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10562519

STATE of Alaska, Appellant, v. E. Bradford PHILLIPS, Administrator of the Estate of Patricia Phillips, Deceased, and E. Bradford Phillips, individually, and as Father and Next Friend of Sheila Toi Phillips and Lester Syren, Appellees; E. Bradford PHILLIPS, Administrator of the Estate of Patricia Phillips, Deceased, and E. Bradford Phillips, individually, and as Father and Next Frend of Sheila Toi Phillips, Cross-Appellants, v. STATE of Alaska, Jack Morrow, Claude Rogers, and Cosby Steen, Cross-Appellees

State v. Phillips

1970-06-05

Nos. 1117, 1124

266

274

470 P.2d 266

470

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:39:55.338471+00:00

CAP

Before BONEY, C. J., DIMOND, RABINOWITZ, and CONNOR, JJ., and OCCHIPINTI, Superior Court Judge.

STATE of Alaska, Appellant, v. E. Bradford PHILLIPS, Administrator of the Estate of Patricia Phillips, Deceased, and E. Bradford Phillips, individually, and as Father and Next Friend of Sheila Toi Phillips and Lester Syren, Appellees. E. Bradford PHILLIPS, Administrator of the Estate of Patricia Phillips, Deceased, and E. Bradford Phillips, individually, and as Father and Next Frend of Sheila Toi Phillips, Cross-Appellants, v. STATE of Alaska, Jack Morrow, Claude Rogers, and Cosby Steen, Cross-Appellees.

STATE of Alaska, Appellant, v. E. Bradford PHILLIPS, Administrator of the Estate of Patricia Phillips, Deceased, and E. Bradford Phillips, individually, and as Father and Next Friend of Sheila Toi Phillips and Lester Syren, Appellees. E. Bradford PHILLIPS, Administrator of the Estate of Patricia Phillips, Deceased, and E. Bradford Phillips, individually, and as Father and Next Frend of Sheila Toi Phillips, Cross-Appellants, v. STATE of Alaska, Jack Morrow, Claude Rogers, and Cosby Steen, Cross-Appellees. Nos. 1117, 1124. Supreme Court of Alaska. June 5, 1970. Charles Hagans, Hagans & Opland, Anchorage, for appellant, State of Alaska. Thomas E. Curran, Jr., and John M. Savage, Savage, Curran, Johnson & Pal-' mier, Anchorage, for appellees. Before BONEY, C. J., DIMOND, RABINOWITZ, and CONNOR, JJ., and OCCHIPINTI, Superior Court Judge.

4806

29608

RABINOWITZ, Justice. These appeals arise out of an automobile accident which occurred in December 1966, approximately five miles south of Anchorage on the Seward Highway. At 8:30 a. m. on December 23, 1966, decedent Patricia Phillips was driving towards Anchorage. With her in her 1965 Corvair Monza was her four-year old daughter. As Mrs. Phillips was proceeding north, her vehicle went into a broad-side skid, approximately across from the Yucca Club, a highway bar located at the corner of Seward Highway and 79th Avenue. While in the broad-side, Mrs. Phillips' vehicle struck a pickup proceeding south on the opposite side of the road driven by plaintiff Lester Syren. Mrs. Phillips' vehicle was demolished, and both she and her daugher were ejected from the vehicle by the force of the impact. Mrs. Phillips suffered injuries which subsequently culminated in her death some 17 days later. Mr. Syren and the minor child, Sheila Toi, also received serious injuries. Thereafter, E. Bradford Phillips, as administrator of the estate of his deceased wife, individually and as next friend of their daughter Sheila Toi Phillips, together with Lester Syren, sued the State of Alaska and three officials of the Department of Highways of the State of Alaska. After a lengthy trial without a jury, judgments were entered against the State of Alaska and cross-appellees in favor of Lester Sy-ren, Sheila Toi Phillips, and E. Bradford Phillips individually, as administrator, and as next friend. This appeal and cross-appeal followed. LIABILITY. As to liability issues, the gist of the State of Alaska's appeal is that the trial judge erred in his findings of fact and conclusions of law in holding that the state was negligent, and further erred in deciding the issue of Patricia Phillips' contributory negligence in her favor. This court's scope of review of judge-tried cases has been previously delineated in Civil Rule 52(a) and numerous opinions. It is now well established that our review is limited to a determination of whether the trial court's findings are clearly erroneous. A finding is not clearly erroneous unless from a review of the entire record we are left with a "definite and firm conviction that a mistake has been made." The reason is that the trial judge, who has .seen and heard the testimony, is in a better position to judge the credibility of witnesses and the weight to be attached to their testimony than an appellate court reviewing a printed record. We have also held that where the trial judge's findings are based on nondemeanor sources, such as documentary evidence, deposition testimony, or transcribed testimony, our scope of review is broader than under the clearly erroneous standard. In this case, appellant State of Alaska argues that we should employ a broader type of review than is exercised under the clearly erroneous criterion because of the presence of "substantial documentary and demonstrative evidence" in the record which renders the oral evidence pertaining to liability issues extremely doubtful. We do not believe that the record in the case at bar presents an appropriate instance for employment of a standard of review different from the clearly erroneous test. Adhering to our normal scope of review, we hold that the trial court's findings of fact concerning the state's negligence and , decedent Patricia Phillips' lack of contributory negligence were not clearly erroneous. We therefore affirm the trial court's conclusions of law based on these findings of fact. In his memorandum decision, the trial judge said in part: It is impossible to reconstruct exactly what happened to Mrs. Phillips' car, from the testimony, as to what caused it to go out of control, and into its fatal skid. However, from logical inferences to be drawn from the testimony, I must deduce that the skid was the product of the forces influencing the direction of travel of the vehicle, that is the tendency to drift off the paved portion, onto the shoulder, and the eroded pavement lip or rut described by the witnesses together with the icy conditions of the road on that morning. There was no showing that Mrs. Phillips knew, or should have known that this combination of factors should have been anticipated, and that defensive driving tactics employed. Without hearing her explanation of what happened, I am not, in the light of the evidence, prepared to assume contributory negligence on her part. The defense of contributory negligence, accordingly, has not been proven. Appellant State of Alaska had the burden of proving by a preponderance of the evidence that Patricia Phillips was contribu-torily negligent. Our study of the entire record shows that there is ample evidence to support the trial judge's findings of fact, and inferences from the evidence, regarding Patricia Phillips' alleged contributory negligence. Admittedly, the trial court's memorandum opinion contains several confusing references to the presumption of Patricia Phillips' due care, and the legal effect of her having left her lawful lane of traffic in violation of pertinent highway regulations. Viewed in isolation, the departure of decedent's vehicle from its lane of traffic constituted evidence of contributory negligence under Rogers v. Dubiel, so rendered inappropriate reliance on any presumption of due care. In the case at bar, however, there is ample evidence that antecedent negligence on the part of the State of Alaska caused Patricia Phillips' vehicle to leave its assigned lane of traffic. This same antecedent negligence, combined with the then icy condition of the Seward Highway, furnished substantial evidence of excuse for decedent's violation of applicable highway regulations, overcoming the inference of contributory negligence from violation of highway regulations. We need not summarize the mass of relevant evidence pertaining to the primary issue of the State of Alaska's negligence and subsidiary issues of notice, standards of highway maintenance, and causation. It is sufficient to state that our study of the entire record disclosed that the state's negligence was shown by a preponderance of the evidence. In this regard, the trial judge found in part that at the location of the Phillips' accident there was a wide, shallow rut of uneven varying depth on the east side of the highway, sufficient to cause a vehicle encountering it under certain circumstances to go out of control. This rut is the same highway defect alluded to by the trial judge in his findings pertaining to contributory negligence. In regard to this rut, the record shows that the state allowed this condition to exist in one of the most heavily travelled sections of highway in the State of Alaska. The record also supports the trial court's findings that due to the physical characteristics of this section of the highway, a vehicle travelling in the direction of Anchorage would, given icy surface conditions, have a tendency to drift to the right and go off the paved portion of the highway and onto the shoulder. Once on the shoulder, the right wheels of the vehicle could become engaged in the rut causing the vehicle to go out of control. Review of the evidence in the case at bar also leads to the conclusion that the State of Alaska had prior notice of the dangerously defective condition of the Seward Highway in the location of Phillips' accident; that the state failed to undertake appropriate reasonable measures to alleviate existing dangerous conditions; that the state's failure in this regard constituted a breach of the duty of care it owed to decedent Patricia Phillips, Sheila Toi Phillips, and Lester Syren; and that this breach of duty was the proximate cause of the fatal accident. We therefore affirm the trial judge's resolution of liability issues. Two other specifications of error relating to issues of liability remain. Appellant State of Alaska has specified as error the admission into evidence of testimony concerning a fatal accident which occurred on the Seward Highway one week prior to the Phillips' crash approximately one mile north of the site of the Phillips' accident. Appellant's position is that evidence of another accident is only relevant to show a dangerous or defective condition where the other accident took place under substantially similar conditions as the accident in question. In his memorandum decision, the trial judge referred to the other accident in the following manner: An earlier fatal accident involving similar conditions about one mile north, a week earlier was not investigated to determine its cause. A Mrs. Vasconi was killed. No system of obtaining reports from State Troopers of the investigation of the cause of accidents caused by highway defects appeared to have been put into effect. In denying appellant's motion to strike evidence relating to this other fatal accident, the trial court ruled the evidence thereof relevant as to standards of maintenance on the more heavily travelled portion of control section 113124, and as notice to the Department that such standards of maintenance were insufficient. From the foregoing, it is apparent that the trial judge did not use evidence of the Vasconi accident in his determination of the cause of the Phillips' collision. We therefore find no merit in appellant's objections to evidence relating to this other accident. Such evidence bore relevance to the issue of appellant's standards of maintenance on the more heavily travelled portions of Control Section 113124 (the section of the road where the Vasconi and Phillips accidents took place), and had further relevance to the question of whether appellant had notice that its standards of maintenance were insufficient for this portion of Control Section 113124. Appellant's remaining specification of error concerns opinion testimony of Alaska State Trooper Costlow. After the trial judge found him qualified, this witness was allowed to testify that in his opinion the Phillips' accident was caused by the rut alongside the pavement. Appellant claims the admission of the opinion of an investigating police officer, not an eyewitness, as to the cause of the Phillips accident was prejudicial error. In a recent opinion concerning qualifications of expert witnesses, we said: It is not necessary that the witness devote full time to the subject matter of his expertise; it is sufficient that he has the requisite intelligence and reasonable contact with the subject matter to allow him to demonstrate his expertise with reasonable skill. In addition to the necessity of determining an expert witness' qualifications, the trial judge must further determine whether the trier of fact could receive appreciable assistance from the opinion of the expert witness. Greater liberality is accorded to the reception of opinion evidence in non-jury cases. Guided by the foregoing rules, we hold that it was not prejudicial error for the trial judge to have admitted the opinion testimony of Officer Costlow. DAMAGES. In the main appeal, the State of Alaska argues that the trial court erred in computing the dollar value of goods and services which -decedent Patricia Phillips would have consumed over the remaining period of her life expectancy. The court employed the figure of $235 per month in its computation of this deductible item. Cross-appellants have conceded that this deductible item should have been computed at the rate of $345 per month for consumption of goods and services. Upon remand, the trial court shall recompute this deductible item using the $345 per month figure. The crux of the cross-appeal is that the damages awarded were inadequate because the trial court "went outside evidence presented at trial." More particularly, it is contended that the court's findings were clearly erroneous because damages were not awarded for the following: increased services Patricia Phillips would have rendered to her husband's insurance business after their daughter had reached majority; for the expenses of a cleaning lady in addition to a housekeeper until Sheila Toi Phillips' majority, and for a housekeeper from such date until the death of E. Bradford Phillips; for services Patricia Phillips would have rendered to E. Bradford Phillips in furtherance of his political career. Cross-appellee State of Alaska did not offer any evidence on the damages issues now specified as error in the cross-appeal. The evidentiary basis for the three disputed areas of damages is found primarily in the testimony of E. Bradford Phillips and of Philip Eden, an economist and statistician who qualified as an expert on damages. Study of the entire record has led us to the conclusion that the damages awarded were neither excessive nor inadequate. Under Alaska's wrongful death statute, broad discretion is vested in the court or jury regarding damage awards. Under our act, the damages recoverable are limited "to those which are the natural and proximate consequence of the negligent or wrongful act or omission of another." In fixing the amount of damages, the court or jury is to consider all the facts and circumstances and from them fix the award at such sum as will fairly compensate for the injury resulting from the death. Upon consideration of the pertinent portions of the record, we are of the view that the trial court did not err in its award of damages for decedent's potential contributions to E. Bradford Phillips' insurance business, and for housekeeper-cleaning lady services. To a significant degree the evi-dentiary foundation for these two disputed damage subjects rests upon assumptions and projections embodied in the opinion testimony or cross-appellants' damage expert. The weight to be given to expert testimony is within the province of the trier of fact. Given the broad mandate of AS 13.20.340(c), we affirm the trial court's award of damages for loss of Patricia Phillips' services to her husband's insurance business and for housekeeper-cleaning lady expenses. We affirm the trial court's resolution of the damage issue pertaining to the political services Patricia Phillips would have rendered to E. Bradford Phillips. Study of the court's memorandum opinion has convinced us that the trial court included the value of these services in its award of $50,-000 damages for loss of consortium. PREJUDGMENT INTEREST. Cross-appellants' final specification of error is that the trial judge failed to award interest on the damages recovered from the date of decedent's death until the date of judgment. Prior to 1965 the prevailing party in an action against the State of Alaska was entitled to interest "only from the date of judgment." In the Wright Truck case, decided in 1965, we said that the prohibition against prejudgment interest "can easily work an injustice on a party who has contracted with the state," and suggested to the legislature that it consider amending the statute. Two months later, the legislature acted on this suggestion, replacing "only from the date of judgment" with "from the date it [the amount found due from the state] became due." The statute, AS 09.50.280, now reads: If judgment is rendered for the plaintiff, it shall be for the legal amount found due from the state with legal interest from the date it became due and without punitive damages. Whether cross-appellants are entitled to prejudgment interest turns on whether the damages awarded in the wrongful death action became "due" at the time of Patricia Phillips' death, or at the time judgment was entered. Alaska's general interest statute, AS 45.45.010, uses language similar to AS 09.50.280. In regard to the legal rate of interest, AS 45.45.010(a) provides in part: "The rate of interest in the state is six per cent per year and no more on (1) money after it is due Since AS 09.50.-280 and AS 45.45.010(a) (1) delimit time periods during which interest runs in the same words, they are in pari materia, so "due" should receive the same construction in both statutes. In reaching the conclusion that cross-appellants are entitled to prejudgment interest on damages awarded in the wrongful death action from the time of Patricia Phillips' death, we find the legislature's 1965 amendment to AS 09.50.280 highly significant. It appears that judicial precedent prior to 1965 had construed our general interest statute, AS 45.45.010, as allowing prejudgment interest only in those instances where the amounts claimed were liquidated. We think the legislature's 1965 amendment to AS 09.50.280 evinces an intent that prejudgment interest be awarded more liberally than prior judicial interpretations of AS 45.45.010 would have called for. When the legislature determined that interest should run against the state from the time amounts were due rather than from the time of entry of judgment, it did not draw any liquidated-unliquidated distinctions such as were employed in previous decisions under AS 45.45.010. We believe this action on the legislature's part to be a manifestation of sound policy, for our own study of the problem has led us to the conclusion that the liquidated-unliquidated common law distinction lacks a persuasive rationale. Courts in other jurisdictions and commentators have over the years been moving away from medieval religious notions that all interest was evil toward recognition by awarding prejudgment interest of the economic fact that money awarded for any reason is worth less the later it is received, For a cause of action to accrue, one party must have breached a duty to the other, and the other must have been injured. At the moment the cause of action accrued, the injured party was entitled to be left whole and became immediately entitled to be made whole. Whenever any cause of action accrues, therefore, the amount later adjudicated as damages is immediately "due" in the sense of AS 09.50.280 and AS 45.45.010(a). All damages then, whether liquidated or unliquidated, pecuniary or nonpecuniary, should carry interest from the time the cause of action accrues, unless for some reason peculiar to an individual case such an award of interest would do an injustice. We believe this construction is in accord with the legislative intent manifested in its 1965 amendment to AS 09.50.280. The following hypothetical case illustrates the injustice of denying prejudgment interest. Suppose A inflicts precisely the same amount of damage of any type on B and C at the same moment, evaluated by juries as $1,000 each. If C wins his judgment a year later than B and does not get prejudgment interest for the year, C recovers less than B for the same injury; C has been deprived of the use value of $1,000 for one year while B has enjoyed the use value. Interest is the market, or in the case of the legal rate the legislative, evaluation of the use value of money. B obviously has not gotten too much for he had a right to be made whole immediately upon being injured, and B and C should get the same amount for the same injury, so C must have gotten too little. Only by awarding prejudgment interest from the time the cause of action accrues, when a plaintiff is entitled to be made whole, can the sort of injustice which happened to C in the hypothetical case be avoided. We are also influenced by the policy consideration that failure to award prejudgment interest creates a substantial financial incentive for defendants to litigate even where liability is so clear and the jury award so predictable that they should settle. In light of the foregoing, we affirm the trial court's determinations that the State of Alaska was negligent and decedent Patricia Phillips was not contributorily negligent. The case is remanded for recomputation of the value of the goods and services decedent Patricia Phillips would have consumed over the remaining period of her life expectancy. This deductible item is to be computed at the rate of $345 per month. The trial court is also directed to award interest on damages recovered in the wrongful death action from the date of Patricia Phillips' death until the date the amended judgment is entered. The trial court's resolution of all other damage issues in the case at bar is affirmed. . This text is taken from the trial judge's memorandum decision. Civ.lt. 52(a) states in part that "If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein." . Civ.R. 52(a) reads in part: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." . Steward v. City of Anchorage, 391 P.2d 730, 731 (Alaska 1964). . Fairbanks Publishing Co. v. Pitka, 445 P.2d 685, 687 (Alaska 1968) (footnote omitted). . In Paskvan v. Mesich, 455 P.2d 229, 240 (Alaska 1969) (footnote omitted), we said: None of these witnesses were seen or heard by the trial judge. They had testified only before the probate master and not at the hearing held by the superior court. The superior court judge had no greater opportunity than we to judge their credibility, since his only contacts with these witnesses was through the typed transcript of their testimony before the probate master. In this situation we are in as good a position as the trial judge to make a determination of fact based upon such testimony. See also Fairbanks Publishing Co. v. Pitka, 445 P.2d 685, 688 (Alaska 1968) ; Pepsi Cola Bottling Co. v. New Hampshire Ins. Co. 407 P.2d 1009, 1014 (Alaska 1965). .Appellant cites Orvis v. Higgins, 180 F. 2d 537 (2d Cir. 1950), cert. denied, 340 U.S. 810, 71 S.Ct. 37, 95 L.Ed 595. . Ridgeway v. North Star Terminal & Stevedoring Co., 378 P.2d 647 (Alaska 1963). . 373 P.2d 295 (Alaska 1962). . 2 Wigmore, Evidence § 442, 458. . Appellant relies on Billups Petroleum Co. v. Entrekin, 209 Miss. 302, 46 So.2d 781 (1950) ; Smith v. Clark, 411 Pa. 142, 190 A.2d 441, 443-444 (1963) ; Billington v. Schaal, 42 Wash.2d 878, 259 P.2d 634 (1953). .Lewis v. State, 469 P.2d 689 (Alaska, May 22, 1970). In City of Fairbanks v. Nesbett, 432 P.2d 607, 611-612 (Alaska 1967), we said: The determination of the qualifications of an expert witness and the admission in evidence of opinion testimony are matters which lie within the sound discretion of the trial judge and such determinations are reviewable only for abuse of discretion. . This standard was first articulated in Crawford v. Rogers, 406 P.2d 189, 192 (Alaska 1965). It has since been followed in Haddocks v. Bennett, 456 P.2d 453, 454 (Alaska 1969), and West v. Administrate of Estate of Nershak, 440 P.2d 119, 121 (Alaska 1968). . In re Baxter's Estate, 16 Utah 2d 284, 399 P.2d 442 (1965); Leeb v. Read, 190 So.2d 830 (Fla.App.1960). . In regard to this witness' opinion testimony, the trial court indicated that he had given [this] evidence only such weight as his limited experience at the time dictated, but I consider it of some weight, coupled with the evidence to corroborate it. . Given a life expectancy of 40 years, it appears that an arithmetical mistake was made in arriving at a total deduction of $86,244. . AS 13.20.340(b). . AS 13.20.340(c). AS 13.20.340(a) provides in part that damages shall be such as the court or jury may consider "fair and just." See also M. Ingraham, Damages for Wrongful Death in Alaska, 4 Alaska L.J. 113, 129, 145 (1966). . Merrill v. United Airlines, Inc., 177 F. Supp. 704, 705 (D.C.N.Y.1959). In our view, reliance on Rogge v. Weaver, 368 P.2d 810, 815 (Alaska 1962), and Brown v. Northwest Airlines, Inc., 444 P.2d 529, 534-535 (Alaska 1968), is inappropriate. Rogge's admonition not to reject uncontradieted and unimpeached testimony unless inherently improbable is limited to determinations of Civ.R. 41(b) motions. The Brovm decision involved workmen's compensation issues and in the opinion we alluded to the distinctive characteristics of workmen's compensation proceedings. . At one point in his decision, the trial judge stated: While I do not consider that the services of the wife of a political figure as separate and distinct from those of any person in business or professional life that such services must be especially compensated, I do consider the loss of consortium an item of damages which has been clearly established by proof in this case. . In their brief, cross-appellants exclude damages for pain and suffering from those elements of damages they contend should carry interest from the date of Patricia Phillips' death. We are therefore not required to determine whether prejudgment interest should be awarded on this type of damage. . SLA 1962, ch. 101 § 26.04. . Wright Truck & Tractor Serv., Inc. v. State, 398 P.2d 216 (Alaska 1965). . Id. at 220. . SLA 1965, ch. 30 § 2. . 2 J. Sutherland, Statutes & Statutory Construction § 5201 (Horack ed., 3d ed. 1943). . Chirikoff Island Cattle Corp. v. Robin-ette, 372 P.2d 791, 795 (Alaska 1962) (footnotes omitted), is somewhat unclear in regard to the liquidated-unliquidated claims distinction. There this court said : The interest statute of Alaska provides that the rate of interest shall be six per cent per annum on all moneys after the same become due and upon money due upon the settlement of matured accounts from the day the balance is ascertained. In this case there was no due date fixed for the repayment of the several loans which Robinette claims he made to Chirikoff Corporation and it was not even determined until the trial of this ease that Chiri-koff Corporation and not someone else was liable to Robinette for the moneys he advanced. Under these circumstances it was error to allow interest on the loan claim for any time previous to the date of the judgment. On the other hand, Columbia Lumber Co. v. Agostino, 13 Alaska 34, 184 F.2d 731, 736 (9th Cir.1950), and Valentine v. Quackenbush, 239 F. 832, 835-836, 152 CCA 618 (9th Cir.1917), do distinguish between liquidated and unliqui-dated claims under what is now AS 45.45.010. . C. McCormick, Handbook On the Law of Damages, 206-33 (1935); Developments in the Law — Damages, 61 Harv. L.Rev. 113, 136-38 (1947) ; 15 Stan. L.Rev. 107 (1962) ; Prager v. New Jersey Fidelity & Plate Glass Ins. Co., 245 N.Y. 1, 156 X.E. 76 (1927) (Cardozo, J.); Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583 (2d Cir.1961), cert. denied, 368 U.S. 989, 82 S.Ct. 606, 7 L.Ed.2d 526, 370 U.S. 937, 82 S.Ct. 1577, 8 L.Ed.2d 806 (1962). The Harvard Law Review note con-' tends that plaintiff actually suffers the loss of use of money rightfully his between accrual of his claim and judgment, so interest is a consequential injury. Denying interest on unliquidated damages erroneously subordinates plaintiff's interest in full compensation to a feeling that defendant should not be penalized for failing promptly to pay an uncertain amount. The Stanford Law Review comment argues that during the time between accrual of the cause of action and judgment, plaintiff loses and defendant gains the use of the money determined to be owing, whether the amount is ascertainable or not; therefore, no distinction between liquidated and unliquidated claims is justified. Likewise, no distinction between pecuniary and non-peeuniary injuries is justified, for defendant has unjustly enjoyed the use of amount with which the law requires him to compensate plaintiff between accrual of the cause of action and judgment. Discretion of the jury in awarding interest is indefensible, because it must lead to irrational results ; where prejudgment interest is proper, it should be mandatory. The award of prejudgment interest generally is desirable as a policy matter because it encourages early settlement and discourages defendants from using the delay between injury and judgment to defeat a legitimate demand. . We think this construction is not inconsistent with Beaulieu v. Elliott, 434 P.2d 665 (Alaska 1967). There it was held that damages for loss of future earnings should not be discounted by an interest factor back to present value. See Leavitt v. Gillaspie, 443 P.2d 61, 69 (Alaska 1968). In Beaulieu, it was reasoned that the sum of future earnings received today exceeded the value of the same money received in the future, but that this differential was offset by inflation and likely wage increase factors not taken into account in damage awards. In order to be made whole, we held that the plaintiff should receive the undis-counted value of his future earnings. Beaulieu recognized that monies received later are worth less. We do not believe Beaulieti has any application to the prejudgment interest problem in the case at bar because inflation and wage increases are not significant factors in the normal period between accrual of the cause of action and judgment.

