Opinion
Supreme Court No. S-13190.
September 1, 2010.
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Douglas L. Blankenship, Judge, Superior Court No. 4FA-05-01566 CI.
Appearances: Wolfgang Falke, pro se, Fairbanks, for Appellant. Cynthia M. Klepaski, Fairbanks North Star Borough, Fairbanks, for Appellee.
Before: Fabe, Winfree, Christen, and Stowers, Justices. [Carpeneti, Chief Justice, not participating.]
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
In March 2005 the Fairbanks North Star Borough (Borough) filed for foreclosure against Wolfgang Falke's property, Lot 04B 5C, Block 83 Townsite (Lot 4B). Falke raised several counterclaims, and in March 2007 the superior court granted summary judgment in favor of the Borough on Falke's claims. Falke appealed the superior court's grant of summary judgment, which was the subject of a separate appeal. In April 2008 Falke also filed a motion with the superior court requesting that it stay execution of the foreclosure until we ruled on his previous appeal. The superior court granted the stay on the condition that Falke either deposit $1,120 as a supersedeas bond with the court or pay the Borough taxes under protest. Falke deposited the $1,120 bond.
In September 2007 and April 2008 the Fairbanks Clerk of Court issued writs of execution to levy Falke's Alaska Permanent Fund Dividend (PFD). Falke was not served with copies of either writ. His PFD was not garnished, however, because it had already been garnished by other creditors.
Falke appeals the superior court's order requiring him to post a supersedeas bond and various issues regarding the two writs of execution. We hold that the superior court did not abuse its discretion in requiring Falke to post a supersedeas bond in order to stay the execution of the foreclosure judgment. We also hold that, because Falke's PFDs were never garnished as a consequence of the Borough's writs, and the writs of execution have been terminated, all of his claims regarding the writs are moot.
II. FACTS AND PROCEEDINGS
In March 2005 the Borough filed a petition for judgment under AS 29.45.330, seeking foreclosure of the Borough's liens against properties with unpaid property taxes for tax year 2004 or earlier. Among these properties was Falke's residential property, Lot 4B. Falke filed an answer and counterclaim "on behalf of . . . Lot 4B 5C Block 83 Townsite," arguing that his tax liability should be reduced because a partial property tax exemption provided by the Borough should have been applied to his property. He claimed that the Borough violated AS 29.45.250 and article I, section 1 of the Alaska Constitution by conditioning the property tax exemption on the payment of back taxes. The Borough moved for summary judgment, which the superior court granted in April 2007. Falke appealed the superior court's decision.
Lot 04B 5C, Block 83 Townsite v. Fairbanks N. Star Borough, 208 P.3d 188, 190 (Alaska 2009).
Id.
Id.
Id.
Id. at 191. We held in May 2009 that the Borough did not violate the Alaska Constitution or AS 29.45.250 by conditioning the property tax exemption on the payment of back taxes. Id. at 194.
In September 2007 the Borough requested that the superior court issue a writ of execution on "Lot 04B 5C Block 83 Fairbanks Townsite" for $1,623.68. This amount corresponded to the outstanding property taxes that Falke had not paid for Lot 4B in 2003 and 2004, in addition to attorney's fees awarded to the Borough. That month, the Fairbanks Clerk of Court issued a writ of execution instructing the Alaska Department of Revenue to garnish $1,623.68, as well as interest and costs, from Falke's 2007 PFD. Falke's 2007 PFD was never garnished to satisfy the writ of execution because it had already been garnished for other reasons. Falke was not served with copies of the Borough's request or the court's writ of execution.
In March 2008 the Borough sent a second request to the superior court asking for a second writ of execution for $1,623.68 plus post-judgment interest and costs. On April 3, 2008, the Clerk of Court issued a second writ of execution against Falke's 2008 PFD. Falke's 2008 PFD was never garnished to satisfy this writ because the Clerk of Court signed a notice terminating the writ of execution in July 2008. Falke did not receive a copy of the second writ, but he did receive a copy of the termination notice.
Also in March 2008 the Borough sent Falke a notice pursuant to AS 29.45.400 that his one-year period to redeem his foreclosed property would expire on April 28, 2008. Falke, on behalf of Lot 4B, filed a motion to stay execution of the foreclosure and to enlarge the one-year redemption period until 20 days after we issued our order on his first appeal.
A party with an interest in a foreclosed property may "redeem" it by paying the lien amount plus penalties, interest, and costs. AS 29.45.400. Receipt of the redemption money releases the foreclosure judgment. AS 29.45.410.
