MAASSEN, Justice.
A city evicted commercial tenants from city-owned land and was granted a money judgment against them for unpaid rent and sales taxes. The tenants left behind various improvements, as well as items of personal property related to their operation of a marine fueling facility on the land. The city pursued collection of its money judgment for several years before suspending its efforts; about eight years later it resumed its attempts to collect. The tenants, contending that they had reasonably assumed by the passage of time that the judgment had been satisfied, moved for an accounting of their left-behind property and the amount still owing on the judgment.
The city informed the superior court that it had executed only on bank accounts and wages and that several improvements had reverted to city ownership and therefore did not count against the judgment. It claimed not to know what happened to the rest of the property the tenants identified as having been left behind. The superior court found the city's response sufficient and allowed execution to continue.
The tenants appeal, arguing that they were entitled to a better accounting of their left-behind property and that the city is estopped from contending that the judgment is still unsatisfied. We agree in part. We hold that it was the city's burden to produce evidence of the property's disposition and that it failed to carry this burden. We also hold that there are genuine issues of material fact about whether the city is estopped from contending that the judgment remains unsatisfied. We therefore reverse the superior court's order accepting the accounting and allowing execution to continue; we remand for further proceedings in the superior court.
Carol and Perry Beecher entered into a ground lease with the City of Cordova in 1997 to operate a marine fueling facility on City-owned land.
The Beechers still did not vacate the premises, and in April the City filed a complaint against them in the superior court seeking eviction, foreclosure of the sales tax liens,
The Beechers then vacated the premises, but they left behind some personal property, including fuel tanks, vehicles, trailers, parts, and appliances. Nearly a year later, the City's attorney, in a March 2003 memo to the City manager, recommended that the City attempt to clarify ownership of this left-behind property. In April the superior court ordered debtor's examinations to occur in May. The City filed creditor's affidavits stating that it would attempt to satisfy the judgment by levying against the Beechers' bank accounts, a tug boat, a "Landing craft," two undeveloped tracts of real property, a "Fuel Truck," a "Backhoe," the "Marine fuel facility," and a "Gas Station." In July the clerk of court issued writs of execution.
Of the items identified in the creditor's affidavits, the City executed only against the Beechers' bank accounts. It eventually recovered more of the judgment from their wages and permanent fund dividend checks. But in 2005, with the bulk of the judgment still unpaid, the City ceased its collection efforts.
Eight years went by; then in January 2013 the City obtained and recorded a renewal judgment. After learning that the City was again garnishing their wages, the Beechers sent the City a letter asking for an accounting of the judgment and the City's collection activities to date, specifically requesting "bill(s) of sale," public advertisements, and "dates of sales [of] any and all property seized and sold by the City." The City did not respond, so the Beechers retained a lawyer and repeated their request. Their second letter to the City described the Beechers' "equipment located at the Marine Fuel facility [as] including fuel trucks, tanker trailers,... assorted parts, tools, a Cat 235 excavator, and other pieces of equipment," and asked, "What happened to these items? Were they sold? Was the amount of the sale deducted from the judgment?" The record again shows no response from the City.
The Beechers next filed a motion in superior court for an accounting of the City's collection efforts and the outstanding amount of the judgment. The City responded with an affidavit from its finance director, Jon Stavig. Stavig stated that the City had executed on the Beechers' bank accounts and wages, and he submitted a record of those amounts, which added up to over $34,000. He averred "[u]pon information and belief" that the City had sold certain "improvements" from the Beechers' fueling facility, "which included the floating fuel dock and gangway ramp," but that improvements belonged to the City pursuant to paragraph 9 of the lease and therefore their sale did "not reduce the amount owed under the [j]udgment." Stavig reported that the City had not executed on the tug and landing craft identified in its 2003 creditor's affidavit as possible subjects for execution; instead, the two vessels had been foreclosed upon and sold at auction by a ships' mortgage lender. And Stavig also reported that two parcels of real property listed in the creditor's affidavit had been foreclosed upon by other lenders. Finally, Stavig attested that "the City remains open to examining any evidence or documentation [the Beechers] may have demonstrating the sale of equipment or property by the City as the City's accounting has been limited [to] its own records."
