      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@appellate.courts.state.ak.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

DANIEL L. BURKE and LUISA E.                       )
BURKE,                                             )
                                                   )    Supreme Court No. S-14202
                      Appellants,                  )
                                                   )    Superior Court No. 3AN-09-05610 CI
      v.                                           )
                                                   )    OPINION
NESAVOU MAKA, FUNGANI A.                           )
MAKA, and ALBERTA F. MAKA,                         )    No. 6759 - March 15, 2013
                                                   )
                      Appellees.                   )
                                                   )

              Appeal from the Superior Court of the State of Alaska, Third
              Judicial District, Anchorage, Mark Rindner, Judge.

              Appearances: Todd J. Timmermans, Hartig Rhodes LLC,
              Anchorage, for Appellants. James M. Gorski, Hughes Gorski
              Seedorf Odsen & Tervooren, LLC, Anchorage, for
              Appellees.

              Before: Fabe, Chief Justice, Carpeneti, Winfree, and
              Stowers, Justices.

              WINFREE, Justice.

I.    INTRODUCTION
              Daniel and Luisa Burke (the Burkes) own a home in Anchorage. Nesavou
Maka, Fungani Maka, and Alberta Maka (the Makas) are the Burkes’ next-door
neighbors. The Burkes and the Makas have a common driveway approximately 20 feet
wide over a shared property line. The Burkes wanted to build a fence down the middle
of this driveway. However, a preexisting covenant to provide access granted the two
lots’ owners reciprocal access to the common driveway.
             The Burkes filed suit to quiet title, seeking a declaratory judgment that the
covenant was invalid and gave the Makas no legal right to use the Burkes’ portion of the
driveway. The Makas asserted several affirmative defenses, including laches. Following
a bench trial, the superior court found the Burkes used the driveway as shared; the
Burkes were aware the Makas believed the driveway to be shared; and the Burkes caused
the Makas prejudice by failing to object to the Makas’ visible use between 2004 and
2009. Based on those findings, the superior court ruled that laches barred the Burkes
from challenging the covenant’s validity and dismissed the Burkes’ claims with
prejudice.
             The Burkes appeal, arguing that the superior court’s findings of fact are
clearly erroneous. Because the superior court’s findings are not clearly erroneous and
those facts support the application of laches, we affirm the superior court’s decision.
II.   FACTS AND PROCEEDINGS
      A.     Factual Background
             1.     The properties
             The Burkes own property (Lot 9A) on Nathan Drive in Anchorage and use
it as an assisted-living home for the elderly. The Makas own the adjacent property (Lot
9B) and use it as their residence.
             Both properties are set back from Nathan Drive as “flagpole lots” — a
flagpole lot is a rear lot (the “flag”) with road access by a long narrow driveway (the
“flagpole”). The lots have adjacent 20-foot Nathan Drive frontages and are served by
a common paved driveway approximately 20 feet wide. The superior court found that
the driveway overlaps both properties and that vehicles accessing either lot use both
sides of the property line. No physical barriers separate the lots.

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             2.     Initial development of Lots 9A and 9B
             Residential contractor Maurice Matthews purchased a tract of land and
recorded the deed in January 2001. Matthews subdivided the tract into five lots,
including Lots 9A and 9B. Given the configuration of these two lots, Matthews built a
common driveway down their shared property line. He reasoned that a single driveway
would be less expensive than two and would increase the available yard space.
             3.     Initial sale of Lot 9A and creation of the covenant
             Matthews sold Lot 9A to Daniel Steffan in November 2001. Prior to the
sale, a final as-built diagram of Lot 9A showed the driveway parallel to and adjoining
the flagpole section of Lot 9B. Matthews testified that Steffan would have been provided
the survey at closing. Matthews asserted that either he or his real estate agent disclosed
that Lots 9A and 9B shared the driveway.
             Matthews signed a deed, a notice of completion, and a building certification
on Friday, November 2, and each signature was notarized by the closing agent. Steffan
signed closing documents the same day. Steffan also signed a purchase agreement
addendum stating, “Closing date to be extended to on or before November 7, 2001.” The
escrow instructions define “close of escrow” as “the date of recording.”
             The following Monday, November 5 — before the deed to Lot 9A was
recorded — Matthews filed with the municipal land use office a covenant granting the
two lot owners reciprocal driveway access. He signed the covenant as the owner of both
Lots 9A and 9B and left it with municipal staff. One day later, on Tuesday, November
6, Steffan’s deed to Lot 9A was recorded. The municipality neither signed nor recorded
the covenant until several years later.
             Jillanne Inglis, a municipal employee specializing in access covenants,
testified that the covenant allows the owners of Lots 9A and 9B to use the entirety of the
common driveway to access their lots. Likewise, Matthews, Steffan, and Nesavou Maka

