Bragg v. Teslow
| Docket Number | S-17787 |
| Decision Date | 16 June 2023 |
| Parties | DAVID A. BRAGG and RHETTA K. BRAGG, Appellants, v. TIMOTHY TESLOW, Appellee. |
| Court | Alaska Supreme Court |
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Superior Court No. 4FA-17-03084 CI Earl A. Peterson, Judge.
Robert John, Law Office of Robert John, Fairbanks, for Appellants.
John J. Tiemessen, Clapp Peterson Tiemessen Thorsness LLC Fairbanks, for Appellee.
Before: Winfree, Chief Justice, Maassen, Borghesan, and Henderson, Justices. [Carney, Justice, not participating.]
1. INTRODUCTION
A Fairbanks man cut a stand of trees on his neighbor's property after the neighbor had moved out and put the property up for sale. The couple that bought the property sued the man who cut the trees. After negotiations failed the couple did not oppose summary judgment, apparently believing that their claims were not viable. The superior court issued an award of full attorney's fees against them, concluding that their claims were frivolous and that they filed the lawsuit with an improper purpose. The court then denied their motion under Alaska Civil Rule 60(b) for relief from the judgment.
Because one of the couple's claims was not frivolous and because the finding of improper purpose was clearly wrong, we vacate the full fee award and remand the issue of fees for further consideration. But because the incompetent advice of the couple's attorney is not a ground for relief from judgment under Civil Rule 60(b), we affirm the denial of relief from the judgment.
II. FACTS AND PROCEEDINGS
David and Rhetta Bragg are the owners of a 20-acre lot in a Fairbanks subdivision. The lot was previously owned by Wallace Cox. In July 2016 David Bragg and Cox entered into a $450,000 agreement to purchase the lot. At the time of the agreement Cox had moved out of Alaska.
Timothy Teslow is the owner of an adjacent 6-acre lot. Teslow's driveway, which he shares with another neighbor, runs across the Braggs' land. A properly recorded deed of easement protects the driveway, which was constructed more than fifty years ago.
In August 2016 Teslow leveled a birch grove near the boundary between the two properties. The grove included approximately 40 mature birch trees, many of which were 40 to 50 feet tall. Teslow chipped the trees into mulch.
The Braggs took possession, but not yet ownership, of Cox's land in mid-September. Before finalizing the sale, David Bragg hired a surveyor, who determined that the birch stumps lay within Cox's property. The Braggs nevertheless closed the property transaction at the previously appraised and agreed-upon price of $450,000.
The Braggs retained an attorney, Valerie Therrien. Therrien sent a letter to Teslow accusing him of illegally building his driveway and stone wall on the Braggs' property, cutting down the birch grove, and trespassing via a cleared path. The letter threatened litigation and asked Teslow to "acknowledge [his] trespassing actions."
Teslow responded via email. He welcomed the Braggs to the neighborhood and promised to stop maintaining the path through their land. Teslow explained that another neighbor with knowledge of easements had constructed the shared driveway through the Braggs' property years ago. Teslow admitted that he had cut the trees in question but asserted that he had Cox's permission to thin them.
The Braggs filed a complaint against Teslow and his wife that asserted that Cox had assigned his claims against the Teslows to the Braggs.[1] The complaint alleged an encroachment claim based on the stone wall, an encroachment claim based on the driveway, and a claim under AS 09.45.730 for damages caused by cutting the birch trees (the timber trespass claim).[2]
The Braggs settled with Teslow's wife for $10,000, leaving Teslow as the sole defendant. As part of the settlement, Teslow's wife provided the Braggs with an affidavit stating that the Teslows knew that Cox's property was for sale, knew that Cox had left Alaska, and cut the trees in question to improve the Teslows' view.
Teslow moved for summary judgment in January 2019. He sought to dismiss the Braggs' encroachment claims, asserting that the driveway and stone wall in - question had existed since 1969 and 1986, respectively, and were covered by a properly recorded easement.
