*1 H43 complying, prevented acknowledge pleadings somehow from was We Eder’s are appellant good-faith effort to made decipher, particularly they difficult to comply.” Acknowledging that his Eder “cited are pleadings handwritten. Nonetheless the homelessness financial difficulties” his supplied to the Commission indicated .that response to to Order Show Commission’s copy he wanted a of the record and was Cause, Good M-K con- Rivers nonetheless making an to comply effort Commission with good tends that Eder made no faith effort to procedures. If the Commission doubted comply with the Commission’s deadlines filing Eder’s motivation in what or he did pointing “significant delays” to the series thought it more to needed evidence make “haphazard filings.” nature of his findings, hearing26 it could have held a or Assuming adequately suggested alternative-way the Commission him some to complied regulation its comply with about appeals process. dismiss- with the The Com al,23 the Commission’s sole rationale for dis- failing provide mission’s to him rationale missing appeal interpretation Eder’s was copy with it erroneous, was made no a. (or prohibiting of 8 AAC 45.030 as findings other about Eder’s or circumstances Board) providing “from doeuments/evidence good lack of faith. charge no appellant.” at Aside remarking' about Eder’s “unfortunate” cir- Y. CONCLUSION cumstances, the no Commission made find- We REVERSE the decision Commission’s ings good findings about cause. It no made REMAND proceedings. for further good about whether Eder had made a faith comply effort with its deadlines or wheth- complied
er Eder had due circum- beyond pro
stances his control. Unlike the se &Associates,
litigant in Khan v. Adams Eder timely responsive pleading filed Alaska, STATE of DEPARTMENT OF good Commission’s order to show cause.24 AND TRANSPORTATION PUBLIC request His for access to the record was FACILITIES, Appellant, not, if pleadings clear even were v. unlikely and it was Eder’s circumstances change appeal pending would while the WASH, INC., ALASKA LASER copies so that he could for either Corporation, Appellee. Additionally, record or travel Alaska. Supreme Court Nos. S-15380 Commission clerk documented conversation S-15649 Eder that with indicates he tried obtain the remainder the record the Board Supreme Court Alaska.
in December 2014. Because the Commission October cause, findings good failed make related gap” by making cannot “fill we our own
findings.25 regulation comply
23.A Commission sets out several nec- failed to with that order before the dead- it, essary steps for the to take before Commission line in Commis- so is unclear whether the appeal prosecute. regulation. dismiss an complied step failure sion with the of-its first appellant comply AAC57.250. "If an fails to ... commission," with an order of the chair or Khan, AWCACDec. No. 057 at 2-3. step first is issuance of "a written notice to the appellant specifies the nature of the failure Lady Compassion v. Care 25. See Bolieu Our appeal may and states ... dismissed Ctr., 1999) (observ- appellant appropriate if the fails to take correc- ing that a remand is needed when the Board fails days receipt tive action no later than 20 after finding). necessary to make a Here, 57.250(a). the notice.” 8 AAC the Commis- comply sion did not wait for Eder to fail to State, Div., Comp. its order before it ing the written notice warn- 26. See Workers' AW- issued Lawson (de- 29, 2009) possible (May 4-7 dismissal—the written notice was CAC Dec. No. part granting scribing hearing request for late the order Eder’s third to ascertain reasons filing). for an extension of Eder could' not have time.
H45 acquire .part high- wash site of a way improvement project. After the State acquired site, the owner elected not to 'the car relocate wash. The owner then brought against an inverse condemnation suit State, claiming result- *3 ing from acquisition. the State’s At the close of a jury trial the denied verdict; motion for a directed jury awarded the owner attorney’s and awarded appeals, fees and costs. The arguing State the owner’s claimed are nbt compensable it was for the feasible owner to relocate the car wash after the acquired original agree site. We with the State that is the correct analyzing for the owner’s decision deciding relocate when whether he is entitled to business We reverse the superior court’s denial of the State’s motion verdict, for attorney’s directed vacate the fee awards, and costs and remand for reconsid- status, eration prevailing,party fees, and costs.
