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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. James Caswell and Alaska Lime Company v. AHTNA, Inc. (5/20/2022) sp-7595

James Caswell and Alaska Lime Company v. AHTNA, Inc. (5/20/2022) sp-7595

           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  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                          

JAMES  CASWELL  and  ALASKA                                        )  

LIME  COMPANY,  INC.,                                              )    Supreme  Court  No.  S-17866  



                                 Appellants,                       )    Superior Court No. 3AN-18-06594 CI  



           v.                                                      )    O P I N I O N  




AHTNA, INC.,                                                       )    No. 7595 - May 20, 2022  


                                 Appellee.                         )  




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


                      Judicial District, Anchorage, Thomas A. Matthews, Judge.  


                      Appearances: James Caswell, pro se, Anchorage, Appellant.  


                      Darryl L. Thompson, Darryl L. Thompson, P.C., Anchorage,  


                      for Appellant Alaska Lime Company, Inc.  Matthew Singer,  


                      Robert J. Misulich, and Lee C. Baxter, Schwabe, Williamson  


                      & Wyatt, P.C., Anchorage, for Appellee.  


                      Before:             Winfree,          Chief        Justice,        Maassen,            Carney,  


                      Borghesan, and Henderson, Justices.  


                      MAASSEN, Justice.  



                      A miner signed a 20-year lease with a corporate landowner for an easement  


allowing him access to his limestone-mining operation.  The lease included an option to  

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


extend it for up to three additional 10-year terms as long as the miner was not in default  


and gave prior written notice of his intent to extend.  


                    At the close of year 19, the miner sent a check prepaying the final calendar  


year  as well as the six weeks following the lease's expiration date.   And after  the  


expiration date the miner sent another check prepaying the next year - year 21 -  


though without ever providing the express notice of intent to extend required by the  


lease.  The corporation accepted both of the rent checks.  


                    Five  months  later  the  corporation  sued  the  miner  and  his  company,  


contending that he was in breach and the lease had expired.   The corporation later  


amended its complaint to add a claim for forcible entry and detainer (FED) - seeking  


to recover possession of the premises by court order - and shortly afterward served the  


miner with a notice to quit.  The court held a hearing nearly 11 months later and granted  


the FED.  


                    The miner appeals.  He contends that the parties' dispute was too complex  


to be resolved through FED proceedings with limited opportunities for discovery; that  


the  FED  proceeding  was  unlawful  because  at  the  time  the  claim  was  asserted  the  


corporation had not yet served the notice to quit; and that the miner's company was  


improperly named as a defendant and included in the FED judgment.  We conclude that  


the superior court did not err and therefore affirm its judgment.  



          A.        Background  


                    In November 1997 James Caswell entered into a 20-year lease with Ahtna,  


Inc. for "a right-of-way easement with the right of ingress and egress" allowing him  


access to his limestone-mining operation on state land.  The lease contained an option  


to extend it "for three (3) additional periods of ten (10) years," though Caswell could  


exercise the option only if he was not in default and if he provided Ahtna "written notice  

                                                            -2-                                                            7595

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of [his] intention to extend at least ninety (90) days prior to the expiration of the initial  


term."  The lease also contained a "Hold Over" provision, which stated:  "In the event  


the Lessee continues to occupy the Property after the last day of the term . . . and [Ahtna]  


elects to accept rent thereafter[,] a tenancy from month to month only shall be created."  


The lease's stated expiration date was November 19, 2017.  


                    While the original lease identified the lessees as Caswell and "Alaska  


Limestone Company, a Corporation to be formed," Caswell never formed a corporation  


by that name.  Instead, at some point in the early 2000s, Caswell formed Alaska Lime  


Company, Inc. (Alaska Lime).   Alaska Lime owned equipment that was situated on  


Ahtna's land and that Caswell used in his limestone operation, including storage silos  


ranging from 30 to 250 tons in capacity.  


