*1 was at the trial level and raised court
inаdvertently party’s excluded from points appeal, this is not
statement on repeatedly
such a case. enforced We have
Appellate 9(e) in situations where an
issue neither at the trial court was raised
level nor included in statement likelihood,
points appeal.29 on all object amended
owner did com
plaint having because she was desirous of stipulations. advantage City’s awaiting trial,
After outcome position
she is in no the issue to raise now.
Thus, reasons, all of these we refuse to presented this issue
consider first us
appellant’s appeal. brief on judgment below is affirmed.
Affirmed.
ERWIN, J., participating. ANCHORAGE, municipal
CITY OF corporation, Cross-Appellant,
v. Cross-Appellee. SCAVENIUS,
Irma R. municipal ANCHORAGE,
CITY OF Appellant, corporation,
v. LANES, Appellees. INC., al.,
PARK et 2214,
Nos.
Supreme Court of Alaska.
Aug.
specific
(Alas
tion, however,
constitute
State,
does not
P.2d 382
29. See
Burford
sought
eventually
point
Holman,
1973) ;
reference
Helen L. cross-appellee. Holmes, Leroy Juneau,
Michael M. Barker, Anchorage, for curiae. amici J. Lanes, appearance appellee No for Park RABINOWITZ, J., Before C. CON- BOOCHEVER, DI- JJ., NOR MOND, Pro Tem. Justice BOOCHEVER, Justice. appeal presents
This issues as fees to condemning authority in eminent domain case, City cases.1 In Scavenius brought an easements action to condemn construction, use and maintenance A hear line. sanitary sewer award of resulted in an $516.00 pursu appealed Subse 72(h)(5). ant to Alaska R.Civ.P. particular litigants, ably argued by we the interests of 1. The matter was briefed and answering Anchorage, brief amicus curiae counsel ordered that an prepared by private responding be City Alaska counsel. filed no briefs. Due transcending condemnees reply importance brief. has filed a of the issues which, incidentally, was the exact served quently, the compensa- be fair in contended $581.47 an offer of Again, tion. no sum was allowed 68.2 Alaska R.Civ.P. accоrdance pavement and, damage claim. accepted, judgment was offer a verdict returned eventually, As in the trial court the Scavenius *3 City ap The compensation. no awarding of City’s denied the for an award motion attorney’s and plied for an award of attorney’s of a bill of fees and allowance judge. trial by the denied fees which was costs, appealed. City and the has appealed property owner The basic thus three We are confronted with compensation,3 judgment’s failure to issues: the deni cross-appealed from City and the an Is a entitled to 1. condemnor its fees and for al of motion attorney’s fees costs and award of a bill of costs. application for property has unsuc- when the Lanes, of Inc. the Park cessfully appealed a master’s award? per- Anchorage to condemn filed an action of pertaining to offers 2. Does Rule 68 utility easements manent seven-foot-wide apply to an eminent do- judgment temporary thirty-foot-wide construc- justify an award main case so as to placement of a wa- tion easements for the attorney’s fees to of costs and parcels of ter transmission main on three City? Lanes, Inc., property by owned Park John an award Is the entitled to In addi- Gladys Peterkin and R. Peterkin. suc- costs and contesting amount be award- tion to Lanes, Park cessful defense property compensаtion ed as pavement pertaining claim taken, property owners contended damage ? pavement property their damaged within the area condemned was I main by the water the manner which 162-63, 158-60, was installed. A TO THE OF CONDEMNOR 167-71] RIGHT [R. AP- IN AN ATTORNEY’S FEES hearing, the As result a master’s A PEAL MASTER’S FROM property a total owners were awarded AWARD being allowed $2,915.21, any sum without pavement damage. newly-appointed The own- October On adop- a ver- appealed, Supreme er returned ordered Court $1,726.56, totalling Included dict for a lesser amount of Civil Procedure. tion of Rules specifies: making an The fact of- Alaska R.Civ.P. 68 the offer. pre- days accepted At more before does not time than is made but not fer begins, party defending against subsequent li- When the the trial offer. clude a may party ability party another has been a claim serve the adverse one judg- judgment taken or order or offer to allow verdict determined money ment, li- or him the amount or extent of offer, specified ability fur- to the effect in his with to be determined remains