10556625

Frank P. YOUNG, Appellant, v. STATE of Alaska et al., Appellees

Young v. State

1971-11-30

No. 1466

122

127

491 P.2d 122

491

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:13.332373+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINO WITZ, CONNOR and ERWIN, JJ-

Frank P. YOUNG, Appellant, v. STATE of Alaska et al., Appellees.

Frank P. YOUNG, Appellant, v. STATE of Alaska et al., Appellees. No. 1466. Supreme Court of Alaska. Nov. 30, 1971. Warren A. Taylor, Fairbanks, for appellant. Howard Staley, Merdes, Schaible, Staley & DeLisio, Fairbanks, for appellee State of Alaska. Charles J. Clasby, Fairbanks, for appellee Peter Kiewit Sons’. Before BONEY, C. J., and DIMOND, RABINO WITZ, CONNOR and ERWIN, JJ-

2111

12884

OPINION ERWIN, Justice. This is an appeal by Frank Young from the adverse decision of the trial court sitting without a jury. We affirm. In 1963, the State of Alaska let a construction contract to Peter Kiewit Sons' Company for the construction of a highway to Chena Hot Springs, north of Fairbanks. The contract specifications required Peter Kiewit Sons' Company to construct completed bridge approaches, the bridges themselves to be contracted for separately by the state. On September 12, 1964, Edward Krivak and appellant Young, his passenger, drove in Krivak's car to the area where the road construction began. A moveable barricade had been erected marking the end of the public highway and the beginning of the construction zone. Although several signs were posted along the road and on the barricade itself warning that the road was under construction and closed, Young and Krivak proceeded past the barricade intending to drive to Young's cabin located adjacent to the hot springs. Several miles down the road, Krivak drove toward a new bridge approach at approximately 35 miles per hour and realized too late that there was no bridge beyond. He veered to the left, ran off the road and down the embankment and, as a result, Young suffered injury. At trial, Young argued that the state and the contractor were negligent in failing to post signs at hazardous points along the route and in failing to lock the barricade in order to prevent access to the road. In his memorandum opinion the trial judge found that adequate warning signs had been posted and a barricade erected, and that Young had seen the signs and knew the road was closed, having been over the road several times in the past while it was under construction. The remainder of the opinion contains a rather involved discussion of alternative theories of recovery. The appellant's argument on appeal focuses on the concluding sentences of the lower court's opinion: Plaintiff has brought this action on a theory of negligence by the defendants. Even if the defendants were to be found negligent under any theory, and the court does not make a finding in this regard, plaintiff's travel beyond the noted warnings and knowledge of the construction area beyond lead directly to the injury he suffered and would bar his recovery. Van Reenen [Van Reenan] v. Golden Valley Electric Association, Inc., 379 P.2d 958, 961 (Alaska 1963). (emphasis added) Young argues that the lower court mistakenly applied the contributory negligence standard governing a driver's conduct to a passenger without any control over the vehicle. Appellant reasons that since it would not have been negligent for a passenger to doze, watch the scenery, or read a map, he was under no duty to keep a lookout or to warn the driver of particular hazards on the road. We think that this argument, although persuasive on the surface, misconstrues the lower court's holding. The court found the plaintiff contributorily negligent not for his failure to warn the driver of the particular hazards involved in approaching the bridge at a high rate of speed, but rather for agreeing to travel on the road under construction, with knowledge of the dangers involved. It is clear that this is a proper case for application of the contributory negligence defense. The Second Restatement of Torts, defines contributory negligence as "conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff's harm." Restatement § 466 provides that plaintiff's contributory negligence may be either: a) an intentional and unreasonable exposure of himself to danger created by the defendant's negligence, of which danger the plaintiff knows or has reason to know, or b) conduct which, in respects other than those stated in Clause (a), falls short of the standard to which a reasonable man should conform in order to protect himself from harm. The contributory negligence at issue here, of course, is of the former variety, sometimes referred to by the court as "voluntary assumption of risk." The Restatement sets out the following example of this type of contributory negligence: [I] f a plaintiff rides in an automobile knowing that the driver is drunk, ignorant of driving, or habitually reckless or careless, or that the machine has insufficient brakes or headlights, he ordinarily cannot recover against the defendant through whose negligence an accident occurs if the drunkenness, incompetence or carelessness of the driver or the bad condition of the vehicle is a contributing factor in bringing about the accident. It is well established that in certain circumstances a person can be contributorily negligent by merely agreeing to be a passenger in a vehicle. Although in Leavitt v. Gillaspie, 443 P.2d 61 (Alaska 1968), we disapproved of the assumption of risk defense, that case does not preclude defensive use of conduct by which a person negligently exposes himself to an unreasonable risk of harm. In other words, if a plaintiff voluntarily and unreasonably assumes a negligently created risk, his conduct amounts to contributory negligence and he is barred from recovery. Gillaspie, in fact, is close in point because we held that it was proper to submit the contributory negligence issue to the jury when the facts were that plaintiff decided to ride as a passenger in an automobile operated by an intoxicated driver. Further, we think there was sufficient evidence on the record so that the court's finding of contributory negligence was not "clearly erroneous." A more troublesome aspect of the lower court's opinion is its apparent failure to find the defendants negligent before reaching the issue of the plaintiff's contributory negligence. As noted above the court stated: Plaintiff has brought this action on a theory of negligence by the defendants. Even if the defendants were to be found negligent under any theory, and the court does not make a finding in this regard, plaintiff's travel beyond the noted warnings and knowledge of the construction area beyond lead directly to the injury he suffered and would bar his recovery. (emphasis added) Elsewhere in its opinion, however, the court made the following statement: Too, there are public policy considerations to be weighed. The hazards and defects incident to road construction are likely to be of a constantly shifting nature, varying from week to week and day to day. To require posting of interim notices beyond a barricade and other initial warnings would be not only unduly burdensome but possibly hazardous to the work underway. While this paragraph may be read as a statement that no duty was owed Young by the defendant to conform to a particular standard of conduct, and consequently that the. elements of a cause of action for negligence were absent, we think that the court's clear statement that it was not so ruling is controlling. Thus, the question arises: Is it proper for a court to bar a plaintiff's recovery by finding contributory negligence without first deciding whether the defendant was negligent? The well-established rule is stated by the California Supreme Court in O'Keefe v. South End Rowing Club, 64 Cal.2d 729, 51 Cal.Rptr. 534, 547, 414 P.2d 830, 843, 16 A.L.R.3d 1 (1966): The question of the plaintiff's contributory negligence is a matter of defense, to be litigated, if at all, only after the plaintiff has proved the elements of his case, including the defendant's duty and breach thereof. Doctrinally, contributory negligence presupposes negligence for which the defendant is responsible, and for which recovery would be allowed but for the concurrence of contributory negligence. In the absence of actionable negligence, contributory negligence cannot exist. Further, as a matter of policy, it is inappropriate to allow the trial court to use the contributory negligence defense to sidestep difficult proximate cause issues, or, as here, to avoid troublesome issues regarding the duty owed by the defendant which can be resolved only by an intricate balancing of public policy considerations. It might lead to excessive use of this disfavored defense. Finally, it is clear that the practice utilized by the court below may lead to unnecessary new trials in cases where this court disagrees on appeal with the lower court's finding of contributory negligence. For example, if, in this case, we were to hold that there was no contributory negligence, a new trial on the issue of defendant's negligence would be required since the trial court made no finding in that regard. Therefore, although this court has in the past approved the above practice, we deem it appropriate to announce a different rule for the future. In order to avoid the possibility of unnecessary new trials in cases appealed on the issue of contributory negligence, we find that the trial court should make a finding on the issue of negligence before reaching the issue of contributory negligence. In this way, we may avoid a piecemeal approach to litigation which might result in successive retrials. The judgment is affirmed. . In Young v. State, 455 P.2d 889 (Alaska 1969), we reversed the trial court's grant of summary judgment for the State and Peter Kiewit Sons' and remanded for trial. . Young settled out of court with Krivak for $3,000. Young v. State, 455 P.2d 889 (Alaska 1969). . Restatement (Second) of Torts § 403 (1965). . Restatement (Second) of Torts § 466, comment e (1965). . See Restatement (Second) of Torts, Appendix § 466 (1966) ; 11 Blashfield, Automobile Law and Practice § 426.6 at 501 (1968). . Gillaspie was directed at the situation where a plaintiff's recovery could be barred because he had voluntarily, but not unreasonably, assumed a risk. Where the assumption of risk was unreasonable we felt that it could be dealt with under the traditional contributory negligence rubric. Thus, at 443 P.2d 61, 68, we stated: The effect of this concept [assumption of risk] was to exculpate a negligent defendant upon the notion that a plaintiff assumed the risk of that negligence even though he was not contributorily at fault, i. e., even though he had exercised the care of the reasonably prudent man under all of these circumstances. 5¡S * As a matter of policy we disapprove of a concept which could result in a situation where an accident victim, even though not contributorily at fault, could be barred from recovery because he knew or should have known of a negligently created risk. The just concept should be whether a reasonably prudent man in the exercise of due care would have incurred the risk despite that knowledge, and if so, whether he would ' have conducted himself in the manner in which the plaintiff acted in light of all the circumstances, including the appreciated risk. This means that only the traditional notions of negligence and contributory negligence should govern cases such as we have here and that the defense of assumption of risk should not be a defense and should not be used, (footnotes omitted). .Civ.R. 52(a) ; Alaska Poods, Inc., v. Am. Mfrs. Mut. Ins. Co., 482 P.2d 842 (Alaska 1971). . Prosser states the elements of a cause of action for negligence ns follows: 1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks. 2. A failure on his part to conform to the standard required. * ⅜ ⅜ 3. A reasonably close causal connection between the conduct and the resulting injury. ⅜ * ⅜ 4. Actual loss or damage resulting to the interests of another. Prosser, Law of Torts, § 30 at 143 (4th ed. 1971). . See also 67 Am.Jur.2d Negligence § 503 (1971). . See Furrer v. Talent Irrigation Dist., 466 P.2d 605, 615 (Or.1969) (by implication) ; Osinger v. Christian, 43 Ill.App.2d 480, 193 N.E.2d 872 (1963) ; Haney v. Frederick V. Gentsch, Inc., 368 Mich. 354, 118 N.W.2d 491 (1962); Goldman v. Johnson Motor Lines, 192 Md. 24, 63 A.2d 622 (1949); Vasquez v. Morrow, 106 Colo. 540, 107 P.2d 246 (1940). See also 65A C.J.S. Negligence § 116 (1966). . See Prosser, Torts § 65 at 417-18 (4th ed. 1971). This danger is aggravated by the rule that plaintiff's contributory negligence, no matter how slight in relation to defendant's negligence, will bar recovery. . Van Reenan v. Golden Valley Electric Assn., 379 P.2d 958, 961 (Alaska 1963).

10569321

In the Matter of G. M. B., a Child Under the Age of 18 Years

In re G. M. B.

1971-04-08

No. 1412

1006

1011

483 P.2d 1006

483

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:26.771103+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

In the Matter of G. M. B., a Child Under the Age of 18 Years.

In the Matter of G. M. B., a Child Under the Age of 18 Years. No. 1412. Supreme Court of Alaska. April 8, 1971. Joe P. Josephson, Anchorage, for petitioner. John E. Havelock, Atty. Gen., Juneau, Harold W. Tobey, Dist. Atty., Robert L. Eastaugh, Asst. Dist. Atty., Anchorage, for respondent. Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ-

2968

17929

OPINION ERWIN, Justice. This case is before the Court on a Petition for Review of an order of the superi- or court incarcerating Petitioner for the period of time between his adjudication as a delinquent and his dispositive hearing. This order for temporary detention between November 13, 1970, and November 25, 1970, was stayed by this Justice on November 19, 1970, pursuant to Supreme Court Rule 33 until such time as the Supreme Court granted or denied a Petition for Review. We granted review under Supreme Court Rules 23 and 24 because this case presents important questions of law concerning the handling of juvenile cases by a master of the family court. Petitioner came before the family court pursuant to a petition which charged him as follows: In that on or about September 18, 1970, at approximately 10:30 P. M., at or near Wasilla, in the Third Judicial District, State of Alaska, said minor did then and there, wilfully and unlawfully, while in the company of two others, injure a building in that he threw rocks through an undetermined amount of windows of Wasilla High School, all in violation of AS 11.20.570 (Injury to a Building) (REF AS 47.10.010[a], 1). Petitioner admitted the allegations of the petition and the master conducting the hearing indicated he would recommend to the superior court that Petitioner be adjudged a delinquent minor. At the time of the hearing the intake officer reviewed the background of Petitioner and requested that he be returned to the custody of his parents pending the disposition hearing on December 22, 1970, because he was not a danger to himself or to the community. Instead, an order for temporary detention or placement was issued, signed by Wayne Anthony Ross as master for the judge of the superior court. It ordered the minor detained at McLaughlin Youth Center until November 25, 1970, at 9:00 a.m., for the following reason: Child should be detained for his own protection in view of present offense and past violations. Petitioner's final disposition hearing was held December 1, 1970, and Petitioner was ordered committed to the Department of Health and Welfare for an indeterminate period not to extend beyond his 19th birthday. At the outset we are confronted with the State's assertion that the occurrence of this dispositive hearing renders moot the issue of the legality of the prior temporary detention order. However, the November 19th stay order by its terms preserved any error in the temporary detention order for review by this court. Although advisory opinions should be avoided, this case falls clearly within the public interest exception to the mootness doctrine. That exception permits appellate courts to reach the merits of cases normally considered moot where questions "capable of repetition yet evading review" are raised. To invoke the exception, a two-pronged test must be met: The dispute must be a recurring one, and its nature must be such that the mootness doctrine, if applied, would effectively remove from review the governmental action protested. Here, juvenile detention between adjudicative and dispositive hearings is a matter of broad public interest, and is likely to recur. Therefore, this court may exercise discretion to hear challenges to the legality of that detention even though the occurrence of the dispositive hearing would normally render the matter moot. In order to provide guidance to the superior court for the administration of juvenile justice, we now turn to the grounds which we believe sustain the release of the youth. Petitioner challenges the legal authority of the master to sign any temporary detention order pending a disposition hearing absent the showing of special circumstances necessary for temporary detention as set forth jn Children's Rule 2(a) (6): In all cases where the authority of the master has been specially limited under this rule or under the order of appointment, he may nevertheless order the child into temporary detention where the welfare of the child and that of the public so require. In all such cases it shall be the duty of the master to transfer the matter to the superior court in the most expeditious manner possible. Petitioner further questions the order of detention because neither the record nor the detention order reflected the facts required in such an order by Children's Rule 22(c) and (d). In response to the Petition for Review, the State of Alaska makes two arguments concerning the authority of the master of the children's court. The initial argument asserts that the master had jurisdiction to detain the Petitioner because in fact masters under Children's Rule 2 have the power of superior court judges. Secondly, the State of Alaska argues that the fact that Petitioner had committed past offenses was sufficient under Children's Rule 22(c) and (d) to permit him to be incarcerated in cases "where such detention appears as a matter of record to be necessary for the protection of the juvenile or others." The authority of a master of the family court is discussed in Children's Rule 2(a) (1)and (2) which refers to the authority specifically set forth in the order of appointment. The order of appointment of the standing master in this case provided as follows: Your responsibility as Master will require you to notice and conduct hearings; pass on the admissibility of evidence; make findings of fact, conclusions of law; recommend the issuance of orders and judgments to the judge of the family court, or to any other judge presiding over the family court during the absence of the family court judge. You are authorized to administer oaths; direct and control proceedings before you in accordance with the Rules of Civil Procedure and the Rules of Children's proceedings and Rules of Evidence where applicable. The above order of appointment only gave the master authority to make findings of fact, conclusions of law, and recommendations to the judge of the family court. There is nothing in that order which gave general judicial power to Master Ross. Thus, he had no authority to order temporary detention except under the limited grant of power of Rule 2(a) (6). This conclusion is supported by Children's Rule 2(a) (4) which provides: At the conclusion of all proceedings and hearings the master shall promptly prepare a report upon the matters submitted to him . [and] promptly submit to the superior court judge the report together with written findings, conclusions and recommendations and with such proposed orders, adjudications, dispositions or commitments as may be required . Children's Rule 2(a) (6) does provide that where the authority of the master has been limited under Rule 2 or under the order of appointment, the master may "nevertheless order the child into temporary detention where the welfare of the child and that of the public so require." In all such cases, however, it is the duty of the master "to transfer the matter to the superior court in the most expeditious manner possible." (Emphasis supplied.) That duty limits the power of the master. He has no power under Rule 2(a) (6) to order detention for periods longer than are necessary to permit the superior court to review the case and to enter its own order of temporary detention, release from detention, or other appropriate disposition. On November 13, 1970, the master filled out a report entitled "Report, Findings, Conclusions and Recommendations of Master for Superior Court," which contained a description of those who appeared at arraignment, and the master's findings and conclusions. A separate document entitled "Adjudication", finding the minor a delinquent child, was signed by the superior court judge on recommendation of the master on the same day. In addition to these documents, there was a temporary detention order bearing the same date stamp signed by the master with no indication whether it had been approved by a superior court judge. From these facts there are three conclusions which may be drawn: either (1) the superior court approved all the documents, including the detention order; (2) the superior court felt the master had authority to sign such temporary detention orders; or (3) the order was not called to the attention of the superior court, which expressed no view of the order one way or another. If the order was not approved by the superior court or if the superior court felt that the master had authority to sign such an order, then the result would be the same. Children's Rule 2(a) (6) does not authorize the master to order temporary detention for periods of three to six weeks. If the superior court approved the order of temporary detention, then it would appear that the superior court failed to comply with Children's Rule 22(c) and (d). In this regard, Children's Rule 22(c) and (d) provides specifically as follows: (c) Detention in a security institution may be provided for under a temporary order as provided herein only where such detention appears as a matter of record to be necessary for the protection of the juvenile or others. (d) In all orders of disposition, including temporary orders, the court shall provide written findings of fact supporting the disposition ordered. The temporary detention order as issued provided as follows: Child should be detained for his own protection in view of present offense and past violations. The order does not set out facts sufficient to comply with Children's Rule 22(d) nor does the record disclose sufficient facts to meet the requirements of Children's Rule 22(c). A recitation of Petitioner's previous history is not sufficient in this case to show that incarceration was necessary for the protection of the petitioner or others. Incarceration pending a disposition hearing under our present Children's Rules is an extraordinary remedy. Therefore, there must be strict compliance with the Children's Rules authorizing such temporary detention. The statements of the intake officer, the successful completion of supervised probation in the past, and the total lack of any evidence indicating special circumstances requiring incarceration between the adjudication and disposition hearings should not have been disregarded. It was error for the temporary detention order to be issued in this case. The order is reversed and the superior court is instructed to proceed in the future in accord with this opinion. . See Etlieredge v. Bradley, Op.No.670, 480 P.2d 414 (Alaska, February 8, 1971) ; Hanby v. State, 479 P.2d 486 (Alaska 1970). . At 14 years of age Petitioner was placed on probation for one year because of bis commission of two counts of burglary and one count of larceny from which he was subsequently discharged after serving the period suggested in June, 1968. Petitioner was incarcerated from July, 1968, to March, 1969, for petty larceny at McLaughlin Youth Center. He returned home and was again discharged for successfully completing probation in October, 1969. In January of 1970, Petitioner was charged with burglary not in a dwelling and was given a deferred institutional order which was suspended in May, 1970. Petitioner was placed on probation for the period of one year. A psychological background report filed in 1966 indicates Petitioner liad marginal intelligence and needed supervision of the type provided by probation supervision, a fact conceded by the intake officer at the hearing. Apparently, because of a mix-up in assigning probation officers, no probation officer was assigned during the period of probation commencing in May, 1970, and ending in the present complaint, even though the basis for deferring institutional placement was the previous successful completion of probation periods by Petitioner. . The specific recommendation of the intake officer was as follows: Yes. We have one further recommendation to make to the court. This boy at the time of bis investigation in this matter was allowed to remain in the custody of his parents. He was present in his office with his parents— present in my office with his parents and his attorney last week for an interview in this matter. The boy has— is on probation for committing a delinquent act in the nature of a burglary. lie has been in McLaughlin Youth Center before and lie's been on probation for approximately a year. Up to the present time his behavior has been satisfactory on probation. He was given a deferred institutional placement and at the end of his deferment it was determined he should be placed on probation. He has been cooperative with my efforts. His parents have been cooperative. The act of injury to a building is a malicious act but — I know this not a legal defense for it but the boy was under the influence of an intoxicating beverage and under the definitions for detention for a youngster, I — I would recommend that this boy remain in the custody of his parents. I don't feel there's any danger of him again getting involved in difficulties with the law, at least not until his disposition hearing. I don't feel that there's any danger that this boy will delay the jurisdiction — leave the jurisdiction before his disposition hearing and I do not feel he constitutes a danger to himself or others. . The posture of this case is a result of our refusal to stay the dispositive hearing in the children's court pending our consideration of the Petition for Review. To have done so would have prejudiced the Petitioner and hindered his proper care and guidance. . The leading case is Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911), where the Supreme Court of the United States, in deciding to review an ICC order that had since expired, stated as follows at 515, 31 S.Ct. at 283 : The question involved in the orders of the Interstate Commerce Commission are usually continuing (as are manifestly those in the case at bar) and their consideration ought not to be, as they might be, defeated, by short term orders, capable of repetition, yet evading review, and at one time the government, and at another time the carriers, have their rights determined by the Commission without a chance of redress. (Emphasis supplied.) The doctrine has been relied upon recently by the Supreme Court of the United States in Sibron v. Mew York, 392 U.S. 40, 52-53, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), and Hall v. Beals, 396 U.S. 45, 50-51, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969) (dissenting opinions of Justices Brennan and Marshall). See also the Note, Mootness on Appeal in the Supreme Court, 83 Harv.L.Rev. 1672, 1685-87 (1970). .For a more extended discussion of this doctrine as applied to a juvenile case similar to the one at bar, see In re M, 3 Cal.3d 16, 89 Cal.Rptr. 33, 473 P.2d 737, 741-743 (Cal.1970). . Children's Rule 2(a) (1) and (2) reads in part as follows: (1) The primary responsibility for hearing, adjudicating and disposing of children's cases involving delinquency or dependency or children in need of supervision rests on the superior court. Such responsibilities shall be delegated to a master under this rule only in those instances where it is totally impracticable for the superior court to act. (2) The master shall exercise all the authority of the superior court conferred upon him by his order of appointment. . Xor does it appear likely that such judicial power could be conferred on a master, even postulating an intention by the appointing authority to do so. The following Alaska Constitutional provisions deal with the vesting of judicial power: Alaska Const. Art. IV, § 1: The judicial power of the State is vested in a supreme court, a superior court, and the courts established by the legislature. Alaska Const. Art. IV, § 4: Supreme Court justices and superior court judges shall be citizens of the United States and of the State, licensed to practice law in the State, and possessing any additional qualifications prescribed by law. Alaska Const. Art. IV, § 5: The governor shall fill any vacancy in an office of supreme court justice or superior court judge by appointing one of two or more persons nominated by the judicial council. Alaska Const. Art. IV, § 6: Each supreme court justice and superior court judge shall, in the manner provided by law, be subject to approval or rejection on a nonpartisan ballot at the first general election held more than three years after his appointment. Thereafter, each supreme court justice shall be subject to approval or rejection in a like manner every tenth year, and each superior court judge, every sixth year. AS 22.10.020 provides the jurisdiction of the superior court. AS 22.10.090 sets forth the qualifications of superior court judges. AS 22.10.100 provides the method of filling vacancies in the office of a superior court judge. . Since the rules did not provide Petitioner with a clear direction as to how to appeal to the superior court, or whether he could, we have permitted Petitioner to raise his objections to the order in the Supreme Court. In normal cases any objection to the findings of the master or his recommendations should be made to the superior court under Children's Rule 2(a) (5). . In the master's report and findings, a check mark was placed on the mimeographed form indicating that the master had found that the juvenile should remain in custody pending the disposition hearing. . This, opinion does not affect the final result in this case and therefore only the order of temporary detention is ordered stricken.