                    In December 2016 Alaska Lime sent Ahtna a check that read "2017 annual  


lease on 25 [acres]" in the memo line, and Ahtna appears to have cashed it. In December  


2017, a month after the lease's stated expiration date, Alaska Lime sent Ahtna another  


check with "2018 annual lease" in the memo line; Ahtna cashed this check as well.  


Neither Caswell nor Alaska Lime sent Ahtna any other form of notice of an intent to  


extend the lease.  


          B.        FED Proceedings  


                    In  May  2018  Ahtna  filed  a  complaint  against  Caswell  and  Alaska  


Limestone Company claiming that Caswell had breached the lease "by his construction  


and use of a residential structure on property leased for commercial purposes" and that  


he  was  unlawfully  possessing  the  land.                      The  complaint  noted  that  while  the  lease  


provided for an option to  extend, Caswell's breach of the lease meant that he was  


prohibited  from exercising the option.                        Ahtna argued  that even  if Caswell had  not  


breached the lease, he had failed to give written notice of an intent to extend it at least  


90 days before termination of the lease term, as required. In response, Caswell admitted  

                                                             -3-                                                            7595

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that he remained in possession of the property but disputed that he had breached the                                                                                                                                                                                                                      

lease.   He also argued that his continued possession of the property was lawful because                                                                                                                                                                                                 

Ahtna had received the check he had expressly denominated as payment for the "2018                                                                                                                                                                                                             

annual lease."                                       

                                                On September 26 Ahtna moved for leave to file an amended complaint that                                                                                                                                                                                  

would replace the defendant Alaska                                                                                            Limestone Company with the company Caswell had                                                                                                                             

actually created, "Alaska Lime Company, Inc.," and which                                                                                                                                                       would assert acauseof action                                                     

against Caswell and Alaska Lime for "Forcible Entry and Detainer and Trespass."                                                                                                                                                                                                                      The  

next day, September 27, Caswell and Alaska Lime received Ahtna's notice to quit,                                                                                                                                                                                                                    

demanding that they "immediately quit thepremises." Thecourt                                                                                                                                                                      granted Ahtna's motion  

to amend its complaint in October.                                                                                             

                                                In February 2019 Ahtna moved to schedule an FED hearing.                                                                                                                                                                Caswell and   

Alaska Lime responded that FED proceedings - which are expedited and intended to                                                                                                                                                                                                                              

                                                                                    1  - were inappropriate given the need for discovery and the  

decide only possession                                                                                                                                                                                                                                                                                   

defendants' intent to move for summary judgment on the interpretation of the lease,  


"which is generally a question of law for the Court."  The superior court disagreed and  


granted Ahtna's motion for an FED hearing, finding that Ahtna had served Caswell and  


Alaska Lime with proper notice and that Caswell was not entitled to discovery.2  


                                                A two-day FED hearing was held in August 2019.  Ahtna argued not only  


that  the  lease  had  expired  but  also  that  Caswell  had  breached  it  in  various  ways:  


                        1                       See Vinson v. Hamilton                                                                 , 854 P.2d 733, 735 (Alaska 1993) ("[The FED                                                                                                                 

action]   is   summary   in   nature,   and   traditionally   the   court   will   recognize   almost   no  

affirmative defense or counterclaim. . . . The sole issue to address is that of possession.").                                                                                                                                                                      

                        2                       Caswell nevertheless propounded some requests for document production,  


which Ahtna answered at least partially, and deposed Ahtna's former lawyer prior to the  


FED hearing.  