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all testified that they understood the owners of Lots 9A and 9B had equal reciprocal
rights to use the entire driveway.
              4.     Sale of Lot 9B to the Leyneses and sale of Lot 9A to the Burkes
              Matthews completed construction of a home on Lot 9B and sold the
property to David and Angeline Leynes in March 2002. Matthews testified that he used
the shared driveway while building the house on Lot 9B. Matthews and David Leynes
both testified that they considered the sale of Lot 9B to convey rights to use the entirety
of the driveway as shared.
              Daniel Burke testified that he was looking for Anchorage property to use
as an assisted-living facility. The Burkes purchased Lot 9A from Steffan in March 2004.
The Burkes had no discussions with Steffan about the driveway. Steffan provided the
Burkes a real property disclosure statement prior to the sale.
              In February 2004, about six weeks before Steffan sold Lot 9A to the
Burkes, a municipal agent signed and recorded the covenant that Matthews had
submitted in 2001. No witness had an explanation for the delay. Daniel Burke and
Steffan both testified they were unaware of the covenant when Lot 9A was sold. But the
Burkes stipulated that they were put on constructive notice of the covenant by its
recording before the sale, even though the covenant was not noted by their title insurer.
              The Burkes resided on Lot 9A for several months while planning to convert
the home to an assisted-living facility. Though Daniel Burke testified he was not
actually aware of the covenant, he also testified that he did not protest the Leyneses’
driveway use.
              5.     Sale of Lot 9B to the Makas
              About a year and a half after the Burkes purchased Lot 9A, the Leyneses
listed Lot 9B for sale. The Leyneses learned of the covenant, which had not been
disclosed in their title insurance policy because it had not been recorded until after they

                                           -4-                                       6759

purchased Lot 9B in 2002. David Leynes testified that the covenant was consistent with
his understanding of the shared rights to the driveway and did not affect his marketing
or sale of the property.
              In contemplation of the sale, the Leyneses completed a disclosure
statement. Under the inquiry “Are you aware of features of the property shared in
common with adjoining property owners . . . ?” the Leyneses underlined the word
“driveways.” The Leyneses also checked “yes” in response to questions asking if there
were any easements affecting the property and whether there were any subdivision
conditions, covenants, or restrictions.
              The Burkes were interested in acquiring the Leyneses’ property and in
November 2005 offered to purchase it.         The Leyneses submitted a counteroffer,
providing the Burkes a report describing Lot 9B as “on a flag lot with shared driveway.”
Immediately beneath this description is a stamp initialed by the Burkes. Daniel Burke
testified that by initialing the document he acknowledged the information on the form
had been provided to him, but that he did not read it.
              Daniel Burke testified that he did not respond to the Leyneses’ counteroffer,
losing interest in part because he felt there were too many restrictions and easements on
the property. Lot 9B remained on the market until the Makas purchased it in January
2006. Before their purchase, the Makas received the disclosure statement the Leyneses
had prepared. Nesavou Maka testified that his real estate agent gave him a copy of the
covenant and told him he would have shared access over the entirety of the driveway.
The Makas’ title insurer also disclosed the existence of the covenant.
              6.     Subsequent status
              Daniel Burke testified that he called the municipality four times inquring
about building a fence in the driveway along the property line. On the fourth call, the
municipality told him that the covenant prevented him from building the fence.

                                           -5-                                       6759

Municipal covenant specialist Inglis testified that if the owners of Lots 9A and 9B
wanted to put in two separate driveways, the municipality would have no objection to
rescinding the covenant, but that the municipality stood behind the covenant.
             The Makas opposed the fence, primarily because it would restrict their
ability to turn into their garage. Nesavou Maka testified that a fence down the driveway
would inevitably be hit because vehicles backing out of his property cross over the
middle of the driveway.
      B.     Procedural History
             The Burkes filed suit to quiet title in March 2009, alleging that the covenant
was invalid because of intervening transfers recorded between the covenant’s execution
and recordation and that the Makas had no right to use any part of the Burkes’ property.
The Makas answered, asserting the affirmative defenses of acquiescence to the Makas’
use of the shared driveway, prescriptive easement, adverse possession, and laches.
             After a bench trial, the superior court entered findings of fact and
conclusions of law. The court concluded that laches barred the Burkes from challenging
the covenant because of the following findings: the Burkes used the driveway as shared;
the Burkes had notice that the Makas would believe the driveway to be shared; and the
Burkes caused the Makas prejudice by failing to assert their claim to exclusive use.
Alternatively the court concluded that the covenant was valid and that the Burkes did not
qualify as bona fide purchasers without notice of the covenant. The court rejected the
Burkes’ proposed application of the Shelter Rule — a doctrine not adopted in Alaska but
which the Burkes contended would provide them a right to void the covenant if the
previous owner could have. The court also concluded that even if the covenant were
invalid, the Makas had established the elements of both a prescriptive easement and an
implied easement to use the portion of the driveway on the Burkes’ property.
             The court issued a final judgment establishing a mutual reciprocal easement