10558003

A. J. INDUSTRIES, INC., Petitioners, v. ALASKA PUBLIC SERVICE COMMISSION, Respondent, City of Juneau, City of Douglas, Greater Juneau Borough and Alaska Electric Light and Power Company, Admitted Parties

A. J. Industries, Inc. v. Alaska Public Service Commission

1971-03-09

No. 1173

198

199

483 P.2d 198

483

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:26.771103+00:00

CAP

A. J. INDUSTRIES, INC., Petitioners, v. ALASKA PUBLIC SERVICE COMMISSION, Respondent, City of Juneau, City of Douglas, Greater Juneau Borough and Alaska Electric Light and Power Company, Admitted Parties.

A. J. INDUSTRIES, INC., Petitioners, v. ALASKA PUBLIC SERVICE COMMISSION, Respondent, City of Juneau, City of Douglas, Greater Juneau Borough and Alaska Electric Light and Power Company, Admitted Parties. No. 1173. Supreme Court of Alaska. March 9, 1971.

483

2885

REVISED MANDATE J. BONEY, Chief Justice. A. J. Industries, Inc., filed a petition for review of a judgment of the Superior Court, First Judicial District at Juneau in Civil Action No. 69-28 entitled "A. J. Industries, Plaintiff v. Alaska Public Service Commission, Defendant." The case was heard by this court on October 13, 1969. On June 15, 1970, this court filed its writ ten opinion, 470 P.2d 537, and entered judgment in accordance therewith. In its mandate issued October 6, 1970, this court granted a rehearing on the issue as to whether there existed any substantial question as to the propriety of the Commission's determination of A. J. Industries' rate base in view of the recent enactment of AS 42.05.441(b). On this issue written memoranda were filed by the Public Service Commission and by A. J. Industries, and oral argument was heard by the court at Fairbanks on March 9, 1971. It Is Ordered: (1) The court finds that the enactment of AS 42.05.441(b) has no application or bearing on the rate base of A. J. Industries. (2) The case is reversed and remanded with directions to proceed in accordance with the views expressed in this court's written opinion dated June 15, 1970, except insofar as that opinion is modified by the provisions of this mandate. (3) This court's written opinion of June 15, 1970 is modified in the following respect: Because the federal income tax surcharge has expired, the Public Service Commission shall not allow for the federal income tax surcharge in establishing the interim rate of A. J. Industries, Inc. (4) The rate base of A. J. Industries, upon which the Public Service Commission's rate shall be based, shall be the value of $856,712.00, as established in this court's written opinion dated June 15, 1970. [A. J. Industries, Inc. v. Alaska Public Service Comm'n., et al., 470 P.2d 537, 542 (Alaska 1970)]. To this amount shall be added any increases in the rate base of A. J. Industries since 1966, as well as any increase in allowance for working capital which the Public Service Commission shall be authorized to exercise, in accordance with proper regulatory considerations and consistently with this court's opinion and mandate, a broad discretion in the implementation and operation of the trust ordered by this court. (5) Attorneys' fees in the amount of $350.00 are awarded to A. J. Industries, Inc. These fees shall be in addition to the $350.00 attorneys' fees awarded by this court's mandate of October 6, 1970. (6) Except as modified in this mandate, all requirements contained in this court's opinion of June 15, 1970 shall henceforth be in full force and effect.

10569228

Lee J. SONNIER, Appellant, v. STATE of Alaska, Appellee

Sonnier v. State

1971-04-05

No. 1332

1003

1005

483 P.2d 1003

483

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:26.771103+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINO WITZ, CONNOR and ERWIN, JJ.

Lee J. SONNIER, Appellant, v. STATE of Alaska, Appellee.

Lee J. SONNIER, Appellant, v. STATE of Alaska, Appellee. No. 1332. Supreme Court of Alaska. April 5, 1971. Victor Carlson, Public Defender, Anchorage, Dick L. Madson, and Bruce A. Bookman, Asst. Public Defenders, Fairbanks, for appellant. G. Kent Edwards, Atty. Gen., Juneau, Stephen Cooper, Dist. Atty., and Hal R. Horton, Asst. Dist. Atty., Fairbanks, for appellee. Before BONEY, C. J., and DIMOND, RABINO WITZ, CONNOR and ERWIN, JJ.

1714

10169

OPINION CONNOR, Justice. This case presents a single question: After sentence has been imposed upon a criminal defendant, may the trial court, several hours later, bring the defendant, defense counsel, and prosecutor back to the courtroom and impose a more severe sentence? Appellant claims that this procedure violated his rights under the double jeopardy provisions of both the state and federal constitutions. The facts of this case are not in dispute. On May 21, 1970, appellant pleaded guilty to two counts of an indictment charging him with robbery and with assault with intent to kill. Sentencing occurred before Judge Taylor at Fairbanks on June 24, 1970, at about 1:30 p. m. A sentence of five years on each count, to run concurrently, was imposed. The court also .ordered that appellant be eligible for parole at the discretion of the parole board. A minute order was entered reflecting the sentence. Appellant had not posted bail. He was in custody at the time of sentencing, and he remained in custody thereafter. At about 4:20 p. m. on the same day the district attorney and defense counsel were asked to return to the courtroom. Appellant was also then present. The judge announced that he was vacating his previous order imposing sentence, and that he was resentencing appellant to ten years on each count of the indictment, to run concurrently, but without possibility of parole. At the urging of defense counsel, the court explained what had happened in the inter im to change his mind. Apparently, the husband of the victim, a Mr. Stith, went into the judge's chambers shortly after the first sentencing and complained that the five-year sentence was too lenient. At the second sentencing the judge stated that he felt that he had made a mistake in sentencing appellant, that he was relying on his "certain plenary power" to correct his mistake, and that although defense counsel might have a meritorious appeal from the second sentencing, the trial court was not going to alter its action. The judge characterized this as a "case of first impression." He also stated that if he had sentenced the defendant to 15 years originally there could have been no complaint because such a sentence was within the authorized maximum. From the second sentence, this appeal has been brought. Appellant asks that his original five-year sentence be reinstated. Unlike the difficult problems of double jeopardy presented in other cases, we find the solution of this case to be quite simple. Nearly a century ago Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874), established the proposition that the double jeopardy clause of the federal constitution prohibits double punishment as well as double trials for the same offense. In Lange the court had mistakenly sentenced the defendant both to pay a fine and to be imprisoned, but the statute only allowed a fine or imprisonment. Upon discovering his mistake, the trial judge brought the defendant back to court five days after the original sentence and imposed a sentence of imprisonment with no fine. However, in the meantime the defendant had paid the fine in full. In holding that the double jeopardy clause vitiated the second sentence, the court stated that the protection of the double jeopardy clause is total and complete "when a second punishment is proposed in the same court, on the same facts, for the same statutory offense." 85 U.S. at 168, 21 L.Ed.2d 872. If double punishment were permissible, the constitutional guarantee would be rendered ineffective. The court articulated this principle in Lange by very clear language: "For of what avail is the constitutional protection against more than one trial if there can be any number of sentences pronounced on the same verdict? Why is it that, having once been tried and found guilty, he can never be tried again for that offense? Manifestly it is not the danger or jeopardy of being a second time found guilty. It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution. But if, after judgment has been rendered on the conviction, and the sentence of that judgment executed on the criminal, he can be again sentenced on that conviction to another and different punishment, or to endure the same punishment a second time, is the constitutional restriction of any value? Is not its intent and its spirit in such a case as much violated as if a new trial had been had and, on a second conviction, a second punishment inflicted? The argument seems to us irresistible, and we do not doubt that the Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it." 85 U.S. at 173, 21 L.Ed. 872. The proposition established in Lange is now considered an indisputable interpretation of the constitutional guarantee. This can be seen by its uniform application in a series of cases, and its recent use by the court as a basic doctrinal statement in North Carolina v. Pearce, 395 U.S. 711, 717-718, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). By proceeding as it did, the trial court here also disregarded the rule we laid down in Speidel v. State, 460 P.2d 77 (Alaska 1969). There we specifically disapproved the practice of holding a conference in chambers, which affected the sentence received by the defendant, without the defendant being present. It is noteworthy that Speidel was decided about eight months before the sentencing occurred in the case at bar. If anything, the action of the trial court in the case before us is more extreme than what occurred in Lange. At least in Lange the court had made a mistake about the legal sentence which could be imposed. Here no mistake whatever was made. The judge, in disregard of both the Canons of Judicial Ethics and the dictates of Spei-del, allowed himself to succumb to pressure from a member of the public. This is the sole reason for an alteration of the sentence. Yet one of the great purposes of the double jeopardy clause is to prevent popular pressures from operating to the detriment of the accused after he has once been sentenced. "To perpetuate this wise rule, so favorable and necessary to the liberty of the citizen in a government like ours, so frequently subject to changes in popular feeling and sentiment, was the design of introducing into our Constitution the clause in question." Commonwealth v. Olds, 15 Ky. (5 Litt.) 137, 139 (1824). That only a few hours elapsed between the first and second sentences is of no significance. If a court can increase a sentence after reflecting for a few hours, there is no logical reason why it may not also do so after a day, a week, a month, or longer. This would subject criminal defendants to that very anxiety and insecurity against which the double jeopardy clause stands as a constitutional barrier. Ashe v. Swenson, 397 U.S. 436, 456, 90 S. Ct. 1189, 25 L.Ed.2d 469 (1970) (concurring opinion of Brennan, J.); Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). We hold, therefore, that once a sentence has been meaningfully imposed, it may not, at a later time, be increased. The action of the trial court in this case was plainly violative of appellant's constitutional rights. The judgment of the superior court is reversed with directions to enter a judgment imposing a five-year sentence on each count of the indictment, the sentences to run concurrently. The judgment shall also provide for parole eligibility within a legally proper period of time. Reversed. . The 5th Amendment, United States Constitution, provides in pertinent part: " ⅜ [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb ⅜ ⅜ ⅜." It was made applicable to the states in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Article I, Section 9, Alaska Constitution, provides in pertinent part: "No person shall be put in jeopardy twice for the same offense." . The denial of eligibility for parole was illegal under A.S. 33.15.230, but this was corrected by an amended judgment fixing parole eligibility after three years and four months. . Whitton v. State, 479 P.2d 302 (Alaska 1970); DeSacia v. State, 469 P.2d 369 (Alaska 1970). . See, e. g., United States v. Sacco, 367 F.2d 368, 369 (2nd Cir. 1966); Kennedy v. United States, 330 F.2d 26, 27 (9th Cir. 1964); Duggins v. United States, 240 F.2d 479, 482 (6th Cir. 1957). . Canon 17, Canons of Judicial Ethics, provides in part: "A judge should not permit private interviews, arguments or communications designed to influence his judicial action, where interests to be affected thereby are not represented before him, except in cases where provision is made by law for ex parte application." . We have no occasion to consider in this case such nice questions ns whether the sentencing judge can resentence a defendant who has not yet been "committed" or who has not "commenced" service of his sentence. Appellee has cited us to eases from other jurisdictions which operate under a different statutory system. Walton v. United States, 92 U.S.App.D.C. 26, 202 E.2d 18 (1953; Oxman v. United States, 148 F.2d 750 (8th Cir. 1945), cert. denied 325 U.S. 887, 65 S.Ct. 1569, 89 L.Ed. 2001 (1945); Cisson v. United States, 37 F.2d 330 (4th Cir. 1930); People v. Thomas, 52 Cal.2d 521, 342 P.2d 889 (1959). Under Alaska law, any person in custody, before or after conviction, is at all times under the control of the executive branch of government. A.S. 18.65.090; A.S. 33.30.130. .Because the double jeopardy principle is dispositive, we have no reason to explore the intriguing due process problems raised by the facts of this ease.

10555796

Peter Richard TROUNCE, Appellant, v. STATE of Alaska, Appellee

Trounce v. State

1972-06-12

No. 1476

106

112

498 P.2d 106

498

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:36.285560+00:00

CAP

Before BONEY, C. J., and RABINO-WITZ, CONNOR, ERWIN, and BOOCHEVER, JJ.

Peter Richard TROUNCE, Appellant, v. STATE of Alaska, Appellee.

Peter Richard TROUNCE, Appellant, v. STATE of Alaska, Appellee. No. 1476. Supreme Court of Alaska. June 12, 1972. Herbert D. Soli, Public Defender, Bruce A. Bookman and Lawrence J. Kulik, Asst. Public Defenders, Anchorage, for appellant. John E. Havelock, Atty. Gen., Juneau, Monroe N. Clayton, Dist. Atty., Lyle L. Carlson and James Hackett, Asst. Dist. Attys., Fairbanks, for appellee. Before BONEY, C. J., and RABINO-WITZ, CONNOR, ERWIN, and BOOCHEVER, JJ.

