author: GOLDEN, Justice.

text:
    2002 WY 101
    In the Matter of the Worker's Compensation Claim of: Lorraine M. KUNTZ-DEXTER, Appellant (Employee-Claimant), v. STATE OF WYOMING ex rel. WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Objector-Defendant).
    No. 01-101.
    Supreme Court of Wyoming.
    July 3, 2002.

      Rene Botten, Sheridan, Wyoming, Representing Appellant.
    Hoke MacMillan, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Gerald L. Laska, Senior Assistant Attorney General; David L. Delicath, Assistant Attorney General, Representing Appel-lee,.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   GOLDEN, Justice.

[11] In this appeal, we consider whether the hearing examiner properly denied worker's compensation benefits to Appellant Lorraine M. Kuntz-Dexter (Kuntz-Dexter). After Appellee Wyoming Workers' Safety and Compensation Division (Division) denied benefits for medical and temporary total disability claims and a hearing was held, Kuntz-Dexter provided testimony from her treating physician that her injury was work-related. Benefits were again denied by the hearing examiner after it found that the basis for the medical testimony was information provided by Kuntz-Dexter, and the hearing examiner concluded that the evidence showed her testimony that the injury was work-related was not credible.

[12] We hold that the hearing examiner's findings of fact and conclusions of law are supported by substantial evidence. The order denying benefits is affirmed.

ISSUES

[1 3], Kuntz-Dexter presents the following issue for our review:

I. The Order Denying Benefits, dated February 26, 2001, is arbitrary, capricious, and an abuse of discretion in that the findings of fact proffered by the Hearing Examiner were factually incorrect and not supported by substantial evidence.

The Division presents two issues for our review:

I. Does substantial evidence support the Hearing Examiner's finding that Appellant did not initially indicate to her health care providers that she believed her condition was work-related?
II. Did the Hearing Examiner correctly conclude, under the appropriate burden of proof, that Appellant failed to prove that a work injury caused her herniated disc?

FACTS

[14] Kuntz-Dexter has worked in various positions for the Sheridan County Memorial Hospital since 1991. On June 1, 2000, she worked as a filing clerk in the records department and moved files of medical records from one shelf to another in a storage area. She testified that she moved about 800 files weighing twenty to thirty pounds each for an entire day and experienced shoulder pain. She did not report an injury to her employer and continued to work until June 8 when she called in a sick leave absence because her pain symptoms had progressed. On June 9, she again called in a sick leave absence, called -a doctor she had been seeing for pain symptoms associated with an injury suffered in February of 2000, and obtained a prescription for physical therapy. Her pain symptoms became severe, and she reported to the emergency room for treatment on June 10 and 11, 2000. After seeing several doctors, she was ultimately diagnosed with a disc herniation at CT-T1 and underwent surgery.

[15] Kuntz-Dexter filed a report of injury with the Division on June 19, 2000, which did not include the date that the employer was notified; however, her supervisor testified that Kuntz-Dexter notified her of the injury on June 19, 2000. Upon receiving the claimant's medical records, the Division denied benefits, and the matter was set for hearing. In its disclosure statement, the Division contended that benefits must be denied for late filing in violation of Wyo. Stat. Ann. § 27-14-502(c), and because the injury was not work-related. At the hearing, the Division contended that Kuntz-Dexter's present symptoms resulted from preexisting injuries and that no injury occurred on June 1, 2000. The hearing examiner made a specific finding that Kuntz-Dexter had shown by clear and convincing evidence that no prejudice was suffered by the late filing, and the Division does not challenge that determination in this appeal. The hearing examiner did find that Kuntz-Dexter had begun experiencing symptoms associated with a herniated disc, and the issue to be resolved was whether those symptoms were caused by the claimed work-related injury of June 1, 2000.

[16] The hearing examiner found that years earlier, Kuntz-Dexter suffered a broken neck, had cervical surgery, had since then experienced a long history of neck, back and shoulder pain, and in February of 2000 had suffered chest and neck pain when she frontally collided with a door jamb. The findings of fact stated that although Kuntz-Dexter discussed her pain symptoms with several different doctors or nurses between June 9 and June 15, the medical records from these visits did not include any mention that the injury was caused by lifting 800 very heavy files a week earlier. The hearing examiner determined that on June 30, Kuntz, Dexter's surgeon indicated she had suffered a work-related injury; however, in his deposition, the doctor testified that this determination was based on the history provided by the claimant.

[17] The hearing examiner found that Kuntz-Dexter's supervisor testified that files are moved by handfuls at most and do not weigh more than four to six pounds, she had seen claimant move files by the handful on other occasions, Kuntz-Dexter did not tell anyone at work that she was injured, and had missed work on June 8 and 9 to attend a wedding.

[18] Benefits were denied after the hearing examiner examined the conflicting evidence and concluded that the evidence did not prove the claim that moving medical files caused the injury. After the district court certified the petition for review pursuant to W.R.A.P. 12.09, this appeal followed.

DISCUSSION

Standard of Review

[19] The claimant has the burden of proving every essential element of his claim by a preponderance of the evidence. State ex rel. Wyoming Workers' Compensation Div. v. Waggener, 946 P.2d 808, 814 (Wyo.1997); Goddard v. Colonel Bozeman's Restaurant, 914 P.2d 1233, 1236 (Wyo.1996). Under the statutory definition of injury, he must prove that his injury arose out of and in the course of his employment. Id. Whether an employee's injury occurred in the course of his employment is a question of fact. Id.

[110] We recently held that the substantial evidence test is the appropriate standard of review in appeals from Wyoming Administrative Procedures Act contested case proceedings when factual findings are involved and both parties submit evidence. Newnan v. Wyoming Workers' Safety and Compensation Division, 2002 WY 91, ¶ 22 (Wyo.2002). We further held, that when only the party with the burden of proof submits evidence in the contested case proceeding and that party does not ultimately prevail, the arbitrary or capricious standard governs the judicial review of that agency decision. Id. Even if the factual findings are found to be supported by substantial evidence, the ultimate agency decision may be found to be arbitrary or capricious for other reasons. Id. at 128. We do not examine the record only to determine if there is substantial evidence to support the board's decision, but we must also examine the conflicting evidence to determine if the hearing examiner could have reasonably made its finding and order upon all of the evidence before it. Id. at 1 24, 1 25. Because both parties presented cases-in-chief, we apply the substantial evidence standard. We afford respect and deference to a hearing examiner's findings of fact if they are supported by substantial evidence. Haagensen v. State ex rel. Workers' Compensation Div., 949 P.2d 865, 867 (Wyo.1997). Our task is to examine the entire record to determine whether substantial evidence supported the hearing examiner's findings. Waggener, 946 P.2d at 814. We will not substitute our judgment for that of the hearing examiner when substantial evidence supports his decision. Id. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. Id. A hearing examiner's conclusions of law are afforded no special deference and will be affirmed only if truly in accord with law. State ex rel Wyoming Workers' Compensation Div. v. Barker, 978 P.2d 1156, 1159 (Wyo.1999).

Medical Testimony

Claimant's primary contention in this appeal is that the hearing examiner's finding that she had not reported lifting as the cause of her injury to various treating medical doctors until June 80 is not supported by the evidence. The Division concedes that the hearing examiner's findings of fact contain minor mistakes, such as naming a doctor instead of the physical therapist, but insists that a review of the medical records supports the hearing examiner's basic conclusion that claimant did not describe lifting files at work as the cause of her injury until the end of June, and further contends that those records would have justified the hearing examiner's concluding that claimant was actually injured on June 6, 2000, a date when she was not at work.

[112] Our review of the record indicates that the Division's argument is supported by the medical testimony. On June 11, claimant reported that she had injured herself by "lifting/twisting 4 days ago," which would put the date of injury as June 7 and mentions nothing about a work-related injury. The next day, June 12, claimant is documented as having said that she "can't recall an incident that preceded the pain," but also noted that claimant "is employed as a clerk at Sheridan Memorial Hospital and her job requires prolonged sitting and repetitive motions with data entry." Claimant relies upon her testimony at trial to argue that these notes omitted her explanations that she had been injured while lifting for an entire day files that weighed in excess of twenty pounds. The hearing examiner was entitled to disbelieve claimant's testimony, and it appears that the hearing examiner did disbelieve her after finding her testimony of her activities on June 1, 2000, was inconsistent with her coworkers' testimony about file handling and weight, and inconsistent with medical records of her statements. As the finder of fact, the hearing examiner must weigh the evidence and resolve any conflicts. The hearing examiner did exactly that, and its conclusion is supported by substantial evidence.

[113] Claimant argues that by June 30, the medical evidence did state that she had suffered a work-related injury on June 1, 2000, and because her injury presented a complex medical question, this expert testimony should not be ignored. The hearing examiner's findings of fact indicate that it did examine this evidence but determined that the expert conclusion was based upon the history provided by claimant and was, therefore, not credible. A hearing examiner is entitled to reject claimant's testimony about events and dates if other evidence indicates that it is not credible. Credibility determinations are the unique province of the hearing examiner, and we eschew reweighing those conclusions. Rice v. State ex rel. Wyo. Workers' Safety and Comp. Div., 2001 WY 21, ¶ 17, 19 P.3d 508, ¶ 17 (Wyo.2001). Because claimant failed to prove by a preponderance of the evidence that she suffered a work-related injury, the hearing examiner's decision is affirmed.


source: Caselaw Access Project

author: BRYNER, Justice.

license: Public Domain

text:
    Peter and Baerbel GUTTCHEN, Appellants, v. Gregory and Edithanne GABRIEL, Appellees.
    No. S-9648.
    Supreme Court of Alaska.
    June 14, 2002.
    Steve Gray, Steven P. Gray, P.C., Kodiak, for Appellants.
    Michael D. White and Michael A. Grisham, Patton Boggs, LLP, Anchorage, for Appel-lees.
    Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Peter and Baerbel Guttchen sought leave under AS 09.35.020 to execute on a judgment lien more than five years after entry of the judgment; the lien pertained to a parcel of land that the judgment awarded to Gregory and Edithanne Gabriel and secured the judgment's award of costs and attorney's fees in favor of the Guttchens. The superior court denied the Guttchens' motion for execution, ruling that the Gabriels' intervening bank-ruptey had rendered the lien invalid, since, in the court's words, "Lolnce the valid underlying judgment is discharged in bankruptcy, it cuts the legs out from under the lien." We reverse and remand with directions to grant the Guttchens' motion, holding that the superior court erred in dismembering the Guttch-ens' lien and that undisputed evidence satisfies AS 09.35.020's demand for a "just and sufficient reason" to allow execution.