On June 19, 2008, the superior court held a hearing on Falke's motion to stay execution. At the end of the hearing, the superior court told Falke that it would stay execution of the foreclosure if Falke either (1) paid his outstanding property tax debt in the amount of $1,120 to the Borough under protest, or (2) deposited a $1,120 supersedeas bond with the court. The court gave him 60 days to comply with either option. On August 15, 2008, Falke deposited $1,120 with the superior court.
Falke appeals, arguing that the superior court erred in requiring him to post a supersedeas bond before it would grant the stay of execution of the foreclosure. He also appeals the two writs of execution, arguing that the Clerk erred in naming Falke in the writs because he was not a named party to the foreclosure. He raises several other procedural issues regarding the writs.
III. DISCUSSION
A. Standard Of Review
We review a superior court's order requiring a supersedeas bond for abuse of discretion. We review questions of law, including issues of mootness and statutory interpretation, de novo, applying our independent judgment and "adopting the rule of law that is most persuasive in light of precedent, reason, and policy." B. The Superior Court Did Not Abuse Its Discretion In Requiring Falke To Post A Supersedeas Bond.
Jourdan v. Nationsbanc Mortg. Corp., 42 P.3d 1072, 1080 (Alaska 2002).
Kohlhaas v. State, Office of Lieutenant Governor, 223 P.3d 105, 108 (Alaska 2010) (statutory interpretation); Jacob v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 177 P.3d 1181, 1184 (Alaska 2008) (mootness).
Kohlhaas, 223 P.3d at 108 (internal quotation omitted).
Falke argues that the superior court erred in requiring him to post a supersedeas bond before it would grant a stay of execution of the Borough's foreclosure judgment on Lot 4B. He raises two main arguments why the superior erred by forcing him to pay the bond.
Although Falke had the option to pay his taxes to the Borough under protest, he chose to post the bond. Falke argues that paying the taxes under protest would moot his appeal. Because Falke chose to post the bond, however, any error by the superior court in offering Falke the choice to pay his taxes under protest is harmless.
Falke also argues that the Borough sought to get more than its "fair share" of taxes, that the superior court violated the separation of powers doctrine, and that the superior court tried to mislead Falke into believing that the appeal could not be dismissed if Falke paid the taxes under protest. None of these arguments have merit.
Falke first argues that the superior court erred in requiring him to post a bond because the Borough had possession of Lot 4B and that the property, valued at more than $40,000, was sufficient surety. Appellate Rule 204(d) controls the posting of supersedeas bonds. It states: "[w]henever in a civil case an appellant . . . desires a stay on appeal, the appellant may present to the superior court for its approval a supersedeas bond which shall have such surety or sureties as the court requires." We have held that the superior court does not abuse its discretion in requiring a cash bond instead of allowing the defendant to use the title to real property as surety. Furthermore, Lot 4B's value as surety is uncertain because there is no guarantee that the Borough would be able to sell it after foreclosure is complete. The superior court did not abuse its discretion in requiring Falke to post a supersedeas bond instead of accepting Lot 4B as surety.
Falke also argues that the superior court erred in having him pay the supersedeas bond because the named defendant in the case is Lot 4B. But Lot 4B's status as defendant is a legal fiction. It would be an injustice to allow Falke to avoid paying a bond because Lot 4B is the nominal defendant in the case, especially when he is the person who would primarily benefit from the stay. See Graves v. Elliott, 307 U.S. 383, 391 (1939).
Alaska Civil Rule 62(d) also provides for supersedeas bonds for stays of judgments pending appeal. To the extent Appellate Rule 204(d) conflicts with Civil Rule 62(d), the appellate rule governs. City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d 870, 878 n. 16 (Alaska 1985).
Breck v. Moore, 910 P.2d 599, 609 (Alaska 1996).
Falke also argues that the superior court erred in requiring a supersedeas bond to stay the foreclosure judgment because the Borough was obligated under AS 29.45.400 to extend the redemption period until all appeals are complete. Alaska Statute 29.45.400 states that a municipality must hold a foreclosed property "for at least one year." During this period, a party with an interest in the property may release the foreclosure judgment (redeem the property) by paying the lien amount plus penalties, interest, and costs. The municipality must publish and give notice to interested parties that the redemption period is ending at least 30 days before its expiration. The end of the redemption period terminates the redemption rights of any parties with interest in the property and the unredeemed property is deeded to the municipality.
AS 29.45.400.
AS 29.45.440.
Id.
AS 29.45.450. Even after the property is deeded to the municipality, the record owner can repurchase the property if it is not otherwise sold within ten years for the judgment amount, taxes, and fees. AS 29.45.470.