                                                                                                                                               -4-                                                                                                                                               7595

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allowing others to use the easement, committing waste by "treat[ing] [the property] like                                                                                                                                                                                                                                                                                                                    

a junk yard," storing dangerous and toxic materials, and using the land as his year-round                                                                                                                                                                                                                                                                                

residence. Caswell                                                                          and Alaska Limeargued                                                                                               that the lease had not expired because Ahtna  

had waived the written-notice requirement by cashing the rent checks Alaska Lime sent                                                                                                                                                                                                                                                                                                                      

 for periods following the lease's stated expiration date.                                                                                                                                                                                                                Caswell and Alaska Lime also                                                                                                     

argued that Ahtna never informed Caswell how he was in breach or gave him any                                                                                                                                                                                                                                                                                                                              

opportunity to cure, and that Alaska Lime was not a proper defendant in the FED action                                                                                                                                                                                                                                                                                                           

because it was not a party to the lease.                                                                                                                                                    Finally, Caswell and Alaska Lime argued that                                                                                                                                                                    

Ahtna's notice to quit was ineffective because it was received after Ahtna had already                                                                                                                                          

asserted the FED claim in its complaint, and by statute an FED action may be filed only                                                                                                                                                                                                                                                                                                                  


if the tenant continues to hold possession                                                                                                                                                             after  receiving notice to quit.                                                                                                                    

                                                                The superior court granted a judgment for FED, finding that the original  


term of the lease had expired, that Caswell had not provided the required notice of an  


intent to renew, and that Ahtna had not waived the notice requirement.  The court also  


 found that Ahtna had given proper notice and that it was effective as to Alaska Lime  


 even  though  the  company  was not a party to  the lease.                                                                                                                                                                                                                                      Because Caswell had  not  


                                3                               See  AS 09.45.100(a) (providing that "a person entitled to the premises who                                                                                                                                                                                                                                                               

 seeks to recover possession of the premises may not commence and maintain an action                                                                                                                                                                                                                                                                                                             

to recover possession of premises under AS 09.45.060 - 09.45.160unlesstheperson first                                                                                                                                                                                                                                                                                                                       

gives a notice to quit to the person in possession"); AS 09.45.110 ("An action for the                                                                                                                                                                                                                                                                      

recovery of the possession of the premises may be commenced on or after the date the                                                                                                                                                                                                                                                                                                                           

tenant or person in possession unlawfully holds possession of the dwelling unit or rental                                                                                                                                                                                                                                                                                                          

premises   by   force,   as   determined  under  AS   09.45.090.");   AS   09.45.090(b)(2)(F)  

 (defining "unlawful holding by force" to include "when,                                                                                                                                                                                                                    following service of a notice to                                                                                                         

quit, . . . a person in possession continues in possession of the premises . . . at the                                                                                                                                                                                                                                                                                                                      

expiration of the time limited in the lease or agreement under which that person holds"                                                                                                                                                                                                                                                                                                       

 (emphasis added)).   

                                                                                                                                                                                                -5-                                                                                                                                                                                               7595

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 effectively exercised his option to extend the lease, the court found it unnecessary to                                                                                                                                                                                            

 address Ahtna's argument that he was in breach.                                                                                                                  

                                            Caswell   and   Alaska   Lime   appeal   the   FED   judgment,   arguing   that   the  

 superior court should not have held an FED hearing, that Ahtna's notice to quit was                                                                                                                                                                          

 ineffective, and that Alaska Lime was not a proper party to the FED proceedings.                                                                                                                                                                                             

III.                  STANDARD OF REVIEW                                           

                                            Whether the superior court correctly interpreted the FED statutes' scope,                                                                                                                    

the discovery rules, and the lease's notice requirements are all questions of law to which                                                                                                                                                                             


weapply                       our independentjudgment.                                                                                                                                                                                                                                       

                                                                                                                          "We review thetrial court's factualdeterminations  



 . . . for clear error."                                                "A finding is not clearly erroneous unless [we are] left with 'the  



 definite and firm conviction on the entire record that a mistake has been committed.' " 


 "The abuse of discretion standard . . . applies to review of the superior court's rulings on  



 discovery issues." 

                      4                    Alaska Pub. Offs. Comm'n v. Not Tammie                                                                                                           , 482 P.3d 386, 388 (Alaska                                          

2021) ("Statutory interpretation is . . . a question of law, which we review de novo."                                                                                                                                                                              

 (quoting  Madonna v. Tamarack Air, Ltd.                                                                                               , 298 P.3d 875, 878 (Alaska 2013)));                                                                                     Dunn v.   