adjudged days party proceedings, liable costs then If after accrued. within ther judgment, shall the service of the offer the adverse an offer of make be- as an offer serves written notice that the offer is ac- same effect made have the cepted, party may a reason- file if it is served within either then trial fore offer days prior acceptance together than 10 and notice of able time not less hearings thereupon proof determine of service thereof commencement judgment. liability. An clerk shall enter offer not or extent of accepted withdrawn shall be deemed except sub- made the has been evidence thereof is not admissible 3. The owner’s separate opinion ject case of If in the determine costs. Anchorage, finally obtained the offeree Scavenius offer, (Alaska 1975). more than the the of- favorable pay feree must incurred after specifi- dealing (3) rules was Rule 72 the action those was dismissed under the rule, cally (a) with eminent domain.4 Section of subdivision of this (i) specifies: procedure
(a) (4) for the condemnа- allowance of costs and power appears necessary tion of of emi- under achieve a governed adequate nent domain shall be these of the owner. rules, provided except as otherwise Attorney’s fees allowed under this sub- this rule. division shall be with the commensurate attorney time committed by the phrase rules” has been con- “these throughout case the entire strued refer to all the other rules of The section Alaska Rules of and Ad- thus allows award of costs Court Procedure “except phrase as other- ministration. *4 subject provided exceptions.
wise in this rule” means that certain It makes no provision such an award to the con- for govern . emi Civil Rule shall 72 demnor. spe nent domain Where a prоcedure City’s position is provided by first, cific It the that is not Civil providing the 72, general Rule civil rules an any then of the other rules of for practice available, procedure attorney’s award of fees to the costs prevailing party apply applicable.5 the that when the condemnor may extent be is appeal successful in its an defense of provides 72 Section of Rule that (k) argues from a master’s It that award. costs and attorney’s by fees incurred the provision no in Rule for since is made 72 (the property defendant shall not owner) condemnor, pro such an award to the the be against plaintiff con- (the assessed the 6 by 54(d) cedure is as covered Civil Rule demnor) unless: attorney’s to costs and Civil Rule 82 as to de- (1) taking the of the is Alternatively, fees. contends that the nied, or implication, by negative Civil Rule 72(k), authorizes an award of costs attor (2) award of the court was at the ney’s fees to the condemnor the con- when percent larger least than the (10) ten is appealing demnee a master’s award condemning au- deposited by the securing in an unsuccessful increase of thority the master or the allowance percent. least 10 taken, an from which was 6. Alaska R.Civ.P. 5. State 4. 1968), State, Chuckwm, concerned, rule, lowed as of course to the clerk and review of shall state or in these procedure unless therefor The (d) with be quoted Except the court otherwise v. gоverned by petition Inc., (Alaska 1974). were made 1,163 Acres, when Stewart of subsection 72 substantially 54(d) either we for rules, taxing P.2d his rehearing, action in a statute of specifies: express & costs of costs More prevailing here Grindle, directs. shall be amended principally (k) Inc. of the court Less, The al- 7.Alaska mensurate with legal mining ment fees action, amount. costs of the ing money otherwise (a) Should (2) (1) [*] attorney’s the court as side, such fees Allowance for services rendered. In actions where the Unless R.Civ.P. the court shall award no directs, [*] fee to be allowed to an prevailing party fees will be adhered action allowed recovery for discretion, accurate the amount and value a 82 stаtes Prevailing Party therein, court, [*] party be following criteria in its in a reasonable [*] had, recovering money part costs part: law: discretion, attorney’s to in fee as be schedule [*] prevail- deter- Costs. judg- fixed com- fix- rized an award of public policy that favors costs It contended necessary approach whereby initially the when to achieve and ade- an owner, quate compensation specifi- a free determination owner receives cally found compensation, appeals, to entitle owners to but that petition the award. (on in favor We noted