II. FACTS AND PROCEEDINGS

This case began as a dispute between three parties-Baerbel and Peter Guttchen, Edithanne and Gregory Gabriel, and Joseph Brodman-over the ownership of a small, remote parcel of land on Raspberry Island, near Kodiak. The litigation that ensued eventually led to two unpublished decisions from this court In the first, we summarized the background facts as follows:

Joseph Brodman owned 4.8 acres of land on Raspberry Island. He agreed to give 1.5 acres of the parcel to Gregory Gabriel, in exchange for electrical supplies Gabriel had given him. Brodman executed a quitclaim deed, intended as security only, in favor of [the] Gabriels, conveying to them an undivided one-half interest in the 4.8 acre parcel. Prior to delivering the quitclaim to the Gabriels, Brodman executed a lease to the Guttchens which, on its face, conveyed the entire 4.8 acres. Brodman and the Guttchens also executed, but did not record, a separate agreement acknowledging that the Gabriels had been given the 1.5 acres. Mr. Gabriel discovered the recorded Guttchen lease. Difficulties among the three parties ensued, culminating in this lawsuit.
The jury trial resulted in verdicts for Brodman against the Gabriels, the Guttch-ens against the Gabriels, and the, Guttch-ens against Brodman. The jury awarded Brodman and the Guttchens considerable punitive damages from the Gabriels. The court quieted title] in Brodman, subject to the Gabriels' "right of possession" of the 1.5 acres....

Our first decision vacated the award of punitive damages, amended the judgment to grant the Gabriels a fee interest in 1.5 acres, and directed the parties to "have the property surveyed and to establish boundaries for the two parcels"; we recognized, however, that the Kodiak Island Borough might refuse to allow the property to be subdivided. We also vacated the original award of prevailing-party attorney's fees, leaving it to the trial court to reconsider the issue on remand.

On remand, the superior court modified the judgment as directed and, by a judgment entered July 5, 1989, awarded the Guttchens $7,526.02 in attorney's fees and costs against the Gabriels. The judgment specifically directed the Gabriels and Brodman to survey the parcel and establish boundaries within sixty days. The Guttchens recorded the judgment in the Kodiak Recording District office on July 17, 1989, perfecting their lien on the Gabriels' 1.5 acre parcel.

The Gabriels appealed the superior court's award of attorney's fees. While the appeal was still pending, they filed for personal bankruptcy; the bankruptcy action stayed their appeal. The United States Bankruptcy Court for the District of Alaska discharged the Gabriels debts on September 24, 1990. Thereafter, appellate proceedings resumed, and, on July 17, 1991, we issued the second unpublished decision in the case, affirming the attorney's fees awarded on remand.

The Guttchens took no immediate action to execute their judgment lien after we affirmed their attorney's fee award. Similarly, the Gabriels took no immediate steps to survey the Brodman property in order to establish the boundaries of their 1.5 acre parcel.

On May 10, 1994, the Gabriels quitelaimed their property interest to their children, Gregory Gabriel Jr. and Brian Gabriel. The Guttchens-who had previously acquired Brodman's interest-offered to buy the children's interest; their offer was rejected. In 1999 Gregory Jr. requested the Kodiak Island Borough to grant a variance that would enable him to subdivide the Brodman property; the borough denied the request on June 17, 1999, and Gregory Jr. appealed to the superior court. On August 8, 1999, after learning of Gregory Jr.'s efforts to obtain the variance, the Guttchens filed their motion for leave to execute after five years. Following oral argument, the superior court denied the motion, ruling that under common law the Guttchens' judgment lien did not survive the bankruptcy court's discharge of the Gabriels underlying debt.

The Guttchens appeal.

III. ANALYSIS

A. The Parties' Arguments

The Guttchens argue that the superior court erroneously concluded that the Ga-briels' bankruptcy discharge extinguished their judgment lien. While acknowledging that the superior court never considered whether they had established good cause to execute, the Guttchens urge us to direct the superior court to grant their motion for leave to execute because, they contend, the undisputed record establishes good cause for leave to execute as a matter of law. In response, the Gabriels tacitly concede that the superior court applied the wrong legal standard with respect to the judgment lien's survival, but nevertheless urge us to affirm because, in the Gabriels view, the Guttchens failed as a matter of law to show good cause for leave to execute late. >

B. Standard of Review

Whether the superior court applied an incorrect legal standard is a question of law that we review using our independent judgment. We may apply a legal doctrine to undisputed facts without giving deference to the superior court.

-C. The Superior Court Applied the Wrong Standard in Its Decision.

The superior court ruled from the bench at oral argument that, under common law doe-trine, the discharge of the underlying debt in the Gabriels' bankruptcy effectively nullified the Guttchens' judgment lien:

I have substantial doubt that the judgment and lien can have a separate existence. The case law that I'm familiar with from the common law is to the effect that in order for the judgment lien to exist, there has to be a valid underlying judgment.
Once the valid underlying judgment is discharged in bankruptey, it cuts the legs out from under the lien, The lien cannot have a separate existence. And I am prepared to hold to that effect at this time, but I will give counsel a chanee to argue the point.

Accordingly, the court denied the Guttchens' motion to execute without further considering its merits. But the superior court erred concerning the effect of the bankruptcy discharge.

The United States Supreme Court has held that a bankruptcy discharge does not extinguish a valid lien on real property. "[A] bankruptey discharge extinguishes only one mode of enforcing a claim-namely, an action against the debtor in personam-while leaving intact another-namely, an action against the debtor in rem." While the Supreme Court's holding involved a mortgage lien, numerous other courts have held that judgment liens similarly survive bank-ruptey and are enforceable in rem. The In re Hermansen court held, for example, that "[glenerally, valid, perfected judicial liens which precede bankruptey survive and are enforceable after bankruptey.... The bankruptcy discharge does not prevent post-petition enforcement of valid liens. The secured creditor may proceed to enforce the lien, as an in rem action, and is not barred...."

Accordingly, it was error to deny the Guttchens' motion for leave to execute on the ground that the Gabriels bankruptey extinguished both the underlying debt and the lien.

D. The Record Establishes Fair and Just Reasons to Allow Execution.

Because it relied on the assumption that the Guttchens' lien could not survive without its underlying debt, the superior court did not address the merits of their motion for leave to execute late. Alaska Statutes 09.35.020 establishes the standard:

When a period of five years has elapsed after the entry of judgment and without an execution being issued on the judgment, no execution may issue except by order of the court in which judgment is entered. The court shall grant the motion if the court determines that there are just and sufficient reasons for the failure to obtain the writ of execution within five years after the entry of judgment.

In State, Department of Revenue, Child Support Enforcement Division, ex rel. Inman v. Dean, we construed this statute to require a showing of "good cause" for delay in execution. Although we noted in Dean that "administrative efforts to collect delinquent support payments" might show good cause, as might "[elvidence of previous attempts to execute," we have not otherwise defined what would suffice to meet the statutory requirement of "just and sufficient reasons for the failure to obtain the writ of execution within five years.

Here, both parties urge us to sustain their respective positions on the issue of "just and sufficient reasons" as a matter of law. Although the issue typically involves a factual component and is therefore usually consigned to the superior court's discretion, both parties in this case had the opportunity to present their positions to the superior court in their memoranda and affidavits, neither party requested an evidentiary hearing before the superior court, and the critical facts surrounding the issue are undisputed. Given these cireumstances, we find no impediment to deciding the issue of just and sufficient reasons for late execution as a matter of law.

The undisputed facts in the record show the following: (1) the 1989 attorney's fees award and recorded judgment established a lien against any interest the Gabriels held in the Raspberry Island property; (2) the Guttchens perfected their lien before the Ga-briels filed for bankruptcy in March 1990; (8) the bankruptey discharged the Gabriels' personal liability so that the only method of enforcing the judgment was the judicial lien on the Raspberry Island property; (4) the Gabriels' property interest in the Raspberry Island parcel could only be perfected by surveying the property, establishing its boundaries, and obtaining a variance from the Kodiak Island Borough to allow subdivision; (5) despite a provision in the superior court's July 5, 1989, judgment requiring the Gabriels to survey and establish their boundaries within sixty days, neither the Gabriels nor their successors-their children-applied for a variance until 1999; (6) in response, the Guttchens filed a motion for leave to execute on their lien.

We find that these circumstances establish good cause for late execution as a matter of law: the Raspberry Island property was the only property of the Gabriels subject to execution, the Gabriels controlled the process of subdividing the property, and they did not timely act upon the superior court's order to apply for a variance in order to subdivide. When Greg Gabriel Jr. applied for a variance in 1999, the Guttchens promptly filed their motion for leave to execute. Because the Gabriels controlled the subdivision process, discharged the underlying debt in bankruptey, and failed to act to perfect their own interest in the 1.5 acre parcel for ten years, the Guttchens had compelling reason to delay execution until Gregory Jr. ultimately attempted to subdivide the property.