Jones, 451 P.3d 375, 378 (Alaska 2019) ("Interpretation of the civil rules is a question                                                                                                                                                                    

 of law that we review de novo." (quoting                                                                                            Horne v. Touhakis                                            , 356 P.3d 280, 282 (Alaska                                     

2015)));  AAA Valley Gravel, Inc. v. Totaro                                                                                               , 219 P.3d 153, 160 (Alaska 2009) ("Contract                                                                   

 interpretation generally is a question of law.").                                                                                                          

                      5                     Romero v. Cox, 166 P.3d 4, 7 (Alaska 2007).  


                      6                     Fun Prods. Distribs., Inc. v. Martens, 559 P.2d 1054, 1058 (Alaska 1977)  


 (quoting Alaska Foods, Inc. v. Am. Mfr.'s Mut. Ins. Co. , 482 P.2d 842, 848 (Alaska  



                      7                      Wooten v. Hinton, 202 P.3d 1148, 1151 (Alaska 2009).  


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IV.	        DISCUSSION  


            A.	        It Was Not Error To Grant An FED Hearing.  



                       Caswell          argues that the superior court should not have granted an FED  


hearing  because  his  dispute  with  Ahtna  -  involving  a  complicated  commercial  


arrangement - was outside the scope of FED proceedings and because he was "entitled  


to discovery and a trial on the merits."  We conclude that the superior court did not err.  


                       1.	         Caswell's  dispute  with  Ahtna  falls  within  the  scope  of  FED  



                       "When a tenant occupies a property after the termination of his lease, in  


defiance  of  a  notice  to  quit,  the  landlord  may  institute  an  FED  action  to  regain  

                      9                                                                                                 10  


                         "The essence of the action is a dispute over possession."                                          Although FED  


proceedings  are  intended  to  be  expeditious,  we  have  indicated  that  parties  are  not  



precluded from litigating substantial rights and significant issues. 


                       Caswell argues that the superior court should not have granted an FED  


hearing because he had a "viable, legal claim to possession of the property" and "the  


interpretation of the lease was at issue." He cites two cases applying U.S. Virgin Islands  


law for the propositions that "[a]n FED action is not available where the defending party  

            8          Caswell and Alaska Lime joined in the appellants' brief and make the same                                              

arguments on appeal.                     We refer to them collectively as "Caswell" unless the context                                   

requires otherwise.                 

            9           Vinson v. Hamilton, 854 P.2d 733, 735 (Alaska 1993).  


            10         McDowell v. Lenarduzzi, 546 P.2d 1315, 1318 (Alaska 1976).  


            11         See Shaible v. Fairbanks Med. &Surgical Clinic, Inc., 531 P.2d 1252, 1260  


(Alaska 1975) (stating that superior court's conclusion that "[FED] actions [can]not be  


used as a vehicle to litigate substantial rights or issues" was erroneous).  


                                                                     -7-	                                                                    7595

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is occupying the property under a claim of right" or if interpretation of the lease itself is                                                                                                                  


in dispute.                     

                                                                                                                                                          13  Alaska's FED statute  

                                 But Caswell's argument has no basis in Alaska law.                                                                                                                 


prohibits "inquiry into the merits of the title," not issues of lease interpretation necessary  


to determining the right of possession.14  In fact we addressed a lease interpretation issue  


much like Caswell's in the context of an FED proceeding in Fun Products Distributors,  


Inc. v. Martens.15                           The lease at issue in Fun Products, as here, required 90 days' notice  


of an intent to renew.16                                   The lessees did not give notice but continued making monthly  


                 12              C.M.L., Inc. v. Dunagan                                    , 904 F.2d 189, 191 (3rd Cir. 1990) (recognizing                                        

that under U.S. Virgin Islands law "a FED cause of action will not lie where [t]itle to the                                                                                                                 

premises is in question; or [w]here there is proved to the Court to exist a bona fide                                                                                                                    

question of the existence of a lease at law or in equity, which has not yet expired"                                                                                                         