for re- fees are assessed > hearing) : prevailing party. n State,8 Grindle, portion opinion question we Stewart & prob- analogous concerned аward of an were confronted with We, cases. there, court’s Since Rule reversed lower lem. provides specifically (2) denying award of order circumstances under which such fees are appraiser’s owner— fees to awarded, opinion be the result of discussed the We condemnor. remains same.10 could invoked provision of as it Rule 72 argued sovereign. owners City argues the decision in that, com- (after settlement since the final Stewart & Grindle should restricted in one hearing master’s mencement of 72(k)(l)-(4) mean other) in the case and and, for awards to owners there- per- by 10 initial offer exceeded state’s fore, civil rules reference proper under cent, attorney’s fees were precluded respect to awards *5 (k) (2) (k)(2). Subsection subsection However, interpretation such owners. however, specifies, that the court’s posited City, plau- rule albeit de- percent exceed the amount 10 sible, is A in- persuasive too literal. more condemning party. Since posited terpretation the language consistent with deposit, had no the amount the state made of the rule and this court’s discussion percent larger could not be awarded of that rule & Grindle is also Stewart rejecting deposited. In then the amount That available. construction would view owners, stated: this contention of the we (k) totally to in re- subsection be exclusive inter- to the allocation of costs attor- gard to and as refused assess have Just ney’s proceeding. in a state, also have against the courts est “except provided as in this ex- The otherwise traditionally litigation tax declined language be rule” of subsection against (a) attorney’s fees penses and directly applicable. provide express stat- Rule 72 does sovereign in the absence and fees to be for costs awarded 72(k)(2) utory authority. Civil Rule property in a owner condemna- which specifies conditions under tion and under certain fees are and costs narrowly-defined There- awarded; remain circumstances. these conditions fore, a construing far from as silence law rule contin- unfulfilled the common provisions general re- license invoke govern.9 ues to attorney’s fees, garding costs subsec- a not infer we could thus held that We prohibits (a) expressly tion allusion to to be awarded right owner specific rules other civil when the absence prescribed. procedural domain rule 72(k). specific provision in Rule opinion & in Stewart prop- Our Grindle In the Stewart & Grindle interpreted strictly Rule 72(k) State Civil gen- erty proposed reliance on owner’s exclusively. the conditions When “misplaced”, civil rules was considered eral met, expressly specified were not because uncontrolling but was rendered condemn- could not assessed autho- Rule which (k) (4) subsection (Alaska 1974). 10. Id. at 8. 524 omitted). (footnotes
9. Id. at 1249
expenses
Likewise,
sinсe
voidable
condemnation.
seem that
it would
or.
Placing
specify any conditions
such
burden
fails
(k)
Rule 72
assessing
owner is more
than
imposition of costs
no
would warrant
levy against him but
others.11
owner, the trial court
no
against the
such
refusing to authorize
err in
did not
City’s argu
reference to
With
an award.
ment
may negatively
that we
infer the
right to costs and fees in situations where
problems are
Moreover, additional
prohibits
prop
(k)
an award to the
gener
that the
contention
presented
erty owner,
City recognizes
that read
provisions of Rule
al civil rule
negative implication
such a
with re
denies
apply.
(k)
spect
(3)
(k)(l)
subsections
does
initial master’s award
if his
They
would lead to ridiculous results.
percent thе amount de
by 10
not exceed
pick
thus would have us
out one subsec
authority. The
condemning
posited by the
tion,
72(k),
application
of Rule
(2)
award of costs
recognizes
negative
admitting
inference
while
condemning au
attorney’s fees to the
may
no such inference
be made as to
com
thority at the initial determination of
singling
(1)
(3).
subsections
But
out
open to constitutional
pensation would be
one subsection for a
not to be
18 of art. I
attack. Sec.
given
contrary
other subsections is
Constitution,
the fifth amendment
like
whereby
part
rule
“each
section
Constitution, prohibits
States
United
every
should be construed with
private property without
taking
produce
or section
a harmonious
so
Grindle, wе
compensation.
