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Whittle v. Weber

Supreme Court of Alaska

December 3, 2010

Ora WHITTLE, Appellant,
Michael WEBER, Appellee.

Page 209

Ora L. Whittle, pro se, Fairbanks, Appellant.

Zane D. Wilson, Cook Schuhmann & Groseclose, Inc., Fairbanks, for Appellee.

Before: FABE, CHRISTEN, and STOWERS, Justices.


FABE, Justice.


Ora Whittle and Michael Weber are neighbors. Weber filed this lawsuit against Whittle, asserting that Whittle's use of his property is a nuisance, violates subdivision covenants, and violates borough ordinances. As part of discovery, Weber requested an inspection of Whittle's property, and the superior court ordered Whittle to allow a limited inspection. For about two months, Weber and Whittle disagreed on the date Weber would be allowed access onto Whittle's property. Weber then moved to hold Whittle in contempt, and Whittle withdrew his consent to the inspection altogether. As a sanction for failing to comply with its discovery order, the superior court entered judgment against Whittle.

We affirm the superior court's order directing Whittle to allow a limited inspection of his property as part of discovery. But litigation-ending sanctions should be used only in extreme circumstances and were not an appropriate remedy here. Because it was

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unclear that Whittle was refusing to obey the superior court's order and that he would not obey the order in the future, it was an abuse of discretion for the superior court to enter judgment against Whittle. Thus we reverse the superior court's judgment entered against Whittle and remand for further proceedings consistent with this opinion.


In 1984 Ora Whittle[1] moved to the Green Acres Subdivision in Fairbanks; in 1991 Michael Weber moved to the adjoining tract of land. In June 2007 Weber filed a complaint against Whittle, alleging that Whittle was " maintaining a nuisance" and violating subdivision covenants by " maintaining a junkyard on his property which ... is unreasonably obnoxious and offensive to his residential neighbors." Weber requested injunctions prohibiting Whittle " from hauling additional junk onto his property" and directing him " to abate the nuisance." Whittle responded that the subdivision covenants had been violated regularly by other residents since Whittle moved there in 1984.

In November 2007 Whittle filed a motion to dismiss Weber's complaint, arguing it was barred by relevant statutes of limitations and the doctrine of laches. Weber opposed the motion, characterizing the situation as an ongoing nuisance and asserting that he had tried and failed to work the problem out with Whittle. In February 2008 Whittle moved to have his neighbors and Weber's wife joined as plaintiffs in the lawsuit, arguing that Weber was acting as a representative for all of them and that Whittle " should be able to defend [himself] from all these people's complaints at once, instead of having to go through several different proceedings." Weber opposed the motion.

In March 2008 Superior Court Judge Randy M. Olsen issued an order denying Whittle's motion to dismiss, finding that " Weber's claim for an ongoing nuisance is not barred by the statute of limitations." The superior court also denied Whittle's motion to join his other neighbors as plaintiffs.

In April 2008 Weber requested permission from Whittle to enter his land " for purposes of conducting an inspection of the items placed upon your land to determine whether or not hazardous substances or substances of any other nature exist[ ] that could present a threat to the neighbors surrounding your property and/or the ground water beneath their property." Whittle denied the request, invoking his constitutional rights and arguing that Weber's request was " vague, ambiguous, & unfounded, with no adequate cause." Weber then filed a motion to compel entry upon Whittle's land. Whittle opposed the motion and requested a hearing to determine the reason for the inspection request and to establish parameters for the inspection.

In an order dated July 30, 2008 and mailed August 5, the superior court granted Weber's motion to compel entry and ordered Whittle to " provide a mutually agreeable date for the conducting of an inspection within 30 days." The order specified that " [t]he inspection will not extend to inside any residence." On August 6, one day after the order was mailed, Weber's lawyer drafted a letter to Whittle asking Whittle to " advise as soon as possible when we can conduct the inspection." On August 19 Whittle filed a motion for reconsideration, which the superior court eventually denied. On August 18 Weber's lawyer drafted a letter to Whittle asking to conduct an inspection of his property on August 24. According to Whittle, he did not receive the letter until August 25.

On September 2 Whittle filed a document with the court agreeing to allow inspection of his property " on November 14th through November 25th 2008 (excluding weekends & holidays), for one day" and requesting " the date, time period, name of [the expert who would be coming], & the certification of that expert." On September 5 Weber's lawyer drafted a letter to Whittle asking to conduct

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an investigation the week of October 20. On September 16 Whittle sent a letter to Weber's lawyer explaining (1) that he had not received the lawyer's August letter until the date requested for an inspection had already passed and (2) that he would allow an inspection for one day between November 14 through 25.

On October 1 Weber filed a motion requesting that the court order Whittle to allow an inspection during the week of October 20 or hold Whittle in contempt if he refused. Weber's lawyer also noted that the time period Whittle had previously offered for the inspection would fall after the extended deadline for expert reports. On October 14 Whittle filed an opposition to Weber's motion, asserting that he had fully complied with the court's order by offering to allow an inspection in November but that he now " withdraws all offers to an agreement with [Weber's lawyer]" because Whittle " ha[d] tried to reach an agreement with the opposing party, but it was to no avail." On November 7 the superior court held a hearing on Weber's contempt motion.

At the contempt hearing, Weber's lawyer argued the importance of the inspection to their case and the prejudice his client had already suffered as a result of the delay. Whittle responded that he intended to " stand on [his] constitutional rights" and expressed his view that the United States Constitution and Alaska Constitution protected him against " inspections and that and seizures and searches" of his property without evidence of some inappropriate activity. The superior court declined to hold Whittle in contempt for his alleged noncompliance with the July 30 written order, but then orally ordered him to allow an inspection of his property within two weeks on penalty of having judgment entered against him. Whittle repeated that he would " stand on" his constitutional rights, and added: " And if [the court has] the authority to write a search and seizure warrant without my permission, then I have no control over that. But I will not agree to let them on my property, so...." Apparently viewing Whittle's statement as a refusal to ever comply with the court's discovery order, the court directed Weber's lawyer to draft a final judgment order.

On December 2 Weber's lawyer submitted a draft order. On December 16 Whittle filed an objection to the entry of judgment against him. On December 23 the superior court entered final judgment against Whittle, ordering him " to bring his property in compliance with" subdivision covenants and " to abate the nuisance his property presents" to Weber. The superior court gave Whittle until July 15, 2009 to comply with the order and provided that, if he did not, Weber and those hired by Weber would be permitted to enter his property " for the purposes of removing and disposing of the personal items stored thereon at Mr. Whittle's expense." Weber also filed a motion for costs and enhanced attorney's fees of 50 percent of actual fees; the superior court awarded Weber costs and 20 percent of actual attorney's fees.


We review a trial court's decision to impose sanctions for discovery violations for abuse of discretion.[2] This discretion is limited, however, " when the effect of the sanction [the trial court] selects is to impose liability on the offending party, establish the outcome of or preclude evidence on a central issue, or end the litigation entirely." [3] Because " litigation ending sanctions are disfavored," we limit trial courts' " discretion to impose such sanctions ... to extreme situations." [4]

We review a trial court's " determination regarding the applicable statute of limitations" de novo.[5] We review a trial court's decision to permit or deny a defense based on the doctrine of laches for abuse of discretion and will not ...

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