Moreover, the Gabriels failed to produce any evidence below suggesting that a delayed execution might actually prejudice them: their personal debt had long been discharged, they had quitelaimed the parcel to their children in 1994, they no longer claimed any personal interest in it, and they offered no factual basis to establish standing to assert any potential prejudice to their successors in interest.

On this record, then, we hold as a matter of law that denial of the Guttchens' motion for leave to execute would be an abuse of discretion.

IV. CONCLUSION

We VACATE the superior court's judgment and REMAND 'with directions to enter a judgment granting the motion for leave to execute late.

      . The Guttchens have additionally challenged the superior court's award of prevailing-party attorney's fees. Our decision reversing the superior court's judgment on the merits moots this issue.

      . See Gabriel v. Guttchen, Mem. Op. & J. No. 434 (Alaska, January 25, 1989) (Gabriel I); Gabriel v. Brodman, Mem. Op. & J. No. 561 (Alaska, July 17, 1991) (Gabriel II).

      3. Gabriel I, Mem. Op. & J. No. 434 at 2.

      . Id. at 3-4.

      , Id. at 4.

      . See Gabriel II, Mem. Op. & J. No. 561 at 2-3.

      . Lowe v. Lowe, 817 P.2d 453, 456-57 (Alaska 1991).

      . Foss Alaska Line, Inc. v. Northland Servs., Inc., 724 P.2d 523, 526 (Alaska 1986).

      . Johnson v. Home State Bank, 501 U.S. 78, 82-84, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991).

      . Id. at 84, 111 S.Ct. 2150.

      . Id. at 80-81, 111 S.Ct. 2150.

      . See, e.g., In re Hermansen, 84 B.R. 729, 733 (Bankr.D.Colo.1988); Songer v. Cooney, 214 Cal.App.3d 387, 264 Cal.Rptr. 1, 2-4 (1989) (noting that judgment is enforceable absent bankruptcy court order avoiding lien in its entirety); First Nat'l Bank in Toledo v. Adkins, 272 Ill.App.3d 111, 208 IIl.Dec. 820, 650 N.E.2d 277, 279-80 (1995) (allowing judgment lien to be revived pursuant to statute after statute of limitations had run despite intervening bankruptcy discharge of personal liability on judgment lien); Pimentel v. White, 79 Or.App. 620, 720 P.2d 758, 760 (1986); Hayden v. American Honda Motor Co., 835 S.W.2d 656, 660 (Tex.App.1992).

      . 84 B.R. at 733 (citation omitted).

      14. Alaska Civil Rule 69(d) implements this statute by setting forth procedures for executing more than five years after judgment:
      (d) Execution After Five Years. Whenever a period of five years shall elapse without an execution being issued on a judgment, no execution shall issue except on order of the court in the following manner:
      (1) The judgment creditor shall file a motion supported by affidavit with the court where the judgment is entered for leave to issue an execution. The motion and affidavit shall state the names of the parties to the judgment, the date of its entry, the reasons for failure to obtain a writ for a period of five years and the amount claimed to be due thereon or the particular property of which possession was adjudged to the judgment creditor remaining undelivered.
      (2) Upon filing such motion and affidavit the judgment creditor shall cause a summons to be served on the judgment debtor. ...
      (3) The judgment debtor ... may file and serve a verified answer to such motion ... alleging any defense to such motion which may exist....
      (4) The order shall specify the amount for which execution is to issue....
      (5) At the time of filing the motion for leave to issue execution or at any time thereafter before the final order is entered, the judgment creditor may cause the property of the judgment debtor to be attached and held during the time said motion is pending and until the final order is entered.... In the event that the court shall order that execution be issued, it shall further order that any property of the judgment debtor attached hereunder shall be sold for the satisfaction of such execution....

      . 902 P.2d 1321, 1324 (Alaska 1995).

      . Id. at 1325.

      . AS 09.35.020.

      . See State, Dep't of Revenue v. Dean, 902 P.2d at 1325-26 (child support); see also Perry v. Newkirk, 871 P.2d 1150, 1156 (Alaska 1994) (same); Jones v. Cent. Peninsula Gen. Hosp., 779 P.2d 783, 789 (Alaska 1989) (motion for summary judgment).

      . Foss Alaska Line, Inc. v. Northland Servs., Inc., 724 P.2d 523, 526 (Alaska 1986) (stating that. we may apply a legal doctrine to undisputed facts without deferring to the trial court). In Dean, we did find it necessary to remand for the superior court to determine the existence of a fair and just reason. 902 P.2d at 1325-26. But unlike the parties in the present case, the parties there had not had an opportunity to litigate the issue before the superior court. Accordingly, Dean does not support the proposition that a remand is necessary here.

      . Following this court's first decision, the Kodiak Island Borough notified the Gabriels that they needed to file a subdivision plat to subdivide, that the Raspberry Island property was in a conservation district where the minimum lot size was five acres, and that they therefore would need a variance.

      . It is also undisputed and relevant to the issue of good cause that the Guttchens had attempted to execute against several bank accounts without success prior to the bankruptcy stay. See Dean, 902 P.2d at 1325 (noting the "[elvidence of previous attempts to execute" might show good cause for subsequent delay).

      . In their brief, the Gabriels suggest prejudice to Gregory Jr. by portraying him as "an innocent third party." But the record hardly supports the description: Gregory Jr. was on notice of the Guttchens' lien when the Gabriels conveyed the property in 1994, and their quitclaim deed could convey no greater interest to Gregory Jr. than the Gabriels themselves possessed.


text:
    Jennifer CIZEK and Joseph Cizek, Appellants, v. CONCERNED CITIZENS OF EAGLE RIVER VALLEY, INC., Nora Firmin, Patricia Balzarini, and Charles Balzarini, Appellees.
    No. S-9574.
    Supreme Court of Alaska.
    June 14, 2002.

      William S. Cummings, Ashburn & Mason, P.C., Anchorage, for Appellants.
    Suzanne H. Ewy, Law Offices of Suzanne H. Ewy, Eagle River, for Appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION ON REHEARING

BRYNER, Justice.

I. INTRODUCTION

The Cizeks appeal a superior court decision that enjoined their use of a parcel of land as an airstrip after the court held that the airstrip was not a continuing nonconforming use under Anchorage zoning laws. Because a nonconforming use of property is rot maintained simply by the property's continual suitability for the use or by sporadic unauthorized use, we affirm the trial court's decision.

II. FACTS AND PROCEEDINGS

This case centers on the history of a private airstrip in Eagle River. Harvey Pullen homesteaded a parcel of land in 1964 on which he built the airstrip-then in an unrestricted zoning area. In 1970 Pullen sold a part of his homestead adjacent to the airstrip to the Leonards. James "Pat" Leonard is a pilot and used the airstrip with Pullen's permission. In 1974 Pullen sold the balance of the homestead, including the airstrip, to Robert and Katie Spils and Helen Cole. As part of the sale, the Spilses and Cole signed a written agreement with Pullen granting Leonard a revocable license to continue using the airstrip. The agreement was not recorded.

In 1982 the Spilses and Cole sold their parcel to a group of investors called the Eagle River Partnership (Partnership), which intended to develop the property, including the airstrip, as a subdivision. .T'wo years later, in 1984, the property was rezoned R-10, for which an airstrip is not a permitted or conditional use. The following year, the Partnership discovered the existence of the written agreement with Leonard and sued to quiet title. Leonard settled with the Partnership and agreed not to use the airstrip as a condition of settlement.

After Leonard's settlement, two other pilots, Leonard's friends Lee MceElbany and Ken Evans, continued to use the airstrip on a very infrequent basis, but not with the knowledge or consent of the Partnership.

By 1990 the Partnership's development plans had fallen through and the land went through several conveyances, including re-conveyance to the Spilses and Cole in lieu of foreclosure. Steve Dike and Barry Kell purchased the property in 1990. Dike built a house on the property in 1991-92, and Kell conveyed his interest to Dike in 1994.

Dike hit upon the idea of selling parcels of the property as a fly-in subdivision. In 1995 he cleared the airstrip and petitioned the Municipality of Anchorage to rezone the parcel R-6 for the fly-in subdivision and to grant a conditional use allowing the airstrip to be used. The public hearing process regarding the rezoning engendered a great deal of neighborhood opposition. The Department of Planning assigned Municipal Code Enforcement Manager David Brennan to determine if the airstrip was a legal nonconforming use; he concluded it was. Acting on Brennan's advice, the Planning Commission granted the conditional use and recommended that the Anchorage Assembly rezone the property.

Eagle River resident Art Isham appealed the Planning Commission's conditional use decision. In April 1996 the Assembly decided to stay the commission's approval of the conditional use for the airstrip, concluding that the conditional use should not take effect until a zoning change 'was approved. The next month the Assembly provisionally granted Dike's rezoning request, requiring that he first file a plat in conformity with his plans. Dike never filed the plat, and no further action was taken: the property was not rezoned.

About a year later, in 1997, Dike sold half the property to the Cizeks. They planned to build a home with an attached hangar and use the airstrip. But in 1998, an organization calling itself Concerned Citizens sued to enjoin Dike and the Cizeks from using the airstrip; Concerned Citizens claimed that the nonconforming use right had lapsed from non-use between 1985 and 1995.

After a bench trial, Superior Court Judge Brian C. Shortell ruled in favor of Concerned Citizens that the nonconforming use rights had lapsed.

The Cizeks appeal.

III. DISCUSSION

A. The Airstrip Was Not a Continuing Nonconforming Use.

The Cizeks challenge the trial court's interpretation and application of Anchorage Municipal ordinances governing nonconforming uses. They claim that the airstrip on their property was a continuing nonconforming use under Anchorage's zoning laws.