                                           -6-                                       6759

and dismissing the Burkes’ claims with prejudice. The Burkes appeal.
III.	   DISCUSSION
        A.	   We Affirm The Superior Court’s Application Of Laches To Bar The
              Burkes’ Claims.
              Laches is an equitable defense available “when a party delays asserting a
claim for an unconscionable period. To bar a claim under laches, a court must find both
an unreasonable delay in seeking relief and resulting prejudice to the defendant.”1 The
application of laches may raise three issues for review. The first issue is whether the
doctrine of laches, as an equitable defense, may apply to the claim before the court.2
This raises a question of law, which we review de novo.3 The second issue is whether
the facts demonstrate an unreasonable delay and a resulting prejudice. This raises
questions of fact, which we review for clear error.4 Clear error exists when “we have a
firm and definite conviction that a mistake has been committed.”5 The third issue is
whether, based on the facts, it was appropriate for the trial court to permit or deny laches.
We review that determination for abuse of discretion,6 and we often explain that we will



        1
           Whittle v. Weber, 243 P.3d 208, 217 (Alaska 2010) (quoting State, Dep’t
of Commerce & Econ. Dev., Div. of Ins. v. Schnell, 8 P.3d 351, 358-59 (Alaska 2000)).
        2
             See Gudenau v. Bang, 781 P.2d 1357, 1363 (Alaska 1989) (“Laches is an
equitable defense inapplicable to actions at law.”).
        3
               Benson v. Benson, 977 P.2d 88, 93 n.2 (Alaska 1999) (explaining
availability of equitable defenses, including laches, is question of law reviewed de novo).
        4
             See Foster v. State, 752 P.2d 459, 465 (Alaska 1988) (reviewing factual
findings underlying laches defense for clear error).
        5
            Id. (quoting Pavlik v. State, Dep’t of Cmty. & Reg’l Affairs, 637 P.2d 1045,
1047 (Alaska 1981)).
        6
              Whittle, 243 P.3d at 211-12.

                                             -7-	                                      6759

not overturn the exercise of discretion “unless we have a definite and firm conviction that
a mistake has been committed.”7 It may be more precise to ask “whether the reasons for
the exercise of discretion are clearly untenable or unreasonable.”8
              The Burkes challenge only the factual underpinnings of the superior court’s
application of laches, arguing that they did not unreasonably delay in bringing suit and
that the Makas failed to show prejudice. The Burkes do not dispute the applicability of
laches to the claim they raised, nor do they otherwise dispute the superior court’s
exercise of discretion in permitting the defense. We focus our analysis, therefore, on
whether the superior court’s findings of unreasonable delay and prejudice are clearly
erroneous.
              The superior court found that when Lot 9B was placed on the market in late
2005, the Burkes worked with a real estate agent to inspect it and contemplated a
purchase offer. At that time the Burkes were provided several disclosures, including a
statement listing shared features with the word “driveways” underlined, and a report
describing Lot 9B as “a flag lot with shared driveway.” The report was initialed by the
Burkes in November 2005. Daniel Burke testified that his initials acknowledged the
information on the form had been provided to him. The court also noted that upon
commencement of this litigation the Burkes provided the Makas with supplemental
disclosures, including the statement and report mentioned above and a copy of the
covenant. Each document described a shared driveway between Lots 9A and 9B. The
court noted that the Burkes had retained these documents. Based on that evidence, the


       7
             See, e.g., id. (quoting Young v. Williams, 583 P.2d 201, 204-05 (Alaska
1978)) (internal quotation marks omitted).
       8
             See Lewis v. State, 469 P.2d 689, 695 (Alaska 1970) (applying “clearly
untenable or unreasonable” standard to review discretion in admitting evidence, but
noting “[t]here is no general consensus as to what constitutes an abuse of discretion”).

                                           -8-                                       6759

superior court found that as early as November 2005, the Burkes had received notice that
Lot 9B was being marketed to prospective buyers as having a shared driveway.
              The court found no indication that the Burkes informed the seller of Lot 9B
or prospective buyers of their disagreement with the status of the driveway. The court
found that from the time they purchased Lot 9A in March 2004 until January 2009, the
Burkes never asserted a right to the exclusive use of their side of the driveway and
visibly used the driveway as shared.
              The court found that the Makas relied on the title and on disclosures from
their seller in assuming that they purchased Lot 9B with a shared driveway. The court
found that by failing to make known their objection to the shared driveway, the Burkes
deprived the Makas of information material to their purchase of Lot 9B and that
deprivation prejudiced the Makas.
              After reviewing the record and the superior court’s underlying findings, we
are not left with a definite and firm conviction that the superior court mistakenly found
unreasonable delay and prejudice. We hold that the superior court’s ultimate findings
of unreasonable delay and prejudice are not clearly erroneous, and because the Burkes’
appeal is limited to those findings, we affirm the superior court’s conclusion that laches
bars the Burkes’ claims.
       B.	    Affirming The Superior Court’s Application Of Laches Resolves The
              Appeal.
              Because we affirm the dismissal of the Burkes’ claims on the ground of
laches, we do not need to address the Burkes’ arguments that the original covenant is
invalid or non-binding; that a shelter rule allows the Burkes to assume the bona fide
purchaser status of their predecessor; or that the Makas failed to establish the affirmative
defenses of prescriptive or implied easement.




                                            -9-	                                      6759

IV.   CONCLUSION
         The superior court’s decision is AFFIRMED.




                                  -10-                6759