&
Stewart
in
proper
Thus it is not
to confine
whole.
held that these constitutional
terpretation
to the new section to
[Ejntitle
construed”.12* It
well be that
cer
.
.
.
necessarily
situations,
expenses
tain
legislative
be made whole for
intent
clear
apparent
specific
with the condem-
requiring
incurred in
will be
inter
connection
*6
pretation
a
property.
his
such
nation of
Without
of one
variance with
section at
rule,
a
forces
the State
do not find that
this case
others. We
pay greater portion
presents
of
costs of
justification
read
sufficient
any
taxpayer
subsection,
public project
than
other
an
in
ob
inference
one
the una-
pay by afflicting
must
him with
viously
applicable
to the others.13
omitted).
(footnote
damages
11. Id.
1250
at
are less
than the
first
allowed”.
owner had re
The court held that since the
Statutory
Sutherland,
12. 2
J.
Statutes
appeal,
were not “all
ceived less on
the costs
Construction,
4703,
(3rd
ed. Hor-
§
336-37
paid” by
from a defendant in an suit. The (k), 18. In view of our construction of ordinarily brought latter has the trouble we do not reach issue of whether under *8 upon himself, all, if he is liable at break- Constitution, imposition the of costs ing committing tort, a contract or a and jury appeal of a the condemnee would vio- only just pay is that he the costs of right just compensation. 4A late his See legal pro- the Condemnation Nichols, The Eminent 14.- § Law of Domain ceedings, hand, brought on the other 14-355, (Rev. 3rd 14-363 to 14-365 happens a man because he to own 1974). ed. Sackman available land. 2, supra. 19. Set forth in note incongru- 72(a) Page 1172, 17.The result would be even more 20. Rule is set forth at adopt City’s supra, applicability if ous we were to the contention and its is discussed at prevails, though Page that the condemnor even thе 1172. counterclaim, required tort, to file a owner were example, if a For $10,000 pavement damage. such award of The court denied master’s City’s accept application protective offer of or- refuse thereafter trial, subsequent Rule der. At the one of $12,000, jury under of pavement to the award the owners testified of be entitled that the condemnor taken,- attorney’s jury property, if the not within the easements of costs damaged $4,000 Yet in the as a $11,500. awarded per- than 10 result of the more manner in which the water would be increased costs main City objected owner to was installed. The entitling cent ground 72(k). testimony that this attorney’s fees under concerned Rule damages, tort than rather сondemnation Miklautsch true that It and that the owners had not filed coun- Rule Dominick,21 provisions held the we alleging terclaim such a tort of ac- cause party” “prevailing applicable over the objection, tion. The court overruled the general costs and concept of the allowing testimony pavement as to not were provisions. But there we required damage. The was thus an¡ exclusivity confronted experts. They secure the testi- services which 72(a) such as that contained park- that of damage fied the cause in the inapplicable all inconsistent other renders poor lot was not foundation and Here, procedural rules.22 place- construction work in thе involved specifically apply to ment of the water re- main. proceed-, domain damages a verdict of no to this turned procedure ings. specific It claim, City appeals denial and the from the provided by not Rule 72 that the of its motion for allowance is not play. civil come into This rules fees and its bill of as to the defense situation, err and the such a court did of this claim. fees under denying costs the provisions of Rule 68. area, question In this damage claim
whether certain incidental Ill special of the part should be considered na turns on the THE PAVEMENT DAMAGE ISSUE damage. ture of the incidental When Lanes, damage remaining portion to trial of Park of the Prior they necessarily were the owners indicated that condemnee’s tract results prop present a going imposition substantial claim of the easement or pavement alleged damage improvement, oc- er then construction of may properly main was considered an curred at the time the water the claim Consequently, damage moved of the owner’s installed. element protective prevent the dam order which would due the condemnation. When pavement damage negli állegedly is based age consideration claim trial, gent improvement, such ground at the claim tort, however, alleged properly a claim than condemna- loss incurred cannot rather tion, damages. This Alternatively, taking. con- bе considered tended that the owners date statute23 should at least so because the set forth summons, (Alaska 1969). the date of issuance of the meas- value at is the its actual that date 1,168 Less, Acres, State More property to be ure of Chuckwm, Inc., 449 P.2d damages actually taken, and basis of injuri- actually taken part: ously 23. AS the dam- 09.55.330 affected in the cases where purpose assessing compensation ages For the allowed. *9 damages, right the at to them accrues when the