Although the Anchorage Municipal Code tolerates nonconforming uses, it encourages their termination and prevents them from expanding. Anchorage Municipal Code (AMC) 21.55.080 governs nonconforming uses of land. It states in relevant part:

Where, at the time of the original passage of applicable regulations, lawful use of land existed which would not be permitted by the regulations thereafter imposed ..., and where such use involves no individual structure other than small or minor accessory buildings, the use may be continued so long as it remains otherwise lawful, provided:
C. If any such nonconforming use of land ceases for any reason for a period of more than one year, any subsequent use of land shall conform to the regulations specified by this title for the district in which such land is located. <

1. Actual use is required to continue nonconforming uses.

The Cizeks argue that the fact that the airstrip was usable as an airstrip throughout the relevant time period should suffice to continue an existing nonconforming use. They reason that the "use" contemplated by the Municipal Code is the "use of the land as an airstrip, not use of the airstrip by planes."

But the Cizeks' interpretation of what satisfies the Municipal Code to continue a nonconforming use is illogical. If we were to adopt the Cizeks' interpretation, local governments could almost never terminate a nonconformity because it would legally continue as long as the land's physical suitability for actual nonconforming use remained. In effect, then, the Cizeks propose to define cessation of use under AMC 21.55.030(C) as cessation of all potential for use. We doubt that the Anchorage Assembly had this result in mind when it provided for the termination of nonconformities after more than one year of the cessation of the prior use of the land.

We rejected an analogous argument in Kelly Supply Co. v. City of Anchorage. There, a legal nonconforming use was established by the Alaska Crippled Children's Association for a "diagnostic, treatment and educational center for handicapped children" within a district zoned for residential use. After the children's center vacated the building, the zoning board approved the new owner's petition to use the building as a blood bank under the emstlng nonconforming use. Later, the owner leased parts of the building to the Alaska Mental Health Association and the Rural Alaska Community Action Program. The trial court upheld the zoning board's challenge to those uses as not being consistent with the existing nonconforming use. On appeal, the building owner argued that it had a vested right to use the building in the same manner as the previous owner and that the current use was consistent with the prior use because both were "medical uses." We disagreed, holding that the deci-gion of the zoning board to approve the blood bank's use under the previous nonconforming use terminated any other rights held under the prior use. We also specifically rejected Kelly Supply's argument that no change in use occurred, notlng that the transition from the use as a disabled children's center to a blood bank "was a change of use." Therefore, we rejected the argument that the nonconforming use had not changed simply because the physical infrastructure for both medical uses was similar.

Moreover, we have noted a policy that "nonconforming uses are to be restricted and terminated as quickly as possible" because those uses frustrate a local government's implementation of consistent and logical land use planning. The Anchorage Municipal Code echoes this policy stating an intent to "permit ... nonconformities to continue until they are removed, but not to encourage their perpetuation." We will not frustrate that intent by defining use to include usability.

We therefore reject the Cizeks' argument that because the land was usable as an airstrip the nonconforming use continued.

2. Sporadic, unauthorized use will not continue a nonconforming use. j

The Cizeks next argue that the occasional use of the airstrip by McElhany and Evans continued the nonconforming use. They assert that McElhany and Evans used the airstrip at least once per year between 1985 and 1995 and that use continued the nonconformity. Concerned Citizens argues that McElhany's and Evans's use of the airstrip was trespass and should not be counted as use to sustain a nonconforming use. Alternatively, Concerned Citizens argues that even if McElhany's and Evans's flights were not trespass, they were too infrequent to continue the nonconforming use.

The trial court ruled that the nonconforming use terminated after the Leonards disclaimed any interest in the land in 1985. The court found that no one other than Mc-Elhany, Evans, and Leonard used the airstrip between 1984 and 1990; the use was not known to the owners; the airstrip was not maintained for a period of at least five years; and airplanes were not stored at the airstrip.

After reviewing the record, we believe that the trial court was not clearly erroneous in finding that McElhany and Evans were the only pilots that may have used the airstrip at least yearly between 1984 and 1995-the Ciz-eks concede this. And it is also a reasonable inference from the evidence in the record that their use was at best unauthorized and may have been trespass. Pat Leonard testified that he knew that the 1985 settlement precluded him from using the airstrip, but that he invited McElhany and Evans to use the airstrip for their annual flight checks and for social visits. MceElhany and Evans apparently assumed Leonard owned the airstrip; they therefore never sought or received the owners' permission to use the airstrip.

Given this evidence, we conclude that the trial court did not err in finding that the highly intermittent, unauthorized use by Mc-Elhany and Evans did not suffice to continue the nonconforming use.

B. The Statute of Limitations Had Not Run.

The Cizeks argue that the statute of limitations had run on Concerned Citizens' cause of action. They assert that the action was subject to the two-year limitations period for actions upon a statute and that the period began to run in March 1995, when Dike began actively using the property as an airstrip. Concerned Citizens argues that the trial court correctly ruled that the cause of action accrued each day that the property violated the zoning laws. We agree.

Where a cause of action is based on a continuing violation of a land use regulation, the Anchorage Municipal Code provides that each day is a separate violation: "Each act or condition in violation of this title, and every day upon which the act or condition occurs, is a separate violation of this title." Therefore, the statute of limitations started to run anew each day that the property was in violation, and Concerned Citizens' suit was timely.

C. Estoppel and Laches Did Not Bar the Action.

The Cizeks argue that Concerned Citizens should be estopped from arguing that the nonconforming use was discontinued before 1995; alternatively, they argue that laches bars Concerned Citizens' suit.

The trial court, in a separate decision and order, rejected the Cizeks' estoppel and lach-es defenses. With respect to the estoppel argument, the court ruled that the Cizeks did not reasonably rely on any Municipal assertion of an existing nonconforming use and would not be prejudiced by enforcing the zoning restrictions. More important, the court noted that "(elven if the Municipality's assertion should estop it from forbidding the Cizeks['] use of the airstrip, justice would not require [Concerned Citizens] ... to be similarly estopped." With respect to laches, the court held that the defense did not apply because Concerned Citizens did not unduly delay in bringing suit.

We agree with the trial court that there was no basis for applying estoppel to Concerned Citizens' arguments. The Ciz-eks cannot assert estoppel against Concerned Citizens because Municipal ordinances give citizens an independent right of action to enforce zoning laws; Concerned Citizens did not make an assertion upon which the Cizeks relied, and statements by the Municipality could not have estopped the group.

Laches is a somewhat closer call. The Cizeks assert that laches should have barred Concerned Citizens' suit because it waited more than three years to sue after Code Enforcement Manager Brennan's decision declared the airstrip a nonconforming use.

We recently discussed the application of laches in Laverty v. Alaska Railroad Corp. There Laverty sued to enjoin a contract between the railroad and a contractor-Flamingo Brothers-fifteen months after learning of the contract and his potential cause of action. In the interim, Laverty "knew, over the course of his one-year delay in bringing suit, that Flamingo Brothers was spending large amounts of time and money on geotechnical studies to support its land use permit applications." We held that the trial court did not abuse its discretion in applying laches.

By contrast, the Cizeks do not argue that Concerned Citizens' lawsuit was unduly delayed based on the time-line of the Cizeks' ownership of the property. In fact, they do not even challenge the trial court's finding that Concerned Citizens filed its suit shortly after learning that the Cizeks purchased the property. Instead, quoting Kohl v. Legoullon, the Cizeks assert that an aggrieved party must "file suit promptly once it is clear the transgressor has committed to an irrevocable course of conduct."

But here, the only transgressors seeking the protection of the laches defense were the Cizeks; and they bought the property in the fall of 1997. Before the Cizeks bought the property, no other party had actively sought to re-establish use of the airstrip since 1996, when the Assembly stayed the Planning Commission's decision to grant Dikes a conditional use. Because the Cizeks apparently concede that Concerned Citizens did not learn of their ownership or their plans regarding the airstrip until the spring of 1998, we hold that the trial court did not abuse its discretion in finding no undue delay in Concerned Citizens' June 1998 suit.

D. The Cizeks Waived Their Claim for Rule 37 Sanctions.

The Cizeks assert that the superior court abused its discretion in failing to assess sanctions against Concerned Citizens after the court granted two of the Cizeks' three motions to compel discovery. Concerned Citizens points out in response that Civil Rule 37 requires a hearing before awarding attorney's fees against a party, that the Cizeks never requested a hearing, and that a hearing was never held. Concerned Citizens' argument is persuasive. Because no hearing was requested on the Cizeks' motions for discovery sanctions, we conclude that Civil Rule 37(a)(4) did not oblige the superior court to impose sanctions or to explain its rulings denying the Cizeks' motions. Under the cireumstances presented, we find no abuse of discretion in the court's decision to deny sanctions.

E. The Trial Court Did Not Abuse Its Discretion by Denying Motion for a New Trial

The Cizeks argue that the trial court should have granted their motion for a new trial because it decided the case based upon an issue raised without notice shortly before trial. They claim that they were prejudiced by the trial court's pretrial finding that McElhany's and Evans's use of the airstrip was unknown and not consented to by the property owners and therefore could not preserve the nonconforming use. The Ciz-eks also claim that the trial court's decision essentially shifted the burden of proof to them to prove that legal use continued the nonconforming use, rather than placing the burden on Concerned Citizens to show a cessation of use.

Yet it seems clear that at all times the issue before the trial court was whether the airstrip was a continuing nonconforming use. To prevail as plaintiffs, Concerned Citizens bore the burden of showing that there was no legal use of the airstrip for a period of at least one year. Regardless of what legal theories Concerned Citizens advanced to meet its burden, the dispositive legal issue always involved the question of whether there was sufficient legal use of the airstrip to continue the nonconformity-not just whether McElhany and Evans were trespassers.

