P.3d 809, 815 (Alaska 2017).                                   "We review   

constitutional questions de novo, adopting the most persuasive rule of law in light of                                                                              

precedent, reason, and policy."                               State v. Planned Parenthood of Alaska                                       , 171 P.3d 577,       

581 (Alaska 2007).                      



             9            See, e.g., Reasner, 394 P.3d at 614; Gefre v. Davis Wright Tremaine, LLP,  

                                                                                                                                                               

306 P.3d 1264, 1278 (Alaska 2013); Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d  

                                                                                                                                                               

719, 725 (Alaska 2006); Cikan v. ARCO Alaska, Inc., 125 P.3d 335, 339 (Alaska 2005);  

                                                                                                                                                           

John's Heating Serv. v. Lamb, 46 P.3d 1024, 1033 (2002); Pedersen v. Zielski, 822 P.2d  

                                                                                                                                                               

903, 907 n.4 (Alaska 1991).  

                                           



                                                                                 -7-	                                                                         7411
  


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

                             The purpose of a pretrial evidentiary hearing on a statute of limitations                                                             

question is to resolve factual disputes about when a statute of limitations began to run.                                                                                              10  



An evidentiary hearing occurs before trial, and the superior court must act as the fact  

                                                                                                                                                                                  

              11       Although  considering  a  claim's  substantive  merits  sometimes  may  be  

finder.                                                                                                                                                                             



necessary, the court generally should limit its determination to the facts underlying a  

                                                                                                                                                                                        

statute of limitations defense and not reach other issues.12                                                                    And as long as the hearing  

                                                                                                                                                                          



reaches only  the statute of limitations,  the constitutional right to  a jury  trial is not  

                                                                                                                                                                                   

violated.13  



                             We  therefore  reject  Taffe  and  Lehner's  claims  of  legal  error  and  due  

                                                                                                                                                                                  



process violations.  

                  



               10            Cikan, 125 P.3d at 342 ("[D]isputes concerning the statute of limitations                                                             



raise preliminary questions of fact that should ordinarily be decided by the court after                                                                                        

conducting an evidentiary hearing.").                     



               11           Id. at 339 ("[T]he task of interpreting and applying a statute of limitations  

                                                                                                                                                                    

traditionally falls within the province of the courts."); see also John's Heating Serv., 46  

                                                                                                                                                                                     

P.3d at 1033 n.28 (remanding for statute of limitations decision and noting "[t]he judge  

                                                                                                                                                                               

becomes the factfinder for purposes of determining the applicability of the statute of  

                                                                                                                                                                                      

limitations" (quoting Decker v. Fink, 422 A.2d 389, 394 (Md. 1980))).  

                                                                                                                                                          



               12            See Williams v. Williams, 129 P.3d 428, 431 (Alaska 2006) ("[W]e also  

                                                                                                                                                                                  

recognize that addressing the substantive merits of a case in such a preliminary hearing  

                                                                                                                                                                          

can create considerable tension with the procedural rights to which parties are entitled,  

                                                                                                                                                                         

including the right to a jury trial.").  

                                                             



               13            Gefre, 306 P.3d at 1279 ("But to the extent the superior court does not  

                                                                                                                                                                                   

address  the  substantive  merits  of  a  case,  the  use  of  evidentiary  hearings  to  decide  

                                                                                                                                                                            

statutes-of-limitations issues is constitutional [regarding right to a jury trial].").  

                                                                                                                                                         



                                                                                          -8-                                                                                  7411
  


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

               B.	            The Superior Court Did Not Err When Applying The Statutes Of                                                                                               

                              Limitations.14  



                                                                                                                                                                           

                              Taffeand Lehner challengethesuperior court'sapplicationofthediscovery  



                                                                                                                                                                                     

rule on  several grounds.                                   They  argue  that  they did  not suffer  an  injury  from First  



                                                                                                                                                                                   15  

                                                                                                                                                                                       that  

National's fraud until they were threatened with foreclosure in November 2012, 



                                                                                                     

the superior court did not determine the date their injury occurred, and that they made  



                                                                                                                                                                                     

reasonable  but  unproductive  inquiries  tolling  the  statutes  of  limitations  until  they  



                                                                                                                                                  

received actual notice in November 2012.  These arguments lack merit.  



                              1.	           Injury  



                                                                                                                                                                                     

                              As First National notes, Taffe and Lehner's claims proceed from their  



                                                                                                                                                                                      

contention that First National made misrepresentations when they signed the 2008 deed  



                                                                                                                                                               

of trust.  But that raises the question of when Taffe and Lehner were injured by the  



                                                                                                                                                                             

alleged  misrepresentations.                                      Our  recent Brooks  Range  Petroleum Corp.  v.  Shearer  



                                                  16  

                          

decision is instructive. 



