NO ATV ACCESS on Butterfly Lake Trail

CLAYTON WALKER, JD

Original Opinion JULY 20, 2013

Rehearing October 10, 2011

 

SOP, INC.

v.

STATE OF ALASKA,

DEPARTMENT OF NATURAL RESOURCES

DIVISION OF PARKS AND OUTDOOR RECREATION

Supreme Court No. S-14541

OPINION No. 6800 – July 19, 2013

No. 6835 – October 11, 2013

The Alaska Supreme Court revoked Nancy Lakes area homeowner’s motorized ground based access to their properties along ATV trails by invalidating their special use permits as unlawfully issued easements.

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Expansive Business Attorney Views from Wolverine Peak

Anchorage Small Business Attorney
Does your business attorney have an expansive view of your business?

It’s good to get out and take in the views on a sunny day.  From Wolverine Peak across the Chugach Range.  Lots of people were out for the adventure.  I wound up meeting with a judge, a former board member and client at various points along the hike.

Expansive Business Attorney Views from Wolverine Peak

Anchorage Small Business Attorney
Does your business attorney have an expansive view of your business?

It’s good to get out and take in the views on a sunny day.  From Wolverine Peak across the Chugach Range.  Lots of people were out for the adventure.  I wound up meeting with a judge, a former board member and client at various points along the hike.

How Long do Household Furnishings Last

Picture by C Walker all rights reserved 2013.

I frequently am asked by landlords and tenant how long different furnishings should last.  This question comes up frequently when a landlord wants to charge the tenant with the cost of repair or replacement of components in a rental property.  Landlords tend to want to charge the complete cost of replacement on the last tenant in possession before the item broke or was scheduled for replacement.  In contrast the tenant is not liable for mere ordinary wear and tear.  The closer the furnishing is to its life expectancy before failure or replacement the more it looks like the failure was simply ordinary wear and tear.  The parties could rely on pictures and anecdotal evidence of the life expectancy of home components.  Or they could hire an expert to give evidence and direction.  Or they could look to industry standard material.  A recent study was performed in  2006 by the National Association of Home Builders and Bank of America Home  — The Equity  Study of Life Expectancy of Home Components. 

 

This information can also be used for scheduling maintenance and refurbishment of rental property or evaluating structures for acquisition.  Knowing the expected life of the residence components can also aid in forecasting future property maintenance expenses.  Using the list you can find which components are near their life expectancy and either negotiate a reduction in price on those components.

If you are an investment property buyer, landlord, tenant and want more information on how you can use this information in your business, give us a call at 907-375-9226 to schedule an appointment.

 

Alaska Supreme Court Orders Closer Look at Offer of Judgment

By:  Clayton Walker, JD

 

 DEARLOVE

v.

CAMPBELL

OPINION No. 6785

May 31, 2013

Offer of Judgment In Alaska
Ice Biking the Turnagain Arm, Anchorage, Alaska

 

A driver caused injury to the passenger of another car in a two-car accident. The passenger brought suit for damages, including her insurer’s subrogated claim for medical expenses. State Farm Insured both the driver and passenger. The driver made an early offer of judgment, which the passenger did not accept. State Farm then made a direct payment to itself reducing the  amount from the passenger’s potential recovery. The driver then made a second offer of judgment, which the passenger did not accept. After trial both parties claimed prevailing party status; the driver sought attorney’s fees under Alaska Civil Rule 68.

The superior court ruled that the Driver’s first offer of judgment did earnRule 68 fees, but the second offer did. Both parties appealed, arguing the superior court improperly considered the State Farm Insurance’s  payment in its Rule 68 rulings. The Alaska Supreme Court concluded that the trial court must take into account State Farm’s payment to itself had when evaluating the offers of judgment.

The Supreme Court found the record unclear on the nature of State Farm’s.  The Alaska Supreme Court vacated the decision that the second offer of judgment entitled the driver to Rule 68 fees and remanded for further proceedings on this issue. Hopefully a closer look at the effect of State Farm’s treatment of its insureds results in a fair outcome for their policy holders.