It became apparent early in the trial that the Cizeks planned to defend against Concerned Citizens' claim of interrupted use by attempting to characterize McElhany's and Evans's use as sufficient to constitute continuing use. Concerned Citizens, in contrast, hoped to establish that this use was too sporadic and that no other use existed. The trial court simply resolved this point by ruling as a matter of law, based on undisputed evidence, that MceEIhany's and Evans's use could not qualify as a continuous use, no matter how frequent it was, because it was unknown to the owners and had never been authorized. While this ruling certainly deprived the Cizeks of an anticipated defense, they had no vested right to defend a legal theory that proved to be wrong.

In the Cizeks' memorandum and affidavits supporting their motion for a new trial, they claimed to have several additional witnesses who could have testified regarding use of the airstrip. The Cizeks' attorney claimed to have chosen not to pursue these witnesses further during discovery because of the associated expenses and his belief that McElhany's and Evans's testimony would be dispositive. It is clear, then, that the Cizeks' decision not to develop or use this evidence was simply a tactical choice.

The Cizeks had notice that the legal use of the airstrip was the central issue in the case. For strategic reasons, they failed to pursue some witnesses and evidence during discovery. It is also evident that the potential witnesses they identified had little, if any, additional evidence to provide had the trial court granted their motion. Their tactical miscalculation affords them no right to another trial. In any event, we note from our review of the Cizeks' motion for a new trial and their other supporting pleadings that the additional testimony they proposed to offer would have added little relevant information concerning the actual use of the airstrip. For these reasons, we hold that the trial court did not abuse its discretion when it denied the Cizeks' motion for a new trial.

F. The Cizeks Should Not Be Enjoined from Storing Airplanes on the Property.

The superior court's final judgment includes a provision enjoining the Cizeks from storing airplanes on their property. The Cizeks point out that AMC 21.40.115.0.5 allows aircraft storage as an accessory use in an R-10 district, and they request that the injunction be modified to require compliance with current zoning regulations without prohibiting this lawful use. Concerned Citizens acknowledges that storing aircraft is a permitted use under R-10 zoning and agrees that the injunction should be corrected to allow the activity. Because the Cizeks' point appears to be well taken, we direct the superior court to amend the injunction on remand to enable the Cizeks to store airplanes on their property as allowed by current zoning ordinances.

IV. CONCLUSION

The decision of the superior court is AFFIRMED.

      . We use our independent judgment "[wJhere the interpretation of a zoning ordinance presents only a question of statutory construction which does not involve agency expertise or the formulation of fundamental policies," Balough v. Fairbanks North Star Borough, 995 P.2d 245, 254 (Alaska 2000), and "adopt the rule of law that is most persuasive in light of precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . Anchorage Municipal Code 21.55.010 describes the intent of the code regarding nonconforming uses:
      Within the zoning districts established by this title ... there may exist ... uses of land ... which were lawful before the effective date of the applicable regulations, but which would be prohibited, regulated, or restricted under the terms of chapters 21.35 through 21.50. ... It is the intent of this chapter to permit these nonconformities to continue until they are removed, but not to encourage their perpetuation. It is further the intent of this chapter that nonconformities shall not be enlarged upon, expanded or extended, or be used as grounds for adding other structures or uses prohibited elsewhere in the same district.

      . 516 P.2d 1206 (Alaska 1973).

      . Id. at 1207-08.

      . Id. at 1209-10.

      . Id.

      . Id.

      . AMC 21.55.010.

      . The relevant findings of the trial court stated:
      17. From 1986 through 1990, the Eagle River Partnership owned the property. During that time neither the Eagle River Partnership, its individual members, or any of its representatives maintained, flew on and off, stored airplanes on, or used the strip for aircraft operations. No maintenance of the strip took place from 1982-1990, and no usable planes were stored on the property during that time....
      20. No one except Leonard, Evans, or Mc-Elhany used or flew on and off the strip from 1984 through 1990.
      21. From 1985 to 1991, no pilot who used the strip had the owners' permission to use it. Leonard was, during those years, contractually and legally bound not to use it. For a period of at least five years, from December 1985 through 1991, no one with an ownership interest in the property maintained the strip, or kept airplanes there, or gave permission for its use, or acquiesced in its use.
      The court then ruled that:
      40. The Leonards' legal right to use the property as an airstrip terminated with their settlement of the Eagle River Partnership lawsuit against them in December, 1985.
      41. Pat Leopard's use from December, 1985 through the date he was given permission by Dike to use the property, was in violation of his written settlement agreement with Eagle River Partnership and the Leon-ards' disclaimer of interest. This renders any use during that time by Leonard insufficient to maintain a nonconforming use. He had no legal right to allow Evans or Mc-Elbany to use it as they did. Their use, as well as his, was non-consensual and unknown to the owners of the property.
      42. Pursuant to AM.C. 21.55.030, the valid nonconforming use that existed in 1985 terminated, as the nonconforming use of the property ceased for a period of more than one year. Evans' and McElhany's use that was unknown to the owners and unconsent-ed to by them will not operate to preserve a nonconforming use that effectively ended in December, 1985.

      . We note that federal regulations of private airstrips define private use to exclude use unauthorized by the airstrip owner. See 14 C.F.R. § 157.2 ("'Private use means available for use by the owner only or by the owner and other persons authorized by the owner.") (emphasis added).

      . We "exercise our independent judgment when interpreting and applying statutes of limitations." McDowell v. State, 957 P.2d 965, 968 n. 4 (Alaska 1998).

      . AMC 21.25.010(B).

      . Whether the legal doctrines of estoppel and laches apply to a case are questions of law to which we apply the substitution of judgment standard of review. State, Dep't of Commerce & Econ. Dev. v. Schnell, 8 P.3d 351, 355 (Alaska 2000) (estoppel); id. at 358 (laches). Under that standard we will interfere with a trial court's broad discretion to deny the application of estop-pel or laches only when we have "a firm and definite conviction that a mistake has been made." Keener v. State, 889 P.2d 1063, 1066 (Alaska 1995).

      . The defense of estoppel has four elements: (1) A party substantially changes position; (2) in reliance on a promise made by another; (3) the reliance was either actually foreseen or reasonably foreseeable by the promisor; and (4) enforcement of the promise is necessary in the interests of justice. See Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130, 1142 (Alaska 1996).

      . See AMC 21.25.050.

      . See 28 Am.Jur.2d, Estoppel & Waiver §§ 32, 131 (2000).

      . Laches has two elements: the defendant must show (1) that the plaintiff has unreasonably delayed in filing suit and (2) that the delay caused the defendant undue harm or prejudice. See City & Borough of Juneau v. Breck, 706 P.2d 313, 315 (Alaska 1985).

      . 13 P.3d 725, 729 (Alaska 2000).

      . Id.

      . 936 P.2d 514, 517 (Alaska 1997).

      . We review a trial court's decisions regarding discovery sanctions under Civil Rule 37 for an abuse of discretion. Glover v. Sager, 667 P.2d 1198, 1203-04 (Alaska 1983).

      . The Cizeks base their argument on Alaska Civil Rule 37(a)(4), which provides:
      If the motion [to compel] is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response or objection was substantially justified, or that other circumstances make an award of expenses unjust.

      . The trial court has broad discretion in deciding whether to grant or deny a motion for a new trial. Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 442 (Alaska 1989). We review the trial court's denial of a motion for a new trial under the abuse of discretion standard. State v. Municipality of Anchorage, 805 P.2d 971, 973 (Alaska 1991).

      . See AMC 21.55.030(C).


author: CARPENETI, Justice.

text:
    Jackie NELSON-LIZARDI, Appellant, v. Ismael Roberto LIZARDI, Appellee.
    No. S-9803.
    Supreme Court of Alaska.
    June 14, 2002.
    Julie L. Webb and Andrew Harrington, Alaska Legal Services Corp., Fairbanks, and Robert H. Hickerson, Anchorage, for Appellant.
    Edward R. Niewohner and Lawrence F. Reger, Niewohner & Associates, P.C., Fairbanks, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Jackie Nelson-Lizardi and Ismael Roberto (Bob) Lizardi divorced in 1990 but the divoree decree did not deal with the division of Bob's pension because the pension had not yet vested. In a hearing on December 1, 1999, the superior court ordered Jackie to file a request for a formal accounting by December 15, 1999 or face waiver of any claim to the pension. Jackie did not file a request for a formal accounting on December 15, but she did file a notice stating that she did not have enough information to make the decision as to whether a formal accounting was appropriate and apprising the court of her efforts to obtain the needed information. The parties continued to exchange relevant information for several months. But on June 14, 2000, the superior court issued a decision denying Jackie any right to the pension. Because Jackie was entitled to a decision on the merits on the issue of awarding the pension entirely to Bob, we reverse the decision of the superior court. We remand the issue of division of the pension for further proceedings.

II. FACTS AND PROCEEDINGS

A. Facts

Jackie and Bob were married in 1980. Jackie filed for divorce in 1989 and trial was held in January 1990. The superior court issued an amended decree of divorce on April 30, 1990. During their marriage, Jackie and Bob accumulated several pieces of personal and real property that made up the marital estate. Jackie and Bob accumulated several debts related to the farming business during the marriage

In the divorce decision, the superior court distributed the assets and liabilities of the marriage by giving Jackie, in pertinent part, the house and the two loans secured by the house, as she was the party most likely to have an interest in paying off those loans. Bob was given the eighty-acre parcel with the remaining debt on that property and the agricultural loans, with the exception of loan C 941 (due to a dispute with the state as to the value of this loan). Loan C 941 was a loan secured by all farm equipment owned by Bob. The amount of this loan was in dispute because Bob stated that the equipment was sold to the Whitestone farm and the purchase price was paid to the state but the state had not yet deducted the amount from the loans. The superior court did not distribute Bob's pension because it was unvest-ed, and instead delayed the distribution until the pension vested.

