from the Superior Court of the State of Alaska No.
3CO-02-00011 CI, Third Judicial District, Cordova, Daniel
Schally, Judge pro tem.
Beecher and Perry Beecher, pro se, Anchorage, Appellants.
C. Wells and Jack R. McKenna, Birch Horton Bittner &
Cherot, Anchorage, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, and Carney,
Justices. [Bolger, Justice, not participating.]
evicted commercial tenants from city-owned land and was
granted a money judgment against them for unpaid rent and
sales taxes. The tenants left behind various improvements, as
well as items of personal property related to their operation
of a marine fueling facility on the land. The city pursued
collection of its money judgment for several years before
suspending its efforts; about eight years later it resumed
its attempts to collect. The tenants, contending that they
had reasonably assumed by the passage of time that the
judgment had been satisfied, moved for an accounting of their
left-behind property and the amount still owing on the
city informed the superior court that it had executed only on
bank accounts and wages and that several improvements had
reverted to city ownership and therefore did not count
against the judgment. It claimed not to know what happened to
the rest of the property the tenants identified as having
been left behind. The superior court found the city's
response sufficient and allowed execution to continue.
tenants appeal, arguing that they were entitled to a better
accounting of their left-behind property and that the city is
estopped from contending that the judgment is still
unsatisfied. We agree in part. We hold that it was the
city's burden to produce evidence of the property's
disposition and that it failed to carry this burden. We also
hold that there are genuine issues of material fact about
whether the city is estopped from contending that the
judgment remains unsatisfied. We therefore reverse the
superior court's order accepting the accounting and
allowing execution to continue; we remand for further
proceedings in the superior court.
FACTS AND PROCEEDINGS
and Perry Beecher entered into a ground lease with the City
of Cordova in 1997 to operate a marine fueling facility on
City-owned land. They eventually fell behind on the rent.
In January 2002 the City delivered a notice to quit,
informing the Beechers that they owed $30, 527.22 in past-due
rent and had until February 4 to bring it current. The notice
warned that the lease would terminate if the Beechers did not
meet the February 4 deadline. But the Beechers did not pay
the past-due rent or vacate the property, and in March the
City delivered an updated notice to quit. This notice
informed the Beechers that the lease had terminated on
February 4; it also reminded the Beechers that, pursuant to
paragraph 9 of the lease, they had 90 days from termination -
until May 5 - to remove any improvements, which would
otherwise become the property of the City. The City also
recorded notices of sales tax liens against the Beechers'
corporations, covering all their real and personal property
in the Cordova Recording District.
Beechers still did not vacate the premises, and in April the
City filed a complaint against them in the superior court
seeking eviction, foreclosure of the sales tax liens, and a
money judgment for both the past-due rent and unpaid sales
taxes. The court ordered an eviction and later entered a
money judgment against the Beechers in the amount of $118,
759.61. The court also ruled that "by virtue of the
lease" the City had gained "color of title" to
any improvements remaining on the premises. The claim for
lien foreclosure was apparently dropped; the record contains
no further reference to the tax liens.
Beechers then vacated the premises, but they left behind some
personal property, including fuel tanks, vehicles, trailers,
parts, and appliances. Nearly a year later, the City's
attorney, in a March 2003 memo to the City manager,
recommended that the City attempt to clarify ownership of
this left-behind property. In April the superior court
ordered debtor's examinations to occur in May. The City
filed creditor's affidavits stating that it would attempt
to satisfy the judgment by levying against the Beechers'
bank accounts, a tug boat, a "Landing craft, " two
undeveloped tracts of real property, a "Fuel Truck,
" a "Backhoe, " the "Marine fuel
facility, " and a "Gas Station." In July the
clerk of court issued writs of execution.
items identified in the creditor's affidavits, the City
executed only against the Beechers' bank accounts. It
eventually recovered more of the judgment from their wages
and permanent fund dividend checks. But in 2005, with the
bulk of the judgment still unpaid, the City ceased its
years went by; then in January 2013 the City obtained and
recorded a renewal judgment. After learning that the City was
again garnishing their wages, the Beechers sent the City a
letter asking for an accounting of the judgment and the
City's collection activities to date, specifically
requesting "bill(s) of sale, " public
advertisements, and "dates of sales [of] any and all
property seized and sold by the City." The City did not
respond, so the Beechers retained a lawyer and repeated their
request. Their second letter to the City described the
Beechers' "equipment located at the Marine Fuel
facility [as] including fuel trucks, tanker trailers, ...
assorted parts, tools, a Cat 235 excavator, and other pieces
of equipment, " and asked, "What happened to these
items? Were they sold? Was the amount of the sale deducted
from the judgment?" The record again shows no response
from the City.
Beechers next filed a motion in superior court for an
accounting of the City's collection efforts and the
outstanding amount of the judgment. The City responded with
an affidavit from its finance director, Jon Stavig. Stavig
stated that the City had executed on the Beechers' bank
accounts and wages, and he submitted a record of those
amounts, which added up to over $34, 000. He averred
"[u]pon information and belief that the City had sold
certain "improvements" from the Beechers'
fueling facility, "which included the floating fuel dock
and gangway ramp, " but that improvements belonged to
the City pursuant to paragraph 9 of the lease and therefore
their sale did "not reduce the amount owed under the
[j]udgment." Stavig reported that the City had not
executed on the tug and landing craft identified in its 2003
creditor's affidavit as possible subjects for execution;
instead, the two vessels had been foreclosed upon and sold at
auction by a ships' mortgage lender. And Stavig also
reported that two parcels of real property listed in the
creditor's affidavit had been foreclosed upon by other