Brigdon v. Lamb

CARPENETI, Justice Pro Tem.,

dissenting in part.

I agree with all aspects of the court’s resolution of this appeal but one: the court’s *1279grant of summary judgment in favor of the Brigdons on the issue of the application of the URLTA until the date on which the denial of the assumption application was communicated to the parties. This grant rests on the court’s conclusion that “[t]he Lambs’ argument that the occupancy agreement was created to avoid the application of the URLTA is without any factual support in the record.” Op. at 1277. It is this conclusion with which I disagree.

In reviewing a grant of summary judgment this court determines “whether there was a genuine issue of material fact and whether the moving party was entitled to judgment on the law applicable to the established facts.” Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985) (quoting Brock v. Alaska Int’l Indus., 645 P.2d 188, 190 n. 6 (Alaska 1982)). To successfully oppose.a summary judgment motion,1 a party must “demonstrate that a genuine issue of fact exists to be litigated by showing that it can produce admissible evidence reasonably tending to dispute the mov-ant’s evidence.” French v. Jadon, Inc., 911 P.2d 20, 23 (Alaska 1996).

The Lambs did produce admissible evidence disputing the Brigdons’ claim that the occupancy agreement was not created to avoid the application of the URLTA A trier of fact may ultimately be unpersuaded by this evidence. However, that is not the question. The question is whether there are any facts in the record which support that conclusion. It appears to me that there are.

First, immediately prior to their experience with the Lambs, the Brigdons had “buyer-seller” relationships with at least three potential buyers, two of whom occupied the house for varying periods of time but none of whom were able to complete the purchase. The Brigdons collected monthly payments resembling rent over a sizable time period2 from these potential buyers, but incurred none of the responsibilities of landlords. This at least suggests a pattern of structuring these relationships to avoid such responsibilities.

Second, following the failure of the condition that the Lambs obtain financing, the Brigdons acted in ways consistent with the conclusion that they had structured the agreement to avoid the URLTA: They repeatedly extended (and then offered to extend) the period for the Lambs to obtain financing, thus purporting to keep alive a “buyer-seller” relationship which bore all the earmarks of a tenant-landlord relationship.

Third, the Lambs, “buyers” in name, earned no equity in the property for the monthly contract payments which they made and obtained none of the tax benefits of ownership. The Brigdons, the “sellers,” continued to accumulate equity in the property, claimed the mortgage interest deduction on their income tax return (about $18,000 for the two years in question), and maintained “landlords’ package policies” on the property during the entire period of the Lambs’ occupancy.

Finally, the house was in a deteriorated condition,3 which heightened the financial risk to the Brigdons of having tenants (as opposed to purchasers) occupying the property.

Contrary to the Brigdons’ assertions, the above facts all suggest that the occupancy agreement was “created to avoid the application of’ the URLTA. Because there remain questions of fact regarding the Brigdons’ in*1280tent to circumvent the URLTA with the occupancy agreement, I would leave this matter for resolution by the jury.

. The trial court granted summary judgment to the Lambs on this issue. The court today not only reverses the grant of summary judgment to the Lambs, but awards summary judgment to the Brigdons.

. The Brigdons collected payments for at least fourteen months between September 1988 and June 1990.

.When the previous "buyer” had left, the Kodiak Island Housing Authority noted that the house was in "very poor condition” and that Mr. Brigdon had stated that if the house could not be rented within the month that he would have to default on his loan. The Brigdons were aware of the condition of the house, and were marketing it as a "fixer-upper” property.