In October 1994 the state settled the lawsuit that was pending against Bob during the divorcee proceedings. The state released Bob from all of the outstanding Agricultural Revolving Loan Fund loans, including the two loans secured by the house and awarded to Jackie in the divorcee. Jackie claims to have made efforts to set up arrangements to pay the loans secured by the house but was told that the state was unable to discuss the matter with her because the lawsuit was against Bob. Bob claims that he was forced to convey several items of real and personal property to the state in order to discharge the loans. However, the settlement agreement states only that Bob was to convey a John Deere hay baler, a mulcher/packer, and a wagon. There is no evidence that Bob had to convey any real property to the state in the agreement.

B. Proceedings

Bob retired in 1998 and began receiving his pension benefits. In February 1999 Bob filed a motion to modify child support because his income had decreased by more than fifteen percent. In April 1999 Jackie filed a supplemental opposition to Bob's motion that included several counter-motions, including a motion to divide Bob's pension. The superior court held an evidentiary hearing on December 1, 1999 to resolve the issues between the parties. Jackie did not attend the hearing but her attorney did.

At the hearing, Bob argued that he was entitled to an offset against what was owed to Jackie on the pension in the amount of the loans secured by the house plus interest from the date of settlement. Bob argued that the loans plus interest currently totaled approximately $24,000. Jackie's attorney stated that she felt uncomfortable discussing the issue of the offset because Bob had not filed anything formal on the issue, other than the opposition to Jackie's motion, and no concrete numbers or evidence had been offered. Jackie's attorney stated that she was not sure of the value of the pension or the amount Bob claimed as an offset and that she would need some time to review the evidence. The court thus ordered Jackie to file a motion for a formal accounting of the pension by December 15, 1999, or "that issue is just going to drop out of the case," that is, Jackie's rights to the pension would be presumed to be offset by settlement of the loans secured by the house.

On December 15, 1999, Jackie filed an "Advice of Counsel" stating that she did not have adequate information on the pension to make an informed decision as to whether to request a formal accounting. The "Advice of Counsel" stated that Jackie was waiting for information promised by Bob and, onee she received this information, she would file a request with the court within thirty days. Alaska Laborers Construction Industry Trusts sent Bob a letter on December 14, 1999 detailing the specifics on Bob's pension. Bob's attorney forwarded the letter to Jackie's attorney on December 21, 1999. Bob's attorney sent Jackie's attorney a release of information so that Jackie could obtain information on the pension on January 10, 2000. The release expired on January 80, 2000 and Jackie's attorney failed to ask for the information before the release expired. Jackie made further requests for the information and for another signed release of information, but she was unable to obtain either.

Sometime in the spring, Jackie retained the services of a professor of economics, Paul Taylor, Ph.D., to value the pension. Taylor estimated in an affidavit that the pension was worth substantially more than the figure offered by the trust company. Jackie filed Taylor's affidavit on June 26, 2000. Taylor estimated that Jackie's marital portion of the pension was $33,919.50, or $246.93 per month, while the trust company had estimated that the marital portion of the pension was $24,190.00, or $151.94 per month.

Jackie filed a discovery request on May 2, 2000 in which she requested a signed release of information and a copy of Bob's most recent tax return. On May 10, 2000 Bob requested a hearing on uncovered medical bills and pension rights. This request was stamped "not used" by the superior court. Then, on May 19, 2000, Bob filed a proposed order regarding pension distribution. This proposed order was signed by the superior court on June 14, 2000. The order stated that the superior court entered its oral findings on the record on December 1, 1999 and, because Jackie had not filed for a formal accounting of the pension, she was entitled to no interest in the pension. On June 80, 1999, the superior court denied Jackie's motion for reconsideration.

Jackie appeals the decision of the superior court denying her an interest in the pension, denying her motion to compel discovery, and denying her motion for reconsideration. Because we conclude that we need to reach only one aspect of the first issue, we do not address the motion to compel discovery or the motion for reconsideration.

III. STANDARD OF REVIEW

We. review procedural decisions of the superior court under the abuse of discretion standard. For example, we have held that a superior court's denial of a motion on timeliness grounds and denial of a continuance are reviewed for abuse of discretion. We will reverse a ruling for abuse of discretion only when, after reviewing the whole record, we are left with a definite and firm conviction that the trial court erred.

IV. DISCUSSION

The Superior Court Erred in Denying Jackie a Marital Share of Bob's Pension as a Penalty for Not Requesting an Accounting and without a Determination on the Merits.

Jackie argues that the superior court erroneously failed to apply the proper standard to the division of the pension. But the superior court did not reach the merits of the division of the pension. Its ruling was based on Jackie's failure to comply with the court's order to file a request for a formal accounting by December 15, 1999. We therefore must determine whether the superior court erred in summarily awarding the entire pension to Bob as a penalty for Jackie's failure to request an accounting.

We addressed a similar issue in Gamble v. Northstore Partnership. In Gamble, Northstore Partnership was sued by the Gambles for reformation of a recorded grant of easement. Six days before the close of discovery and one and one-half months before trial, Northstore moved for summary judgment, which was granted following oral argument. The superior court noted that the real issue was whether the Gambles had had enough time to oppose the summary judgment motion, but it declined to grant an extension because the Gambles failed to make a specific request for relief under Alaska Civil Rule 56(f). Alaska Civil Rule 56(F) allowed for a continuance in order to obtain more discovery to oppose a motion for summary judgment. We held that while the Gambles' submission of an "Affidavit of Attorney in Opposition to the Motion to Amend and Motion for Summary Judgment" did not expressly mention the continuance provision, it "clearly set forth the Gambles' desire and justification to undertake additional discovery." Therefore, because the Gambles had "made an unambiguous request for a continuance with which to undertake additional discovery," we held that the superior court abused its discretion in not permitting this discovery.}

The situation here is strikingly similar. The superior court denied Jackie her share of the marital portion of the pension because she failed to file a request for a formal accounting by December 15, 1999. But Jackie filed an "Advice of Counsel" on that date stating (1) that she was unable to make an informed decision about pursuing the formal accounting without additional. information from Bob; (2) that she was expecting to obtain more information from Bob onee Bob received a letter from the pension plan administrator; and (8) that she would file a request for a formal accounting within thirty days of receipt of the information requested.

We recognize that a trial court has broad discretion to set and enforce deadlines for filing pleadings and completing discovery. However once a deadline has passed with a party failing to take a required action, and the superior court fails to enforce the deadline for a substantial period of time, and the parties proceed to work to resolve their dispute, basic fairness requires that the superi- or court- give advance notice and an opportunity to cure the delinquency before it rules against the party for failing to take the appropriate action.

The superior court never ruled on the merits of the issue of division of the pension. Nor did it in any way indicate that Jackie waived the issue by not filing for a formal request by December 15, 1999. The parties continued to conduct themselves as if division of the pension. was still an issue for nearly six months. Bob provided a signed release to obtain information that was valid until January 30, 2000. The parties exchanged substantial correspondence on the matter. The first mention of any concern about timeliness is found in a letter from Bob's attorney to Jackie's attorney dated March 8, 2000, in which Bob's attorney declined to provide an updated release of information for the pension fund. Even then, it would be more than three months before the superior court would rule that Jackie's efforts to obtain her portion of the pension would be foreclosed by what the court considered to be a missed deadline six months earlier. We are left with a definite and firm conviction that the superi- or court erred in denying Jackie a ruling on the merits under these cireumstances.

Because Jackie's pension rights claim was dismissed on procedural grounds, the superior court had no occasion to apply the standard articulated in Wanberg v. Wanberg to the division of the pension. Alaska law requires that property be divided "in a just manner and without regard to which of the parties is in fault. ..." Moreover, "the court, in making the division, may invade the property, including retirement benefits, of either spouse acquired before marriage when the balancing of the equities between the parties requires it...." In Wanberg, we explained that division of marital assets involves a three-step procedure: the trial court must first determine what specific property is available for distribution, then the court must value this property, and, finally, it must decide how an allocation can be made most equitably. In Merrill v. Merrill, we held that the trial court must make "sufficiently detailed and explicit findings 'to give the appellate court a clear understanding of the basis of the trial court's decision, and to enable it to determine the ground on which the trial court reached its decision." " Included in these findings are a number of factors that a trial court must take into account in making property divisions. And in Edelman v. Edelman, we held that the trial court may not award the entire pension to one spouse without an accounting of the other spouse's marital portion. In the present case, the superior court determined in the 1990 divorcee decree that the pension was marital property to the extent that it was earned during the marriage. However, because Jackie did not request a formal accounting, the superior court did not undertake the last two steps of the procedure in the 1999 proceedings.

At the hearing on December 1, 1999, the superior court stated that it was its "fairly vague impression" that "[Jackie]l was going to end up owing [Bob]" due to the fact that the pension would be worth less than the amount "paid" by Bob in the settlement with the state that released the loans on the house. However, the superior court acknowledged that nobody had done the exact calculations, there had been no effort to reduce the pension benefits to present value to make a valid comparison, and the figures the court was using were very rough. The superior court never made any findings as to the value of the pension, nor did it apply the factors set out in Merrill to divide the pension. And Jackie adduced considerable evidence that the rough figures Bob's attorney proposed in unsworn argument on December 1 were incorrect. Jackie is entitled to a determination on the merits and, before that determination can be made, discovery is necessary to determine the value of the pension and whether Jackie's portion is offset by the settlement of the loans secured by the house. Therefore, we remand for a hearing on the valuation and division of the pension.

v. CONCLUSION

Because the "Advice of Counsel" filed by Jackie on December 15, 1999 was sufficient to alert the court and opposing counsel that further information was needed by Jackie to respond to the court's order to file a request for an accounting by that date, and because it was so treated by opposing counsel, the court abused its discretion in awarding the entire pension to Bob with no further notices. We REMAND this issue to the superior court for division of the marital property under Wanberg.