3839

22732

OPINION RABINOWITZ, Justice. Appellant Peter Trounce, together with five codefendants, was indicted for the separate offenses of assault with a dangerous weapon and malicious destruction of personal property. After trial by jury, Trounce was found guilty of assault with a dangerous weapon but was acquitted of the malicious destruction of personal property count. Trounce was thereafter sentenced to two years' imprisonment with one and one-half years suspended. Trounce now appeals from this conviction. In this appeal Trounce urges two specifications of error. First, Trounce contends that the trial court should have granted his motion for judgment of acquittal as to the assault with a dangerous weapon charge. Secondly, Trounce argues that the trial court committed reversible error when it failed to grant his motion to dismiss the assault with a dangerous weapon count because of its duplicity. The indictment in the case at bar in part charged Trounce with the crime of assault with a dangerous weapon in the following manner: That on or about the 4th day of July, 1970, at or near Fairbanks, in the Fourth Judicial District, State of Alaska, . . . Peter Richard Trounce [and others] . . . being then and there armed with dangerous weapons, to-wit: lengths of chain, did wilfully, unlawfully and felo-niously assault Edward Patrick Leonard and Terry Don Lee, by striking them about the face, head and back with said lengths of chain. The incidents that led to Trounce's conviction were horrifying and reflective of some of the most lawless attributes of man. This tale of violence begins in the early morning hours of July 4, 1970, by the shores of Harding Lake, a popular recreation area located approximately 49 miles south of Fairbanks. Shortly after midnight, several of the occupants of two' cars, a Ford Falcon station wagon and gunmetal gray sedan, got into a fight at Pearl's Landing. It seems that the fight started when the operator of the sedan took a shoe belonging to the operator of the station wagon and threw it into the lake. Several vacationers, some soldiers from Ft. Wainwright and some civilians, who happened to be in the vicinity of Pearl's Landing, witnessed the scuffle, intervened, and broke it up. After the fight was stopped, the original combatants and their friends got into their respective cars and drove off. As they departed, the occupants of the sedan informed the civilians and the soldiers who had intervened in the fight that they would be back and would get even with them. At approximately 3:30 the same morning, Russell Gillaspie, one of the civilians who helped break up the earlier fight was sitting in his camper, with his wife and some visitors. At that time he "heard a screeching of tires and a couple of cars pulled" into the landing. Gillaspie recalled that one of the vehicles was of the same color as the sedan that had been seen at the landing earlier that same morning; the other vehicle was an old blue pickup. This witness saw six people get out of the two cars with chains and clubs in their hands and stated that they were "swinging [the chains] around the air and beating the ground and hollering and ranting and raving out there." Gillaspie next observed that the chain wielders were beating on the latrine where Sergeant John Daly, one of Gillaspie's guests, had gone just a few minutes prior to the arrival of the two vehicles. Edward Leonard, a serviceman who had been present at the earlier fight, was at this time in the area of the latrine building. Leonard saw the pickup and sedan drive up. He identified the car as the one that had been there earlier and stated that some of the people who drove up at this time were involved in the earlier fight. According to Leonard, they all jumped out of the car, looking like "they were going to beat us up." He noted that the occupants of both vehicles were taking chains out of the rear of the pickup. At this point, Leonard testified, "All these men that were in the car, and the pickup moved towards me at one time all together." and "[tjhey were around me; I was completely encircled" by seven chain carrying assailants. As the group came closer, Leonard was struck by a chain. Leonard then ran off into the woods pursued by an assailant armed with a chain. During his flight, Leonard fortuitously found a length of pipe, picked it up, and with it persuaded his pursuer to break off the chase. When the two vehicles drove up, Terry Lee, another serviceman, moved to be near Edward Leonard. Lee saw seven or eight people get out of the vehicles and observed that some had chains and one individual had a rifle or shotgun. According to Lee, three or four members of the group "came around" Leonard and himself. Lee said that Leonard was then told to take off. Lee next remembers being hit four or five times by chains. Sergeant Daly was in the latrine, at the time the two vehicles arrived. The next thing he heard was screaming and yelling for him to come out; he was told he was going to get his. When he came out, he saw a bunch of youths standing not far away holding five or six chains, two or three clubs, and a shotgun. According to Daly, the group at this point in time was talking about how they were going to get even with the soldiers. Daly then made a successful dash for the Gillaspie camper. The state's evidence showed that all of the assailants were young with the exception of an older man who appeared to be the one who was "directing or commanding these young people what to do," and "giving orders . . . telling to go down and get this one, do this, do that." After the two servicemen had been chained, some of the group directed their attention towards Gillaspie's camper, chaining the camper and smashing a window. According to Sergeant Daly, the persons that were outside the camper threatened they were going to get even with the soldiers. The harassment of the occupants of the camper lasted for approximately ten minutes, and then the entire group left together, using the two vehicles. Just prior to the departure of the two vehicles, John Somaduroff, a young high school student, and two friends were walking down a road which led to the boat landing. Somaduroff described the scene he came upon in the following manner: What I saw was, there was one guy with his — he was kind of beat up, hanging on a pole. And there was another guy laying off to the side and there were several- — several men running around. I think a couple of guys had chains and one guy had a gun. And he was yelling . 'Come out or I'm gonna shoot . through the camper.' Somaduroff was the only prosecution witness who was able to identify Trounce as being at Pearl's Landing, although he could not remember Trounce's exact location or what Trounce was doing at the time. After the assailants left, Somaduroff's two friends, Bruce and Blake Gwalthney, chased the vehicles and were successful in getting their license numbers. Gillaspie called the state police office in Fairbanks, giving the dispatcher a description of the two vehicles and their license numbers. Later in the day Officer DeTemple of the Alaska State Troopers spotted the pickup truck just north of Tok, Alaska, some 250 miles south of Harding Lake. Shortly thereafter, back in Tok, Officer DeTemple came upon the gunmetal sedan with four occupants in it. Trounce was identified-as one of the occupants of the sedan. De-Temple testified that he asked the four occupants of the sedan "why they looked so— well, they weren't — they didn't look beat up, but they looked like they'd gone a few rounds with somebody . [and] one of them said that they had had a disagreement." No arrests were made at this time. Officer Morris Rogers of the Alaska State Troopers related that on the same day, July 4, he also had occasion to stop the sedan on the Richardson Highway. This witness said that at this time he observed Trounce, and that Trounce's forehead showed signs of a scuffle. I recall there was . a slight fresh looking scab over one of his eyes. It did not appear serious so I did not take critical note of it, but I do recall that there was a slight injury to his — above one of his eyes. Just before the prosecution rested its case, trial counsel for Trounce stipulated that in the case of the registration of the automobile that was stopped by Trooper Nickel, the district attorney and I have agreed to stipulate the registration into evidence plus the fact that the car is registered in the name of the father of the defendant Trounce. We hold that the evidence detailed above supports the trial court's denial of Trounce's motion for judgment of acquittal. Alaska's Code of Criminal Procedure abrogates the distinction between accessories and principals: "[A] 11 persons concerned in the commission of a crime, whether they, directly commit the act constituting the crime or, though not present, aid and abet in its commission, shall be prosecuted, tried, and punished as principals." Here, Trounce was charged as a principal, although the theory of the prosecution's case was that he aided and abetted the assaults of Lee and Leonard. We note that the trial court properly instructed the jury on the prosecution's theory of aiding and abetting, as well as the requisite intent for conviction of the crime of aiding and abetting an assault with a dangerous weapon. On appeal from a denial of a defense motion for judgment of acquittal, we view the evidence and the inferences to be drawn therefrom in a light most favorable to the prosecution. Beavers v. State, 492 P.2d 88, 97 (Alaska 1971). Analysis of the prosecution's case in this light has convinced us that fair-minded men in the exercise of reasonable judgment could have differed on the question of whether Trounce's guilt had been established beyond a reasonable doubt, and that therefore the motion for judgment of acquittal was properly denied. Bush v. State, 397 P.2d 616 (Alaska 1964). Here the jury had before it evidence that the gunmetal sedan, which was registered in Trounce's father's name, was at Pearl's Landing at the time the servicemen and Gillaspie broke up the first fight. The state also showed that before leaving, the three occupants of the Trounce sedan told the servicemen and Gil-laspie that they would be back to get even with them. Later the same morning, the Trounce vehicle returned accompanied by a pickup truck. The occupants of both vehicles, numbering then at least six, got out of their respective vehicles, proceeded to the rear of the pickup truck, and armed themselves with chains. After some preliminaries which involved hollering, beating the ground with the chains and whirling the chains in the air, the group encircled two servicemen, Leonard and Lee, striking them with their chains. Some of the group also pounded Gillaspie's camper with chains. There was evidence that all of the young assailants were acting under the direction of an older man. One state witness placed Trounce at the scene of the chainings shortly after they had taken place. All left Pearl's Landing at the same 'time. Later that day, Alaska State Troopers saw Trounce in the gunmetal sedan on two separate occasions. Trounce "appeared to have gone a few rounds" and one Alaska State Trooper noticed that Trounce's forehead showed signs of a scuffle. All of the other occupants of the Trounce vehicle at the time it was stopped by the Alaska State Troopers were identified by other prosecution witnesses as having been at Pearl's Landing during the chainings. In our view, this evidence warranted denial of Trounce's motion for judgment of acquittal and adequately supports the jury's guilty verdict. The jury could have found beyond a reasonable doubt that Trounce was a member of a group that planned to seek revenge against the soldiers and civilians who had earlier stopped a fight that involved some members of the group. The jury could have further concluded that Trounce actively aided and abetted in the chainings of Leonard and Lee which were committed by the group. Trounce also asserts that the trial court erred in denying his motion to dismiss the assault with a dangerous weapon count of the indictment on the ground that it was duplicitous. Criminal Rule 12(b) (2) provides, in pertinent part: Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. . Failure to present any such defense or objection constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Under the parallel Rule 12(b) (2) of the Federal Rules of Criminal Procedure, it has been held that an objection to the indictment on grounds of duplicity is waived unless this objection is raised prior to trial, e. g., Pino v. United States, 125 U.S.App.D.C. 225, 370 F.2d 247, 249 n. 1 (1966); Beauchamp v. United States, 154 F.2d 413 (6th Cir. 1946), or, at the very least, unless the objection is raised prior to the verdict, e. g., Mitchell v. United States, 434 F.2d 230 (9th Cir. 1970); United States v. Costner, 359 F.2d 969 (6th Cir. 1966). In the case at bar, the record shows that although the indictment was returned in July 1970, and that Trounce was represented by counsel at his arraignment in November 1970, his trial counsel first moved to dismiss the assault with a dangerous weapon count at the trial, which was commenced in January 1971, after the jury had been impanelled. For purposes of this appeal, we will consider the issue of the duplicitous character of the assault with the dangerous weapon count as having been timely raised. As a matter of proper procedure, a motion to dismiss is not the appropriate way to remedy duplicity. Criminal Rule 7(c) provides in part: No indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of a defect or imperfection in matter of form in the indictment, which does not tend to prejudice the substantial rights of the defendant. It is generally recognized that the rule against duplicity is a pleading rule rather than one that affects substance. Duplicity, therefore, is not necessarily a fatal defect. Rather, charges improperly joined in a single count can be segregated into separate counts in the same indictment. See 1 C. Wright, Federal Practice and Procedure § 142 (1969). It would have been proper, then, for counsel to move to amend the indictment as suggested by Criminal Rule 7 (e), or, as suggested by Criminal Rule 14, to move to require the prosecutor to make an election. See 1 C. Wright, Federal Practice and Procedure § 145 (1969). Assuming the assault with a dangerous weapon count was duplicitous in that it alleged separate assaults upon Leonard and Lee, we must now determine whether this defect requires reversal of Trounce's conviction. In Drahosh v. State, 442 P.2d 44, 48-49 (Alaska 1968) , this court said: Normally, in the absence of a showing that a defendant's substantial rights were prejudiced thereby, an otherwise proper judgment of conviction will not be disturbed because of a duplicitous count in the indictment or complaint, (footnote omitted.) Reversing the conviction in Drahosh, we emphasized that "there remains the possibility that there was no unanimity as to either, or both, of these separate offenses." 442 P.2d at 49. Unlike the Drahosh situation, here the jury was specifically instruct ed that before they could find Trounce guilty they must find that he aided and abetted in the chain assaults upon both Leonard and Lee. On the basis of our study of the entire record, and in particular the evidence which has been heretofore detailed, we cannot find that any of Trounce's substantial rights were prejudiced by the assumed duplicitous wording of the indictment. For we fail to discern in the evidence any significant basis for the possibility that the jury's verdict of guilt as to the assault with a dangerous weapon count lacked unanimity as to either, or both, of these assaults. Compare Nickerson v. State, 492 P.2d 118 (Alaska 1971). The judgment of conviction is affirmed. . In his brief Trounce further specified that it was reversible error on the trial court's part to have refused his requested instruction which pertained to the essential elements of the crime of assault with a dangerous weapon as charged in the indictment. At oral argument counsel for Trounce abandoned this specification of error. . Pearl's Landing consisted of a strip of shoreline 50 feet wide, a boat ramp for loading and unloading boats, two rest rooms, and a small store building. Parking space for vehicles was also available. . The only prosecution witness whose testimony differed was that of Terry Lee. This witness was asked if it appeared that the old man was giving instructions. Lee answered, "No. Just doing a lot of yelling. . . ." . Many of the prosecution witnesses had difficulty identifying the defendants. Edward Leonard, one of the two servicemen who was chained, testified that because of the time lapse he could not identify any of the individuals involved. Terry Lee, the other victim, said that the assailants had much longer hair than that of the defendants present in the courtroom, and that two of the assailants had beards at the time. Two other state witnesses, Mrs. Bonnie Daly and Melvin Wilson, admitted difficulty in making an in-court identification of any of the defendants. They asserted that their difficulties stemmed from the fact that the individuals they saw during the Pearl's Landing chainings had long hair and beards. During the examinations of several state witnesses, the prosecutor showed the pictures of the defendants that had been taken by the Alaska State Troopers on July 4. The pictures were of no assistance to any of the state's witnesses with the exception of John Somaduroff. The witness Somaduroff was shown the photographs of the defendants and stated that the picture of Trounce refreshed his recollection, and he was then able to make an in-court identification of Trounce. On cross-examination by Trounce's counsel, the witness admitted that the only difference between the photograph and Trounce's in-court appearance was that Trounce's hair was somewhat shorter and cleaner at present. On redirect, Somadur-off explained that he could not identify Trounce in the courtroom before being shown the photograph "[b]ecause I can't see too well from here . I busted my glasses and these are just temporary." Counsel for Trounce stated that he had no objection to the admission of Trounce's photograph into evidence, and later in the trial moved its admission. . Officer DeTemple asked the two boys who were in the pickup for identification and ascertained that one was Harry John Ketz-ler and the other Robert Benefield. Other prosecution witnesses placed both Ketzler and Benefield at the landing during the time the chainings occurred. . Officer DeTemple also identified Clifford Lewis Avey and John Braham as being occupants of the sedan that he had stopped at Tok. Several state witnesses placed Avey and Braham at the landing at the time the servicemen and Gillaspie broke up the first fight. Several prosecution witnesses also placed Avey and Braham at Pearl's Landing at the time the chainings took place. . AS 12.15.010. E.g., Ransom v. State, 460 P.2d 170, 172 (Alaska 1969). . Crim.R. 12(b) (3) provides that "[t]he motion shall be made before the plea is entered, but the court may permit it to be made within a reasonable time thereafter." . Crim.R. 7 (e) provides : If any error in form shall exist in any indictment . . . or in the manner of describing the offense, . . . the court may permit the indictment or information to be amended at any time before verdict or finding if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced. . Crim.lt. 14 provides in pertinent part: If it appears that a defendant or the state is prejudiced by a joinder of offenses . in an indictment . . . the court may order an election or separate trials of counts . or provide whatever other relief justice requires. . The rationale of the rule which bars duplicity has been explained as follows: It protects a defendant's right under the Sixth Amendment and Rule 7(c) to notice of the 'nature and cause of the accusation' against him so that he may prepare his defense. It also insures that if defendant is convicted, the offense upon which he is convicted will clearly appear from the verdict, so that appropriate punishment may be imposed. Finally, duplicity is prohibited because confusion as to the basis of the verdict may subject defendant to double jeopardy in the event of a subsequent prosecution. 8 J. Moore, Federal Practice ¶ 8.08 [1] (2d ed. 1968) (footnotes omitted). .Drahosh involved two separate crimes, namely, failure to remain at the scene of an accident and failure to render assistance to an injured passenger. The two charges were joined in a single count in the complaint and were similarly joined in the form of verdict. There we held this to be violative of Orim.R. 8(a) which, while it allows two or more offenses to be charged in the same indictment, requires that each offense be charged in a separate count. . After all parties liad rested, counsel for Trounce renewed his motion to dismiss the assault count because of its duplicity. In denying the motion, the trial court said in part, after discussing when the motion should be made and the possibility of requiring an election by the prosecution in certain circumstances: I have considered it in the theory of this case, . . . being fundamentally one of aiding and abetting, that it doesn't really change . . . the burden of either the state or the defendant or any of the defendants. . . . If you were to strike out . or get another count there . . . separating the two soldiers Leonard and Lee, . . the whole theory of this ease, as I see [it] is there was a group assault on these people out there and that is in essence the criminal act which is being prosecuted. So . it reduces down to virtual insignificance just who they were or how many there were.

10435974

A.C.E. CONSTRUCTION INC., Pacific Cascade Corporation, Joseph C. Lane, Frances Lane, Pacific Bank Mortgage Company, Alaska National Bank, J. C. Penney, and Lincoln National Life Insurance Company, Appellants and Cross-Appellees, v. CHENA CONSTRUCTION CORPORATION, Appellee and Cross-Appellant

A.C.E. Construction Inc. v. Chena Construction Corp.

1982-07-09

Nos. 5664, 5682

602

605

647 P.2d 602

647

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:41:52.638769+00:00

CAP

Before RABINOWITZ, C. J., and CON-NOR, BURKE, MATTHEWS, and COMPTON, JJ.

A.C.E. CONSTRUCTION INC., Pacific Cascade Corporation, Joseph C. Lane, Frances Lane, Pacific Bank Mortgage Company, Alaska National Bank, J. C. Penney, and Lincoln National Life Insurance Company, Appellants and Cross-Appellees, v. CHENA CONSTRUCTION CORPORATION, Appellee and Cross-Appellant.

A.C.E. CONSTRUCTION INC., Pacific Cascade Corporation, Joseph C. Lane, Frances Lane, Pacific Bank Mortgage Company, Alaska National Bank, J. C. Penney, and Lincoln National Life Insurance Company, Appellants and Cross-Appellees, v. CHENA CONSTRUCTION CORPORATION, Appellee and Cross-Appellant. Nos. 5664, 5682. Supreme Court of Alaska. July 9, 1982. John A. Treptow, Phyllis C. Johnson and F. Ross Boundy, Atkinson, Conway, Bell & Gagnon, Anchorage, for appellants and cross-appellees. J. John Franich, Jr. and Mary A. Nordale, Law Offices of Mary A. Nordale, Fairbanks, for appellee and cross-appellant. Before RABINOWITZ, C. J., and CON-NOR, BURKE, MATTHEWS, and COMPTON, JJ.

1453

8836

OPINION PER CURIAM. This case arises under a construction contract. Appellants will be referred to collectively as "Pacific Cascade" and appellee will be referred to as "Chena". Chena was a subcontractor on the project in question. Ultimately, after a trial to the court, judgment was entered in favor of Chena, for the subcontract price. Pacific Cascade does not challenge the propriety of awarding to Chena the subcontract price. But it has appealed as to two discrete issues. These are: (1) whether Chena had corporate capacity to sue under AS 10.05.720, which requires that a corporation, in order to commence or maintain an action, must allege and prove that it has paid its annual corporation tax and has filed its annual report in a timely manner, and (2) whether Pacific Cascade was entitled to an offset for the cost of extending sewer and water lines to the construction site. On cross-appeal, Chena urges that the trial court should have granted Chena's motion to re-open the case so that Chena could show compliance with AS 10.05.720. I. In March, 1980, AS 10.05.720 read as follows: "No domestic or foreign corporation may commence or maintain a suit, action or proceeding in a court in the state without alleging and proving that it has paid its annual corporation tax last due and has filed its annual report for the last calendar or fiscal year for which the report became due. A certificate of the payment of the annual tax and filing of the annual report is prima facie evidence of the payment of the tax and the filing of the annual report. The commissioner shall issue the certificate or a duplicate for a fee of 25 cents." Chena alleged in its initial and subsequent complaints that it had paid its taxes and filed its annual reports when due. Pacific Cascade denied this allegation for lack of information or knowledge. At the close of Chena's evidence at trial, Pacific Cascade moved for a directed verdict because Chena had failed to prove compliance with AS 10.05.720. Chena was then allowed to reopen its case to show compliance with the statute. Charles P. Rees, Chena's president, testified that on about January 30,1980, he had made out the annual report for 1979 and had sent it, together with a check for the corporation tax due for 1980, to the Departs ment of Commerce and Economic Development in Juneau. Copies of those documents were placed in evidence. Rees testified that he had no knowledge previous to the trial of whether the Department had ever received these documents. He also offered to re-execute the documents and send them again to the Department. The superior court ruled that Chena had made a good faith effort to comply with the statute, and that Chena was competent to maintain this civil action. During Chena's rebuttal case Rees testified that a re-executed annual report and an appropriate check had been sent to a law firm in Juneau, Alaska, on March 25, 1980, with instructions to deliver them to the Department. After trial but before judgment was entered, Chena moved to supplement the record to include a certificate of compliance from the Department. The certificate, which was submitted with the motion, showed that Chena was in compliance with AS 10.05.720 as of February 1, 1980. The court denied Chena's motion. Pacific Cascade asserts on appeal that a mere good faith effort to comply with the statute does not amount to compliance, because the statute requires proof that the corporation actually has paid the tax and has filed its report. Pacific Cascade also urges that the statute, being clear, should be applied strictly. Pacific Cascade, with commendable candor, recognizes that the court could have granted a continuance or reserved ruling on the motion to dismiss until the close of all the evidence, thus allowing Chena an opportunity to comply with the statute but it argues that it is not permissible to do what the court did here in holding that Chena's good faith attempts to comply were tantamount to full compliance with the statute. Chena answers by arguing that production of a certificate of compliance, mentioned in AS 10.05.720, is not the exclusive means of proving compliance. Chena urges that a corporation can, as it did here, adduce other forms of evidence to show that the tax has been paid and the report has been filed. At this point, the argument develops into two branches. First, Chena argues that it made out a prima facie case of compliance which was unrebutted by appellant. Second, it argues that it proved actual compliance by showing that the report and a check for the tax were placed in the mail. It is beyond the ability of a corporation, says Chena, to police the United States Post Office or an Alaska government agency. Therefore, proof of mailing should be sufficient to show compliance, and it is not in all cases necessary to produce the certificate of compliance. In our opinion, the superior court should have granted Chena's motion to reopen the case to permit the filing of the certificate of compliance. To have granted the motion would not have required any additional testimony. The certificate was self-authenticating under Alaska Rule of Evidence 902(1). It demonstrated beyond peradventure that Chena had complied with AS 10.05.720 as of February 1, 1980. Its admission into evidence would have eliminated one of the main questions presented in this appeal: whether the showing of a good faith effort to comply is the equivalent of showing actual compliance with that statute. In the circumstances of this case we hold that it was an abuse of discretion and, therefore, error not to grant Chena's motion. We deem the record on appeal to be augmented by the certificate and, on that basis, we hold that Chena was in compliance with AS 10.05.720. In view of our holding it is not necessary to consider whether Chena made a prima facie showing of compliance, or whether Pacific Cascade waived the defense of corporate capacity by failing to raise it before trial. II. Pacific Cascade argues that Chena committed negligent misrepresentation as to the availability of water and sewer lines to the construction project, in a letter sent from the president of Chena to Pacific Cascade on March 24,1976. The superior court rendered findings against Pacific Cascade on this question. The letter in question did not refer to any specific site at which water and sewer lines were available, but merely referred to "the proposed location." The superior court found that "it could have easily referred to Burgess Industrial Park," i.e., to the general area in which the project was to be constructed. We have reviewed the evidence which bears upon the superior court's findings. We will not discuss that evidence at length, for we are satisfied that the court's findings as to negligent misrepresentation were not clearly erroneous under Civil Rule 52(a). Therefore, the judgment must be affirmed in its entirety. AFFIRMED. . Chena made two motions to re-open the case. The first motion was granted, allowing Chena to submit evidence of compliance with AS 10.-05.720. When Chena later received a certificate stating that it had complied with AS 10.-05.720, it made its second motion to re-open the case. The trial court denied this motion. Chena appeals the trial court's denial of its second motion. . The permissibility of this procedure is recognized in the case law of other jurisdictions with similar statutory requirements. See, e.g., Mather Construction Company v. United States, 475 F.2d 1152, 1155 (Ct.Ct.1973); American Land Development Corp. v. Hillman, 138 So.2d 756, 758 (Fla.App.1962); Michigan Rural Development, Inc, v. El Mac Hills Resort, Inc., 34 Mich.App. 505, 191 N.W.2d 733, 734-35 (Mich.App.1971). . See Appellate Rule 210(h). Pacific Cascade argues that the certificate was contradictory to what the evidence established at trial. To the extent that Pacific Cascade contends either that the certificate is not genuine or that Chena had not complied with the statute by the time that it made its motion to re-open, Pacific Cascade should address those questions to the superior coujt after the mandate has issued in this case.

10436005

Louise A. MOREL, Appellant, v. Jose M. MOREL, Appellee

Morel v. Morel

1982-07-09

No. 5706

605

609

647 P.2d 605

647

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:41:52.638769+00:00

CAP

Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.

Louise A. MOREL, Appellant, v. Jose M. MOREL, Appellee.

Louise A. MOREL, Appellant, v. Jose M. MOREL, Appellee. No. 5706. Supreme Court of Alaska. July 9, 1982. Suzanne Weller, Alaska Legal Services Corp., Anchorage, for appellant. Karla F. Huntington, Anchorage, guardian ad litem. No appearance for appellee. Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.