II. FACTS AND PROCEEDINGS
A. Facts Trefry expands forms and Alaska Laser Wash. George In 1995 Trefry Alaska La- formed Wash, Inc.; in practice ser left the his first car law build Alaska Laser Wash Spenard wash near the Road intersection Anchorage. In 1998 and Minnesota Borghesan, Attorney Dario Assistant Gen- Trefry opened another ear wash eral, Burke, Attorney Dana Senior Assistant Avenue; this four location included touchless General, Anchorage, C. and Michael Ger- bays, espresso shop, car wash a water General, Juneau, aghty, Attorney Appel- store, storage, in 2004 and offices. And Tre- lant. opened six-bay fry car wash in An- South Austin, Stephen Dodge, M. Texas Kev- and chorage intersection Old Seward near Fitzgerald, Anchorage, Appellee. T. Highway O’Malley Road. Alaska Laser and the first car Wash was touchless wash in Stowers, Justice, Fabe, Before: Chief and However, by Anchorage Alaska. had 41 Bolger, Justices. bays, car 14 of touchless wash By owned. 2010 there touchless car were 65 OPINION bays city. wash in the STOWERS, Chief Justice. integrated Alaska Laser was an car Wash I. INTRODUCTION business, wash and chose the three of car Alaska locations to maximize his Alaska owner Laser Wash agreement coverage city reached an customer company’s Highway im- convenience, demograph- part of its study on a wash as Glenn based Laser patterns. Each Alaska provement project. traffic asserted ics and electronically site linked profound Wash “had dramatic announcement purchase others, that a customer company effect” Laser Wash: his Alaska or “Laser Token” off- Wash a “WashCard” plans; promotional halted its business and facility Laser Alaska any or at Wash site marketing eliminated its sales and director Each Laser Wash location. use at Alaska expansion plans; position; abandoned generate depended on others location high margins and lower due to faced costs sales, advertising at often one location increasing opera- lost economies of scale sales WashCards and resulted sales, share, expenses; market tional benefiting locations. the other Tokens Wash dam- profitability; and suffered enjoyed other econo- ages. using personnel, shared mies scale parts, expense By storage, items. *4 2006, September having In after technological advances allowed Alaska 2004 Trefry appraised, the site the State offered synergized wash to offer car Laser million, Fifth ear the wash. 3.45 Avenue $ meaning throughout city, the that services approach” valuation to This used an “income any Laser access of Alaska customers could approximate Fifth car wash’s the Avenue days bays day, 14 hours seven 24 'Wash’s value, an that approach estimates value allowed cus- Alaska Laser Wash also week. anticipated on future based the revenue pay to tomers track and for washes and of a property.1 stream This valuation includ online, usage reports tax generate and assets, land, tangible building, as the ed businesses’, customers’—particularly reduced furniture, equipment, intangi as well and owners’, government agencies’— fleet and assets, workforce, patents, the ble such as times, expenses, and re- drive administrative profits. and economic only costs. Alaska Laser Wash was the lated Anchorage in to hire a car wash business Trefry In October 2006 counteroffered to marketing full-time sales and director. Fifth car sell the Avenue wash $5.85 Trefry that the ear claimed Fifth Avenue million, contending offer in- State’s impor- wash was Alaska Wash’s most correctly income appraised both actual and nearly tant location and contributed capitalization unique to rates due certain as- company’s operating net income. 40% pects of this counter- Alaska Laser Wash. In Trefry Fifth further claimed the Avenue pursue Trefry right the to offer reserved because Fifth Avenue was car ideal previ- the had State heavily by daily trafficked commuters and evaluate, ously partic- to consider or refused prime the location was near a busi- ularly damages to Alaska Laser Wash’s bases,'and district, military multiple car ness properties, losses, temporary incidental dealerships. Fifth car The wash was profits. Trefry that advised highly visible and traffic accessible containing would an offer a res- consider traveling in both on directions the street. rights. Trefry ervation made an alter- then in native counteroffer without reservation the acquires 2. The State 7,153,450. amount of $ Fifth Avenue car wash. Trefry January spoke In Trefry March 2006 the State notified 2007 with the acquire acquisition agent agreed intended to the Avenue State’s ac- (2) approach property; 1. The income “is concerned with the sale of the an of the rate estimate