(alterations in original) (quoting                                              Inter Car Corp. v. Disc. Car Rental, 21 V.I. 157, 159                                                                     

(Terr. Ct. 1984)));                          Barnes v. Weber                          , 50 V.I. 167, 172-73 (V.I. Super. 2008) (explaining                                             

limited scope of FED actions under Virgin Islands law).                                                                      

                 13              Caswell and Alaska Lime do cite an Alaska case - Kopanuk v. AVCP Reg.  


Hous. Auth. - for the proposition that FED proceedings are "unsuited to more complex  


issues."  902 P.2d 813, 816 n.1 (Alaska 1995).  In Kopanuk we clarified that while FED  


proceedings result in equitable relief, not all equitable actions can be litigated in FED  


proceedings. Id. We were concerned in Kopanuk with district courts litigating equitable  


or title issues outside their jurisdiction, a concern not present here.  Id. at 817.  


                 14              AS 09.45.150.  See also Modrok v. Marshall, 523 P.2d 172, 174 (Alaska  


 1974) ("It is well-settled that where title to the property is in dispute, dispossession by  


 [an FED action] may not be ordered.  Instead the plaintiff must establish his paramount  


title in an action for ejectment.").  


                 15              559 P.2d 1054 (Alaska 1977).  


                 16             Id. at 1055.  


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 rent payments for three years, and the lessor accepted them.                                                                                                                            The trial court concluded                    

 that the lease converted to month-to-month upon the lessees' failure to properly extend                                                                                                                                                          

 it, but we held that this was error and that the lease had been extended:                                                                                                                                               

                                         We hold that as a matter of law where a lessor accepts lease                                                                                                         

                                         payments  for   a   substantial   period   of   time   (approximately  

                                         three years) after receipt of a tardy notice of renewal, without                                                                                              

                                         advising   the   lessees   that   the   late   tender   of   notice   was  

                                         considered ineffective . . . , the lessor has waived the lease                                                                                                       

                                         requirement for notice by the lessees of renewal of or within                                                                                                    

                                         a certain time.                            [18]  

 Other FED cases have similarly involved a necessary inquiry into substantive issues of  


 lease interpretation en route to deciding the right to possession.19  


                     17                  Id.  at 1057.   

                     18                  Id.  at 1058.                        Here, the superior court refused to apply the                                                                                               Fun Products   

 waiver rule, distinguishing the situation where "the landlord . . . accepted 36 monthly  


 rent checks without objection" from this case, where Ahtna accepted and cashed two                                                                                                                                                                       

 checks for annual rent, one of which was largely for the last 11 months of the undisputed                                                                                                                                           

 lease term.   The superior court concluded that "[c]ashing a single check for a lease  


 payment (over an annual one) is not the kind of unequivocal conduct necessary to                                                                                                                                                                              

 demonstrate a purposeful waiver."                                                                         We agree with the superior court's conclusion.                                                                                                   

                     19                  See Rockstad v. Glob. Fin. & Inv. Co., Inc., 41 P.3d 583, 584-85 (Alaska  


 2002)  (interpreting  disputed  lease  provision  as  determinative  in  FED  proceeding);  


  Vinson v. Hamilton, 854 P.2d 733, 736 (Alaska 1993) (explaining that issue of whether  


 oral one-year lease existed "goes to the heart of the question of possession"); Thrift Shop,  


Inc. v. Alaska Mut. Sav. Bank, 398 P.2d 657, 660-61 (Alaska 1965) (affirming FED  


judgment when superior court inquired into existence of lease agreement during FED  


 proceeding, rejecting argument that court in FED proceeding is "limited to determining  


 whether appellants' entry ofappellee'spremises was forcible or whether they unlawfully  


 held possession by force").  