               14             "When the superior court holds an evidentiary hearing to resolve factual                                                                           



disputes   about   when   a   statute   of   limitations   began   to  run,   we   review   the   resulting  

findings of fact for clear error."                                   Christianson v. Conrad-Houston Ins.                                              , 318 P.3d 390, 396               

(Alaska 2014). "[W]e review de novo the legal standard used to determine accrual dates,                                                                                             

and we review de novo questions regarding the applicable statute of limitations, the                                                                                                     

interpretation of that statute, and whether that statute bars a claim."                                                                                Gefre, 306 P.3d at                   

 1271 (footnotes omitted).           



               15             SeeJarvill v. Porky's Equip., Inc., 189 P.3d 335, 338 (Alaska2008) ("[T]he  

                                                                                                                                                                                

ordinary operation of the statute of limitations looks to 'the date on which the plaintiff  

                                                                                                                                                                              

incurs injury.' " (quoting Russell v. Municipality of Anchorage, 743 P.2d 372, 375  

                                                                                                                                                                                       

(Alaska 1987))).  

                   



               16             425 P.3d 65 (Alaska 2018).  

                                                                             



                                                                                             -9-	                                                                                    7411
  


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

                       Brooks  involved a venue dispute in a lawsuit for breach of an employment                                



                                                                                                                                                  17  

contract, in part with respect to claims of negligent and intentional misrepresentation.                                                               



The critical issue was determining when the employee suffered actual harm, i.e., when  

                                                                                                                                            

                                         18  which  we  said  "also  arises  in  the  context  of  statutes  of  

the  tort  was  complete,                                                                                                                        

                        

limitations."19              We  then  discussed  two  previous  statutes  of  limitations  decisions  

                                                                                                                                    



concluding that a tort is complete when the plaintiff has "an appreciable injury" arising  

                                                                                                                                          

from the tortious conduct20  and that the statute of limitations cannot begin to run until the  

                                                                                                                                                

plaintiff  suffers  injury  or  harm.21                        On  the  facts  of  Brooks,  we  concluded  that  the  

                                                                                                                                               



employee's misrepresentation claim - that his employment agreement was represented  

                                                                                                                                  



to be for at least ten years, but his employment was terminated after two and a half years  

                                                                                                                                            



-  did  not become complete until the employee's termination, when  the  employee  

                                                                                                                                    

                                                           22  We stated that until the employment termination,  

actually suffered a pecuniary loss.                                                                       



the employee had suffered no loss despite the alleged misrepresentation two and a half  

                                                                                                                                               

years earlier.23  

           



                       The fundamental questions in this case, then, are (1) when did Taffe and  

                                                                                                                                               



Lehner suffer an appreciableinjury fromFirst National's alleged2008misrepresentation  

                                                                                                                       



            17         Id.  at  68,  72.   



            18         Id.  at  72-73.  



            19         Id.  at  73.  



            20         Id.  (discussing   and   quoting  Jones   v.   Westbrook,   379   P.3d   963,   967-69  



(Alaska  2016)).  



            21         Id.   (discussing  Austin  v.  Fulton  Ins.   Co.,  444  P.2d   536,   539-40 (Alaska  



 1968)).  



            22         Id.  

                              



            23         Id.  



                                                                       -10-                                                                 7411
  


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

                                                                                                                             

and (2) when did they have inquiry notice, i.e., when should they reasonably have  



                                                                                                                       

discovered, the appreciable injury sufficient to start the statutes of limitations? Although  



                                                                                                                                  

the superior court's ruling was focused on the discovery and inquiry notice question, in  



                                                                                                                 

this case the appreciable injury and the discovery date are essentially the same.  



                                                                                                                            

                    The superior court found that in early 2009 Taffe and Lehner were aware  



                                                                                                                        

of and complaining to First National that the unsubdivided tracts had not been released  



                                                                                                                               

from the 2008 deed of trust.   The failure to release the tracts meant that Taffe and  



                                                                                                                                      

Lehner's title to the tracts was clouded, arguably an appreciable injury in and of itself.  



                                                                                                                           

But the injury became more appreciable later in 2009, when, as the superior court found,  



                                                                                                                                   

Taffe and Lehner wanted to sell a tract and had to negotiate with First National for a  



                                                                                                                              

release  of  that  tract  from  the  deed  of  trust  to  effectuate  the  sale.                            As  part  of  that  



                                                                                                                            

negotiation, Taffe and Lehner contended that the deed of trust was not supposed to cover  



                                                                                                                       

the tract, and First National responded:  "[R]ead your Deed of Trust."  First National  



                                                                                                                                

released the tract for sale after reaching an agreement with Taffe and Lehner on the  



                                                                                                                              

disposition of the sale proceeds, but it refused to release any other tracts from the deed  



                                                                                                                          

of trust. This meant that Taffe and Lehner's title to the tracts remained clouded. Finally,  



                                                                                                                                  

as the court found, in February 2010 Taffe and Lehner were forced, under protest, to  



                                                                                                                               

negotiate  a  loan  extension  and  change  of  terms  agreement  including  leaving  the  



                                                                                                                           

unsubdivided tracts covered by the deed of trust.  The February 2010 agreement meant  



                                                                                                                           

that Taffe and Lehner's title to the unsubdivided tracts remained clouded and they would  



                                                                                                                   

be forced to negotiate any future tract sales with First National.  This is an appreciable  



injury.  