Teslow also sought to dismiss the Braggs' timber trespass claim. First, he argued that because the Braggs purchased the property "as-is," the Braggs knew or should have known the trees had been cut before they closed on the property. Second, Teslow argued that because the trees were cut before the Braggs possessed or owned the property, the Braggs did not personally suffer any harm and so could not recover any damages. Third, Teslow asserted that Cox did not suffer any damages either, so his assignment of claims to the Braggs gave them no basis for recovery. Teslow argued that property owners may recover the cost of restoring a property only when they have a personal reason for restoring the land, and Cox had no such reason because he planned to sell the land.[3] And Cox suffered no diminution in the land's fair market value, Teslow argued, because Cox sold the property for the same price - $450,000 - agreed upon before the trees were cut.
The parties attempted but failed to settle. Teslow then asked the superior court to rule on his summary judgment motions. Two days later the Braggs filed nonoppositions to the motions. The superior court granted summary judgment in Teslow's favor on all claims.
Teslow then moved for attorney's fees. Teslow argued that the superior court should award him full - or at least significantly enhanced - fees because the Braggs' claims were so frivolous as to constitute bad faith.[4] The Braggs opposed Teslow's motion, submitting affidavits from Therrien, Cox, and David Bragg.
Therrien's affidavit catalogued the hours that she, her paralegal, and a contract attorney had spent on the case, their rates, and incidental charges incurred during the litigation.
Cox's affidavit disputed Teslow's account of the permission Cox had given Teslow to trim trees on the land. According to Cox, he granted Teslow permission to "trim the trees professionally if needed" - not to cut the trees "down to stumps."
David Bragg's affidavit attempted to explain the couple's decision not to oppose Teslow's summary judgment motion. Bragg stated that Teslow's attorney had led the Braggs to believe "that there was nothing ever keeping anyone from doing this in the future because there was no provable loss of value," and that they had "learned through the litigation of this case that it is difficult to assign a monetary value to a living, mature birch grove." Bragg represented that they "did not resist the [s]ummary [j]udgement after being threatened by [Teslow's] attorney that if [they] did anything to require additional discovery he would push to trial." Teslow's attorney further represented that if the Braggs "won the trial, Teslow would then undoubtedly push to appeal at multiple levels until [they] were unable to financially fight this anymore." These assertions led the Braggs to conclude "that discussions are futile, and this change is best sought through legislation." The Braggs "needed Teslow to prevail . . . [because doing so] not only inhibits him from appealing in the future, but gives the requirement for legislative change much more credibility."[5] The Braggs were "convinced that lawmakers will make efforts to close the loophole on similar timber trespass cases based on the results of this court's ruling." Teslow characterized the Braggs' explanation as "plainly disingenuous" and farfetched.
In February 2020 Therrien submitted a second affidavit explaining that she had spent "at least three to four hours researching the law and reviewing the information that [the Braggs] provided" before "review[ing] the information [she] could find at the Recorders' Office." She claimed to have searched the Department of Natural Resources website for the recorded easements and came to believe that the Braggs "had a case with regard to those issues as the exact placement of the encroachments was not clear." She stated that the parties orally agreed to drop the encroachment claims before their failed settlement negotiations. But she conceded that she "should have drawn up a stipulation to dismiss those claims."
The superior court awarded Teslow full fees amounting to $71,123, finding that the Braggs had engaged in bad faith and vexatious conduct.
First, the court found that Therrien had failed to adequately investigate the legal and factual bases for the Braggs' complaint. It concluded that Therrien could not have adequately investigated the Braggs' encroachment claims without encountering the recorded deed of easement and subdivision plat. The court also chastised the Braggs for failing to advance a legal theory that would entitle them to recover damages for timber trespass when they did not own the property at the time of trespass and when the owner, Cox, apparently suffered no financial loss.
Second the court found that the Braggs had attempted to use the court system "as a vehicle to influence another branch of government." The court interpreted David Bragg's affidavit to mean that he had sought to "win the affection of the legislature by filing a factually and legally baseless lawsuit, subjecting his neighbor to tens-of-thousands of dollars in legal fees . . . after he [knew] his claims [had] no basis in the law, and then intentionally losing by non-opposing summary judgment." In other words the superior court found that the Braggs had initiated...
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