rate) present proper- (capitalization worth of future from the return an investor benefits would re- ty" present by discounting quire in “arrives at value him make an invest- order to induce 'capitalizing’ liquidity future ment or the income which could risk and lack an State, (3) property." equity particular property; be derived from the Dash v. in interest an (Alaska 1971). application capitalization “The P.2d income of this rate to esti- (1) capitalization steps: present involves three mated derive the value of income to method property estimate the income which the estimated income.” Peninsula Horan v. Kenai capable producing, including periodic Borough Equalization, both Bd. Dash, 2011) 1071). (quoting to be income the income derived from future 491 P.2d at - wash; eept property. 5 million for the nue car he asserted he would $ acquisition agent open replace recommended need to at least locations to two purchase price, this economic benefits the Fifth Avenue explaining justify wash, ap- that each location would cost higher price by adjustments million, proximately some of the that he lacked $3.5 Trefry funds, discussed his counteroffer. After a these that it would take at least .three dispute years open further as to whether the State locations alternate due to storage, relocation, cycles, litigation would and that the. construction property, up reinstallation fixtures related would tie case financial and parties price revised the sale to 5.36 million other resources for the foreseeable $ future. April prepared report 2007. The the transaction and indicated the $ sells Alaska Laser Wash price difference between the State’s Group. Laudon agreed price offer initial sales was an instead leave the car decided “administrative settlement.” altogether, wash business and he sold parties drafted a Memorandum entire Alaska Laser Wash business to the Agreement April for this transaction Group Laudon in March 2008. The Laudon approved following the memorandum the Group paid Trefry 6.95 million for the busi- month. This memorandum did reserve ness; Trefry. contended that this sum did not right sue for business but include of the business right separate asserted that let- *5 in this profit claimed action. Trefr/s signed on ter sent the date he the memoran- the transaction was million. The new $2.95 purchase dum. price, Of the million $5.36 proceeded to owners build another Alaska 1.44 million went to the bank to off the $ location Fifth Láser Wash on the Avenue mortgage property, Trefry kept the and Trefry location that had considered as a re- million, remaining the 3.92 $ placement original for his Fifth Avenue car new owners wash. The also built new car Trefry open
3. decides not to newa locations on wash three other sites that Tre- Alaska Laser location. Wash fry had considered. During acquisition process, the the State Trefry of
informed the benefits the State Proceedings B. properties offers owners of to condemned against files Trefry 1. suit the State. help them their to move a new $20,000 Trefry accepted lump Trefry location.2 a In October filed an inverse payment against sum relocation of relocation claim instead condemnation the State the Trefry argued assistance and reimbursement actual mov- name of Alaska Laser Wash. ing expenses. despite finding acquisition But available Fifth that the State’s the Ave- washes, correctly having interruption sites zoned for car car to nue wash led “business uncompensated the funds to a car on one of and in- build wash those and losses sites, to, expressing cluding, temporary and confidence that Alaska but not limited lost prosper profits, profits, loca- Wash would at alternate lost business lost business tions, Trefry value, goodwill, open opportunities to a lost lost decided not new and receiving value[,] consequen- location after going the funds the and other concern Trefry damages.” Trefry request- no tial State. claimed that there was sin- and incidental gle equivalent judgment, declaratory compensatory the Fifth Ave- dam- substitute for ed 2,500; (4) regulations require provide obtaining permits, up professional $ 2. Federal the to State to transporta- federally-funded help these benefits in all po- services to determine the 24.301, (2016). projects. sites; §§ tion (5) 49 C.F.R. replacement professional tential ser- These tax-free benefits reimbursement include property help plan vices to move and install the using professional for the cost of a mover or (1) site; (6) repairs, improvements, at the new business; (2) moving up the cost twelve site, replacement up or modifications to the insurance; (3) storage months of spent searching costs and time 10,000. $ replacement property interest, Following a mis- court post-judgment declared mistrial. ages, pre- and trial, again summary moved for costs. fees and superior court