                                                                                                                         -9-                                                                                                                         7595

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


                                This is a case about possession, the "essence" of FED proceedings.                                                                                                 The  

issues at the FED hearing - whether the lease had expired or been validly extended and                                                                                                               

whether Caswell was in breach - are sub-issues relevant to whether Caswell was in                                                                                                                       

valid possession of the property.                                             The issues litigated therefore went "to the heart of the                                                                


question of possession" and were well within the ambit of FED proceedings.                                                                                                                 


                                2.	            It was not an abuse of discretion to rule that Caswell was not  


                                               entitled to discovery.  


                                FED actions are designed to "preserve the peace by providing a speedy  



method for the resolution of disputes over possession of real property."                                                                                                       FED actions  


are "summary in nature, and traditionally the court will recognize almost no affirmative  



defenseor counterclaim."                                         Accordingly,FEDactions areexemptedfromcertain pretrial  


steps such as the entry of scheduling orders and the initial disclosures, expert witness  



disclosures, and pre-trial disclosures required in other civil actions. 


                                Caswell argues that whether Ahtna waived the lease's notice requirement  


for renewal is an issue requiring discovery and that it was therefore improper to dispose  


of it in an FED proceeding based on testimony alone.  He claims that, had he had the  


opportunity, he would have "request[ed] . . . all documents from Ahtna's file on this  

                20	            McDowell v. Lenarduzzi                                     , 546 P.2d 1315, 1318 (Alaska 1976).                                      

                21              Vinson, 854 P.2d at 736 (explaining that issue of whether oral one-year                                                                                 

lease existed "goes to the heart of the question of possession").                                                     

                22             McDowell,  546  P.2d  at   1318.  

                23              Vinson,  854  P.2d  at  735.  

                24              See  Alaska  R.  Civ.  P.  26(a)  (stating  that  mandatory  disclosure  rules  apply  

to all   civil   actions   except  those   listed   in  Alaska   R.   Civ.   P.   16(g));   Alaska   R.   Civ.   P.  


 16(g)(1)  (stating  that  forcible  entry  and  detainer  claims  "are  exempted  from  the  


requirement of scheduling conferences and scheduling orders").  


                                                                                               -10-	                                                                                            7595

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

lease, all documents regarding the checks, the flagging, the emails in relation thereto and                                                                                                                                                                                             

the deposit slips and bank accounts."  He argues that additional discovery would have   

"likely  included   [Ahtna's]   assertion   that   the   check   was   deposited   by   mistake"   and  

allowed the record to include both parties' communications about extending the lease.                                                                                                                                                                                                                  

                                             We note first that Caswell was not denied discovery notwithstanding the                                                                                                                                                                     

court's order disallowing it.                                                                  Caswell had submitted document requests to Ahtna before                                                                                                                        

the court granted Ahtna's request for an FED hearing, and Ahtna responded to those                                                                                                                                                                                               

requests; Caswell also deposed Ahtna's former lawyer.                                                                                                                                       His prehearing brief sought to                                                                   

exclude certain evidence but made no mention of evidence he needed but had been                                                                                                                                                                                                    

denied.   On appeal he does not identify any evidence he actually asked for and did not                                                                                                                                                          


                                             More   importantly,   at   the   time   the   court   denied   Caswell's   request   for  

discovery it presumably did so under the assumption that an FED hearing would be held                                                                                                                                                                                                 

in the near future; normal discovery is not practicable under FED                                                                                                                                                     proceedings' expedited   

                                25       Once the hearing was scheduled months in the future, Caswell did not ask  

time line.                                                                                                                                                                                                                                                                              

the court to reconsider this aspect of its ruling.  We hold that it was not an abuse of  


discretion to rule that Caswell was not entitled to discovery before the FED hearing.26  


                       25                    Alaska R. Civ. P. 85(a)(2) (providing that FED actions shall occur "not                                                                                                                                                                 

more than 15 days from the date of filing of the complaint unless otherwise ordered").                                                                                                                                                                           

                       26                    We do not hold that permitting discovery in an FED proceeding would  


violate the Civil Rules, as the superior court concluded; the Civil Rules exempt FED  


proceedings from some pretrial requirements but not others.  We acknowledge that in  


many circumstances, allowing parties time for discovery would be antithetical to the  


purposes of FED proceedings - that they be "speedy" and "summary in nature."  See  


supra notes 22 and 23.  Whether to allow discovery in an FED proceeding when time  


permits and these concerns are not present is committed to the trial court's discretion.  


