Windel v. Carnahan
379 P.3d 971
Alaska2016Background
- Keven and Marlene Windel sued over the validity of an easement claimed by Thomas Carnahan and for damages from improvements in that easement; Carnahan counterclaimed. The easement validity and most substantive issues were decided for Carnahan in prior proceedings.
- Carnahan served a 2006 Rule 68 offer of judgment that: (1) declared his easement valid; (2) paid the Windels $10,000 in trespass damages; (3) awarded the Windels attorney’s fees and costs; and (4) dismissed his counterclaims. The Windels did not accept the offer.
- The parties entered a 2009 partial settlement that reserved the Windels’ nuisance abatement claim (and left attorney’s fees open). The superior court initially bifurcated the case for fee purposes; on appeal the Alaska Supreme Court (Windel I) remanded for reconsideration of fee issues and instructed that Rule 68 offers must encompass all claims.
- On remand the superior court treated the litigation as a whole, found Carnahan prevailed and that he did better than his 2006 offer (taking account of $4,000 in court-ordered remediation), and awarded Rule 68 attorney’s fees to Carnahan.
- The Windels appealed, arguing the court misvalued remediation (the 2007 culvert and later work), failed to rule on the validity/apportionment of the joint offer, and improperly allowed certain billing entries; the Supreme Court affirmed.
Issues
| Issue | Windel's Argument | Carnahan's Argument | Held |
|---|---|---|---|
| Whether Carnahan beat his 2006 Rule 68 offer when litigation is considered as a whole | Windels: The settlement and later remediation changed the calculus; they gained more than the $10,000 and Carnahan did not fare better overall | Carnahan: When the entire litigation is compared (including remediation costs and court orders), he fared better than his offer | Court: Affirmed the superior court — Carnahan prevailed and beat his offer under Rule 68 |
| Whether the 2007 culvert cost should offset Carnahan’s offer | Windels: The culvert remedied the problem and therefore should be counted against Carnahan (or as a benefit to them) | Carnahan: The culvert was not his voluntary payment; it should not be attributed to him | Court: Superior court’s factual finding that Carnahan did not build the 2007 culvert was not clearly erroneous; third‑party payments are not charged to an offeror |
| Whether to use the $4,000 estimate for court‑ordered remediation or wait for actual later costs | Windels: The court should wait for completion and actual costs (which may be higher) before deciding Rule 68 entitlement | Carnahan: Use the contemporaneous estimate at the time of final judgment; fees should not be indefinitely delayed | Court: Use the unrebutted $4,000 estimate from the end of litigation; requiring completion would unreasonably delay fee resolution |
| Validity of a joint, unapportioned offer and whether later changes to litigation void the offer | Windels: The joint/unapportioned offer may be void and an offeror should not be able to alter litigation later to gain advantage | Carnahan: (Not squarely litigated on remand) | Court: Windels waived/inadequately briefed these issues on remand/appeal; court declined to decide them (law of the case and waiver) |
| Objections to specific billing entries | Windels: Certain billing entries unrelated to litigation should be disallowed | Carnahan: Objections were untimely; fees already litigated earlier | Court: Windels waived objections by failing to timely raise them during initial fee proceedings; superior court did not clearly err in finding waiver |
Key Cases Cited
- Windel v. Mat‑Su Title Ins. Agency, Inc., 305 P.3d 264 (Alaska 2013) (Windel I) (remanding for reconsideration of Rule 68 issues and instructing offers must encompass all claims)
- Dearlove v. Campbell, 301 P.3d 1230 (Alaska 2013) (voluntary payments can factor into Rule 68 comparisons)
- Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083 (Alaska 2008) (Rule 68’s goal to encourage settlement; offer must be capable of resolving claims)
- Mackie v. Chizmar, 965 P.2d 1202 (Alaska 1998) (Rule 68 principles and settlement encouragement)
- Brinkerhoff v. Swearingen Aviation Corp., 663 P.2d 937 (Alaska 1983) (addressing apportionment concerns for joint offers)