judgment, but the denied that summary moves for genuine citing The fact. motion material issues judgment. a a trial commenced before summary judge, judgment the State filed a third different The moved First, judgment. superior argued summary the State motion grounds. on three motion, holding not take Alaska Laser court denied that it Wash’s did and, provided sufficient Spenard had evidence or Old Seward locations there- fore, pertain- [ear Fifth recover losses “the condemnation Avenue Second, argued potentially ing the ... remain- wash] locations. diminished those therefore, ing that, Trefry feasibly could have relocated interests” and wash, dispute he could not still in Alaska Laser whether car value, going compensable taking goodwill, lost a claim concern Wash had “suffered lost ” other a temporary profits, or as The court found lost incidental Trasiness whole.’ Third, argued Trefrjfs pro- his expert’s affidavit $5.36 jections compensation acquisition that the , million included of the Fifth Av- settlement 6,95 profits, of the “potentially sale enue diminished compensation for remaining property of Laser value locations included provided elements some same 'that interests!’ sufficient evidence lawsuit, sought jury question there to recover send awarding compensable taking further business would was the “business whole,” compensation. amount therefore double During proceedings these court mo- denied First, parties to file summary tion for invited cross-motions judgment. regarding proof that, applied looking at burden held Alaska Laser “as argued relocation issue. whole,” genuine there was of mate- issue burden “falls the business owner loss- ‘show rial suffered fact whether *6 least, is, to be or im- impossible, relocation damaged “the whether the State es—that ” practical,’ in essence a standard. business as a condemned whole”—when Trefry argued the show car State must the Fifth Avenue But the court wash. unreasonably the to explained Trefry business owner failed also could not recover mitigate “damages damages, a stan- solely reasonableness geographically related to his superior agreed Trefry court separate dard. with and non-unified and South Spenard Second, duty that a business the miti- Anchorage owner “has the court to facilities.” held gate damages arising inci- essentially business loss of matter relocation was the of question mitigation damages dent the condemnation its real of of and that if, if, it only but genuine there of is reasonable do so.” The issue fact was material superior court also ruled that reasonable for to relo- the “burden whether was proving mitigation Third, mitigate or the failure to cate Fifth Avenue ear wash. the the trial, falls on the rejected compensa- the State.” At the State’s double finding jury court instructed argument, tion the genu- there Alaska Laser was a Wash was entitled to damages recover unless ine issue material fact whether the sale the price Spenard showed that some or all the the Old loca- State Seward than “could have been avoided with rea- tions was lower have would been had risk, sonable efforts the Fifth and without undue ex- State not the Avenue condemned pense, hardship, or car embarrassment.” wash. Testimony during 24-day the trial focused proceeds 3. The to trial. case (1) relocated (2) proceeded site; in his The case trial 2011. Short- car wash a new whether the commenced, ly trial acquisition after the one of Alaska Fifth State’s of the Avenue car losses; (3) attorneys ill, became and the wash caused financial what $1,9 payment paid the million for Tre- original State’s million above its $5.36 fry’s encompassed. Fifth car wash million Avenue 3.45 offer $ because the State wanted delay expansion avoid further in its project issue, Trefry On the first conceded that not want to losing did risk a construction in the cash he million netted from the $3.9 season. sale of Fifth car the Avenue wash was enough financing him to enable to obtain the for a directed moved verdict at trial,4 to build another ear wash.' He necessary also close but the the parcels of conceded that there were several jury denied its motion. The then deliberated correctly available that (1) land were a special finding zoned and entered verdict that: car many and that he acquisition found the washes suitable State’s the Fifth Avenue wash, places to damaged build car whole; the car wash business as a (2) damage to Alaska Laser Wash’s busi- issue, Trefry’s