                                                                                                                              

                    Because Taffe and Lehner's misrepresentation claimwas complete no later  



                                                                                                                          

than February 2010 and by that same time Taffe and Lehner had notice of their alleged  



                                                                                                                               

injury - tracts that they contended were represented in 2008 to have clear title had  



                                                                                                                             

clouded title, and there were related restrictions on sale proceeds - the superior court  



                                                               -11-                                                         7411
  


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

correctly concluded that the applicable statutes of limitations for Taffe and Lehner's                                                                                                                                                          



fraud claims began to run no later than February 2010.                                                                                                  



                                          2.                  Exact date of injury                          



                                          Taffe and Lehner assert that the superior court erred by not determining the                                                                                                                                             



exact date their injury occurred.                                                                          But it was unnecessary to establish an exact date                                                                                                  



because the court found that Taffe and Lehner "had all the information they needed to                                                                                        



move forward with the claim from December 21, 2009 [when First National released a                                                                                                                                                                                       



tract] through February 2, 2010 [when the first change in terms agreement was entered]."                                                                                                                                                                                        



Taffe and Lehner point to no evidence that this finding was clearly erroneous, and there                                                                                                                                                                     



was no reason for more specificity in light of the timing.                                                                                               



                                         3.                   Inquiry  



                                          Taffeand Lehner contend that thesuperior court, despitedetermining when  

                                                                                                                                                                                                                                                            



areasonableperson should havebegun inquiring into thealleged fraud,never determined  

                                                                                                                                                                                                                                          



whether they made such inquiries. But the court found that they started inquiring in early  

                                                                                                                                                                                                                                                             



2009  whether  First  National  intended  to  execute  a  new  deed  of  trust,  when  they  

                                                                                                                                                                                                                                                             



questioned why it had not been done.  

                                                                                                                       



                                          4.                  Equitable tolling  

                                                                                                



                                          Taffe and Lehner argue in the alternative that the superior court applied the  

                                                                                                                                                                                                                                                                   



wrong standard when determining whether their inquiries were reasonable.  They cite  

                                                                                                                                                                                                                                                                 

cases discussing the doctrine of equitable estoppel tolling the statute of limitations.24  

                                                                                                                                                                                                                                                                                



                     24                   "[T]o  establish  equitable  estoppel,   'a  plaintiff  must  produce  evidence  of  



fraudulent  conduct  upon  which  it  reasonably  relied when forbearing  from  the  suit.'  "   

 Waage  v.  Cutter  Biological  Div.  of  Miles  Labs.,  Inc .,  926  P.2d  1145,  1149  (Alaska  1996)  

(quoting  Pedersen  v.  Zielski,  822  P.2d  903,  908-09  (Alaska   1991)).   "[A]  party  should  

be   charged  with  knowledge   of  the   fraudulent  misrepresentation   or   concealment   only  

when it would  be  utterly unreasonable for the party not to be aware  of the  deception."   

                                                                                                                                                                                                                                   (continued...)  



                                                                                                                                -12-                                                                                                                         7411
  


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

First National responds that Taffe and Lehner failed to present any evidence that it                                                                                                                           



misrepresented or concealed the fraud claim's existence and that its responses to their                                                                                                                



inquiries clearly indicated it did not intend to execute a new deed of trust.                                                                                                        



                                 Equitable   estoppel   does   not   apply   if   there   is  no   misrepresentation   or  



concealment regarding a claim's existence.                                                                  Taffe and Lehner point to no evidence of                                                          



concealment, and the superior court's finding regarding their discovery of the alleged                                                                                                           



fraud by February 2010, at the latest, contradicts their assertion of further concealment.                                                                                         



                 C.	             The Superior Court Did Not Abuse Its Discretion By Not Ruling On                                                                                                         

                                 Taffe And Lehner's Declaratory Judgment Request.                                                                                        25  



                                                                                                                                                                                                        

                                 Taffe and Lehner contend that the superior court erred by not granting their  



                                                                                                                                                                                              

petition for declaratory judgment and request for expedited consideration. First National  



                                                                                                                                                                                                 

counters that Taffeand Lehner essentially waived the issues by incorporating thepetition  



                                                                                                                                                                                                  

into an amended complaint and by not showing why expedited consideration was needed  



                                                                                                            

and that the issues have since been mooted.  