The structure of the redemption period shows that the legislature intended to give interested parties a guaranteed grace period of one year to learn about the foreclosure, raise funds to pay outstanding taxes, and regain their properties before they are deeded to the borough or city. Alaska Statute 29.45.400's requirement that municipalities hold foreclosed property for "at least one year" gives the Borough the discretion to extend the redemption period, but does not make extensions mandatory. Having met the minimum one-year redemption period, the Borough was not obligated to extend the redemption period for the outstanding appeal. The superior court did not err in requiring Falke to post the supersedeas bond before it would stay execution of the foreclosure judgment.
C. Falke's Claims Regarding The Writs Of Execution Against His PFDs Are Moot.
Falke argues that the Clerk of Court erred in entering writs of execution authorizing levies on Falke's 2007 and 2008 PFDs when he was not a named party in the foreclosure proceedings. He also argues that the Clerk of Court and the Borough denied him due process and violated Alaska Rule of Civil Procedure 5(a) by failing to serve him with copies of the writs of execution authorizing levies on his PFDs. Falke argues that the Borough violated Alaska Rule of Professional Conduct 3.5(b) by conducting ex parte proceedings with the Clerk of Court in filing the writs of execution. The Borough acknowledges that it mistakenly requested the writs of execution, but argues that any error is moot and that Falke was not injured by this error.
Falke also argues that the Clerk of Court committed "factual error" by naming him in the title of various documents, when the correct defendant in the case is Lot 4B. He is correct that this case is an in rem foreclosure case against his property. But there was no confusion on who the defendant was in the lower court proceedings. Therefore, any error by the Clerk of Court was harmless.
Alaska Rule of Civil Procedure 5(a) states that "[e]very order required by its terms to be served . . . shall be served upon each of the parties."
Alaska Rule of Professional Conduct 3.5(b) states that "[a] lawyer shall not communicate ex parte with a judge, juror, or prospective juror, or any other official except as permitted by law, court order, or paragraph (c) of this rule."
"We generally will not consider questions `where events have rendered the legal issue moot.'" A claim is moot if the party bringing the action would not be entitled to any relief even if he or she prevailed.
Copeland v. Ballard, 210 P.3d 1197, 1201-02 (Alaska 2009) (quoting Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1195 (Alaska 1995)).
Clark v. State, Dep't of Corr., 156 P.3d 384, 387 (Alaska 2007).
All of Falke's claims regarding the writs of execution against his PFDs are moot. Falke concedes that his dividends were not garnished as a result of either writ of execution. Furthermore, the Clerk of Court terminated the second writ of execution, and the first writ expired. Even if Falke prevailed on his arguments before this court, he would not be entitled to any relief. Any claim he might have had is therefore moot.
Alaska Statute 43.23.065(d) states that a "remedy for the collection of debt applied to a dividend for a year may not be accepted by the department before April 1 of the same year." Thus, the September 2007 writ could not garnish Falke's PFDs from 2008 or later.
Falke argues that the public interest exception to the mootness doctrine applies. We may consider the merits of moot claims if it is in the public interest to resolve the issue. We consider three factors in determining whether the public interest exception applies: "(1) whether the disputed issues are capable of repetition, (2) whether the mootness doctrine, if applied, may cause review of the issues to be repeatedly circumvented, and (3) whether the issues presented are so important to the public interest as to justify overriding the mootness doctrine."
See Peter A. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 146 P.3d 991, 996 (Alaska 2006).
Copeland, 210 P.3d at 1202 (quoting Kodiak Seafood Processors Ass'n, 900 P.2d at 1196).
But there are no disputed issues here — the Borough has admitted its error and states that it will not be repeating the error. Furthermore, while it is possible that the Clerk of Court may issue writs of execution against Falke's future PFDs in other in rem foreclosure cases, Falke does not present any argument as to how review of future infractions would be repeatedly circumvented. The mootness doctrine would only apply to a future writ if the Clerk terminated the improperly issued writ before any money was garnished, as in this case. If Falke's PFD was garnished before the writ was terminated then the case would not be moot because he could sue for the return of the garnished money. If Falke's PFD was not garnished but the writ was still outstanding, he could file a suit for declaratory judgment. Because there are no disputed issues capable of repetition and because the mootness doctrine would not prevent review of future incorrect writs of execution, the public interest exception to the mootness doctrine does not apply.
Alaska Statute 43.23.065(d) provides for notice when a person's PFD is garnished. A garnishee has 30 days to file an objection with the court if his PFD is incorrectly garnished. AS 43.23.065(d).
IV. CONCLUSION
We AFFIRM the superior court's order requiring Falke to post a supersedeas bond, and hold that all of Falke's other claims are moot.