of valuation the loss is damages owner’s assess “the which will generally be measured is fixed at a time portion accrue to the sought to be con- prior the of im by actual construction the demned reason of its sеverance provement. portion that the presumed It is con- sought condemned, improve demnor will the called for improvements build construction of the negligence ment and the com proposed without manner plaintiff". pensation be Obviously, award is to determined based proposes the condemnor in- fact, If, assumption. that the con- tends non-negligent every construction in scope demnor’s actions outside inherent case. injury taking in additional result The raised issue the defendants owner, bring may he be able to an ac damages concerning lot parking against
tion at the condemnor. law tort pavement involving charge one Nichols in Law Eminent Domain negligent negligent construсtion or failure states: properly repave the areas affected is made in Ordinarily, activity. allowance construction Pursuant City’s for dam- request, condemnation the trial court have age required as a result of which will ensue the owners here to file a counter opera- proper legal claim in any event, construction In City tort. Thus, dam- project. emerged tion of the prevailing in what age proved as a of neces- will be inflicted result to be a successful against defense during sary blasting the course of con- an essentially common law action. There struction, may fore, therefor allowance it violates neither the language nor proceeding. made in the condemnation the policy of if Rule 72 costs and attor However, ney’s assumed is also relating to that defense are necessary pre- such condemnor will take awarded to accordance with the proj- cautions in the construction civil allocating expenses rules such damage ect as to work a minimum of in an ordinary civil suit.25 adjoining property. In Freeser,26 Montana R. Co. v.
Negligence. Supreme Court, Montana stat- interpreting utes from which AS 09.55.310 and 330 damage recovery If the for which is were adopted, reached a result consistent improper, sought result unlaw- present the City’s approach. That ful negligent construction or mainte- case involved a claim a railroad nance, recovery not be had therefor improper landowner that proceeding. relegat- The owner is a road damage bed irrigation caused to his ed in such case to common-law action system. reversing al- trial court’s damages.24 lowance of damages this points City correctly out that the claim, the court held: excluding aforesaid well-settled rule con- injuries damages appraised sideration of from con- When prior tortious incorporated damages demnation improvements into construction of the condemned, 09.55.310(a). AS 2 of Subsection 09.- the land esti AS 55.310(a) assumption cases where mate should made taken, larger parcel being improvements properly that the will be Nichols, Domain, any private litigant [pursuant 24. 4A Law of Eminent same extent as Co., Kelly Supply 14-245-14.245[1], 82], 54(d) §§ 14-243 to 24-248 to Rules (Rev.3rd (footnotes 1973) 1206, Anchorage, ed. Sackman 516 P.2d omitted). 1973) (Alaska ; 1211 Anchorage, Jefferson previously pre 25. This court has held that vailing government entities entitled to (1903). awards fees to the 26.29 Mont. P. *10 constructed; and, compensation property if constructed for not taken but proceedings, injuriously pending by affected be estimated available, be the the best means and will involve a the rule under this statute should conjecture part certain properly The effect of the amount of same. actual jury. in the manner of the improvements constructed larger
proposed by plaintiff as to the The case. a different have But here we appraisal. If parcels control the should finally determined not compensation was improvements improperly neg or condemning until after jury constructed, ligently additional dam no been construct- had improvement agency’s age given this reason.27 should be had remaining property the owner’s If ed. improve- of the Thus as to the successful defense by the injuriously affected been claim, negligence civil rules helpful to ment, would be it attor- de- pertaining to the award of costs and manner of consider ney’s should not apply. The trial court 28 property extent termining to what as to that have awarded costs injuriously affected. actually taken discretion, may, in The court claim. in a improvement was constructed If the also in a reasonable this that manner, might bewell negligent part amount as a of such costs.29 measure of more accurate provide a case remanded for assessment of costs not ac- which the the extent to of its and the exercise the trial court affected, than injuriously tually taken was as discretion to the allowance must be compensation element of when this fees. of the the construction before determined part, part Affirmed reversed instance, isit improvement. In the former remanded. the determination my belief that taken, wheth- property not damages to the
ERWIN,
participating.