 

 

 

Appraisal Valuation Clauses

In 2007, Deborah Kyzer Ivy, a shareholder of Calais Company, Inc. (Calais), filed a complaint against Calais seeking involuntary corporate dissolution. In May 2009, Ivy and Calais reached a settlement agreement (Agreement) with appraisal valuation clauses.  The clause provided that Calais agreed to purchase Ivy’s shares at “fair value” as determined by a three-member panel of appraisers. The appraisers disagreed over the fair value of Calais. Two of the appraisers agreed the fair value of Calais was $92.5 million; one appraiser dissented, valuing Calais at $43 million.

Calais sought to avoid the high valuation by  arguing the two majority appraisers had failed to comply with the appraisal procedure mandated by the Agreement and the Agreement’s definition of “fair value.” The superior court ultimately declined to rule on the issue, concluding that interpreting the term “fair value” was beyond its scope of authority under the terms of the Agreement. Consequently, the court ordered Calais to purchase Ivy’s shares based on the majority appraisers’ high valuation.

Calais appealed. The Alaska Supreme Court reversed the superior court’s final order and remanded for the court to remand to the appraisers with explicit instructions to calculate the “fair value” of Calais as defined by AS 10.06.630(a), as required by the Agreement.

Appraisal Valuation Clause
Calais Building.

With $50 million at stake, you can buy a lot of argument in six years.  Ivy sought a valuation in 2007 before the market meltdown and at the peak of the market.  Ivy is probably lucky she didn’t get stuck selling at the bottom of the market.

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Lifetime Drivers License Suspension Upheld for Killing Cyclist

Drivers License Suspension
Mountain Biking in Anchorage Alaska Rocks.

In May 2005 an intoxicated Eugene Bottcher drove his vehicle off the road, hitting a boy and narrowly missing the boy’s brother. The boy who had been hit later  died at the hospital from his injuries. After Bottcher hit the boy, he continued to drive, and when stopped by a passerby who had witnessed the accident, Bottcher tried to bribe him into not reporting the crime.

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Bike to Work Anchorage 2013

May 17, 2013Anchorage Bike to Work

Anchorage Bike to Work Day is a local celebration of the national event initiated in 1956 by the League of American Bicyclists. Each May, the event provides a stimulus to get bodies and bicycles in shape for a season of riding. Teams are organized among coworkers and other social groups for education and mutual support. Team registration has quadrupled since 2007; more than 3,800 cyclists were counted at key intersections in May of 2012.

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Property Line Disputes

 

Property Line Disputes
The subject Property in Dispute

Property Line Disputes

 

The Kaylors live in the north parcel, 4500 E 135th.  The McCarrey’s live in the south parcel, 4530 E 136th.  Between them lies a strip of land that looks like a road.  The parties agree that the strip of land is owned by the McCarreys; but, they don’t agree as to whether the McCarrey’s can exclude the Kaylor’s from their own property.

The Kaylors like to store their Alaska toys at the back of their lot so they don’t have to see their own collection of used vehicles.  Instead, they’d like to leave them in full view of the MCCarrey’s front windows and drive way.  The McCarrey’s proposed fencing the area and installing a gate to reduce the Kaylor’s access and to encourage them to store their stuff somewhere else.  The Kaylors sued to prevent the fence.

The trial court granted the injunction.  The Alaska Supreme court overruled this holding and remanded the matter back to the trial court for additional findings.  Specifically, the land grant that created the interest provided for a public right of way.  However, the parties had not addressed any evidence to the issue of whether the public right of way grant had been accepted by any governmental agency.  If it turns out that the grant was accepted as a public right of way the Kaylors can keep piling stuff up in the McCarrey’s front view.

http://www.courts.alaska.gov/ops/sp-6767.pdf