                                                                                                                                                                                                            

                                 Under Alaska's Declaratory Judgment Act, in "an actual controversy in the  



                                                                                                                                                                                           

state, the superior court . . . may declare the rights and legal relations of an interested  



                                                                                                                                                                                                               26  

                                                                                                                                                                                                                     

party seeking the declaration, whether or not further relief is or could be sought." 



                                                                                                                                                                                                                     

There  was  no  requirement  that  the  court  make  a  declaratory  judgment  ruling.  



                24               (...continued)  



                                                                                                                                                                                     

Id . (quoting Palmer v. Borg-Warner Corp., 838 P.2d 1243, 1251 (Alaska 1992)).  



                25               "We review a trial court's denial of . . . declaratory relief for abuse of  

                                                                                                                                                                                                             

discretion . . . ."  Smallwood v. Cent. Peninsula Gen. Hosp., 151 P.3d 319, 322 (Alaska  

                                                                                                                                                                                                

2006).  



                26               AS 22.10.020(g) (emphasis added);  see also Brause v. State, Dep't of  

                                                                                                                                                                                                             

Health  &  Soc.  Servs.,  21  P.3d  357,  358  (Alaska  2001)  ("The  language  of  the  

                                                                                                                                                                                                          

 [Declaratory Judgment Act] makes it explicit that whether to issue a declaration is a  

                                                                                                                                                                                                                

discretionary decision committed to the superior court.").  

                                                                                                                        



                                                                                                     -13-	                                                                                            7411
  


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

"[D]eclaratory relief is generally used to settle a controversy that has yet to 'ripen into                                                                



violations   of   law,'   or   'to   afford   one   threatened   with   liability  an   early   adjudication  



without waiting until an adversary should see fit to begin an action after the damage has                                                                   

                    27   "[D]eclaratory judgments are rendered to clarify and settle legal relations,  

accrued.' "                                                                                                                                      



and to 'terminate and afford relief from the uncertainty, insecurity, and controversy  

                                                                                                                                           



giving rise to the proceeding.'  A court should decline to render declaratory relief when  

                                                                                                                                                        

neither of these results can be accomplished."28  

                                                                                          



                         Taffe and Lehner petitioned for declaratory judgment at the same time they  

                                                                                                                                                          



were  litigating  their  fraud  and  contract  claims.                                         The  issues  raised  in  their  petition  

                                                                                                                                                   



overlapped with - and in some part were identical to - the fraud and contract claims  

                                                                                                                                                      



stated in their complaint. The superior court ultimately dismissed the fraud and contract  

                                                                                                                                                   



claims, and we are affirming that dismissal.  Taffe and Lehner have made no showing  

                                                                                                                                            



that, absent a viable fraud or contract claim, their claims for declaratory relief raised  

                                                                                                                                                       



different issues that could be addressed.  We therefore reject their argument; we cannot  

                                                                                                                                                      



conclude that the superior court abused its discretion, and there is no need to reach the  

                                                                                                                                                            



question whether expedited consideration should have been granted.  

                                                                                                                 



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

                                                                                                                                             

                         Attorney's Fees To First National.29  

                                                                           



                         Taffeand Lehner assert that the superior court erred by awarding attorney's  

                                                                                                                                                



fees to First National, based on arguments about the length of its various filings and  

                                                                                                                                                           



            27           Lowell v. Hayes               , 117 P.3d 745, 755-56 (Alaska 2005) (quoting C                                             HARLES  



ALAN  WRIGHT ET AL., F                       ED. P     RAC. & P         ROC.: C       IV.  2751 (3d ed. 1998)).            



            28           Id.   at 755 (quoting                Jefferson v. Asplund                   , 458 P.2d 995, 997-98 (Alaska                



 1969)).  



            29           We review the amount of an attorney's fees award for abuse of discretion.  

                                                                                                                                                                    

 Williams v. GEICO Cas. Co., 301 P.3d 1220, 1225 (Alaska 2013).  

                                                                                                                 



                                                                             -14-	                                                                      7411
  


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

unspecified errors it made during litigation.                                                                                                                   First National sought final judgment and                                                                                                 



attorney's   fees   of roughly                                                                     $54,000,   equal to                                                 20% of its "reasonable and                                                                                necessary  



attorney's fees," under Alaska Civil Rule 82(b)(2), and the court granted First National's                                                                                                                                                                                      



                                                                                                                                                                                                                                                                                                         

motion.  Because Taffe and Lehner point to no evidence whatsoever demonstrating that  



the superior court abused its discretion by following Rule 82, we affirm the attorney's                                                                                                                                                                                          



fees award.   



IV.                     CONCLUSION  



                                                The superior court's decision is AFFIRMED.                                                                          



                                                                                                                                                               -15-                                                                                                                                 7411
  

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