      . Although complicated, a detailing of the property and debts accumulated during the marriage is important to an understanding of the quandary facing Jackie in deciding whether to request a formal accounting of Bob's pension.

      . Bob bought a forty-acre parcel in 1977 on which they built a house and had a working farm. The parties acquired an eighty-acre parcel of agricultural land and a 280 acre parcel of agricultural land. Bob also had an unvested pension through the Laborer's Union that was earned, in part, during the marriage.

      . In particular, loans totaling $12, 232.48 on the house and $19,115.74 of the purchase price on the eighty-acre parcel had yet to be paid off at the time of the divorce. The division of the marital property was complicated by the fact that the state started proceedings against Bob in order to recover on six agricultural loans, including those on the house, borrowed from the Agricultural Revolving Loan Fund. The four loans not secured by the house were secured by various pieces of farm equipment, the 280-acre parcel, and crops. These loans were awarded to Bob in the divorce, with the exception of the loans on the 280-acre parcel. The 280-acre parcel and the loans on this property were not awarded in the divorce proceeding because there was a dispute at the time of the divorce as to who owned the parcel.
      Bob had sold the 280-acre parcel to Paul Mertz in 1985. Mertz agreed to take over the loan payments to the state but apparently did not make the payments. The state evidently agreed to the land transfer but then sued Bob for the arrearage. The suit was then stayed until it was determined what Mertz's responsibility was as to the parcel. In June 1990 Mertz entered into a settlement with the state in which it was determined that he was the owner of the 280-acre parcel. Under Mertz's settlement, the 280-acre parcel was conveyed to the state and, therefore, was not part of Bob and Jackie's marital estate.

      . See Morgan v. State, Dep't of Revenue, 813 P.2d 295, 297 n. 4 (Alaska 1991).

      . See, eg., Red Top Mining, Inc. v. Anthony, 983 P.2d 743, 746 (Alaska 1999) (stating that we review the "denial of a motion to intervene on timeliness grounds for abuse of discretion") (citing Mundt v. N.W. Explorations, Inc., 947 P.2d 827, 830 (Alaska 1997)); Parson v. Marathon Oil Co., 960 P.2d 615, 618 (Alaska 1998) (stating that denial of continuance for opposition to motion for summary judgment reviewed under abuse of discretion standard).

      . Morgan, 813 P.2d at 297 n. 4.

      . 907 P.2d 477 (Alaska 1995).

      . Id. at 479.

      . Id. at 480.

      . Id.

      . Id. at 485 n. 6.

      . Id.

      . Id. at 487.

      . See Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1169 (Alaska 1998) (stating that "[olr-dinarily, the choice of a particular sanction for a discovery violation is a matter committed to the broad discretion of the trial court, subject only to review for abuse of discretion"); Rutledge v. Alyeska Pipeline Serv. Co., 727 P.2d 1050, 1054 (Alaska 1986) (stating that "[rlegardless of the timing of the alleged actions, the trial court has broad discretion in allowing or denying proposed amendments [to pleadings} after the initial period has passed under either Rule 15(a) or 15(d)").

      . We note that, while Jackie failed to file a request for a formal accounting, she did file a paper that explained her predicament to the superior court. Therefore, this is not a situation in which a deadline completely passed without a party taking any action at all.

      . 664 P.24 568 (Alaska 1983).

      . AS 25.24.160(a)(4).

      . Id.

      . Wanberg, 664 P.2d at 570.

      . 368 P.2d 546 (Alaska 1962).

      . Id. at 548 (quoting Irish v. United States, 225 F.2d 3, 8 (9th Cir.1955)); see also Alaska R. Civ. P. 52(a) (stating "[in all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon.. ..").

      . In Merrill, 368 P.2d at 547-48 n. 4, we stated:
      It has been held that the principal factors to be considered by the trial court in determining the question of alimony or division of property as between the parties are the respective ages of the parties; their earning ability; the duration and conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances, including the time and manner of acquisition of the property in question, its value at the time and its income producing capacity if any.

      . 3 P.3d 348 (Alaska 2000).

      . Id. at 355-56.

      . Merrill, 368 P.2d at 547-48 n. 4.


author: FABE, Chief Justice.

text:
    Daniel FRAIMAN, Appellant, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, DIVISION OF MOTOR VEHICLES, Appellee.
    No. S-10026.
    Supreme Court of Alaska.
    June 14, 2002.

      Max D. Garner, Birch, Horton, Bittner & Cherot, Anchorage, for Appellant.
    Timothy W. Terrell, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

The Division of Motor Vehicles (DMV) administratively suspended Daniel Fraiman's driver's license for refusal to take a chemical breath test following Fraiman's arrest for eluding an officer. Because Fraiman was arrested while in the cabin of a friend, he attempted to raise a defense based on an alleged Fourth Amendment violation. We agree with the hearing officer and the superi- or court that Fraiman did not have standing to raise his Fourth Amendment concerns, and we consequently affirm the decision to suspend his license.

II. FACTS AND PROCEEDINGS

Just after midnight on May 20, 1999, Daniel Fraiman, age cighteen, was driving west on East End Road in Homer. Driving in the other direction, Alaska State Trooper David Tracy noticed that the taillights on Fraiman's red Subaru were out. Trooper Tracy turned on his overhead lights, but Fraiman did not pull over. Trooper Tracy followed Fraiman to the house of Kathy Morton on Shelby Kay Street. Trooper Tracy knocked on the door of the house, and asked Morton if she knew the identity of the driver of the red Subaru. Morton replied that she did not but that it might be a friend of her son; she then went back into the house.

Trooper Tracy called in the license plate on the Subaru and learned that it was registered to Douglas Fraiman, the father of Daniel Fraiman. Upon receiving this information, Trooper Tracy asked Morton if he could come inside her house to look for Douglas Fraiman. Morton refused. When Trooper Tracy then stated his plan to seek a search warrant, Morton allowed him to enter the house. The only other person Trooper Tracy found in the house was a friend of Morton. Because Morton and the friend appeared to have been recently awakened by his visit, Trooper Tracy ruled them out as drivers of the red Subaru. In his search of the house, Trooper Tracy noted that there did not appear to be a place where Morton's son stayed. Trooper Tracy asked Morton about this, and she replied that her son and daughter slept in a cabin in back of the house. Trooper Tracy asked Morton to lead him to the cabin and she agreed.

Morton knocked loudly on the cabin door and announced that a state trooper was looking for the driver of the Subaru parked in the driveway. After a brief delay, Morton's twenty-year-old daughter answered the door and informed Trooper Tracy that her brother and his friend were in the loft, which could be reached via ladder through a trap door. Kathy Morton knocked on the trap door and, after the trap door opened, asked for the driver of the Subaru to come out. When this did not happen, Trooper Tracy climbed into the loft and discovered Daniel Fraiman crouched in a corner. Although Trooper Tracy did not have Kathy Morton's express permission to enter the cabin, she did not object to his entry. '

Trooper Tracy arrested Daniel Fraiman for eluding an officer. After taking him to the squad car, Trooper Tracy noticed that Fraiman had an odor of aleohol on his breath and that his speech was slurred. Trooper Tracy asked Fraiman to perform a variety, of field sobriety tests, including a preliminary breath test, at which point the trooper determined that Fraiman was under the influence and took him to the Homer jail. Once there, Fraiman refused to submit to a chemical breath test, causing Trooper Tracy to revoke his driver's license under Alaska's implied consent law.

Fraiman requested and received a review hearing before the Division of Motor Vehicles. The hearing took place on June 29, 1999 before hearing officer Rebecca Janik. Fraiman challenged the license suspension on the grounds that Trooper Tracy lacked probable cause to make an arrest and that the arrest occurred as the result of an illegal warrantless search. Fraiman requested that his refusal to take the chemical breath test be suppressed, but Janik stated that she did not think Trooper Tracy's entry into the cabin was within the scope of the administrative hearing. Janik further stated, though, that even if the issue was within the seope of the hearing, it was her belief that Fraiman was not an "invited guest" in the cabin and thus lacked standing to raise his Fourth Amendment argument. Jgnik also found that Trooper Tracy had reasonable grounds to arrest Fraiman for driving a vehicle while intoxicated.

Fraiman appealed to the superior court, arguing primarily that the hearing officer erred in finding that AS 28.15.166(g) bars motorists from seeking suppression of evidence in administrative hearings. The superior court did not reach this argument, affirming the hearing officer on the ground that Fraiman lacked standing to challenge Trooper Tracy's allegedly illegal entry into the cabin. The superior court further found that Trooper Tracy had probable cause to arrest Fraiman both for eluding an officer and for driving while intoxicated. Fraiman appeals.

III. STANDARD OF REVIEW

Courts are to review administrative revocations of drivers' licenses for driving while intoxicated under the standards set forth in AS 28.15.166(m), which provides: "The court may reverse the department's determination if the court finds that the department misinterpreted the law, acted in an arbitrary and capricious manner, or made a determination unsupported by the evidence in the record. The present case involves questions of both law and fact.

The standard of review for issues of statutory interpretation is the "substitution of judgment" test, under which we conduct an independent review. This standard of review is applied to agency decisions "where the questions of law presented do not involve agency expertise." Under this standard, "a reviewing court [can] substitute its own judgment for that of the agency's, even if the agency's decision had a reasonable basis in law." In such cases, we exercise independent review of the superior court's decision, "as the superior court [acts] as an intermediate court of appeal." For determinations of fact by an administrative agency, we apply the "substantial evidence" test, under which "the reviewing court determines whether the findings are supported by such evidence as a reasonable mind might accept as adequate to support a conclusion."