On the second witnesses loss; ness as a in resulted whole measurable premium about testified location of the (3) just compensation owed Alas- original Fifth Avenue car wash. But ka 1,793,450; Wash in the amount of $ Smith, Jerry appraiser, State’s testified that (4) parties .agree did that business Fifth Avenue car wash was compara- original were included original ble to the site. also relied (5) payment; million and Alaska Laser Wash testimony from Spyker, expert Susan an unreasonably did fail lessen its dam- valuation, to estimate business dam- ages by refusing to relocate. resulting ages original loss of the Fifth Spyker car Avenue wash. estimated 4, Alaska Laser moves for Wash that Alaska Laser $5.38 attorney’s fees and costs. contrast, taking. due the State’s Alaska Laser Wash moved an award of expert, State’s business valuation Robert State, against including fees Meyer, that Alaska concluded Laser Wash legal provided fees services Kevin not incur loss of did value as a Fitzgerald, Stephen Dodge, and George Tre- acquisition result the State’s Fifth Texas, fry, Dodge, lives, in who served as Avenue car wash. He testified that each Alaska Laser Wash’s counsel both the remaining Alaska Laser Wash loca- Fitzgerald joined first and trials. second experienced tions increase revenue af- Dodge’s case after illness resulted in the acquisition ter the State’s Ave- Trefry, mistrial the first trial. who nue car wash. both owner of Alaska Laser Wash and On the regarding third issue what lawyer good Bar, standing million payment for the Fifth $5.36 through sat both trials claimed he acted encompassed, Smith testi- through participation as counsel in the *7 original appraisal that the State’s that fied sought an also of case. assessment formed the for the initial basis State’s $ $281,867 in throughout incurred costs ap- offer was based income proceedings. proach to tangi- valuation that included both n assets, superior $633,935 intangible The ble and such court awarded in as the work- attorney’s $135,420 force fees profits. and economic and costs. The Smith testified only attorney’s 5.36 million pay- State’s eventual court’s award included “exorbitantly through ment high” was and fees and the first costs' incurred trial; capitalization reaching costs rate used excluded fees and incurred sum inappropriate. right way The of State’s after the first trial and fees chief,3 Wright, explained sought Robert his own The court time. denied right way "supervisor mony 3. The of State’s chief is the that "it take two locations to make would appraisal, acquisition, of the sec- relocation he could [the] [Avenue what made at have Department Transportation- tion .of die by any supported site]” was “not kind of business Facility.” Public “pure speculation,” analysis,” was was "not jury.” helpful even to the argued 4. The State that relocation was feasible. argued Trefry’s specifically The State testi- category of costs, including “special fall into the costs for domain case other various Alaska; travel Texas Dodge’s may between owner damages.”7 Generally, a business accounting duplicative; costs costs deemed he special damages unless shows not recover performed employee work of an for the certainty” “reasonable the amount duties”; regular scope of “within the her of the [S]tate’s that are a result “direct losses transcript prepara- process some server and Trefry’s Determining taking.”8 loss- first trial. incurred The tion costs after taking are a direct result es 101,885 in costs court did award $ clarify legal us to standard requires spent by of time hours Trefry’s not to relocate. apply decision accounting experts. may argues recover damages only proves if he relo-
5. The State business and Alaska appeal this court. of the Fifth wash was cation contrast, argues Trefry, in that a feasible. appeals jury verdict and The mitigate if rulings superior duty has a by the court. business various made cross-appeals the court’s so; Alaska Laser Wash contends that it is reasonable to do rulings fees and adverse costs. may special Alaska Laser Wash recover dam- appeals two been consolidated. These ages proves it was not unless rea- ap- sonable relocate. The OF III. STANDARD REVIEW Trefry’s standard. plied reasonableness applied “Whether legal question explicitly determined whether correct standard is a law We have novo, ‘adopting the rule that we review de (mitigation) aor reasonableness prece persuasive light law that is most analyzing apply should ”5 reason[,] dent, policy.’ property owner’s relocation decision deter- mining damages, special an award of of a motion We review denial evidence, leading verdict But a treatise on a directed “whether the and all reasonable inferences states, jurisdictions per- “In eminent domain evidence, light from the in the drawn viewed mitting compensation goodwill, for loss non-moving per party, most favorable generally required that the business owner diversity opinion among room for mits impossible or at show relocation to be least jurors.”6 reasonable impracticable.”9 juris- And cases from suggest taking dictions also that the State’s DISCUSSION IV. directly only if results in business Property A Business A. Owner Whose feasible The no other location exists. Michi- By May Is Taken Recover Appeals gan Court that the recoveiy held Long Damages As Business It So “depend[s] going concern value on the Not For Business Was Feasible transferability of that business another To Relocate. location” because “[i]f the can be parties agree Both the busi transferred, nothing compensa- is taken and damages Trefry in this eminent ness seeks P,2d 820, (Alaska 2011) Hammer, Rego Rego, 8. State v. McQuade, 1976) ("Since (quoting McQuade v. profits is an such loss item of (Alaska 1995)). 423 n.3 special the condemnee has burden *8 proving preponderance a of the of evidence 1008, Chang-Craft, 6. v. 251 P.3d Cameron 1017 profits of lost a direct amount result of the (Alaska 2011) (quoting City Delta Junction v. of taking; proof require- meet the state’s must Inc., 1128, (Alaska Trucks, 670 P.2d 1130 Mack (foot- certainty of as indicated.” ment reasonable 1983)). omitted)). note damages Special are not losses that "do neces- 7. usually sarily from the condemna- § or even flow 9. 8A Nichols On Domain G29.03[3][b] Eminent State, Triangle, 632 (3d 1964). of land.” v. tion Inc. ed. 1981) J., 965, (Connor, dissenting in 974 part).
H51 required.”10 tion is not taking. therefore The Michi- relocate rather than gan applied Appeals Court of has this doc- this Under circumstance the owner would well, allowing trine in other cases as business fully compensated have been the loss goodwill to recover for owners lost when property his in the eminent domain settle- refusing relocation was not feasible and to ment. compensate when relocation was feasible.11 contrast, Trefry asserts that the feasi Supreme applied The Minnesota Court simi- bility apply test should not in Alaska and reasoning
lar it an when reversed award of that we instead should consider business goodwill lost to a restaurant owner who did owner’s relocation decision under the same successfully not demonstrate that relocation apply analyzing ques standard that we when possible.12 Supreme was not The Minnesota involving mitigation tions Under Court reasoned that “[u]nder circumstances standard, Trefry argues this potentially can “Alaska where business be relo- cated, only duty mitigate the condemnation has taken Laser Wash had a its dam physical property prevented ages, and has not duty only but if arose it was actually moving business owner from reasonable to do so” and that Alaska Laser Supreme business.”13 The Nevada Court has damages Wash could if not recover it were also held that is business tied to the reasonable relocate. contends that condemned location so impossible is there are distinct differences between Alaska destroying relocate without the entire value jurisdictions adopting and the other the fea business, of the the owner can claim lost sibility standard that cite we here. goodwill going concern value.14 precedent claims that these differences make jurisdictions from inapplicable these other agrees with this line reason- regard Trefry explains to this issue. ing, arguing that a who business owner re- “general those states the rule” is that fuses to relocate should be able to collect any is required pay claim damages only business when relocation is not damages arising taking business from specifically argues feasible. The State the land where the is business located but relocate, when a feasibly business owner excep those states out an have carved the State’s condemnation rule, general permitting tion directly any good- does not result loss of if owners collect business reloca going orwill concern value because the relo- argues tion not feasible.15 that be cated business would retain that value. When rejected outright cause we “general is feasible to relocate but the business required so, rule” the State is not any owner chooses not to loss do goodwill going claim for arising concern value would then taking result from the business owner’s choice not where a business is land /¿.at548. City Prescriptions, 10. Detroit Michael's 143 13. v. 808, 219, (1985). Mich.App. 373 N.W.2d 224 Cowan, 1, 851, 14. State v. 120 Nev. 103 P.3d 4 See, e.g., City Lansing Wery, 11. Mich.App. v. 68 (2004) (holding gas that a station owner can 158, 51, (1976) (permitting 242 N.W.2d 54-55 goodwill recover lost for his condemned business hamburger shop goodwill to recover lost presented compa- because he evidence that oil "remotely comparable" no location was available leasing stopped gas nies had station fran- shop depended greatly walking when the on its area). chises in his center); city's distance from the commercial Cit