See Wooten v. Hinton, 202 P.3d 1148, 1151 (Alaska 2009).  


                                                                                                                                       -11-                                                                                                                                      7595

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

                  B.                 Ahtna Did Not Fail To Provide Effective Notice                                                                                             .  

                                     Alaska Statute 09.45.110 allows a lessor to file an FED action "on or after                                                                                                                  

the date the tenant or person in possession unlawfully holds possession of the dwelling                                                                                                                               

unit or rental premises by force." The statutory definition of "unlawful holding by force"                                                                                                                                   

includes when "following service of a written notice to quit . . . a person in possession                                                                               

continues in possession of the premises . . . at the expiration of the time limited in the                                                                                                                                            

                                                                                                                                               27      "The service of a notice to quit  

lease or agreement under which that person holds."                                                                                                                                                                                 

upon a tenant or person in possession does not authorize an action to be maintained  


against the tenant or person for the possession of the premises . . . until the expiration of  


the period  for  which that tenant  or  person  may  have paid  rent for  the premises in  


advance."28                        In the case of a month-to-month tenancy where the tenant has paid rent in  


advance, the notice must be given at least 10 days before rent is again due.29  


                                     Caswell argues that Ahtna's notice to quit was ineffective because it was  


not received until after Ahtna filed the motion to amend its complaint to include an FED  


action.  He argues that under the statutory definition he could not have been holding the  


property  "by  force"  until  after  he  received  notice  and  remained  on  the  property  


unlawfully, and thus there were no grounds for an FED action at the time it was filed.  


He argues that if he was lawfully in possession of the property as a month-to-month  


tenant, the notice was still untimely because he should have been granted another 30  


days' notice before an FED action could be filed.  


                  27                 AS 09.45.090(b)(2)(F)(i).   

                  28                 AS 09.45.130.   

                  29                Id .  

                                                                                                              -12-                                                                                                             7595

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


                               Caswell  received   the   notice   to   quit   on   September   27,   2018.                                                                                   Any  

proceedings after that date were premised on adequate notice, as Caswell's continuation                                                                                     

in possession after expiration of the lease term met the statutory definition of holding by                                                                                                         

             31   Although Ahtna did include its FED claim in its motion to amend on September  


26 - the day before Caswell received notice - the amendment was not approved by the  


court until October 31.  The hearing itself was held 11 months after the amendment was  


filed, giving Caswell plenty of notice as well as time to cure any problems that could be  


cured.  And even if Caswell had a right to possess the property as a month-to-month  


tenant at the time notice was given, Ahtna had the right to notify him of its intent to file  


an FED claim if he did not vacate the property after the tenancy expired.32  


                               Caswell's payment of rent through the end of 2018 potentially made him  


                                                                                               33     Because FED actions may not be brought  

a month-to-month tenant for that period.                                                                                                                                               


until after the period for which the tenant has paid has ended, and the FED proceedings  


were  initiated  in  October  2018,  Caswell  could  have  objected  to  the  timing  of  the  


                30             The court stated that Ahtna provided the notice to quit on September 25,                                                                                           

2018, but the evidence seems to show that Caswell did not receive it until September 27.                                                                                                                   

This timing issue was not important to the superior court's decision and is not important                                                                                          

to ours.   

                31             AS 09.45.110; AS 09.45.090(b)(2)(F)(i).  


                32             As noted above, in the context of a month-to-month tenancy a notice to quit  


must be sent at least 10 days before the next rent payment would be due. AS 09.45.130.  


If Caswell did establish a month-to-month tenancy based on the prepayment of the 2018  


rent, the next rental payment would not have been due until January 2019.  Under this  


theory the notice to quit was sent much earlier than required by AS 09.45.130.  