IV. DISCUSSION

Fraiman argues that the hearing officer erroneously interpreted AS 28.15.166(g) to bar his legal challenge to the admissibility of evidence that he maintains was obtained illegally. Fraiman contends that precedent exists for expanding the scope of an administrative license hearing beyond that expressly permitted by AS 28.15.166(g). Fraiman relies on Javed v. State, Department of Public Safety, in which we held that due process required a determination at the license revocation hearing of whether or not the accused was actually driving the car, even though this issue falls outside of the apparent scope of AS 28.15.166(g). Although the hearing officer disagreed with Fraiman's analysis on this point and found the issue of whether Trooper Tracy conducted an illegal search to be "beyond the seope of this hearing," she made an alternate finding that Fraiman "[did] not have standing to raise an issue of illegal search of someone else's home." Because hearing officer Janik made findings on Frai-man's Fourth Amendment claims, despite believing them to be beyond the scope of the hearing, we need not resolve the question of whether claims of illegal search and seizure are appropriately raised at administrative hearings..

Both the hearing officer and the superior court concluded that Fraiman did not have standing to sue for the allegedly illegal search of someone else's home. We agree. The United States Supreme Court has established that "absent consent or exigent circumstances" police cannot search for a fugitive in the house of a third party without a warrant based on evidence that the fugitive is expected to be in the house of the third party. More specifically touching on the present case, the Supreme Court in Minnesota v. Olson ruled that overnight guests have a legitimate expectation of privacy. Consequently, an overnight guest can invoke the protections of the Fourth Amendment against a warrantless arrest while staying in the house of a friend. Minnesota v. Carter, however, limited the Fourth Amendment protection based on a reasonable expectation of privacy to those who possess a "degree of acceptance into the household."

In concluding that Fraiman was not an invited overnight guest, the hearing officer relied on the facts presented at the hearing, especially that the car that Fraiman was driving was followed to the residence and that Fraiman was discovered fully clothed while his friend and the friend's sister were in sleeping attire. Indeed, Janik concluded that Fraiman's conduct "was of a person hiding from the police in someone else's home." The finding that Fraiman was not an overnight guest thus places him within the more limited framework of Minnesota v. Carter, as opposed to that of Minnesota v. Olson. Because Fraiman could not have had a "legitimate expectation of privacy" in the cabin, he does not have standing to assert third-party Fourth Amendment protections.

Alaska law confirms this conclusion. In Waring v. State, we held that standing to assert a Fourth Amendment violation of a co-defendant's rights exists only where the defendant can show that the police officer "obtained the evidence as a result of gross or shocking misconduct, or ... deliberately violated a co-defendant's rights. Neither of these situations exist in the present case. As the superior court noted, Fraiman did not contend that Trooper Tracy's actions constituted "gross or shocking misconduct." The superior court further held that Trooper Tracy's actions were not "a deliberate violation of the Mortons' right to be free from unreasonable searches of their cabin." We agree with the superior court that Fraiman did not fall into either of the standing exceptions listed in Waring.

The "deliberate violation" discussed in Waring is to be viewed in terms of the person whose rights are directly violated, not the person asserting the exclusionary rule. The record does not suggest that Trooper Tracy's conduct was gross or shocking toward the Mortons. Trooper Tracy's conduct was, on the whole, routine for an officer pursuing a suspect. Despite the possible objection to subtle pressure on Kathy Morton to allow a search of her house, Trooper Tracy's conduct did not rise to the level where it would "shock the conscience."

© Neither did Trooper Tracy deliberately violate the Mortons' rights. Trooper Tracy had obtained permission from Kathy Morton to search her residence. This permission reasonably extended to the cabin where other family members slept, even though the cabin was not attached to the house: Kathy Morton led Trooper Tracy to the cabin and assisted in the search for the driver of the red Subaru. In short, there is nothing to suggest that Trooper Tracy deliberately violated the Mortons' rights. . Therefore, we agree with hearing officer Janik and the superior court that Fraiman did not have standing to assert a violation of the Mortons' Fourth Amendment rights.

Fraiman also argues that Trooper Tracy did not have probable cause to arrest him for eluding an officer. Fraiman claims that the evidence was insufficient to show that he "knowingly " failed to stop once signaled to do so, primarily due to the distance between himself and Trooper Tracy. The test for probable cause is whether a reasonable person would believe that an offense had been committed by the defendant. The issue of probable cause was addressed by hearing officer Janik, who found Fraiman's claim that he did not know he was being pursued to lack credibility. The finding that Tracy had probable cause to arrest Frai-man for eluding him was affirmed by the superior court. Under the applicable "substantial evidence" test, it is clear that there was sufficient evidence to support the conclusion that Trooper Tracy had probable cause to arrest Fraiman for eluding him. We concur with this conclusion and therefore affirm the findings of the hearing officer and the superior court.

v. CONCLUSION

Because Trooper Tracy had probable cause to arrest Daniel Fraiman and because Frai-man did not have a reasonable expectation of privacy in the Mortons' cabin, Fraiman does not have standing to raise a Fourth Amendment claim at his driver's license revocation hearing. We AFFIRM the decisions of hearing officer Janik and the superior court.

      . AS 28.35.182(b) ("A person commits the offense of failure to stop at the direction of a peace officer in the second degree if the person, while driving or operating a vehicle or motor vehicle or while operating an aircraft or watercraft, knowingly fails to stop as soon as practical and in a reasonably safe manner under the circumstances when requested or signaled to do so by a peace officer.").

      . This test revealed that Fraiman had a blood alcohol level of .086.

      . See AS 28.15.165; AS 28.35.031.

      . Saltz v. State, Dep't of Pub. Safety, 942 P.2d 1151, 1152 n. 2 (Alaska 1997) (citing Miller v. State, Dep't of Pub. Safety, 761 P.2d 117, 118 n. 2 (Alaska 1988)).

      . Wik v. State, Dep't of Pub. Safety, 786 P.2d 384, 385-86 (Alaska 1990).

      . Earth Resources Co. of Alaska v. State, Dep't of Revenue, 665 P.2d 960, 965 (Alaska 1983).

      . Id.

      . Haynes v. State, Dep't of Pub. Safety, 865 P.2d 753, 754 (Alaska 1993).

      . Borrego v. State, Dep't of Pub. Safety, 815 P.2d 360, 363 (Alaska 1991).

      . That statute limits the issues at the administrative hearing to (1) whether the law enforcement officer had reasonable grounds to believe that the person was operating a motor vehicle that was involved in an accident causing death or serious physical injury or was operating a vehicle while intoxicated, and (2) whether the person either failed or refused to take a chemical breath test.

      . 921 P.2d 620, 624 (Alaska 1996).

      . Steagald v. United States, 451 U.S. 204, 213, 216, 101 S.Ct. 1642, 68 LEd.2d 38 (1981).

      . 495 U.S. 91, 99, 110 S.Ct. 1684, 109 LEd.2d 85 (1990). The requirement of an expectation of privacy comes from Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 LEd.2d 387 (1978) ([The] capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.") (citing Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).

      . Olson, 495 U.S. at 99-100, 110 S.Ct. 1684. The state court in Olson had found an absence of exigent circumstances that might otherwise have justified arrest. Id. at 100, 110 S.Ct. 1684.

      . 525 U.S. 83, 90, 119 S.Ct. 469, 142 LEd.2d 373 (1998) (holding that a person who was in an apartment for the purpose of packaging cocaine, which the Court likened to a business transaction, could not have a legitimate expectation of privacy).

      . Id. at 91, 119 S.Ct. 469.

      . Id.

      . 670 P.2d 357, 363 (Alaska 1983). The court in Waring stated that it "express[es] no opinion as to whether a defendant can assert the violation of the fourth amendment rights of persons other than co-defendants or co-suspects." Id. at 363 n. 11. Given the subsequent United States Supreme Court opinions in Olson and Carter, though, this question appears to have been answered. There are also Alaska cases suggesting that the co-defendant standing established in Waring applies to any third party. See Samson v. State, 919 P.2d 171, 174 (Alaska App.1996) (contemplating, but rejecting, the possibility of standing for search of one's utility records); State v. J.R.N., 861 P.2d 578, 580 n. 6 (Alaska 1993) (holding that a minor cannot assert the standing rights of a parent absent the exceptions listed in Waring ).

      . See Bright v. State, 826 P.2d 765, 774 (Alaska App.1992); Christianson v. State, 734 P.2d 1027, 1029 (Alaska App.1987); Giel v. State, 681 P.2d 1364, 1367 n. 3 (Alaska App.1984).

      . See Giel, 681 P.2d at 1367 n. 3 (commenting that Waring does not specifically establish criteria for gross or shocking behavior but that the court did invoke a "shocks the conscience" standard).

      . See Care v. United States, 231 F.2d 22, 25 (10th Cir.1956) (holding that Fourth Amendment protections "apply to buildings within the curti-lage [of a farm residence] which may include a garage, a barn, a smokehouse, a chicken house or similar property. Whether the place searched is within the curtilage is to be determined from the facts, including its proximity or annexation to the dwelling, its inclusion within the general enclosure surrounding the dwelling, and its use and enjoyment as an adjunct to the domestic economy of the family."); Stuart v. State, 698 P.2d 1218, 1221 (Alaska App.1985) (holding that metal sheds on a property were within the curti-lage of the home); Ingram v. State, 703 P.2d 415, 427 (Alaska App.1985) (holding that a storage shed connected to a four-plex was within the curtilage of the four-plex).

      . AS 28.35.182(b) (emphasis added).

      . State v. Grier, 791 P.2d 627, 632 n. 3 (Alaska App.1990) ("Where a person of reasonable caution would be justified in the belief that an offense has been committed and the defendant committed it, probable cause is established even though the facts known to the officer could also be reconciled with innocence.").

      . Janik did at one point state that the issue of probable cause was "not an issue in this hearing," but as with the standing issue, the factual findings provided were sufficient to reach the conclusion that probable cause existed.

      . Borrego v. State, Dep't of Pub. Safety, 815 P.2d 360, 363 (Alaska 1991).