not
J.,
not, is a determina-
er
are allowed
integral
compensation and
just
tion
DIMOND,
(concurring
Pro Tem.
Justice
part
domain
part
dissenting
part).
by the
true,
adopted
the rule
If this is
then
Alaska
that
Constitution
attor-
awarding
as
court
“[p]rivate property shall not be taken
condemning agency
ney’s
damaged
public
use without
part of the
as to that
apply
as well
here
compensation.”1
im-
legislature
has
compensation
proceeding same
plemented
this constitutional
actually taken.
land
is determined for the
compensation shall
providing
taken,
paid
measured
here,
my
it is
principle
Applying that
value,
there shall be
actual
but also that
the eminent
opinion
claim in
that as to the
actually
property not
tak-
negligent construc-
proceeding of
domain
injuriously
en but
affected.2
attorney’s fees
improvement,
tion
and costs should not
awarded
out,
points
As the
the valuation of
court
(k) ap-
condemning agency. Civil Rule 72
generally
fixed
owner’s loss is
ac-
plies
here as well as to
prior
at a time
to actual construction
regarding
tion
value
agen-
improvement by
condemning
al-
taken,
civil rules
actually
and the other
cy as to the
In such a
land taken.
82(a) (1) quoted
Hollywood Baptist
29.
also
Alaska R.Civ.P.
27.
Id. at 408. See
See
State,
Pamkratz,
Highway Dept.,
Ga.App.
al v.
538 P.2d
et
Church v.
note 7.
State
Carlson,
Davis,
(Alaska 1975) ; Cooper
(1966) ; Ryan
v.
vailing party have no
I from the court’s adverse hold- dissent set respect in this as forth Part III Issue”, Damage
“The Pavement concur opinion.
with the remainder
Charles MUNNS, Petitioner, A.G., and Volks
VOLKSWAGENWERK, wagen of America, Inc., Respondents.
No. 2537.
Supreme Court Alaska.
Sept. 10, 1975. Moody, Atkinson, Conway, W. Michael
Young, Gagnon, Bell R. Dunn & Theodore Shimek, Matthews, and David Dunn & Baily, Anchorage, petitioner. Delaney, Jr., Robert L. and James J. Wiles, Delaney, Moore, Hayes Eastaugh, & Reitman, Inc., Anchorage, respondents. RABINOWITZ, Justice, Before Chief CONNOR, ERWIN, BOOCHEVER BURKE, Justices. OPINION ERWIN, Justice. question presented for review1
whether it was error under Civil products trial 26(b)(4) for the court in a liability require party case to a lawsuit of, to disclose the names submit to depositions, experts all he about consults party the case has indicated before granted provi- Review was herein under the Appellate 23(e). Delay sions of (B) party may known A discover facts impairment have rеsulted in of substantial opinions expert or held has been who legal rights petitioner. specially employed by retained another or 26(b)(4) provides, part: Civil Rule party anticipation prep- litigation (A) (i) party may through interroga- A expected aration for trial who is not require any party identify tories other trial, as a witness at called person party expects each provided 35(b) showing whom the other in Rule expert trial, to call as an exceptional witness at to state circumstances under which subject the expected expert impracticable seeking matter on it discovery testify, opinions to state the sub- to obtain facts or opinions stance of subj'ect by the facts and to which same means. expert expected testify summary grounds opinion. for each