y Inc., 1, Whalings, Mich.App. Detroit v. See, e.g., Prescriptions, Michael's 373 N.W.2d (1972) (declining N.W.2d to allow the 219; Schutt, City Minneapolis at clothing owner of a men’s store to recover (Minn. 1977) (recognizing N.W.2d an goodwill pri because its "derive value did not exception only when a business can show its location; marily enjoy [did] going destroyed concern value will be monopoly, captive [were] and its customers anot Cowan, relocated); audience"). business cannot (recognizing exception when the condem- *9 Redevelopment 12. Hous. & in the Auth. St. Paul v. nation results destruction of business a Lambrecht, 541, (Minn. 2003). relocated). 663 N.W.2d 549 because cannot Deny extension, The cannot, adopt B. It Error To State’s located,16 Was we For A Motion Directed Verdict. general that rule. exception to argues that it should have ra agree the State and the We prevailed for on its motion a directed verdict Minnesota, Michigan, and Ne tionale after trial “it was undis the second feasibility, trial, that puted, that was courts cited above after vada before commercially reasonableness, technically is feasible and the correct viable than rather re-open for car wash.” [the] We analyzing whether a business standard the denial motion directed review damages may recover business-loss owner evidence, all “whether the verdict for own the business State condemns when may be inferences reasonable which drawn disagree property. with Tre- er’s And we evidence, light in the most viewed counterargument precedent that fry’s non-moving party, permits favorable to jurisdictions cite is in from other we here diversity among of opinion room for reason applicable. jurisdic other We view these jurors.”18 able adopt feasibility stan tions’ decisions to reasoning an line of independent presented dard as in Evidence trial juris Trefry’s those he how courts in admission that explaining cluded probably financing obtained could have build anoth in the dictions consider relocation context at a location with er car wash different though business Even award ’ in cash 3.9 million he netted jurisdictions reasoning that in those line acquisition of the Fifth Avenue car State’s exception general to a as an rule serves wash; Trefry’s testimony that there was holding government need not that correctly plenty Anchorage land zoned any damages arising claim business washes; Trefry’s for car admission that he taking from the land where the busi many “good places” to had build a identified located, rule we ness is Anchorage; Trefry’s wash admission adopted. persuasive offer Trefry fails to looking had been at a site down the he pro are support contention we original from the street Fifth Avenue car independent from adopting hibited line Wash’s reasoning. actually owners built a new car wash site; Trefry’s exact he admission was holdWe that a business owner aware of other sites for car washes and that recover business when the State suggested particular he to Alaska sites only if it is not feasi condemns business owners; fact that Wash’s new relocate; if it is ble for owner business Alaska Laser buyers assured relocate, for a feasible business owner “increasing profitability sales and continued “reasonabl[y] taking certain[ ]” is they expanded are almost unavoidable” if directly damaged to have the value of the suggested. onto the sites Under our hold business, compensation.17 requiring su ing today, compensation to receive for busi perior that a owner concluded business ness owner must show only required when it is “is to relocate rea relocation infeasible. “Feasible” reject sonable do so.” We “[e]apable being accomplished or means approach court’s hold about; brought possible,”19 and applied wrong con standard Ap threshold than lower reasonableness. awarding text of an legal plying to the facts listed alyzing above, juror no decision not relocate. conclude we reasonable Trefes Hammer, Inc., 1128, Trucks, (Alaska State v. Mack P.2d 16. 1976). 1983)). Id. 17. Feasible, Heritage Dictionary (5th ed. 19. American 2014). Chang-Craft, Cameron (Alaska 2011) (quoting City Delta Junction v.