                33             The lease's holdover provision states that the lessor's acceptance of rent  


after the lease has expired results in a "tenancy from month to month."  


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proceedings.                     But he did not make this argument at or before the FED hearing, instead                                                                    


arguing that the notice itself was premature.                                                                                                                              

                                                                                                       Because the notice to quit was offered  


months before the potentially prepaid period ended and served the purposes of timely  




notice, we conclude that it was effective. 

               C.            It Was Not Error To Grant An FED Judgment Against Alaska Lime.  


                             FEDproceedingsarepermitted against the "tenant or person inpossession"  


                                                                                                   37     Alaska Statute 09.45.090(b)(2)(F)(ii)  

who "unlawfully holds possession" by force.                                                                                                


defines persons holding by force to include a "person in possession continu[ing] in  


possession of the premises . . . without a written lease or agreement and without the  


consent of the landlord."  The superior court found that although Alaska Lime was not  


named in the lease, it was properly named as a defendant in the FED action and as  


subject to the judgment because it was physically occupying the property and could  


"have no greater rights than Caswell."  


              34             See  AS 09.45.130 ("The service of a notice to quit upon a tenant or person                                                                     

in possession does not authorize an action to be maintained against the tenant or person                                                                                     

for the possession of the premises until the expiration of the period for which that tenant                                                                                   

or person with possession may have paid rent for the premises in advance.")                                                                                              

              35             Caswell apparently reads AS 09.45.130 to mean that notice to quit cannot  


be given until after the prepaid period has ended.  But AS 09.45.130 only states that  


actions cannot be maintained before the prepaid period has ended - not that a notice to  


quit cannot be given before the prepaid period has ended.   The statute affirmatively  


requires that notice be given before rent is due again.  AS 09.45.130.  


              36             AS 09.45.130. At oral argument Caswell contended that the content of the  


notice to quit - as opposed to its timing - was also improper. But any issues about the  


content of the notice were not addressed in the parties' briefs on appeal and are therefore  


waived. Bunton v. Alaska Airlines, Inc., 482 P.3d 367, 375 (Alaska 2021) ("We consider  


arguments not raised in an appellant's opening brief to be waived.").  


              37             AS 09.45.110.  


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

                                                Alaska Lime argues that it should not have been a party to the FED action                                                                                                                                                                      

because it was not a lessee and was not in possession of the property.                                                                                                                                                                                         We agree that                           

Alaska Lime was not a lessee - the lease listed as lessees only Caswell and "Alaska                                                                                                                                                                                                    

Limestone Company, a Corporation to be formed" (but which was never formed).                                                                                                                                                                                                                          But  

there   was   evidence   that   Caswell   and   Alaska   Lime   possessed   the   property   jointly.   

Caswell identified a variety of "equipment or assets of the corp[oration]" that were                                                                                                                                                                                                              

located on Ahtna's property, including machinery, a boat, trucks and truck parts, and                                                                                                                                                                                                                  

silos of various sizes.                                                         When Caswell gave notice in 2008 of his intent to exercise an                                                                                                                                                               

option to lease an additional five acres, he sent the letter on Alaska Lime's letterhead.                                                                                                                                                                                                                                

Rent payments, including the ones central to this appeal denominated as payment for the                                                                                                                                                                                                                   

2017 and 2018 annual rent, were made by Alaska Lime's checks.                                                                                                                                                                                

                                                This evidence supported a conclusion that Alaska Lime was a "person in  

                                                                                                                                                                             38  that it was not on the property under  

possession" as contemplated by the FED statute,                                                                                                                                                                                                                                                 

a valid lease, and that it lacked Ahtna's consent to remain there.  Therefore, the superior  


court did not err by including Alaska Lime as a defendant in the FED proceedings and  


entering judgment against it.  


V.                      CONCLUSION  

                                                We AFFIRM the judgment of the superior court.  


                        38                      AS 09.45.110.  


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