Catholic Bishop of N. Alaska v. Unaatuq, LLC ( 2016 )

NOT FOR PUBLICATION
FILED
AUG 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: CATHOLIC BISHOP OF No. 15-35197
NORTHERN ALASKA,
D.C. No. 4:14-cv-00010-HRH
Debtor,
______________________________
MEMORANDUM*
DEWEY GREEN and MARY READER,
Plaintiffs-Appellants,
v.
UNAATUQ, LLC,
Defendant-Appellee.
In re: CATHOLIC BISHOP OF No. 15-35205
NORTHERN ALASKA,
D.C. No. 4:14-cv-00012-HRH
Debtor,
______________________________
LOUIE GREEN, Jr.,
Plaintiff-Appellant,
v.
UNAATUQ, LLC,
Defendant-Appellee.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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Appeals from the United States District Court
for the District of Alaska
H. Russell Holland, District Judge, Presiding
Argued and Submitted August 3, 2016
Anchorage, Alaska
Before: FISHER, PAEZ, and HURWITZ, Circuit Judges.
As part of its 2010 bankruptcy proceedings, the Catholic Bishop of Northern
Alaska (“CBNA”), sold Pilgrim Springs (the “Property”), to Unaatuq, LLC. As
part of the sale, the bankruptcy court rejected the claims of Louis Green Sr. and his
wife Nancy (the “Greens”) to have adversely possessed the Property. When
Unaatuq attempted to occupy the Property, Louis Green, Jr., Stacey Green, and
Mary Reader (the “Claimants”) refused to vacate. In this adversary proceeding,
the bankruptcy court granted Unaatuq’s motion to enforce the prior judgment
against the Greens, and ordered the Claimants to vacate the Property in support of
that prior judgment. The district court affirmed. We have jurisdiction under 28
U.S.C. § 158(d)(1), and affirm.
1. In response to Unaatuq’s motion to enforce the prior judgment,
Claimants filed a request for Rule 60(b) relief, arguing they had been denied due
process in the bankruptcy proceedings because they had not been provided with
actual notice of the sale of the Property. Assuming, without deciding, that
Claimants were entitled to actual notice of the sale of the Property, we agree with
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the district court that any error was harmless, as Claimants were allowed to present
their adverse possession claims to the bankruptcy court in this adversary
proceeding and the court correctly concluded that those claims fail. See Fed. R.
Bankr. P. 9005 (incorporating Fed. R. Civ. P. 61); In re Rosson, 545 F.3d 764, 776
(9th Cir. 2008).
2. Alaska has adopted the common law by statute. Alaska Stat.
§ 01.10.010 (“So much of the common law not inconsistent with the Constitution
of the State of Alaska or the Constitution of the United States or with any law
passed by the legislature of the State of Alaska is the rule of decision in this
state.”); Carter v. Broderick, 644 P.2d 850, 853 n.1 (Alaska 1982). Under the
common law, the statutory period for adverse possession did “not commence to
run” during Pilgrim Springs, Ltd.’s possession of the Property as lessee.
Restatement (First) of Prop. § 222 (Am. Law Inst. 1936). Any claim of adverse
possession arising during the lease period could not attach to the fee simple
ownership. See Restatement (Second) of Prop.: Landlord & Tenant § 1.2 (Am.
Law Inst. 1977); 25 Am. Jur. 2d Ejectment § 1 (2014); 75 Am. Jur. 2d Trespass
§ 18 (2014). Even assuming Alaska provides a mechanism for CBNA to have
protected its reversionary interest, see Alaska Stat. § 09.10.030, Shilts v. Young,
567 P.2d 769, 775 n.22 (Alaska 1977), Claimants have not persuaded us the Alaska
Supreme Court would adopt the minority rule that such a mechanism prevents
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CBNA from benefitting from tolling during the pendency of the lease. See 3
Thomas E. Atkinson et al., American Law of Property § 4.113 (1952).
AFFIRMED.
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