GLENN MICHAEL PRAX, PHILLIP G. PRAX, and MARIANNE P. KITTREDGE, Appellants,
VICTORIA J. ZALEWSKI, Appellee.
from the Superior Court No. 4FA-13-02190 CI of the State of
Alaska, Fourth Judicial District, Fairbanks, Douglas L.
Christopher J. Bodle, Burns & Associates, P.C.,
Fairbanks, for Appellants.
appearance by Appellee Victoria J. Zalewski.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
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.
FACTS AND PROCEEDINGS
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.
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.
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
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
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.
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.
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.
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. 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.
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.
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  - and referred back to its
analysis of the issue from its summary judgment order.
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
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 ...