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Prax v. Zalewski

Supreme Court of Alaska

August 11, 2017

GLENN MICHAEL PRAX, PHILLIP G. PRAX, and MARIANNE P. KITTREDGE, Appellants,
v.
VICTORIA J. ZALEWSKI, Appellee.

         Appeal from the Superior Court No. 4FA-13-02190 CI of the State of Alaska, Fourth Judicial District, Fairbanks, Douglas L. Blankenship, Judge.

          Christopher J. Bodle, Burns & Associates, P.C., Fairbanks, for Appellants.

          No appearance by Appellee Victoria J. Zalewski.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

          OPINION

          CARNEY, JUSTICE.

         I. INTRODUCTION

         After the family that owned a Fairbanks parking lot prevented the neighboring property owner from using it, the neighbor filed an adverse possession claim for the lot in question. The trial court ruled that from 2002 to 2012 the neighbor had perfected an adverse possession claim to the lot and held that amendments made to the relevant law in 2003 did not apply to the neighbor's claim because her period of possession began in 2002. The family appeals, arguing that the 2003 statutory changes should have been applied to this case. We agree; therefore we reverse the trial court's ruling and remand the case for further proceedings.

         II. FACTS AND PROCEEDINGS

         A. Facts

         In 1994 Victoria Zalewski purchased a 60 foot by 90 foot rectangle of land on Mary Ann Street in Fairbanks (Lot 8A). Just south of Lot 8A is a parking lot. Although this parking lot is recorded as being part of a larger adjacent lot known as Lot 9A, no boundary line has ever been apparent between Lot 8A and the parking lot. Zalewski never had her lot surveyed and mistakenly assumed when she purchased Lot 8A that it included the parking lot.

         Prospector Outfitters obtained Lot 9A - including the parking lot - in 1994, and in 2007 conveyed the lot to Glenn Michael Prax, Phillip G. Prax, and Marianne P. Kittridge (the Praxes). Various members of the Prax family shared in the ownership and management of Prospector Outfitters and its properties before and after the 2007 transfer of Lot 9A.

         Zalewski had a duplex on her property, which she rented out and sometimes lived in. Zalewski and her tenants consistently used the parking lot for parking, entry, and exit. She and her husband maintained the parking lot, keeping it graveled and clear of snow and plants. They installed electrical outlets on the lot for headbolt heaters and paid for the electricity. Zalewski built a shed on the lot in 2008; she used the shed and other parts of the lot for storage. The duplex occupants received mail at a mailbox placed within the parking lot.

         Zalewski consistently used the parking lot on Lot 9A, but her exclusive use ended during the summer of 2002. That summer the owners of neighboring Lots 10B and 11B excavated their property to prepare it for construction, and they stored their equipment and materials-including a large dump truck-on the parking lot. This use of the property ended in autumn of 2002.

         Glenn Michael Prax knew that Zalewski was using the parking lot and repeatedly attempted to talk to her about his family's ownership of the lot. Between 2001 and 2003 he left two notes at the duplex explaining his family's claim to the property and suggesting some discussion about the boundary. Around 2005 he spoke to a tenant of the building about the issue, and in 2009 or 2011 he spoke to Zalewski herself about the boundary. He explained that his family owned the parking lot, but he received only a noncommittal response from Zalewski. In 2012 and 2013 he sent letters to Zalewski outlining the Praxes' claim to the property, but he received no response. After his last attempt in 2013 he set up sawhorses barring Zalewski from the parking lot. Zalewski removed the sawhorses and filed her lawsuit in July 2013.

         B. Proceedings

         Zalewski's complaint alleged that she had acquired title to the parking lot by adverse possession. She later amended her complaint to include a prescriptive easement claim over the parking lot. The Praxes filed oppositions and counterclaims, asking for judgment quieting title to the parking lot in their favor and arguing that any alleged use of the parking lot was by their permission. Zalewski never argued that she possessed the land under color of title.

         In July 2014 the Praxes moved for summary judgment, arguing that Zalewski's use of the parking lot did not satisfy the elements of adverse possession. They argued that Zalewski "had to show that she had a 'good faith, but mistaken belief that the [parking lot] lies within the boundaries of [her] adjacent real property, ' " as required by the 2003 version of AS 09.45.052. Zalewski countered that the pre-2003 version of the statute contained no good-faith requirement, and that the 2003 amendments did not apply to an adverse possessor whose title had not vested by the time of the amendments, such as herself, because "such an adverse possessor would have an equitable interest by the time of the amendment" which the amendments were not intended to affect. Zalewski also claimed that she in any event had possessed the parking lot in good faith.

         The trial court denied the Praxes' summary judgment motion and ruled that the 2003 amendments to the adverse possession statutes - and thus their requirement of good faith - did not apply to this case because Zalewski's period of possession had begun before the 2003 amendments took effect. The court relied on Cowan v. Yeisley in which we held that the 2003 amendments to AS 09.10.030 and AS 09.45.052 were not intended to be retrospective.[1] The trial court cited that case for the proposition that, because "any ten-year period ... in this case" began before the amendments' effective date, the amendments did not apply to Zalewski.

         The court held a three-day trial in June 2015. The parties stipulated that good faith was not at issue in light of the court's summary judgment ruling. Zalewski and her ex-husband testified, as did Philip, Joseph, and Glenn Michael Prax. The widow of the contractor who had overseen the excavation of Lots 10B and 11B testified that her husband had indeed occupied the parking lot with construction equipment through the summer of 2002.

         The court again ruled that the good faith requirement of AS 09.45.052 did not apply because "any ten-year period asserted in this case must commence prior to the effective date" of the amendments [2] - and referred back to its analysis of the issue from its summary judgment order.

         The court found that the use of the parking lot to store equipment in summer 2002 by the owners of Lots 10B and 11B was not consistent with Zalewski's claim to have exclusively possessed the parking lot since the 1990s. Zalewski therefore had to show that she had possessed the property for the ten-year span between September 1, 2002, and September 1, 2012, to prevail on her adverse possession claim.

         The court found by clear and convincing evidence that Zalewski's use of the parking lot during this time was continuous, open, notorious, exclusive, and hostile to the Praxes' interest in the property. It found that Zalewski's use of the parking lot was not permissive because she had never acknowledged that her claim to the property was subordinate to that of the Praxes. The court reiterated that good faith was not required because the 2003 statutory amendments did not apply, but stated, "If Zalewski's good faith was an issue, this court would find that she was not in good faith as a result of the ...


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