# Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough

> Alaska Supreme Court · October 21, 1974 · 527 P.2d 447

URL: https://www.frixlaw.com/law-library/cases/9548829

## Case

- **Full name:** CONCERNED CITIZENS OF SOUTH KENAI PENINSULA and Mary Ann McBride, Appellants, v. KENAI PENINSULA BOROUGH Et Al., Appellees
- **Court:** Alaska Supreme Court
- **Decided:** October 21, 1974
- **Citations:** 527 P.2d 447; 1974 Alas. LEXIS 273
- **Precedential status:** Published
- **Opinion:** Concurrence by Boochever
- **Judges:** Rabinowitz, Connor, Erwin, Boochever, Fitzgerald
- **Cited by:** 97 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9548829

## How later opinions describe it (automated extraction)

- recognizing that “[s]ubstantive due process is denied when a legislative enactment has no reasonable relationship to a legitimate governmental purpose”
- stating that a party seeking summary judgment under Civil Rule 56 must meet its burden by submitting “material admissible as evidence”
- holding that abandonment of hospital construction plan despite substantial expenditures would constitute undue prejudice

## Opinion text

BOOCHEVER, J.,
concurring, with whom RABINO WITZ, C. J., joins.
I concur with Justice Erwin’s opinion but do not agree that “[wjhere there is a variance between a court’s oral ruling on a motion for summary judgment and written findings prepared by the prevailing party, the oral ruling controls.” The written findings and conclusions should be the product of greater deliberation, and the general rule is that where formal findings of fact and conclusions of law filed pursuant to statute conflict with statements of fact made in an opinion or memorandum of decision, the formal findings prevail. 1 However, facts stated in a memorandum that are not inconsistent with the findings may be considered as incorporated in those findings. 2
While I believe that generally the written findings and conclusions should control, I do not regard such a rule as one that must be slavishly followed in all cases. The circumstances under which the findings are filed may be considered when appropriate. 3
Here there was no inconsistency between the judge’s oral decision based on laches and the written findings and conclusions. For the reasons that findings are not required in granting a summary judgment, that the judge signed the particular findings involved in an understandably hurried manner and that he expressly stated that he wished to supplement them by his oral opinion, I concur in the affirmance on the basis of laches.
.Dept. of Social Welfare v. Machado, 98 Cal. App.2d 364 , 220 P.2d 411 (1950) ; Devine v. Randolph Corp., 150 Conn. 232 , 188 A.2d 59 (1963) ; Woodson v. Raynolds, 42 N.M. 161 , 76 P.2d 34 (1938) ; State v. Kay, 164 Wash. 685 , 4 P.2d 498 (1931) ; Coolidge v. Rueth, 209 Wis. 458 , 245 N.W. 186 (1932).
. Wilson v. Davidson, 219 Minn. 42 , 17 N.W. 2d 31, 34 (1944).
. See City of Anchorage v. Steward, 374 P. 2d 737 (Alaska 1962). The circumstances whereby the trial judge orally espoused an erroneous theory of law in reaching his decision were such that we could not escape the belief that his initial decision was based on that error and that his subsequent signing of a counsel presented order did not reflect his true position in deciding the case so that justice required that the case be retried. The judge involved retired for reasons of ■ health a short time after signing the order involved, and prior to our decision in requiring a new trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9548829. Public record. Not legal advice.