H53 prove damages with disagree that it for his reasonable certain- was feasible clearly profits of ty.2 could Our lost the car wash. discussion did relocate profits suggest part parcel lost a ear location were opened wash at another contrary, of a To undisputed availability of of value. the we the sites business’s because the State could control upon to relocate the Fifth Avenue car noted damages “giv- by, example, the amount of for wash, Trefry’s fi- ability conceded to obtain notice,” ing precise early own- undisputed the business nancing, and fact that successfully profits could as com- built er claim lost additional new owners pensation.3 very locations on the sites additional
himself considered and recommended damages of One the claims set out for relocation. the owners consider Trefrey complaint in lost was “temporary his Therefore, it was error for the damages profits.” pleaded sepa- Those were be- deny directed verdict the State rately types of from other business diversity was no of cause there room for a opporthnities val- as “lost business arid opinion among jurors the on of the issue the goodwill.” Trefrey ue” and “lost Because ade- of feasibility relocation. alleged lost of quately profits as item special damages, he opportu- should have the V. CONCLUSION nity damages the- of those recover amount the denial We REVERSE court’s proved certainty. with reasonable verdict, motion for of the State’s directed Trefrey’s profits contends that claim for lost costs the fee and VACATE “inapposite” reopen because he the did awards, and REMAND reconsideration sold instead. But sale business and status, party attorney’s fees, prevailing- of closure of followed the the Fifth Avenue costs. months, leaving location by several a time period during.which presumably the business FABE, Justice, dissenting part. in lost-profits damages. Those suffered dam- ages feasibility speculative they I are not agree with the rath- so cannot court that legal proved certainty; be than reasonableness is the correct with reasonable at er that, applied. agree present I on minimum a business owner be And could case, question profits during of this evidence the same time record immediately preceding In period taking. feasibility relocating La- Fifth Avenue view, my Trefrey can should ser as a matter law afforded decided .be prove disagree opportunity and recover State. But I with the favor profits implicit remand. conclusion that directed lost court’s question verdict resolves Trefrey’s disputed proper- valuation potential damages all of the claims through ty taken eminent domain Was if it case. is feasible for a business Even many subject spanned negotiations relocate, the business incur for months, parties ultimately entered relocates, or, in this profits lost while as dispute, of their into a settlement case, attempts I while sell the business. paying Trefrey million. One $5.36 remand on the lim- would therefore the case issues at trial central contested here of lost-profits damages. ited issue con- scope settlement: The State State Hammer we recognized that a that it its valuation” tended had “increased in- part growth potential special damages owner can on “the recover based location, history” come the Fifth Avenue State takes domain,1 power argued any damage through Trefrey We eminent while profits type “separate from the as a of “business and distinct discussed business was property” thus not interruption” which the--State could be of the real value liable, long subject of so the settlement. the business owner (Alaska 1976). Id. 1. 550 P.2d 823-27 3.. 827;' Id. *11 interpreted agreements as are
Settlement B., Appellant, contracts,4 there no factual when are JOY questions contract “we disputes, review v. novo,”5 interpretation But de formation entering parties intent of the “[t]he Alaska, OF DEPARTMENT STATE is “re- question fact” contract SERVICES, Of HEALTH & SOCIAL clearly under the erroneous viewed Services, Appellee. of Children’s fice jury in was asked review].”6 The this ease [of Supreme Court No. S-16152 agree[d] “the parties determine were included” of Alaska. Supreme Court paid pursuant the State to the settle- amount jury not. they And the found that were ment. 26, 2016 October adequate jury’s finding should purpose settlement indication judgment as a as merit a sp clear
matter of law in favor alleges And while the State that Tre-
issue.
frey accepted an small as a additional sum settlement,
relocation record citation my its support brief does not assertion.
view, purpose funds additional accepted
Trefrey is not established
on this a matter record of law. as agreeing parties’
Because the intent in
the settlement cannot be determined law, respectfully
matter I dissent remedy solely
court’s ordered a remand status, party prevailing
for reconsideration of
attorney's fees, costs. I would remand
the case the trial court on the limited
question lost-profits damages Trefrey period taking
for the óf time until
the sale the business. Maassen, Justices, not
Winfree and
participating. Traw, (citing Copper 4.Chilkoot Lumber Co. v. Glacier Id. River Rainbow Sea Sch. Dist. 9 280, Inc., 1011, (Alaska 2000)). foods, (Alaska 2011) P.3d (Alas (citing Cleary, Smith v. P.3d GoldCo., Recycling, K 6. K & Inc. v. Alasita 2001)). ka (Alaska 2003).