1895

11605

OPINION COMPTON, Justice. This is an appeal brought by Louise Morel from that portion of a divorce decree awarding custody of the parties' son to the father, Jose Morel. I. FACTUAL AND PROCEDURAL BACKGROUND Louise and Jose Morel were married in 1977 in Miami, Florida. At that time, Louise was seventeen years old and Jose was nineteen. Their son, Nicholas, was born in 1977. Approximately one year after Nicholas' birth, Louise and Jose moved to Anchorage. They left Nicholas with Jose's parents in Florida until they were settled, which took about three months, and then brought Nicholas to Anchorage with them. Shortly thereafter, Jose and Louise separated. Louise established her own residence in Anchorage with Nicholas. A few months later, Jose returned to his parents' house in Florida, taking Nicholas with him. Nicholas stayed with Jose until early 1979, at which time Louise brought him back to Anchorage. Louise was then living with Carl Shoemaker, her fiance (now husband). Louise and Carl Shoemaker have a son, Chad, who was one year old at the time of trial. In February 1979, Louise filed for a divorce and custody of Nicholas. The matter came to trial in December 1980. Although Jose contested the award of custody to Louise, his contacts with Nicholas were minimal throughout this period. At trial, the principal unresolved issue was whether custody of Nicholas should be awarded to Louise or Jose. The guardian ad litem for Nicholas, the court custody investigator, and the psychiatrist who examined the parties and Nicholas recommended that custody be awarded to Louise. Their recommendation was based upon Nicholas' strong attachment to his mother and half brother and upon Louise's capabilities as a parent. They believed awarding custody to Jose would not be in the best interests of Nicholas because of the lack ofa parent-child relationship between the two and because of Jose's inability to fulfill his son's emotional needs. Jose and his mother, Velgeca Morel, appeared at the trial. Both testified in favor of the court awarding custody to Jose. The court decided that although Louise and Jose are both fit parents, it would be in the best interests of Nicholas to award custody to Jose, with reasonable and liberal rights of visitation granted to Louise. The court found that the evidence produced at trial tended to indicate that Jose had on occasion in the past inflicted physical abuse upon Louise, but that there was no evidence of any potential abuse by Jose upon Nicholas. The court also found that the evidence produced at trial revealed that Louise "has a severe psychological problem that may affect her parenting abilities" and that Nicholas may have some type of language comprehension problem needing attention. Louise filed this appeal and obtained an order granting her interim custody and child support for Nicholas. Louise argues that the superior court abused its discretion by finding that it was in the best interests of Nicholas to award custody to Jose. Jose has not responded to Louise's arguments or to the appeal. We agree that the superior court erred in awarding custody to Jose and for the reasons set forth below we reverse the judgment. II. THE CUSTODY DETERMINATION When reviewing a superior court's decision on a custody matter, we give great weight to the court's experience and evaluation of demeanor testimony. Horton v. Horton, 519 P.2d 1131, 1132 (Alaska 1974), citing Sheridan v. Sheridan, 466 P.2d 821, 824 (Alaska 1970). The superior court's discretion, however, is not unlimited. As we stated in Horton v. Horton On review we must determine whether that discretion has been abused, perhaps by assigning too great a weight to some factors while ignoring others, perhaps by elevating the interests of one of the parties to the dispute above that of the child, perhaps by making a clearly erroneous finding with respect to some material issue, or perhaps in some other manner. 519 P.2d at 1132. The standards for determining custody of a minor child are set forth in AS 09.55.205: The court shall determine custody in accordance with the best interests of the child. Neither parent is entitled to preference as a matter of right in awarding custody of the child. In determining the best interests of the child the court shall consider all relevant factors including: (1) the physical, emotional, mental, religious and social needs of the child; (2) the capability and desire of each parent to meet these needs; (3) the child's preference; (4) the love and affection existing between the child and each parent; (5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; (6) the desire and ability, of each parent to allow an open and loving frequent relationship between the child and his other parent. The superior court's findings of fact and conclusions of law indicate that these factors, all of which weigh in favor of custody being awarded to Louise, were not given sufficient consideration. The testimony presented at trial indicated that Jose has had little contact with his son since early 1979 and that the relationship between them was, at most, a weak one. The psychiatrist and the custody investigator testified that Jose would have difficulties fulfilling Nicholas' emotional needs, if he was able to do so at all. It was also apparent that Jose and the court expected that Jose's mother, rather than Jose, would primarily care for Nicholas if custody were awarded to Jose. The court stated, "And you, Mr. Jose, I have this observation to make, that if you didn't have your mother standing in the kitchen ready to perform all the necessary services the result might have been different." Yet, there was limited evidence in the record regarding the paternal grandmother's parenting abilities or her relationship with Nicholas. Cf. Matson v. Matson, 639 P.2d 298 (Alaska 1982). In contrast to the limited evidence in support of an award of custody to Jose (and his mother), the testimony of Nicholas' guardian ad litem, of the custody investigator and of the psychiatrist established that Nicholas had a very good, loving relationship with his mother and that she is capable of fulfilling his needs and wishes to do so. Furthermore, the evidence indicated that Nicholas had a close relationship with his half brother, Chad. This is a factor that should have been considered by the court. We have held that consideration should be given to "the desirability of keeping the children of the family together so that they may enjoy the normal condition of childhood of growing up together as brothers and sisters." Rhodes v. Rhodes, 370 P.2d 902, 903 (Alaska 1962). See also Craig v. McBride, 639 P.2d 303, 306-07 (Alaska 1982); Nichols v. Nichols, 516 P.2d 732, 736 (Alaska 1973). Even though Nicholas and Chad are only half brothers, rather than full siblings, we believe "that the nature of the child's existing relationships should be a significant factor in choosing his custodian." Carle v. Carle, 503 P.2d 1050, 1053 (Alaska 1972). See also Craig v. McBride, 639 P.2d at 306 n.9. Finally, Nicholas had lived in a stable and good environment with his mother, stepfather and half brother. The guardian ad litem and the court custody investigator testified that Carl Shoemaker helped care for Nicholas, disciplined him appropriately, supported him financially and appeared to be a very responsible person. Evidence presented at trial indicates that Nicholas has been a happy, healthy, friendly, well-disciplined and neatly groomed child while living with Louise, Carl Shoemaker and Chad. We have continually stressed the desirability of maintaining continuity of care. Horton v. Horton, 519 P.2d at 1133 n.5; Nichols v. Nichols, 516 P.2d at 735-36; Carle v. Carle, 503 P.2d at 1053 & n.6. See generally Gruenberg & Mackey, A New Direction For Child Custody in Alaska, 6 U.C. L.A.-Alaska L. Rev. 34 (1976). Although this is legally an initial custody determination, from Nicholas' point of view, an award of custody to Jose would be a modification of the longstanding arrangement of living with his mother. It thus warrants consideration. The superior court's finding that it would be in the best interest of Nicholas to award custody to Jose appears to have been based at least in part on Louise's history of psychiatric problems. The mental health of a parent is a proper topic of inquiry at a custody hearing; however, the basis of the custody determination is the best interests of the child and a parent's conduct is relevant only insofar as it has or can be expected to negatively affect the child. Craig v. McBride, 639 P.2d at 306; Bonjour v. Bonjour, 566 P.2d 667, 669 (Alaska 1977); Horutz v. Horutz, 560 P.2d 397, 401 (Alaska 1977). It is undisputed that Louise has been in therapy since January 1980; she has benefitted from this treatment and plans to continue it. The three neutral witnesses who testified at the trial were aware of Louise's past difficulties and they focused on whether these problems would have any impact on her parenting ability. The unanimous opinion was that Louise's psychiatric problems do not have any significant impact on her capabilities to care for Nicholas; furthermore, these witnesses recommended that custody be awarded to Louise. Upon our review of the record, we conclude that the superior court was clearly erroneous in finding that Louise's problems may affect her parenting abilities. Child custody determinations are among the most difficult and sensitive matters to be decided by the superior court. Lacy v. Lacy, 553 P.2d 928, 929 (Alaska 1976). The difficulty of evaluating emotional ties between persons contributes substantially to the burden placed on the court. In this case, three neutral witnesses were called upon to help the court evaluate the relevant factors. The unanimous opinion of these witnesses was that Louise could better fulfill Nicholas' needs than could Jose and that she should be awarded custody of Nicholas. We conclude that the superior court abused its discretion in awarding custody of Nicholas to Jose. We reverse that determination and order that custody be awarded to Louise. The visitation rights granted to Louise by the superior court should be granted to Jose and the investigations ordered by the court should continue. The judgment of the superior court is REVERSED and REMANDED for modification in accordance with this opinion. CONNOR, Justice, dissenting.

10435854

Norman S. STONE, Jr., Appellant, v. Marguerite R. STONE, Appellee

Stone v. Stone

1982-07-02

No. 5674

582

589

647 P.2d 582

647

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:41:52.638769+00:00

CAP

Before RABINOWITZ, C. J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ.

Norman S. STONE, Jr., Appellant, v. Marguerite R. STONE, Appellee.

Norman S. STONE, Jr., Appellant, v. Marguerite R. STONE, Appellee. No. 5674. Supreme Court of Alaska. July 2, 1982. Ronald D. Flansburg, Charles E. Tulin, Anchorage, for appellant. William D. Artus, Artus & Choquette, Anchorage, for appellee. Before RABINOWITZ, C. J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ.

3932

23438

OPINION COMPTON, Justice. Norman and Marguerite Stone were divorced on April 12,1979. A property settlement incorporated into the divorce decree awarded Norman ownership of a condominium in Hawaii and awarded Marguerite $22,500 in cash to be paid from the proceeds of the sale of the condominium, which, the property settlement recited, the husband had agreed to sell for $125,000. The condominium sale did not close as scheduled on July 30, 1979. On August 9, after payment on the condominium still had not been received, Norman attempted to cancel the sales agreement. The purchasers filed a suit for specific performance on August 16, 1979. On October 2, 1979, Marguerite filed suit in the Circuit Court of Hawaii. In her complaint she sought to recover one-half the proceeds from the sale of the condominium, and, in addition, amounts owed on an unrelated promissory note. Marguerite incurred $3,284 in legal fees in that lawsuit. In February 1980, the specific performance litigation between Norman and the purchasers was settled. Pursuant to this agreement, Norman sold the condominium in March 1980 for a price of $140,000. In July 1980, Marguerite filed a motion in the superior court in Anchorage to modify the divorce decree to award her one-half the difference between the actual sales price and that contemplated in the divorce decree, and to recover her Hawaiian litigation legal fees. The superior court rejected Marguerite's attempt to characterize her action as a modification proceeding. The court questioned whether the matter isn't "really a petition to reform the agreement?" The court then observed that "the property settlement agreement is a contract, and the rights of the parties under that agreement arise under the law of contract . " The court viewed Marguerite's motion as an attempt to show either fraud by Norman (lack of intent to sell at the time of the agreement) or breach of contract (by frustration of the sale). Alternatively, the action was seen as alleging a mutual mistake about the value of the property, warranting reformation of the agreement. The superior court determined that the decree obligated Norman to pay $22,500 to Marguerite on or before July 30, 1979, the date on which the parties anticipated the sale of the condominium. She was not entitled to share in the appreciated value of the condominium. The court awarded Marguerite interest on the amount due since Norman did not tender the $22,500 until March 1980. In addition, the court awarded Marguerite attorneys fees for both the Alaska and Hawaiian litigation. Norman Stone appeals, alleging that it was error for the court to award either interest or attorneys fees. I. MODIFICATION OF THE DECREE We first discuss subject matter jurisdiction. Marguerite initiated suits in Hawaii and Alaska principally in order to share equally in the appreciation of the condominium. We first address whether the superior court had jurisdiction to consider Marguerite's proposed modification to the property settlement agreement incorporated into the divorce decree. Neither the parties nor the superior court addressed this issue. We are cognizant that this issue need not be resolved to reach the limited issues presented on appeal. Yet, the confusion apparent by the posture of this case suggests to us the need to reiterate the rules governing attempts to modify or reform a property settlement which is incorporated into a divorce decree. A property settlement incorporated into a divorce decree is merged into the decree, so that the rights of the parties derive from the decree, not the agreement. Helber v. Frazella, 118 Ariz. 217, 575 P.2d 1243, 1244 (1978) (en bane); Compton v. Compton, 101 Idaho 328, 612 P.2d 1175, 1180 (1980); see O'Link v. O'Link, 632 P.2d 225, 228 (Alaska 1981). Principles of contract law are not applicable in an attempt to obtain relief from a final judgment — here, the terms of a property settlement incorporated into a divorce decree. In addition, the statutory provisions for divorce do not, in contrast to the treatment of support or custody orders, authorize a court to modify the terms of a property settlement. AS 09.55.220; see Allen v. Allen, 645 P.2d 774, (Alaska, 1982). AS 09.55.205. In the present case, were Marguerite entitled to any relief, she should have sought relief from judgment pursuant to the terms of Civil Rule 60(b). We con-elude, though, that on the facts of the present case, Marguerite demonstrated no basis for the superior court to afford relief from the final judgment. Marguerite is barred from seeking relief under Rule 60(b)(1) — (3) because her motion to modify the decree was made on July 21, 1980, fifteen months after the divorce decree was entered. The rule expressly provides that motions pursuant to (bXl)-(3) must be filed within one year of the judgment. Civil Rule 6(b) prohibits a court from enlarging the time constraints imposed by Rule 60(b). Marguerite is also barred from seeking relief under Rule 60(b)(6). That clause allows relief from a judgment for "any other reason justifying relief from the operation of the judgment." A motion for relief pursuant to (b)(6) is not subject to the one year limitation applicable to motions pursuant to (b)(1) — (3); rather a (b)(6) motion must be filed within a "reasonable time." The relief available under Rule 60(b)(6), however, is exclusive of the other remedies offered by Rule 60(b)(l)-(5). O'Link v. O'Link, 632 P.2d at 229; see Ackerman v. United States, 340 U.S. 193, 197, 71 S.Ct. 209, 211, 95 L.Ed. 207, 210 (1950). Marguerite, in essence, alleged fraud, misrepresentation or other misconduct by Norman. Her motion to seek relief would thus be within the ambit of (b)(3). Indeed, the superior court viewed the motion as an attempt by Marguerite to show Norman's lack of intent to sell at the time of the agreement, i.e., a fraud or misrepresentation. Since the motion could have been brought under (b)(3), Marguerite is barred from seeking relief under (b)(6). We conclude, therefore, that the superior court lacked jurisdiction to grant relief from the original decree. II. HAWAIIAN LEGAL EXPENSES The superior court awarded Marguerite her legal expenses incurred in connection with the suit in Hawaii. Marguerite argues that she had to sue Norman because she could not file a lis pendens unless a lawsuit was pending in a Hawaiian court. A lis pendens was required, she argues, in order to protect her interest in the proceeds of the condominium sale. Marguerite's lawsuit in Hawaii, however, was not undertaken as an attempt to safeguard her rights under the property settlement, but instead as an attempt to expand them. The principal goal of the Hawaiian litigation was to share in the appreciation of the condominium and to recover an unrelated debt. At no point did Marguerite claim that Norman balked at payment of the $22,500 when the sale of the condominium closed. Any finding of fact entered by the trial court to the contrary finds no support in the record and is thus clearly erroneous. We conclude, therefore, that Marguerite was not entitled to recover her Hawaiian legal expenses. That portion of the judgment must be reversed. III. INTEREST Norman submits that it was improper for the court to award Marguerite interest because the stipulation entered with respect to the Hawaii litigation evinces, at least implicitly, a waiver of interest. We need not address this claim. Instead, we conclude that the court erred in interpreting the decree to require payment of the $22,500 on or before July 30. The property settlement agreement, incorporated into the decree, stated only that Marguerite would be paid $22,500 from proceeds of the sale upon closing. The parties never submitted that the obligations created by the property settlement agreement were ambiguous. Rather, the superior court independently raised the question of interest. In this context, we conclude that an interpretation of the property settlement agreement was not in issue and, as a consequence, the award of interest was erroneous. IV. ATTORNEY'S FEES The final matter is the award of attorney's fees. Our disposition of the issues presented on appeal clearly establish that Norman is the prevailing party. The award of fees to Marguerite is therefore vacated, and the case is remanded to afford Norman an opportunity to seek an award of attorney's fees pursuant to Civil Rule 82. REVERSED and REMANDED. MATTHEWS, J., dissents. . Subject matter jurisdiction, however, may be raised at any stage of the litigation and if noticed must be raised by the court if not raised by the parties. O'Link v. O'Link, 632 P.2d 225, 226 n.2 (Alaska 1981). See Civil Rule 12(h)(3). . AS 09.55.205. . AS 09.55.220 provides: Any time after judgment, the court, upon the motion of either party, may set aside, alter, or modify so much of the judgment as may provide for alimony, or for the appointment of trustees for the care and custody of the minor children, or for their nurture and education, or for the maintenance of either party to the action. . Civil Rule 60(b) provides in pertinent part: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect: (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to grant relief to a defendant not personally served, or set aside a judgment for fraud upon the court. . One purpose of Rule 60(b)(l)-<6) is to merge and consolidate the old equitable forms for obtaining relief from a judgment. The rule expressly abolishes the equitable bills of coram nobis, coram vobis, and audita querela. In Thomas v. Thomas, 581 P.2d 678, 679 n.4 (Alaska 1978), we said that divorce is an equitable decree and may be modified to the same extent as any other equitable decree. Thomas was not intended to confer any greater right to relief from a divorce than is otherwise available. Absent any independent statutory authority, a divorce decree is modifiable only to the extent that relief may be obtained from any other final judgment. Allen v. Allen, 645 P.2d 774, (Alaska, 1982). This is especially true now that a divorce decree has become regarded as a blend of law and equity. H. Clark, Jr., Law of Domestic Relations § 13.1 at 379 (1968). . Rule 6(b) provides: When by these rules or by a notice given thereunder or by order of the court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 25, 50(b), 52(b), 59(b), and (d) and (e), and 60(b), except and under the conditions stated in them. . Marguerite could not obtain relief under the express saving clause of Rule 60(b), reserving to the court the power to entertain an independent action to relieve a party from a judgment or to set aside a judgment for a fraud upon the court. The term "fraud upon the court" contemplates conduct so egregious that it undermines the integrity of the judicial process. O'Link v. O'Link, 632 P.2d at 230; Allen v. Bussell, 558 P.2d 496, 500 (Alaska 1976). Marguerite has made no showing of fraud upon the court itself. Similarly, the "independent action" to obtain relief from judgment is a most unusual remedy, historically available only where there was extrinsic, as opposed to intrinsic, fraud. 11 C. Wright & A. Miller, Federal Practice and Procedure § 2870, at 240 (1973); 7 J. Moore & J. Lucas, Moore's Federal Practice § 60.37[1] (1979); see Compton v. Compton, 612 P.2d 1175 (Idaho 1980). We need not address the parameters of such an independent action, since it is apparent that the fraud alleged in the instant case involved matters which with reasonable diligence Marguerite could have anticipated in the original proceeding. . Because the court's award was in the nature of compensatory damages, we need not decide whether AS 09.60.010 is authority for the award of attorney's fees resulting from litigation in another jurisdiction. . Marguerite's counsel claimed before Judge Lewis that the cause of action in Hawaii was "to obtain half of the excess sale proceeds, basically the same as we are trying to do here." . The dissent casts in questionable light our application of the clearly erroneous test by interpreting a brief portion of Marguerite's testimony as support for the finding that one of the purposes of the Hawaiian litigation was to protect Marguerite's interest in obtaining $22,-500.00 from the sale proceeds. Post at 588 n. 1. With all due respect, the testimony quoted by the dissent does not, if read in proper context, contradict the majority position. Preceding the quoted segment, her counsel asked a series of questions to establish when Marguerite realized that the condominium would be sold for an amount in excess of $125,000.00. When Marguerite agreed that she "paid certain sums to an attorney in Hawaii to protect [her] rights to these monies," the antecedent of "these monies" is the excess amounts, not the $125,000.00. This point is illustrated by the following exchange, which occurred several questions prior to the portion of Marguerite's testimony quoted by the dissent: Q. What did you also learn about what the defendant was asking for in terms of a higher sales price or a different sale price? A. Yes, I knew he was asking for 140 at that point. Q. 140 or 150, or do you remember? A. Maybe it was 150 to start with, I can't really remember. Q. But you know that it was later sold for $140,000, in any event? A. That's right. Q. Did you take some steps at that time, Mrs. Stone, to protect your interest, or what you felt you had coming out of any excess sales proceeds? A. Yes, 1 did; 1 filed a suit in Hawaii. .The property settlement agreement provided in pertinent part; "2. Personal Property. The personal property of the parties, and cash disbursements, shall be divided and made as follows: a. Husband shall pay or cause to be paid to the Wife, the sum of Twenty-two Thousand Five Hundred Dollars ($22,500.00), from the proceeds realized from the sale of Apartment B-230, Casa De Emdeko, Kailua-Kona, Hawaii. Husband has entered into an agreement to sell said condominium for the sum of One Hundred Twenty-five Thousand Dollars ($125,000.00). Documents shall be executed by the Husband directing the escrow or closing agent to pay the said sum of Twenty-two Thousand Five Hundred Dollars ($22,500.00) to the Wife from the proceeds realized at closing. The balance of the proceeds from the sale of the condominium shall be retained by the Husband as his sole and separate property." . We do not address whether a court has jurisdiction to interpret the terms of a property settlement agreement incorporated into a divorce decree. Compare Glassford v. Glassford, 76 Ariz. 220, 262 P.2d 382, 386 (1953) and Mills v. Mills, 512 P.2d 143, 146 (Okl.1973) and Crofts v. Crofts, 445 P.2d 701, 702 (Utah 1978) with Kelso v. Kelso, 124 F.Supp. 294 (W.D.Okl.1954), rev'd on other grounds, 225 F.2d 918 (10th Cir. 1955), modified, 246 F.2d 421 (1957). We note that the parties offer no discussion in their briefs as to whether a court has jurisdiction to interpret the terms of a divorce decree. . In a proceeding to modify the terms of a property settlement incorporated into a divorce decree, the award of attorney's fees and costs is properly made pursuant to Civil Rule 82. O'Link v. O'Link, 632 P.2d at 231 n.15.

10435624

Joseph FIELDS, Appellant, v. STATE of Alaska, Appellee

Fields v. State

1981-05-29

No. 3811

46

54

629 P.2d 46

629

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:41:34.706397+00:00

CAP

Before RABINOWITZ, C. J., and CON-NOR, BURKE and MATTHEWS, JJ.

Joseph FIELDS, Appellant, v. STATE of Alaska, Appellee.

Joseph FIELDS, Appellant, v. STATE of Alaska, Appellee. No. 3811. Supreme Court of Alaska. May 29, 1981. David C. Backstrom, Deputy Public Defender, Fairbanks, and Brian Shortell, Public Defender, Anchorage, for appellant. Timothy Petumenos, Asst. Atty. Gen., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., and CON-NOR, BURKE and MATTHEWS, JJ.

