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Schweitzer v. Salamatof Air Park Subdivision Owners, Inc.

Supreme Court of Alaska

September 13, 2013

Craig SCHWEITZER, Airflow Leasing, LLC, and Don Reesor, Appellants,
v.
SALAMATOF AIR PARK SUBDIVISION OWNERS, INC., Appellee.

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[Copyrighted Material Omitted]

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Craig Schweitzer, pro se, Kenai, Appellant.

William Walton, Walton, Theiler, & Winegarden, LLC, Kenai, for Appellant Airflow Leasing, LLC. Don Reesor, pro se, Las Vegas, Nevada, Appellant. Robert J. Molloy and Kristine A. Schmidt, Molloy Schmidt LLC, Kenai, for Appellee.

Before: FABE, Chief Justice, CARPENETI, WINFREE, and STOWERS, Justices.

OPINION

WINFREE, Justice.

I. INTRODUCTION

A judgment debtor challenges the superior court's denial of an Alaska Civil Rule 60(b) motion to set aside an order permitting the sale of an airplane seized to execute on the judgment against him. At the time of seizure, the airplane was in the process of being reconstructed and did not have certain identifying information attached to it. Third parties claimed an interest in the seized airplane. After an evidentiary hearing the superior court determined that the judgment debtor had an interest in the airplane and permitted its sale. But at that point the underlying judgment was paid by one of the third parties, and the execution sale did not occur. The judgment debtor, joined by the third parties, filed a Rule 60(b) motion to set aside the order regarding ownership of the airplane. The superior court denied the Rule 60(b) motion and awarded attorney's fees to the judgment creditor and against the judgment debtor and the third-party claimants.

Appealing the denial of the Rule 60(b) motion, the judgment debtor argues that the superior court's ownership decision is void for lack of subject matter jurisdiction because federal law grants the Federal Aviation Administration sole power to " identify" aircraft. He also argues that the superior court improperly modified statutory sale procedures, erred by not concluding that newly discovered evidence supported relief from the ownership decision under Rule 60(b)(2), and erred by awarding execution-related attorney's fees to the judgment creditor. The third parties join in the judgment debtor's

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appeal. For the reasons discussed below, we affirm the superior court's decisions.

II. FACTS AND PROCEEDINGS

This appeal arises out of execution of judgment proceedings. In January 2009 the superior court entered a money judgment against Craig Schweitzer in favor of Salamatof Air Park Subdivision Owners, Inc. (the Association).[1] The Association conducted a judgment debtor examination to determine whether Schweitzer had assets available to satisfy the judgment. Schweitzer testified that certain Otter [2] airplane parts in his airplane hangar belonged to Airflow Leasing, LLC, but that he did not know the Otter's serial or N number [3] or who owned Airflow Leasing.

The Association obtained a writ of execution and a process server seized a partially rebuilt Otter airplane and some parts from Schweitzer's hangar. Schweitzer filed a claim of exemptions asserting that he had no ownership interest in the airplane, which he said was " De Havilland DHC-3 Otter N26DE, Serial # 26." Attached to the claim of exemptions was an affidavit, made pursuant to AS 09.35.130[4] and executed by Don Reesor on behalf of Airflow Leasing; Reesor claimed that the seized airplane was Otter N26DE and was owned by Airflow Leasing. Airflow Leasing later requested an evidentiary hearing on its ownership interest in the seized property.

After holding the requested evidentiary hearing, the superior court issued extensive written findings of fact and conclusions of law about the seized property. The court found that the Association had seized a partially reconstructed single-engine Otter with " no aircraft data plate, no airframe data plate, and no log books." [5] It found that the seized Otter was reconstructed using parts from two different airplanes, Otter 398 and Otter 26. [6] It found that Schweitzer was the owner of Otter 398 and Airflow Leasing was the owner of Otter 26. The court found that Otter 398 previously was outfitted with a turbine engine and an up-gross STOL kit.[7] The court found that Otter 26 previously was outfitted with a piston engine and without an up-gross STOL kit. The court found that the seized airplane was equipped with a mount for a turbine engine and an up-gross STOL kit. The court found that the seized Otter was " the partially re-built Otter 398 to which the tail section from Otter 26 was affixed."

The superior court concluded that Airflow Leasing had the burden of proving it owned the airplane because it did not have possession of the Otter at the time of seizure,[8] and

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that Airflow Leasing had failed to meet its burden. The court concluded that the Otter could be sold to satisfy the judgment against Schweitzer. Modifying statutory execution procedures, the court then: (1) delayed the sale so the parties could find the airplane data plate and log books for Otter 398; (2) required the process server to re-advertise the new sale date " in a manner that is reasonably likely to reach interested wrecked Otter buyers globally" ; and (3) ordered that any excess proceeds be paid into the court ...


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