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Rosauer v. Manos

Supreme Court of Alaska

March 8, 2019

CHRIS ROSAUER and JEANNE ROSAUER, Appellants,
v.
THOMAS MANOS; JODY LIDDICOAT; and GREATLAND TREE SERVICE, LLC, Appellees.

          Appeal from the Superior Court No. 3AN-16-06153 CI of the State of Alaska, Third Judicial District, Anchorage, Erin B. Marston, Judge.

          John W. Colver, Colver & McMillan, LLC, Anchorage, for Appellants.

          Timothy J. Lamb and Whitney L. Traeger, Delaney Wiles, Inc., Anchorage, for Appellees

          Thomas Manos and Jody Liddicoat. Kenneth M. Gutsch, Richmond & Quinn, Anchorage, for Appellee Greatland Tree Service, LLC.

          Before: Bolger, Chief Justice, Winfree, Stowers, and Carney, Justices. [Maassen, Justice, not participating.]

          OPINION

          WINFREE, JUSTICE.

         I. INTRODUCTION

         Homeowners had trees removed from a municipal right-of-way across the road from their home, only obtaining a required permit several months later. Neighbors, whose property abutted the right-of-way and whose house had been behind the removed trees, sued the homeowners and the tree-removal company for damages.[1] The superior court granted summary judgment to the homeowners and the tree-removal company, concluding that the municipality's subsequent permit approving the tree removal negated the neighbors' claim. The neighbors appeal. Because we agree that the municipality's subsequent permit effectively conferred lawful authority to cut the trees, we affirm the superior court's decision.

         II. FACTS AND PROCEEDINGS

         The material facts of this case are undisputed. Chris and Jeanne Rosauer own a home and underlying property in Girdwood across the municipal roadway from a home and underlying property owned by Thomas Manos and Jody Liddicoat (collectively Manos). The Municipality of Anchorage owns a right-of-way between the Rosauers' property and the municipal roadway.

         In August 2015 Manos hired Greatland Tree Service, LLC to remove several cottonwood trees within the municipal right-of-way in front of the Rosauers' property. The Anchorage Municipal Code requires private entities to obtain a permit for the "use" of municipal rights-of-way, including tree removal.[2] Neither Manos nor Greatland obtained a permit before the tree removal, but Greatland later obtained a permit in October.

         In April 2016 the Rosauers sued Manos and Greatland, seeking damages under Alaska's timber-trespass statute, AS 09.45.730, [3] which provides, in relevant part: "A person who without lawful authority cuts down, girdles, or otherwise injures or removes a tree, timber, or a shrub on the land of another person or on the street or highway in front of a person's house ... is liable to the owner of that land." The next month Chris Rosauer asked the Municipality to invalidate the permit issued to Greatland. The Municipality denied Rosauer's request, explaining in a permit-inspection report that the trees had been located on a "right of way and not on private property" and that their removal benefitted the Municipality by "improv[ing] maintenance, snow removal, and access to [a] drainage ditch." The report concluded that the Municipality "will not permit the replacement of the trees in the same location." Rosauer did not further administratively challenge the permit.

         All parties sought summary judgment on the Rosauers' claims. The motions raised two issues under the statute: whether the retroactive permit negated the requirement that removal be "without lawful authority" and whether the Rosauers could bring a claim under the statute even though they did not own the land from which the trees were removed.

         Manos, joined by Greatland, argued that, because the statute does not specify when authority must be obtained, the retroactive permit constituted "lawful authority." The Rosauers countered that, although the statute is silent on timing, the Anchorage Municipal Code requires that a permit be obtained before removing trees from a right-of-way.[4] Manos responded that the code allows the Municipality to waive "any breach of any of the terms or conditions of a permit"[5] and that such terms and conditions include the requirement for obtaining ...


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