4052

24300

OPINION CONNOR, Justice. Joseph Fields was convicted of fraud in the sale of securities. The questions on appeal are (1) whether a mistrial should have been granted because an unrelated criminal charge was referred to in the testimony of a witness, (2) whether the testimony of a witness should have been excluded because a statement of the witness was not revealed by the prosecution in advance of trial, and (3) whether the sentence imposed was excessive. Fields was charged with three counts of fraudulently selling security interests in oil and gas leases in violation of AS 45.55.010 and three counts of selling unregistered securities in violation of AS 45.55.070. Originally Fields was charged by the same indictment with issuing checks with insufficient funds. This charge stemmed from the writing of checks to the Chena View Hotel in June, July, and August of 1976. Upon a pre-trial motion, the check utterance charges were severed on the ground that they had no relevance to the securities fraud case. At the end of trial Fields was convicted of each of the six counts of securities fraud. I At the commencement of trial on the securities fraud charges, the trial judge granted the defense a protective order to prevent any mention at trial of the pending check charge. The state presented four witnesses who testified that Fields befriended them, gained their confidence and persuaded them to purchase a percentage of override interests in certain oil leases. During the course of these transactions, Fields allegedly made repeated representations that he was worth millions and would personally guarantee all investments. Each purchaser invested between $800 and $10,-000, which they were told was being placed in an escrow account. The purchases were made in February, March, and April of 1976. Fields in fact never owned the override interests he sold and none of the witnesses ever received a return of his investment. Fields testified that he believed he had acquired a percentage of override interest in the oil leases in exchange for his efforts in finding a buyer for them so that he was under the impression that he actually owned the interests that he sold. Fields admitted that he had never been a millionaire, and claimed that he never represented himself as one except to tell his friends that he believed his override interest was worth millions. Despite the protective order, mention of the check charge was inadvertently made at trial. Prosecution witness David Curwen of the Fairbanks Police Department, when asked when the defendant was indicted, responded: "On November 4, 1976, the case I should say, was issue — from is — issuing checks without sufficient funds. The case was combined.... " A defense motion for a mistrial was promptly made and denied. The jury was never instructed to disregard the testimony. In denying the defense motion for mistrial, the trial judge ruled that the evidence of the cheek charge was in fact relevant and admissible. He determined that the evidence was relevant to the question of Fields' solvency, as well as to prove the existence of a larger continuing plan or scheme, and to establish motive and intent. Fields contends that this ruling was erroneous and that a mistrial should have been granted. It is by now firmly rooted in Alaska that evidence of other crimes or prior misconduct is not admissible to show bad character or propensity to commit crime. Such evidence may be admissible, however, where relevant to a material fact in issue, such as motive, intent, knowledge, plan or scheme, and when its probative value outweighs its prejudicial impact. Hence, we must initially determine whether evidence that Fields was charged with writing bad checks was relevant to any material issue at his trial for securities fraud, other than his general character or propensity to commit crimes. The court found, and the state now argues, that the check charge was relevant to the question of Fields' solvency, since it was alleged that Fields falsely represented himself to be a millionaire to prospective investors. The state contends that evidence that Fields was charged with cashing checks with insufficient funds is proof that Fields was not in fact the millionaire he held himself out to be. Although, strictly speaking, evidence that one's checking account was overdrawn may be relevant to the issue of solvency, here the slight probative value such evidence may have is far outweighed by its potential for prejudice. The bad checks were all allegedly written after the securities fraud transactions. Evidence of Fields' insolvency in June is of questionable probative value on the issue of his financial worth in February through April. It is entirely possible that Fields may have depreciated his cheeking account considerably between April and June, especially considering the testimony of his extravagant life-style. Moreover, the state had already established, through far more reliable and less prejudicial evidence, that Fields was in fact insolvent at the time he purportedly represented himself to be a millionaire. A banker at the First National Bank of Fairbanks testified that in February of 1976, Fields' bank account was overdrawn by 21 cents. We stated in Freeman v. State: "Evidence of other offenses committed by the accused will always be potentially prejudicial; for this reason, before such evidence is admitted, care must be taken to ascertain whether it is actually necessary in the circumstances of the particular case." 486 P.2d 967, 977 (Alaska 1971). Here evidence of the check charge was of limited probative value and cumulative on the issue of Fields' insolvency and was, therefore, unnecessary. The state also urges that proof of the check charges was relevant, and therefore admissible, to show an overall fraudulent scheme. Evidence of other offenses or misconduct is often relevant to show that the charged offense was part of an overall scheme or plan to defraud. However, in order to be admitted for this purpose, the offenses must be "so related to each other that proof of one tends to prove the other." 1 C. Torcía, Wharton's Criminal Evidence § 248, at 565 (13th ed. 1972). The state cites a number of securities fraud cases upholding the admission of prior uncharged offenses to prove a scheme to defraud. In all of these cases, however, the uncharged offense involved a similar transaction and was clearly part of the overall fraudulent scheme. For example, in United States v. Austin, 462 F.2d 724 (10th Cir.), cert. denied, 409 U.S. 1048, 93 S.Ct. 518, 34 L.Ed.2d 501 (1972), the defendant participated in numerous transactions involving securities and mail fraud, only some of which were charged. The Tenth Circuit held that the uncharged transactions were properly admitted to show the existence of a common plan to defraud, since each transaction involved substantially the same pattern and mode of operation by the defendant. Here, the only connection between the check charge and the securities transactions is that the checks were written at the Che-na View Hotel, where Fields negotiated many of the securities sales. The checks, however, were written months after the security sales were consummated and appear to be totally unrelated to the security transactions. The state presented no evidence at trial suggesting that the check offenses were part of an overall fraudulent scheme. It now asserts that Fields continued to lull "the investors into a false sense of security" by presenting himself to be a millionaire up until his departure from Alaska in October, 1976. However, this was not alleged in the complaint and no proof of a continuing plan to defraud after the sales were completed was offered at trial. There being no evidence that the check cashing was part of an overall plan to defraud, or related in any material way to the securities sales, we cannot uphold the ruling of admissibility on this theory. Finally, we are not persuaded that evidence of the check charge was admissible on the issue of intent or motive. Although Fields' intent was a controlling issue at trial, "[i]t is normally required that in order to be admissible on the issue of intent the prior misconduct of the accused must be similar to the crime charged and not too remote in time." Freeman, 486 P.2d at 977. In all the cases cited by the state where evidence of other misconduct was admitted on the issue of intent, the uncharged acts were similar in nature and somehow related to the charged offense. In the case at bar, there is an absence of any affirmative link between the securities sales and the check charges. To imply that because the defendant may have engaged in fraudulent conduct in a wholly separate transaction, he therefore had a fraudulent intent here demands precisely the type of inference the law condemns. The reasonable inference to be drawn from proof of the check charge is that Fields is a person of dishonest character who had a propensity to commit fraudulent acts. This is the "type of leap of faith the evidence rules have been designed to prevent." Eubanks v. State, 516 P.2d 726, 729 (Alaska 1973). Having concluded that evidence of the pending check cashing charge was not admissible for any of the purposes advanced by the trial court or the state, we hold that the evidence falls within the proscription of Alaska Eule of Evidence 404(b). We must now determine whether the improper reference to this inadmissible evidence was such as to have a substantial influence on the jury's verdict. Love v. State, 457 P.2d 622, 631 (Alaska 1969). In reviewing the record we are impressed by the strength of the state's case, as shown by all of the evidence adduced by the state. Measured against that we find this truncated portion of inadmissible testimony to be relatively minuscule in impact. Accordingly, in this context we conclude that the error was harmless. We wish to caution, as we have in the past, that the prosecution should take great care to inform its witnesses not to refer to other unrelated crimes the defendant may have committed, especially where, as here, a protective order has been issued against mention of another criminal charge. Where such evidence does inadvertently come before the jury, the trial court's determination upon a motion for mistrial will be given deference on review. While it might have been better for the court here to have given a cautionary instruction to the jury concerning the questioned portion of Detective Curwen's testimony, it is not important in the context of this case, in view of our holding that the error in allowing that testimony to remain in evidence was harmless. II On the opening day of trial, on a Monday, the prosecutor disclosed that on the previous Friday he had learned that there was an electronically taped statement of a witness, John McGowan, and that the prosecutor intended to call McGowan as part of his case in chief. The prosecutor stated that he had tried to inform defense counsel about the taped statement on the previous Friday but had been unable to reach her. Apparently the tape had been made by a securities examiner who was not assigned to investigate the case, and its existence had not been known earlier to the investigator in charge of the cáse. The court recessed in order to allow defense counsel an opportunity to listen to the tape. When the court later reconvened it inquired into the possible prejudice to the defense because of not having had earlier access to the tape. The court ruled that McGowan's testimony would be admissible and that defense counsel would be given an opportunity to interview McGowan before he testified. It should be noted that the defense requested the exclusion of McGowan's testimony, but did not move for a continuance. The prosecutor had agreed at the outset that he would not call McGowan until the close of his case, and McGowan did not testify until Wednesday. The state concedes that under Alaska Criminal Rule 16(b) the existence of the McGowan tape should have been made known in advance of trial, but argues that this was an inadvertent discovery omission, that the court acted properly in the circumstances, and that the defense did not suffer substantial prejudice. We agree with the state's position. In these circumstances, the normal course is to grant a continuance of sufficient length to allow defense counsel adequate time to prepare to meet the previously undisclosed evidence. Des Jardins v. State, 551 P.2d 181, 187 (Alaska 1976); Scharver v. State, 561 P.2d 300, 301 (Alaska 1977). Moreover, a continuance need not be granted automatically in the absence of a request for it by the defense. Scharver, 561 P.2d at 302. Our review of the record does not reveal substantial prejudice to the defendant. We conclude that there was no error in the court's refusal to exclude the testimony of the witness. Ill Fields was sentenced to serve three years on each of the three counts of sale of fraudulent securities, with each sentence to be served consecutively. He additionally was sentenced to serve three years on each of three counts of sale of unregistered securities, with each sentence to be served consecutively. Each of these total nine year terms were to run concurrently. The court then suspended four of the total of nine years as to each concurrent sentence, with Fields to be on probation during the suspended period. The judgment also orders that during the probationary period of his sentence Fields shall pay into court the sum of $25,500, to be disbursed to the victims of his offenses. In reviewing a sentence for exces-siveness, our general standards require a consideration of the nature of the crime, the defendant's character, and the need for protecting the public. State v. Chaney, 477 P.2d 441, 443 (Alaska 1970). We must also consider the total sentence imposed, including any period of suspension. Nattrass v. State, 554 P.2d 399, 401 (Alaska 1976). Fields was born in Texas in 1940. He left high school at age 17, after his father died. He attended an electronics school, and has worked in that field at certain times. He served in the United States Army from 1964 to 1967, when he was honorably discharged. He has worked at various jobs such as in grocery stores, in a paint shop, as an automobile salesman, and as a freelance artist. He does not suffer from alcohol or drug problems. He has no previous criminal convictions, except a $32 fine for what must have been an insignificant offense. There is no indication that he has been a professional criminal previous to the commission of the instant offenses. From the presentence report and presen-tence psychiatric evaluation it appears that Fields' potential for rehabilitation is good. In his sentencing remarks, the trial judge indicated a strong belief that a substantial sentence was warranted, and a belief that Fields was lacking in remorse, after preying upon his victims. We agree with the state's contentions that "white collar" crimes must be taken seriously, and that sophisticated schemes to defraud should be deterred. But our weighing of the various factors applicable to this case leads to the conclusion that this sentence was disproportionately severe and that the court was clearly mistaken in imposing it. See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). In our opinion, the maximum sentence should not exceed a total of six years, with three years to be suspended and the defendant to be on probation during the suspended period. The provision for a $25,-500 fine, to be paid to the victims of Fields' offenses during the period of probation was, in our opinion, proper. The conviction is affirmed, but the case is remanded for the entry of an amended judgment in conformity with this opinion. AFFIRMED IN PART, AND REMANDED. MATTHEWS and BURKE, JJ" dissenting in part. . An override was explained as a retained interest in any proceeds obtained under the lease from future oil or gas production. . The court ruled, however, that the protective order would remain in effect for the rest of the trial. . See Oksoktaruk v. State, 611 P.2d 521 (Alaska 1980); Harvey v. State, 604 P.2d 586, 589 (Alaska 1979); Frink v. State, 597 P.2d 154, 169 (Alaska 1979); Eubanks v. State, 516 P.2d 726, 729 (Alaska 1973); 1 J. Wigmore, Evidence § 193, at 643 (3d ed. 1940). The rule has now been codified in Alaska R. Evid. 404(b): "Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Further, we note that the mere fact of a charge or indictment is not proof of guilt. . 1 J. Wigmore, supra note 3, § 215-17, at 710-19. . Alaska R. Evid. 403 provides in part: "Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice . " . The securities sales for which Fields was being charged took place in February, March, and April of 1976, whereas the bad checks were made out in June, July, and August of 1976. . See, e. g., Leonard v. United States, 324 F.2d 911, 913 (9th Cir. 1963); Griggs v. United States, 158 F. 572, 576-77 (9th Cir. 1908); 1 J. Wigmore, supra note 3, § 215-16, at 710-17. . Similarly, both United States v. Ashdown, 509 F.2d 793, 798 (5th Cir.), cert. denied, 423 U.S. 829, 96 S.Ct. 48, 46 L.Ed.2d 47 (1975), and Suetter v. United States, 140 F.2d 103, 107 (9th Cir. 1944), were securities fraud cases in which the challenged evidence was testimony of similar, yet uncharged security sales. See also Leonard v. United States, 324 F.2d 911, 913 (9th Cir. 1963), in which testimony that the defendant had induced another to forge a check was held to be admissible against the defendant, in his prosecution for secondary endorsement and uttering of forged checks, to show an overall scheme since the first forgery was part of a design to ultimate cashing of the checks. . Accord, Oksoktaruk v. State, 611 P.2d 521 (Alaska 1980); Gould v. State, 579 P.2d 535, 538 (Alaska 1978); Eubanks v. State, 516 P.2d 726, 729 (Alaska 1973); 1 C. Torcia, Wharton's Criminal Evidence § 245, at 554-56 (13th ed. 1972). . In Harper v. United States, 143 F.2d 795 (8th Cir. 1944), although the court held that evidence outside the scheme charged may be admitted for the purpose of showing intent, it appears they were referring to matters outside the scope of the indictment and not matters which are totally unrelated to the charged offense. There, evidence of another securities sale, which was not one of the securities alleged to have been fraudulently sold, was held admissible on the issue of intent because it tended to elucidate or clarify certain false statements made by the defendant at trial. Id. at 803. See also United States v. McDonald, 576 F.2d 1350, 1356 (9th Cir. 1978), cert. denied, 439 U.S. 830, 99 S.Ct. 105, 58 L.Ed.2d 124 (1979). .We commend the trial court for cautioning the prosecuting attorney and Detective Curwen regarding the importance of adhering to the protective order. After denying the motion for mistrial, but before reconvening the jury, the court admonished the district attorney that "there's just no substitute for doing your work ahead of time. You should have sat down and talked with Officer Curwen here; told him they had been severed, and that he's not to mention that other case" and instructed Officer Curwen to limit his responses to the specific question asked of him. . Alaska Criminal Rule 16(b)(l)(i) provides: "Disclosure to the Accused. (1) Information Within Possession or Control of Prosecuting Attorney. Except as is otherwise provided as to matters not subject to disclosure and protective orders, the prosecuting attorney shall disclose the following information within his possession or control to defense counsel and make available for inspection and copying: (i) The names and addresses of persons known by the government to have knowledge of relevant facts and their written or recorded statements or summaries of statements;" Alaska Criminal Rule 16(b)(4) provides: "(4) Information Within Possession or Control of Other Members of Prosecuting Attorney's Staff. The prosecuting attorney's obligations extend to material and information in the possession or control of (i) members of his staff, and (ii) any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office." . Although exact comparisons cannot be made see Huff v. State, 598 P.2d 928 (Alaska 1979); Amidon v. State, 565 P.2d 1248 (Alaska 1977); Andrews v. State, 552 P.2d 150 (Alaska 1976).

10435910

Joseph JOHNSON, Appellant, v. FAIRBANKS CLINIC and Alaska Pacific Assurance Company, Appellees

Johnson v. Fairbanks Clinic

1982-07-09

No. 5927

592

596

647 P.2d 592

647

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:41:52.638769+00:00

CAP

Before BURKE, C. J., and RABINOW-ITZ, CONNOR, MATTHEWS and COMPTON, JJ.

Joseph JOHNSON, Appellant, v. FAIRBANKS CLINIC and Alaska Pacific Assurance Company, Appellees.

Joseph JOHNSON, Appellant, v. FAIRBANKS CLINIC and Alaska Pacific Assurance Company, Appellees. No. 5927. Supreme Court of Alaska. July 9, 1982. Lance C. Parrish and James A. Parrish, Parrish Law Office, Anchorage, for appellant. Ronald Noel and Ralph Beistline, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for appellees. Before BURKE, C. J., and RABINOW-ITZ, CONNOR, MATTHEWS and COMPTON, JJ.

2355

14201

OPINION COMPTON, Justice. The single issue for determination in this appeal is whether the superior court erred in affirming the Workers' Compensation Board's (Board) denial of compensation to appellant Dr. Joseph Johnson for injuries he sustained in an automobile collision that occurred while he was driving to the Fairbanks Memorial Hospital to see a patient. For the reasons set forth below, we conclude that Dr. Johnson incurred injuries while undertaking a "special errand," and that, as a consequence, he is entitled to compensation for the injuries he sustained. I. FACTUAL AND PROCEDURAL BACKGROUND The underlying facts are not in dispute. Dr. Johnson is a medical physician, specializing in surgery. He has been affiliated with the Fairbanks Clinic since 1963 and is a stockholder employee of it. His primary residence is in Fairbanks and he also owns a vacation home in Birch Lake, approximately sixty miles from Fairbanks. He maintains an office at the Fairbanks Clinic where his normal office hours are from 9:00 a. m. to 2:00 p. m., other than when he is performing surgery at the hospital. He works a flex-week, which means that one week he works Monday through Saturday and the next week he works Monday through Thursday. The automobile collision that caused the injuries for which he seeks compensation occurred on a Sunday morning during one of Dr. Johnson's long weekends. He had decided to spend the weekend at his vacation home in Birch Lake. On the Thursday preceeding the long weekend, Dr. Johnson examined a woman referred to him by the Breast Cancer Detection Center in Fairbanks. Dr. Johnson determined that it was necessary for the patient to undergo surgery as soon as possible. He therefore scheduled surgery on the following Monday, the first available day. Prior to Monday the patient was to be completely evaluated by her physician, Dr. Hanley, who was to determine whether she was physically capable of undergoing major surgery. Dr. Hanley was to call Dr. Johnson at Birch Lake if he determined that the patient could not undergo the surgery. Dr. Johnson testified that it is his practice to have a discussion with his patients the day before surgery and that such a discussion was essential in this case because the surgery would involve a removal of part of the body. Dr. Johnson did not hear from Dr. Hanley and therefore he left Birch Lake at approximately 10:00 a. m. on December 9, 1979, to drive to the hospital in Fairbanks. He planned to return to Birch Lake after the consultation. Approximately thirty-five miles from the hospital, Dr. Johnson's vehicle went out of control on an icy highway and collided head-on with a dump truck. Dr. Johnson filed a Notice of Injury on December 19,1979, and the carrier controverted the claim on January 10, 1980. The Board concluded that Dr. Johnson's travel from Birch Lake to the hospital was not sufficiently work related to allow compensation and that the journey was not an inherent part of the service he was to perform. It concluded that the service Dr. Johnson was to perform was not out of the ordinary or unusual for his profession and that the distance or day of the week that Dr. Johnson had to travel to render this service did not create a sufficient nexus between his employment and the injury. The Board therefore denied Dr. Johnson's claim. That decision was affirmed by the superior court. This appeal followed. II. THE SPECIAL ERRAND RULE In order to be compensable under the workers' compensation laws of this state, an employee's injury must arise "out of and in the course of employment." AS 23.30.-265(13). We held in R.C.A. Service Co. v. Liggett, that generally "injuries occurring off the employer's premises while the employee is going to or coming from work do not arise in the course of his employment." 394 P.2d 675, 677-78 (Alaska 1964) (footnote deleted); accord Northern Corporation v. Saari, 409 P.2d 845, 846 (Alaska 1966). As we indicated in Liggett, however, there are several exceptions to the "going and coming" rule, one of which is the "special errand" rule. Professor Larson states this exception in the following fashion: When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual coming and going rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazzard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself. 1 A. Larson, The Law of Workmen's Compensation § 16.10, at 4-123 (1978) (footnotes deleted). To ascertain whether injuries sustained on a journey to work are compensa-ble by application of the special errand exception, the dispositive question is "whether the journey was itself a substantial part of the service for which the claimant was employed and compensated." 1 A. Larson, supra § 16.11, at 4-136. Larson identifies three relevant considerations: (1) the relative regularity or unusualness of the journey; (2) the relative onerousness of the journey as compared to the service to be performed at the end of the journey; and (3) the suddenness of the work. We have discussed the special errand rule on several prior occasions. In R. C. A. Service Co. v. Liggett, 394 P.2d 675 (Alaska 1964), a supervisorial employee was killed while flying home from a remote site after working during what was ordinarily his day off. He had been required to work that day by his employer and the trip he made was the same one he normally made to and from work. We reversed a finding of com-pensability because there was no substantial evidence that the trip was work related. We observed that the decision to fly home was evidently reached after the deceased's arrival at the site; previously he had planned to stay over and go to work the next day at the regular time. Thus, the trip was purely personal and could not be considered a special errand for his employer. In State v. Johns, 422 P.2d 855 (Alaska 1967), an employee was temporarily reassigned to work for one week at a remote site where additional help was needed. We affirmed an award of compensation for injuries sustained by the employee when driving home because the urgency of the employee's assignment and the trouble, time and special inconvenience of the trip brought it under the special errand rule. The present case raises a difficult question concerning the scope of the special errand exception. Is the special errand exception applicable where an employer requests that an employee travel to work on a nonwork day over a riskier than normal route in order to render services typical of those performed during normal work hours? We believe that the facts presented in this case establish that Dr. Johnson's travel to the hospital was a special errand and that the injuries he incurred during that travel are compensable under the Workers' Compensation Act. To repeat the standard set forth by Professor Larson, "the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself." 1 A. Larson, supra § 16.10, at 4-123. The foremost consideration in support of our conclusion that the trip was part of a special errand is the strong inference that Dr. Johnson undertook the trip only at the implied request of his employer. Dr. Johnson testified that he was rarely called to perform work during a long weekend. Indeed, it is uncontroverted that Dr. Johnson was travelling to the hospital on a Sunday when he normally would not be working and that the trip was a special inconvenience to him. In Dr. Johnson's professional judgment it was necessary for him to visit the patient that day so that the surgery could be performed on Monday. While the need for Dr. Johnson's services may not have constituted a medical emergency, there is no basis in the record to question Dr. Johnson's judgment that it was necessary for him to make a special trip to the hospital in order to consult with the patient. We are also persuaded by the fact that the sixty mile trip from Dr. Johnson's vacation home at Birch Lake to the hospital under winter driving conditions entailed greater risks than Dr. Johnson ordinarily encountered on his daily commute from his Fairbanks home to either the clinic or the hospital. In short, the circumstances of the trip lead to our conclusion that the trip was an integral part of the services rendered in the course of a special errand necessitated by Dr. Johnson's employment. Under analogous circumstances, in In re Papanastassiou's Case, 362 Mass. 91, 284 N.E.2d 598 (1972), an employee's death caused by an automobile collision that occurred during his drive home from the office was held compensable under the workers' compensation laws of Massachusetts. The court stated: Upon the facts presented here, we believe a finding was warranted that the decedent's employment "impelled" him to make the trip which ultimately led to his death. The decedent was a research chemist and was employed to conduct experiments and, as an incident thereto, he was required to do whatever he judged necessary to assure the success of his experiments. Although a salaried employee, in carrying out his duties, he was free to come and go as he pleased, and he had his employer's authorization to conduct work outside of the standard working hours. On the day of the accident the decedent had not completed a particular experiment within the standard working hours, and in the exercise of his professional judgment, in order to achieve a successful result, he decided to return to complete the experiment after hours in the evening rather than wait for the start of the next working day. Since the trip to the laboratory was in fulfillment of the decedent's obligations to his employer and otherwise in accordance with the terms of his employment, it follows that he was on an "undertaking" of his employer. The instant case is thus clearly distinguishable from cases . where the employees were merely going to or coming from the places of business of their employers. 284 N.E.2d at 600-01 (emphasis added). The Board in this case indicated that the services that were to be provided by Dr. Johnson at the hospital were ordinary and usual for his profession. This finding is irrelevant, however. Dr. Johnson's trip to the hospital is within the ambit of the special errand rule not because of the nature of the services to be performed at the conclusion of the journey, but because of the nature and circumstances of the journey itself. In the exercise of his professional judgment, Dr. Johnson determined that it was necessary for him to take the time and trouble to make an inconvenient trip to the hospital in order to consult with a patient who was scheduled to undergo surgery the next day. This trip was undertaken on a day on which Dr. Johnson ordinarily would not work. Moreover, the trip itself entailed greater risks than Dr. Johnson's ordinary commute to work. Under these facts, we believe Dr. Johnson's trip was a special errand and that he is accordingly entitled to compensation under the Workers' Compensation Act for the injuries he sustained while driving to the hospital. REVERSED and REMANDED to the superior court for remand to the Workers' Compensation Board for further proceeding consistent with this opinion. . Professor Larson expressly limits application of the special errand discussion to employees having reasonably definite time and place boundaries on their employment. 1 A. Larson, supra § 16.00, at 4-117. We recognize that physicians may oftentimes have professional obligations which cannot be restricted to fixed hours of employment. Here, however, the only evidence before the Board was that Dr. Johnson ordinarily worked within reasonably definite hours of employment. Furthermore, it is apparent that Dr. Johnson's trip to the hospital was necessitated by his professional obligations to his patient, not from his status as a physician on call for emergency surgical matters. . We also discussed the special errand rule in M-K Rivers v. Schleifman, 599 P.2d 132 (Alaska 1979). At issue in Schleifman was whether injuries sustained while riding from a remote work site to cash a paycheck were compensa-ble. The court rejected the argument that an award of compensation would have been justified under the special errand rule taken alone and instead adopted another theory mandating compensation. . Upon our review of the many cases cited by the parties and by Professor Larson in the treatise discussion, we have discovered no case which involved a squarely comparable factual setting. Several courts, though, invoked the special errand exception where the trip to perform normal services on an overtime basis apparently did not involve a journey riskier than the employee's normal commute. See Jonas v. Lillyblad, 272 Minn. 299, 137 N.W.2d 370 (1965); Bengston v. Greening, 230 Minn. 139, 41 N.W.2d 185 (1950); Briggs v. American Bil-trite, 74 N.J. 185, 376 A.2d 1231 (1977). But see Foster v. Brown Transp. Corp., 143 Ga.App. 371, 238 S.E.2d 738 (1977); cf. Lohnes v. Young, 175 Ohio St. 291, 194 N.E.2d 428 (1963) (compensation denied for "regular extra" trip). Professor Larson notes, in this regard, that "[i]f the overtime work involves a special and extraordinary trip for the benefit of the employer, it has . been held that the trip becomes part of the service." 1 A. Larson, supra § 16.12, at 4-144.