In response, the Beechers filed a list of all the personal property they alleged had been left behind on the leased property — including fuel trucks, parts vans, trailers, tanks, a "Jitney boat," and other "[p]arts and supplies," all of which they valued at $75,000 — and argued that the City must have sold it without crediting the proceeds toward the judgment. The Beechers also submitted photographs, which their attorney represented as showing "a tank and office retained by the City but not credited towards the judgment." The City responded by reiterating that it had seized and sold only "improvements" and that it had no legal obligation to execute
The superior court, finding that a hearing on the Beechers' motion was unnecessary, ruled largely in favor of the City. The court concluded that the finance director's affidavit "provided a satisfactory accounting of [the City's] collection efforts," agreed that the Beechers were "not entitled to a credit for the value of the marine fuel facility improvements," and lifted a temporary stay on the City's collection efforts. The Beechers moved for reconsideration, arguing that any "proper accounting ... must include" the specific items of property they had identified as left behind, highlighting those items of personal property identified in the 2003 memorandum to the City manager and including a picture of a fuel tanker they claimed was in current use by the City. But the superior court denied reconsideration and awarded attorney's fees and costs to the City.
The Beechers appeal.
We review questions of law using our independent judgment.
The Beechers urge us to hold that the City did not provide an adequate accounting because it failed to directly address the disposition of the personal property left behind at the marine fueling facility. According to the Beechers, some of this property did not qualify as "improvements" that would revert to the City under the terms of the lease, and the City had an obligation to follow through on the implication of its 2003 creditor's affidavits that it would execute on the listed property and apply the proceeds to the judgment. The Beechers claim that the City unjustly enriched itself when it took possession of these items without crediting the Beechers for their value.
We agree that the City's accounting was inadequate. The Beechers produced evidence tending to show that the City took possession of their personal property; it was then the City's burden to produce evidence accounting for it.
A motion for an accounting seeks a kind of discovery or "compulsory disclosure"; if granted, the motion requires an adverse party to account for and surrender money or property that belongs to the moving party.
The Beechers established the elements necessary to shift the burden of production to the City. The City does not dispute that it had a creditor-debtor relationship with the Beechers, and the Beechers submitted evidence that tended to show that the City held their personal property without accounting for its value. The City has not disputed that the Beechers left behind the property identified in their motion for an accounting; in fact the March 2003 memo from the City attorney listed a number of vans, trailers, trucks, and tanks that were then "located on the site."
But this argument misplaces the burden of production. "An action for accounting is not amenable to ... summary adjudication upon a showing that [the moving party] does not possess and cannot reasonably obtain the evidence needed to [obtain an] accounting, because the very purpose of the accounting is to obtain such evidence."
The Beechers argue that AS 09.35.030, along with the City's 2003 creditor's affidavits identifying particular property as subject to execution, required the City to execute against the items it identified. The statute provides that if a court issues a writ of execution "against the property of the judgment debtor," and if "the judgment directs particular property to be sold," the judgment creditor must "sell the particular [personal] property and apply the proceeds [to the] judgment."
The Beechers also claim, however, that they reasonably and detrimentally relied on the implication of the City's 2003 creditor's affidavits that it intended to execute on the listed property, and the City should therefore be estopped from claiming it had
We have recognized two forms of estoppel that may be relevant: equitable estoppel and quasi-estoppel. Equitable estoppel requires proof of three basic elements: (1) "assertion of a position by conduct or word," (2) "reasonable reliance thereon," and (3) "resulting prejudice."
There is evidence to support a finding that the City "asserted a position" through both statements and conduct. In its creditor's affidavits it said it would "attempt ... to satisfy the judgment by levying against" certain property, including the "Marine fuel facility" and a "Gas Station," terms which could be broadly construed to include all associated movable property. As for its conduct, the City — after executing on bank accounts and wages — ceased all collection attempts for nearly eight years, which could lead a reasonable debtor to conclude that the remainder of the judgment had been satisfied through sale of the Beechers' personal property. It is also unclear from the sparse record before us whether the sales tax liens on the personal property played any role in the litigation and collection efforts.
And if the City did in fact retain the Beechers' property for its own use without accounting for its value, as the Beechers allege, it may have been unjustly enriched to the Beechers' detriment; such evidence could be relevant to the prejudice, interests of justice, and unconscionability elements of the estoppel doctrines.
While some evidence in the record thus tends to support the Beechers' position, we cannot resolve the estoppel claims as a matter of law. The superior court on remand should consider whether the Beechers have established the necessary elements of either equitable estoppel or quasi-estoppel.
We REVERSE the superior court's order granting in part and denying in part the Beechers' motion for an accounting. We REVERSE the superior court's order lifting a temporary stay on the City's collection activities, VACATE the award of attorney's fees, and REMAND to the superior court for further proceedings consistent with this opinion.
The City also claims that the Beechers' motion for an accounting is barred by laches. The City did not raise the issue of laches in the superior court, however, and we therefore do not consider it.