10574968

Will Key JEFFERSON, Appellant, v. John M. ASPLUND, Eric E. Wohlforth, Herbert Land, Larry H. Ely, and Greater Anchorage Area Borough, Appellees

Jefferson v. Asplund

1969-10-01

No. 1036

995

1002

458 P.2d 995

458

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:39:47.581165+00:00

CAP

Before NESBETT, C. J., DIMOND, RABINOWITZ, and CONNOR, JJ., and LEWIS, Superior Court Judge.

Will Key JEFFERSON, Appellant, v. John M. ASPLUND, Eric E. Wohlforth, Herbert Land, Larry H. Ely, and Greater Anchorage Area Borough, Appellees.

Will Key JEFFERSON, Appellant, v. John M. ASPLUND, Eric E. Wohlforth, Herbert Land, Larry H. Ely, and Greater Anchorage Area Borough, Appellees. No. 1036. Supreme Court of Alaska. Oct. 1, 1969. Will Key Jefferson, in pro. per. Victor Carlson, Borough Atty., Eric E. Wohlforth, Anchorage, for appellees. Before NESBETT, C. J., DIMOND, RABINOWITZ, and CONNOR, JJ., and LEWIS, Superior Court Judge.

4430

27694

OPINION RABINOWITZ, Justice. In his complaint below appellant primarily sought both declaratory and injunc-tive relief. On motion of appellees the superior court dismissed the complaint with prejudice. We have concluded that the lower court's ruling was in part erroneous. In 1959, our legislature implemented the judiciary article of the Alaska constitution by defining the jurisdiction of the superior court. In so doing the legislature vested the superior court with authority to render declaratory judgments. This grant flowed from the following statutory provision: In case of an actual controversy within the state, the superior court, upon the filing of an appropriate pleading, may declare the rights and legal relations of an interested party seeking the declaration, whether or not further relief is or could be sought. The declaration has the force and effect of a final judgment or decree and is reviewable as such. Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against an adverse party whose rights have been determined by the judgment. It is apparent that our legislature intended to parallel the text of the federal Declaratory Judgment Act in its formulation of the declaratory judgment provisions just quoted. Complementing Alaska's statutory provisions relating to declaratory judgments are the provisions of Civil Rule 57(a). By virtue of this rule of civil procedure, it is provided that: The procedure for obtaining a declaratory judgment pursuant to statute shall be in accordance with these rules, and the right to trial by jury may be demanded under the circumstances and in the manner provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar. It is essentially against this framework of Alaska's statutory and procedural provisions relating to declaratory judgments that the superior court's dismissal of the amended complaint must be judged. Before explaining the basis of our conclusion that the superior court erred in its dismissal of appellant's amended complaint, a brief examination of the historical antecedents of Alaska's declaratory judgment act and the jurisprudence of declaratory judgments in general is appropriate. Although the earliest form of a declaratory judgment procedure is found in ancient Roman law, it was the late nineteenth century developments of declaratory relief in England which supplied the model for American legislation. In 1915, the first effective declaratory judgment statute in this country was enacted by the legislature of New Jersey. Seven years later the Uniform Declaratory Judgments Act was approved by the commissioners on Uniform State Laws. Since its approval, over 30 states have adopted (or have enacted statutes substantially similar to) the Uniform Act. In regard to the federal prototype of Alaska's Declaratory Judgments Act, judicial precedent has established that the federal Declaratory Judgment Act is both remedial and procedural in nature, creating no substantive rights or duties. In short, the procedure provided by the federal Declaratory Judgment Act added another remedy to existing legal and equitable remedies. As Professor Moore puts it: Courts had from time immemorial rendered declaratory judgments, i. e., had declared or adjudicated rights in cases that could be fitted within any traditional common law form of action or equitable remedy. But these traditional legal and equitable remedies did not always afford an adequate judicial remedy. The declaratory judgment remedy is an all-purpose remedy designed to permit an adjudication whenever the court has jurisdiction, there is an actual case or controversy, and an adjudication would serve a useful purpose. Under both the federal act and the Alaska's Declaratory Judgment Act, AS 22.-10.020(b), it is provided that the court "may declare the rights and legal relations" of an interested party seeking the declaration. Thus, it is clear that judicial discretion was intended to play a significant role in the administration of both acts. According to Professor Borchard, an eminent authority in the field of declaratory judgment, [t]he two principal criteria guiding the policy in favor of rendering declaratory judgments are (1) when the judg ment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding. It follows that when neither of these results can be accomplished, the court should decline to render the declaration prayed. In regard to the federal act, it has been said that: The discretion to grant or refuse declaratory relief should be liberally exercised to effectuate the purposes of the Declaratory Judgment Act and thereby afford relief' from uncertainty and insecurity with respect to rights, status and other legal relations. This exercise of judicial discretion, under the federal Declaratory Judgment Act, is subject to appellate review. Although we choose to make no comment upon the merits of his thesis, we note that in Professor Moore's view, in reviewing the trial court's exercise of discretion to grant or refuse declaratory relief, a sound position is that the appellate court may substitute its judgment for that of the lower court. The determination of the trial court may, therefore, be reversed where, though not arbitrary or capricious, it was nevertheless erroneous. This view of the appellate court's power to review and reverse the action of the trial court in respect to its discretionary power to grant or refuse declaratory relief permits greater uniformity than would otherwise be possible. Judicial precedent had delineated criteria for the guidance of trial courts in the exercise of discretion under the federal act. Thus, it is settled that the existence of another adequate remedy does not preclude declaratory relief where appropriate ; that courts should guard against the use of the declaratory judgment action as a means of procedural fencing; and that declaratory relief may be withheld when the grant of such relief would not terminate the controversy or the uncertainty which gave rise to the declaratory proceeding. Both Alaska's Declaratory Judgment Act and the federal act require "a case of actual controversy" as a prerequisite to the grant of declaratory relief. In analyzing the meaning of "justiciability," Chief Justice Hughes, in Aetna Life Insurance Company v. Haworth, said: A "controversy" in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must he a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. And as it is not essential to the exercise of the judicial power that an injunction be sought, allegations that irreparable injury is threatened are not required. It follows that declaratory relief will be withheld when declarations are sought concerning hypothetical or advisory questions or moot questions. On the other hand, declaratory relief may be sought to determine the validity and construction of statutes and public acts. An appropriate summary of these principles is provided by Professor Moore in the following passage from his treatise: [I]t may be stated that the declaratory action is limited to no particular class of cases, and is confined to no special type of litigation. Its scope is pervasive. If a "case or controversy" is presented, and the requisite elements of jurisdiction are present, then in the absence of statutory prohibition, the court is competent to provide declaratory relief. Whether or not such relief will in fact be granted is a matter of judicial discretion. But the exercise of this discretion is to be in accordance with established principles, and is to be liberally exercised in achieving the Act's remedial objectives. Resolution of the narrow issues presented by this appeal requires consideration of more particularized criteria than the general declaratory judgment principles previously discussed. As indicated earlier, Civil Rule 57(a) provides in part that "[t]he procedure for obtaining a declaratory judgment [under AS 22.10.020(b)] shall be in accordance" with our Rules of Civil Procedure. The intent of this rule of procedure was to establish that general rules of pleading and of civil procedure were to be made applicable to actions for declaratory relief. Thus, all that is required of a complaint seeking declaratory relief is a simple statement of facts demonstrating that the superior court has jurisdiction and that an actual justiciable case or controversy is presented. In short, the requirements of pleadings in actions seeking declaratory relief do not differ from those standards of pleadings governing other types of civil actions. These principles received explication and application in Gomillion v. Lightfoot. There Negro citizens of Alabama sought to invalidate a state redistricting statute in a declaratory judgment action initiated in district court. Respondents, in part, moved for dismissal of the action for failure to state a claim upon which relief could be granted. The United States Supreme Court reversed the district court's ruling. Writing for the court, Mr. Justice Frankfurter said: At this stage of the litigation we are not concerned with the truth of the allegations, that is, the ability of petitioners to sustain their allegations by proof. The sole question is whether the allegations entitle them to make good on their claim that they are being denied rights under the United States Constitution. A rule substantially similar to the federal rule has evolved through judicial construction of the Uniform Declaratory Judgments Act. Typical of this line of state court decisions is City of Mobile v. Gulf Development Company in which the state court test governing the sufficiency of pleadings seeking declaratory relief is formulated in the following manner: The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention but whether he is entitled to a declaration of rights at all. Adopting the foregoing standard for the determination of the sufficiency of a pleading which requests declaratory relief, we hold that portions of appellant's amended complaint adequately stated separate claims for declaratory relief while certain remaining claims for relief were barred under the doctrine of res judicata. Reference to two prior decisions of this court will clarify our holding in the case at bar. In Dale v. Greater Anchorage Area Borough, appellant Marjorie Dale sought a declaration that the October 3, 1967, election held by the Greater Anchorage Area Borough was invalid. One of the measures voted upon at this time was Proposition A which related to the approval or disapproval of the borough's incurring a $20,000,000 indebtedness for sewerage treatment facilities. The superior court dismissed appellant's complaint for the reason that it failed to state a claim upon which relief could be granted since appellant had not delivered to the borough assembly a written notice of contest of the election as required by borough ordinance. This court upheld the superior court's ruling in the Date case. Thereafter, Will Key Jefferson instituted an action wherein he sought a declaration that this same October 3, 1967, election conducted by the borough was invalid. Appellant's first amended complaint was dismissed with prejudice by the superior court for failure to state a claim upon which relief could be granted and on the basis that the decision in Dale v. Greater Anchorage Area Borough was res judicata of the appellant's asserted claims. In Jefferson v. Greater Anchorage Area Borough, we adopted the "rule that the general principles of res judicata are applicable to suits brought by taxpayers, voters, and other residents of a state for the vindication of alleged public rights. This rule has been particularly applied in litigation challenging the validity of the public bonds." Adoption of this rule led us to the conclusion that the decision in Dale was res judicata with respect to the allegations of Will Key Jefferson's first amended complaint. Of particular significance to the disposition of the case at bar are the allegations of Jefferson's rejected first amended complaint. In the main, the thrust of this pleading consisted of a full scale attack upon the validity of all aspects of the October 3, 1967, election which was held by the Greater Anchorage Area Borough. More particularly, appellant sought a declaration as to the invalidity of the three separate bonding propositions which were submitted to the electorate on October 3, 1967, together with a further declaration that candidate Ely was improperly elected. In his amended complaint in the case at bar, appellant Will Key Jefferson sought declaratory and injunctive relief against both the Greater Anchorage Area Borough and John M. Asplund, individually and as borough chairman. Examination of this six-count pleading has led us to the conclusion that three separate counts fall within the ambit of our holdings in Dale v. Greater Anchorage Area Borough and Jefferson v. Greater Anchorage Area Borough. For in these counts appellant once again is essentially seeking a judicial declaration that the election of October 3, 1967, was invalid both in regard to the three bonding propositions and in regard to the election of certain candidates for positions on the borough assembly. We hold that the res judicata ramifications of our decisions in Dale and Jefferson negate the possibility of appellant's establishing any claims for declaratory relief under Counts III, V, and VI of his amended complaint in the case at bar. In short, we conclude that our decisions in Dale and Jefferson preclude appellant from attempting to question any facet of the October 3, 1967, election which was held by the Greater Anchorage Area Borough. We therefore hold that the trial court correctly dismissed with prejudice all portions of appellant's amended complaint which directly or indirectly sought declaratory or injunctive relief relative to any aspect of the October 3, 1967, borough election. On the other hand, we are not persuaded that the superior court's dismissal of Counts I, II, and IV of the amended complaint was proper. In Count I, it was asserted that the borough chairman and the Greater Anchorage Area Borough had entered into illegal contracts for certain professional services; in Count II, appellant sought a declaration that AS 07.25.-080, giving the borough chairman power to veto actions of the borough assembly, was illegal; and in Count IV, it was alleged that illegal expenditures of borough funds had been made by the borough chairman. Of significance is the fact that none of these counts involve any aspect of the October 3, 1967, borough election. Thus, the allegations of these three counts lie beyond the res judicata emanations of Dale and Jefferson. From the foregoing, it follows that the sufficiency of Counts I, II, and IV, as pleadings stating claims for declaratory relief, must be judged in accordance with the test we have previously discussed and adopted. We reiterate the test of sufficiency is not whether the complaint demonstrates that the plaintiff will succeed but rather whether the allegations disclose that he is entitled to a declaration of rights. This criterion is met by allegations showing jurisdiction and the presence of an actual justiciable case or controversy. Tested against this criterion we hold that allegations of Counts I, II, and IV allege sufficient facts to constitute claims for declaratory relief. We therefore reverse the superior court's dismissal with prejudice of Counts I, II, and IV of appellant's amended complaint. The trial court's dismissal with prejudice of Counts III, V, and VI of appellant's amended complaint is affirmed. The case at bar is remanded for further proceedings in regard to Counts I, II, and IV of appellant's amended complaint. . Alaska const, art. IV, § 1 provides in part: The judicial power of the State is vested in a supreme court, a superior court, and the courts established by the legislature. The jurisdiction of courts shall be prescribed by law. . AS 22.10.020(b) (SLA1959, ch. 50, § 17(1)(b)). . Currently 28 U.S.C. § 2201 reads as follows : In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. Additionally, 28 U.S.C. § 2202 provides that: Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment. .Alaska's procedural rule is practically identical to Fed.R.Civ.P. 5T. . N.J.Laws of 1915, eh. 116, § 7, at 185. In the late 1800's both Rhode Island and Maryland provided for a degree of declaratory relief. . As previously indicated, Alaska had not adopted the Uniform Act. In regard to the relationship between the Uniform Act and the federal Declaratory Judgment Act, Professor Moore writes: The Uniform Act is much more explicit and detailed than the federal Act. In commenting upon the different drafting techniques employed, Professor Bor-chard states: "⅜ ⅜ * it seemed necessary to write into the Uniform Act as much as possible of the established jurisprudence so as to guide state courts. But it was thought best to make the Federal Act a short one and to include only such provisions as were indispensable Professor Moore also states that "the Uniform Declaratory Judgments Act and the surrounding state jurisprudential experience are of great assistance to federal courts in their interpretation and application of the federal Act 6A J. Moore, Federal Practice ¶ 57.02[1], at 3005 (2d ed.1966) (footnotes omitted). . McCarty v. Hollis, 120 F.2d 540 (10th Cir. 1941); Reliance Life Ins. Co. v. Burgess, 112 F.2d 234 (8th Cir. 1940). Since our Declaratory Judgment Act and pertinent procedural provisions are substantially similar to their federal counterparts, we consider federal precedent pertinent. . 6A J. Moore, Federal Practice ¶ 57.05, at 3022 (2d ed.1966). . Supra note 3. . In regard to the federal act and judicial discretion thereunder, see Aetna Cas. & Sur. Co. v. Quarles, 92 F.2d 321, 324 (4th Cir. 1937). Compare § 6 of the Uniform Declaratory Judgments Act which provides: The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding. . Borchard, Declaratory Judgments at 299 (2d ed.1941); Maryland Cas. Co. v. Boyle Constr. Co., 123 F.2d 558, 565 (4th Cir. 1941) ; Aetna Cas. & Sur. Co. v. Quarles, 92 F.2d 321 (4th Cir. 1937). . Lehigh Coal & Navigation Co. v. Central R.R., 33 F.Supp. 362, 365 (E.D.Pa. 1940). See also Larson v. General Motors Corp., 134 F.2d 450, 453 (2d Cir. 1943). . Delno v. Market St. Ry., 124 F.2d 965 (9th Cir. 1942) ; Dominion Elec. Mfg. Co. v. Edwin L. Wiegand Co., 126 F.2d 172 (6th Cir. 1942); 3 W. Barron & A. Holtzoff, Federal Practice and Procedure § 1265, at 298. . 6A J. Moore, Federal Practice ¶ 57.08 [2], at 303 (2d ed.1966) (footnotes omitted) ; American States Ins. Co. v. D'Atri, 375 F.2d 761 (6th Cir. 1967) ; Sears, Roebuck & Co. v. American Mut. Liab. Ins. Co., 372 F.2d 435 (7th Cir. 1967) ; Provident Tradesmen's Bank & Trust Co. v. Lumbermen's Mut. Cas. Co., 365 F.2d 802, 815 (3rd Cir. 1966). . Larson v. General Motors Corp., 134 F.2d 450, 453 (2d Cir. 1943), cert. denied, 319 U.S. 762, 63 S.Ct. 1318, 87 L. Ed. 1713 (1943). . Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200 (1952). . Public Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 246, 73 S.Ct. 236, 97 L.Ed. 291, 297 (1952); Aetna Cas. & Sur. Co. v. Quarles, 92 F.2d 321 (4th Cir. 1937) ; Uniform Declaratory Judgments Act § 6. . 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000 (1937). . Id. at 240-241, 57 S.Ct. at 464, 81 L. Ed. at 621-622. . In Maryland Cas. Co. v. Pacific Coal & Iron Co., 812 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826, 828-829 (1941), the court said: The difference between an abstract question and a "controversy" contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. . Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937). . Spector Motor Serv. Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944); Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441 (1939); Chester C. Fosgate Co. v. Kirkland, 19 F.Supp. 152 (S.D.Ela.1937); United States ex rel. Welch v. Farley, 18 F.Supp. 75 (D.D.C.1937). . 6A J. Moore, Federal Practice ¶ 57.21 [4], at 3131 (2d ed.1966) (footnotes omitted). . The same conclusion has been reached in cases decided upon the federal declaratory judgment act and Civ.R. 57(a) ⅛ counterpart, namely, Fed.R.Civ.P. 57. See 6A J. Moore, Federal Pracitce ¶ 57.-22 [3]. . 3 W. Barron & A. Holtzoff, Federal Practice and Procedure § 1269, at 319 (Wright rev.1958) (footnotes omitted). In this work, the authors state: The allegation that a controversy exists is not enough. The facts must be al leged and the legal right or interest of the parties made clear. The complaint must allege conduct of the defendants which threatens or endangers some legal right of the plaintiff. It is also well established federal precedent that there is no necessity of irreparable injury in a complaint for declaratory relief. . 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). . Id. at 341, 81 S.Ct. at 127, 5 L.Ed.2d at 113. See Lerner v. Town of Islip, 272 F.Supp. 664, 665 (E.D.N.Y.1967) ; Fried v. Glenn Elec. Heater Corp., 198 F.Supp. 248, 254-255 (D.C.N.J.1961). . 277 Ala. 431, 171 So.2d 247 (1965). . Id. 171 So.2d at 257. To the same effect, see Nations v. Ramsey, 387 S.W.2d 276, 279 (Mo.Ct.App.1965) ; Baldwin v. City of Buffalo, 7 A.D.2d 386, 183 N.Y. S.2d 576, 577 (1959). See also Union County Bd. of Chosen Freeholders v. Union Co. Park Comm'n, 77 N.J.Super. 425, 186 A.2d 703, 707 (1962). . 439 P.2d 790 (Alaska 1968). . In affirming the trial court, we said in part: It is generally held that election contests are purely statutory and dependent upon statutory provisions for their conduct, and that the failure of a contestant to observe strict compliance with the statutory requirements is fatal to his right to have an election contested. We apply the foregoing rule to this case. Appellant at no time delivered to the borough assembly a written notice of contest of the election as required by borough ordinance. Compliance with this requirement of the ordinance was a condition precedent to Appellant's invoking the power of the court to have the election declared invalid. Since Appellant has not met that condition, her complaint failed to state a claim upon which relief could be granted, as the court below correctly held. Dale v. Greater Anchorage Area Borough, 439 P.2d 790, 792-793 (Alaska 1968) (footnotes omitted). . Id. . 451 P.2d 730, 732 (Alaska 1969). . AS 22.10.020(b) provides in part that: "Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against an adverse party whose rights have been determined by the judgment." In accord with this grant, appellant also sought injunctive relief in his first amended complaint. . 439 P.2d 790 (Alaska 1968). . 451 P.2d 730 (Alaska 1969). . In Count III of his amended complaint in the case at bar, appellant asserted that Borough Assemblymen Lang and Ely have not properly qualified for the office of borough assemblymen. Under the allegations of Count V, appellant attempted to incorporate by reference the allegations of his first amended complaint, which complaint was ruled insufficient by virtue of our decision in Jefferson v. Greater Anchorage Area Borough, 451 P.2d 730 (Alaska 1969). In both Counts Y and VI, appellant asked for an order directing the State of Alaska to appear, alleging that the state was an indispensable party. . In our view, appellant's indispensable party allegations appearing in Counts V and VI of his amended complaint are so intimately connected with the allegations and relief he sought in his first amended complaint that the same fall within the res judicata reach of our decision in Jefferson. . Supra notes 27, 28, and 29. . Appellees moved to dismiss appellant's amended complaint on res judicata and estoppel grounds. The text of the superior court's "Order of Dismissal With Prejudice" does not clearly reveal the basis for the court's ruling. In part, the order reads as follows: [A]nd it appearing to the Court that the basic underlying ground for the bulk of Plaintiff's complaint are irregularities with the Greater Anchorage Area Borough election of October 3, 1967, and the ultra-vires acts of the offices [sic] of the Greater Anchorage Area Borough and it further appearing that the Supreme Court of the State of Alaska has already ruled contrary to the challenging of the election of October 3, 1967 ⅜. Our determination of the sufficiency of pleading aspects of Counts I, II, and IV does not embody any intimation on our part that these counts represent, either individually or collectively, appropriate occasions for the exercise of judicial discretion in favor of granting declaratory relief. Study of the record does not reveal whether the trial court exercised its discretion in ruling on ap-pellees' motion to dismiss the amended complaint. .Our disposition makes unnecessary resolution of appellant's argument concerning the lower court's award of attorney's fees to appellees.

10570585

Robert J. MEALEY, Paola M. Mealey, Leo A. Gagne, Vivian Gagne, Alaska Title Guaranty Company, Seattle-First National Bank, Trustee for Alaska Distributors Co. Profit Sharing Trust, Appellants, v. Carolyn C. MARTIN, Appellee

Mealey v. Martin

1970-05-04

File No. 1069

965

967

468 P.2d 965

468

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:39:59.543332+00:00

CAP

Before DIMOND, RABINOWITZ and CONNOR, JJ., and FITZGERALD, Superior Court Judge.

Robert J. MEALEY, Paola M. Mealey, Leo A. Gagne, Vivian Gagne, Alaska Title Guaranty Company, Seattle-First National Bank, Trustee for Alaska Distributors Co. Profit Sharing Trust, Appellants, v. Carolyn C. MARTIN, Appellee.

Robert J. MEALEY, Paola M. Mealey, Leo A. Gagne, Vivian Gagne, Alaska Title Guaranty Company, Seattle-First National Bank, Trustee for Alaska Distributors Co. Profit Sharing Trust, Appellants, v. Carolyn C. MARTIN, Appellee. File No. 1069. Supreme Court of Alaska. May 4, 1970. Richard L. McVeigh, of Kalamarides & McVeigh, Richard L. Eckert, of Irvine & Eckert, Anchorage, for appellants. Verne O. Martin, Anchorage, for appel-lee. Before DIMOND, RABINOWITZ and CONNOR, JJ., and FITZGERALD, Superior Court Judge.

1278

7550

OPINION DIMOND, Justice. On February 11, 1966, the United States issued a patent to Arthur Zimmerman on his homestead. Prior to that date, Zimmerman had contracted certain debts which resulted in a sale of his homestead on execution in 1966 or 1967. In 1968 Zimmerman sold the property to appellee and she brought this suit to quiet title. Appellee was granted a summary judgment in which she was declared to be the owner of the property as against the claims of those who had previously purchased it at the execution sale. This appeal followed. The basis for recognizing appellee's title was that under federal law a homestead could not become liable to the satisfaction of debts contracted,prior to the issuance of patent, and therefore the sale of the property on execution for such debts was ineffective. The federal statute involved, which was enacted in 1862, provides: No lands acquired under the provisions of the homestead laws and laws supplemental and amendatory thereof shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor. Appellants' position is that since the property was sold for satisfaction of Zimmerman's debts after patent had issued, the federal statute was not applicable because by that time all interest in the property by the United States had come to an end. This is not what the statute provides. It says in plain language that homestead lands shall not be liable to the satisfaction of any debt contracted prior to the issuance of patent. It is the time that the debt is contracted that governs, and not the time when an attempt is made to satisfy the debt by execution and sale. We do not believe the statute can reasonably be read as meaning that homestead lands, not liable to the satisfaction of debts incurred prior to the issuance of patent, become liable after patent has been issued. It is true that the statute was read that way by Justice Holmes in the case of Ruddy v. Rossi in 1918. It was Justice Holmes' opinion that once patent is issued the land has left the ownership and control of the United States, that it is then part of the territory of a state and not subject to legislation on the part of the United States, that the United States then has no business to determine the policy to be pursued concerning privately owned land within a state, and therefore that the statute should be construed as having no application after the interest of the United States as owner is at an end, which is after patent has been issued. The difficulty, so far as appellants' position is concerned, is that Justice Holmes' opinion was a minority view. The majority of the United States Supreme Court construed the statute the other way, and held that Congress had the power thus to restrict the alienation of homestead lands after the United States had parted with title by issuance o£ patent. Appellants urge us, nevertheless, to adopt Justice Holmes' dissenting view on the assumption that now, 52 years later, the United States Supreme Court would reverse its position in the Ruddy case in view of the great changes made in the law and in commer cial transactions and in light of the continued loss of state rights to the federal government. We have not been referred to any decisions of federal or state courts which show that the doctrine enunciated in Ruddy has become eroded with the passage of time. In the absence of some persuasive indication that the United States Supreme Court today would not adhere to its decision in Ruddy, we are not inclined to presume that this would be the case. We are required by the supremacy clause of the federal constitution to accept the federal statute and the construction given it by the United States Supreme Court. Appellants refer us to decisions holding that there is nothing in 43 U.S.C.A. § 175 prohibiting the homesteader from waiving the protection of the statute by voluntary act, such as executing a mortgage or acquiescing in the sale of the land or by abandoning his homestead. Appellants contend that there was such a waiver here when Zimmerman signed a confession of judgment for the debts for which the property was executed upon and sold. The confession of judgment provided in relevant part: I, Arthur Zimmerman defendant above named, hereby confess judgment in favor of plaintiff for $6,066.48. This confession of judgment is for a debt justly due and owing from me to the plaintiff. I hereby assent to entry of judgment upon this confession and to execution thereon. Pursuant to this confession of judgment, the lower court entered judgment against Zimmerman in which it was provided that the judgment could be satisfied from the homestead property. By confessing judgment Zimmerman acknowledged an indebtedness on which it was contemplated a judgment would be entered. There is nothing in the confession by itself that purports to constitute an acquiescence by Zimmerman in the sale of his property. It is true that Zimmerman not only confessed to the entry of judgment against him, but also "to execution thereof." But this was general and did not constitute his specific consent to the sale of his homestead lands in payment of the debt. It is also true that the judgment provided that execution should be satisfied from the homestead property. But such specific reference to the homestead first made its appearance in the judgment, was not a part of Zimmerman's confession of judgment, and therefore is not decisive of the question of whether Zimmerman consented to the sale of this particular property. If there may be a waiver of 43 U.S.C.A. § 175, and there is authority indicating there may not be, it must relate expressly to specific property in order to be effective. In addition, it must appear that Zimmerman knew of his rights under the statute to have his homestead exempt from being liable for satisfaction of his debt, and that he intended to relinquish that right. That was not established here. There was no waiver of the provisions of 43 U.S.C.A. § 175. The judgment quieting title to the property in appellee is affirmed. BONEY, J., not participating. . 43 U.S.C.A. § 176 (1964). . 248 U.S. 104, 107-111, 39 S.Ct. 46, 47-48, 63 L.Ed. 148, 151-163 (1918). .Ruddy v. Rossi, 248 U.8. 104, 106-107, 39 S.Ct. 46, 47, 63 L.Ed. 148, 150-151 (1918). . Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593, 598 (1967) ; Chesapeake & O. Ry. Co. v. Martin, 283 U.S. 209, 220-221, 51 S.Ct. 453, 457-458, 75 L.Ed. 983, 990 (1931) ; Provident Sav. Inst. v. Massachusetts, 6 Wall (U.S.) 611, 628, 18 L.Ed. 907, 912 (1868). . Information Buying Co. v. Miller, 173 Ga. 786, 161 S.E. 617, 619 (1931). . Mettler v. Rocky Mountain Sec. Co., 68 Mont. 406, 219 P. 243, 245 (1923). . Benning v. Hessler, 144 Minn. 403, 175 N.W. 682, 683 (1920) ; St. Marie v. Chester B. Brown Co., 84 Idaho 216, 370 P.2d 195, 196 (1962). . A waiver is an intentional relinquishment of a known right. Hammonds v. State, 442 P.2d 39, 42 (Alaska 1968).

10573617

Alydane T. SEARFUS, Appellant, v. NORTHERN GAS COMPANY, Inc., Appellee

Searfus v. Northern Gas Co.

1970-07-31

No. 1148

966

970

472 P.2d 966

472

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:40:08.248875+00:00

CAP

Before BONEY, C. J., DIMOND, RABINOWITZ, and CONNOR, JJ., and STEWART, Superior Court Judge.

Alydane T. SEARFUS, Appellant, v. NORTHERN GAS COMPANY, Inc., Appellee.

Alydane T. SEARFUS, Appellant, v. NORTHERN GAS COMPANY, Inc., Appellee. No. 1148. Supreme Court of Alaska. July 31, 1970. Robert A. Parrish, Fairbanks, for appellant. Howard Staley, Merdes, Schaible, Staley & DeLisio, Fairbanks, for appellee. Before BONEY, C. J., DIMOND, RABINOWITZ, and CONNOR, JJ., and STEWART, Superior Court Judge.

2212

13796

RABINOWITZ, Justice. Appellant Alydane Searfus brought an action for personal injuries against appel-lee Northern Gas. In its answer, Northern Gas denied any negligence on its part, asserted that Alydane Searfus was contribu-torily negligent, and as a separate affirmative defense contended that since appellant was its employee at the time the accident happened her sole remedy was under the Alaska Workmen's Compensation Act. A superior court jury returned a general verdict in Northern Gas' favor and by special interrogatory found that Alydane Searfus was an employee of Northern Gas. The gist of appellant's appeal is that the trial court erroneously defined the term "employee" in its instructions to the jury and erroneously instructed on the effect which the jury was required to give to a determination that an employment relationship existed between Northern Gas and appellant. Study of the record and applicable law has led us to the conclusion that the superior court's judgment should be affirmed. Regarding Northern Gas' defense that appellant's exclusive remedy was under the Workmen's Compensation Act, the trial court instructed that: The relation of master and servant arises out of a contract of employment between a master or employer and a servant or employee, and usually contemplates the employer's right both to prescribe the end and to direct the means and methods of doing the work. In a specific sense a servant is one who represents the will of the master, not only in the ultimate result of the work but in the details by which the result is accomplished. In determining this question four principal factors may be considered, namely: (1) Direct evidence of the right to control or the exercise of control; (2) Method of payment; (3) Furnishing of equipment; and (4) The right to terminate the employment relationship This instruction was based upon our decision in Cordova Fish & Cold Storage Co. v. Estes, 370 P.2d 180, 184 (Alaska 1962), and reflects the reliance placed upon that decision by the trial court and counsel for both parties to this appeal. In Cordova, we said that one is to be regarded as an employee if the principal has the right to control the details of the work. Perhaps overlooked at trial is the fact that the Cordova opinion rests on a statutory provision which was repealed in 1959. The controlling statutory provision in Cor-dova read as follows: Any person rendering service for another, other than as an independent contractor, is presumed to be an employee within the meaning of this Act. The term "independent contractor" shall be taken to mean, for the purposes of this Act, any person who renders service, other than manual labor, for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished. (emphasis added) Using the foregoing as a guiding criterion, we said in Cordova that: It is clear from the Board's decision that it had evidence before it on the four principal factors showing right of control, namely: (1) direct evidence of right or exercise of control; (2) method of payment; (3) furnishing of equipment; and (4) the right to fire. Since our compensation act has no provision comparable to the one construed in Cordova, there is now no controlling authority, in case or statute, defining "employee." Counsel for appellant states that the Cordova decision is "directly in point," and then argues that Northern Gas did not produce any evidence as to the requisite four factors establishing its right to control the details of Alydane Searfus' work. We hold that the trial court's instruction defining "employee" was not prejudicial error. Most jurisdictions define "employee" as a servant in the master-servant sense. Alaska's present compensation act treats some persons as "employees" who are not servants and excludes some servants from the category of employee. For example, an uninsured subcontractor's employees are considerd employees of the contractor, though they are not servants of the contractor; part-time baby sitters, cleaning persons, and harvest help are not treated as employees, though they may be servants in the common law sense. Use of the common law definition of "servant" as the definition of "employee" for workmen's compensation purposes has been sub jected to thoughtful criticism. To a large extent we are in accord with criticism of the master-servant test of control. In our view, such an approach employs too narrow a criterion for determination of employee status in light of the rationale of compensation acts. In Gordon v. Burgess Construction Company, 425 P.2d 602, 605 (Alaska 1967), we said: The social philosophy responsible for workmen's compensation legislation has been well expressed by Professor Larson as follows: "The ultimate social philosophy behind compensation liability is belief in the wisdom of providing, in the most efficient, most dignified, and most certain form, financial and medical benefits for the victims of work-connected injuries which an enlightened community would feel obliged to provide." Professor Larson states that the theory of compensation legislation is that the costs of all industrial accidents should be borne by the consumer as a part of the cost of the product. From this principle, Professor Larson infers that "the nature of the claimant's work in relation to the regular business of the employer" should be the test for applicability of workmen's compensation, rather than the master-servant test of control which has been developed to delimit the scope of a master's vicarious liability to third persons for torts committed by his servants. It follows that any worker whose services form a regular and continuing part of the cost of that product, and whose method of operation is not such an independent business that it forms in itself a separate route through which his own costs of industrial accident can be channelled, is within the presumptive area of intended protection. Terming this approach the "relative nature of the work" test, Larson would have the trier of fact determine "employee" status through consideration of the character of the claimant's work or business, and the relationship of the claimant's work or business to the purported employer's business. In evaluating the character of the claimant's work, the trier of fact is to consider the degree of skill involved, the degree to which it is a separate calling or business, and the extent to which it can be expected to carry its own accident burden. Concerning the relationship of the claimant's work to the purported employer's business, the trier of fact is to consider how much it is a regular part of the employer's regular work, whether it is continuous or intermittent, and whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job. We believe that the "nature of the work" test should be adopted in resolving future employee status issues under the Alaska Workmen's Compensation Act. Such an approach is, in our view, more consonant with the philosophy of compensation legislation than the master-servant control test. Designation of the precise boundaries of, and the relevant factors involved in, the "nature of the work" test must, absent legislative definition, await further development through judicial decision. In the case at bar, the trial court's instruction embodying the master-servant control test for determination of "employee" status was harmless error because this test is narrower than the "nature of the work" criterion and therefore more favorable to appellant than an instruction using the relative nature of the work test. Further, the record contains ample evidence in support of the conclusion that appellant was an employee of Northern Gas under either the master-servant control test or the "relative nature of the work" standard. Appellant's second specification of error asserts that the trial court's instruction pertaining to the effect to be given a determination that appellant was an employee of Northern Gas was erroneous. Instruction number 20 reads as follows: [T]hat if [appellant] was an employee of Northern Gas Company, she has no right to recover from Northern Gas Company in an action such as this, but in such case, her only remedy as an employee against her employer is under the Workmen's Compensation Act which is not involved in this litigation. If you find that the [appellant] was an employee of [appellee], you are not to concern yourself with her rights under workmen's compensation, as that is not an issue in this lawsuit. At trial, counsel for appellant objected to this instruction on the ground it was incomplete because the jury was not informed that, given employee status, the compensation act would not bar recovery in tort unless Northern Gas had complied with the act. In appellant's brief, the only argument advanced in support of this specification of error is the court's failure to instruct the jury that Northern Gas had the burden of proving that appellant was an employee of Northern Gas and that Northern Gas had complied with the provisions of our compensation act. The record lacks any evidence showing that Northern Gas failed to secure payment of compensation to appellant as required by the Alaska Workmen's Compensation Act. Absent any jury issue, we find no error in the trial court's instruction number 20. We also find appellant's burden of proof argument without merit. From a reading of the trial court's instructions as a whole, we think the jury was adequately informed that Northern Gas was required to prove by a preponderance of the evidence that Alydane Searfus was its employee. The judgment entered below is affirmed. . Cordova Fish & Cold Storage Co. v. Estes, 370 P.2d ISO, 184 (Alaska 1962). . SX.A.1959, cli. 193 § 42. . § 43-3-9 A.CX.A. (1949). . Cordova Fish & Cold Storage Co. v. Estes, 370 I\2d 180, 184 (Alaska 1962) (footnote omitted). . Alaska's present act, AS 23.30.265(11), defines "employee" as "an employee employed by an employer as defined in paragraph (12)." AS 23.30.265(12) defines "employer" as "the state or its political subdivision or a person employing one or more persons in connection with a business or industry coming within the scope of this chapter and carried on in this state." . 1A A. Larson, The Law of Workmen's Compensation § 43.10 (1967). . AS 23.30.045(a); Thorsheim v. State, 469 P.2d 383 (Alaska, May 22, 1970). . AS 23.30.230 provides : As defined by regulations adopted by the board, part-time baby sitters, cleaning persons, harvest help and similar part-time or transient help are not covered by this chapter. No contention was made at trial or advanced on appeal that appellant Alydane Searfus came within AS 23.30.230 and was therefore not covered by the Alaska Workmen's Compensation Act. . 1A A. Larson, The Law of Workmen's Compensation § 43.42, 43.50 (1967) ; Stevens, The Test of the Employment Relation, 38 Mich.L.Rev. 188 (1939); Tata v. Benjamin Muskovitz Plumbing & Heating, 354 Mich. 695, 94 N.W.2d 71 (1959). . 1A A. Larson, The Law of Workmen's Compensation § 43.51, at 633 (1967). . Id. § 4.3.52. . Compare Hannigan v. Gohlfarb, 53 N.J.Super. 190, 147 A.2d 56, 58 (1958), a case endorsing Professor Larson's view. The case says that for purposes of defining "employee" in a workmen's compensation case, decisions construing the term in social security and unemployment compensation acts are relevant. See AS 23.20.525(a)(4)(A), (B), and (C) as to the Alaska Employment Security Act's definition of "employment." This section of the Employment Security Act provides: (4) service performed by an individual whether or not the common-law relationship of master and servant exists, unless and until it is shown to the satisfaction of the department that (A) the individual has been and will continue to be free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact: (B) the service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (C) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed. . AS 23.30.045(a) states that an "employer is liable for and shall secure the payment to his employees of the compensation payable" under the act. AS 23.30.-055 provides that in the event "an employer fails to secure payment of compensation an injured employee ⅞ may elect to claim compensation or to maintain an action against the employer at law. " If the injured employee elects to maintain a tort action, AS 23.30.055 further provides that the employer is barred from pleading assumption of risk, contributory negligence, or the fellow servant doctrine, as defenses to the action. See also AS 23.30.060. We find no merit in appellant's quasi-estoppel-"blow hot and cold" argument. Appellant's authorities are in-apposite. Further, we believe this question to be controlled by the provisions of AS 23.30.055. See Taylor v. Interior Enterprises, Inc., 471 P.2d 405 (Alaska, June 15, 1970).

10566219

Carl W. MERTZ, Appellant, v. J. M. COVINGTON CORP., Appellee

Mertz v. J. M. Covington Corp.

1970-06-12

No. 1129

532

537

470 P.2d 532

470

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-11T02:39:55.338471+00:00

CAP

Before BONEY, C. J., and DIMOND, RABINOWITZ and CONNOR, JJ.

Carl W. MERTZ, Appellant, v. J. M. COVINGTON CORP., Appellee.

Carl W. MERTZ, Appellant, v. J. M. COVINGTON CORP., Appellee. No. 1129. Supreme Court of Alaska. June 12, 1970. Richard F. Lytle, of Houston & Lytle, Anchorage, for appellant. Robert C. Erwin and James D. Gilmore, of Hughes, Thorsncss, Lowe, Gantz & Clark, Anchorage, for appellee. Before BONEY, C. J., and DIMOND, RABINOWITZ and CONNOR, JJ.

2449

14360

CONNOR, Justice. This is an appeal from the entry of judgment against appellant in an action for damage to his real property. The case arose out of the construction by appellee during September 1967 of a water pipeline along the right-of-way of Miller Loop Road in Kenai. Appellant resided on property adjoining the right-of-way. Mertz, the appellant, testified that during the excavation of the area in front of his property, the appellee dumped dirt and gravel on his property and destroyed most of the trees — 15 or 16 — which provided a natural screen and protection from dust and snow. He stated that this destruction occurred in one day without his consent and while he was away at work. He also testified that markers on the corners of his lot were torn out and not replaced. Pictures of the alleged damage taken by Mertz were introduced, although no pictures of the area prior to the excavation were presented. Mertz further testified that he would not allow appellee to remove the excavated earth with tractors because he felt that it would result in further damage to the remaining trees and vegetation. Appellee's foreman, Ledford, testified that prior to the excavation work in front of appellant's property he contacted appellant. He told appellant of the project and that some soil would get on Mertz' property. He assured Mertz that the property would be cleaned up afterwards and that Covington would place gravel on Mertz' driveway. According to Ledford, Mertz seemed satisfied with Ledford's proposal. Both Ledford and one Briske testified that the excavation next to appellant's land took place on several days, that they saw appellant at home, and that he did not once object to the appellee's activities until after the completion of the ditch. Ledford testified that appellant's first objection came about one day after he was refused a tap on the waterline. The testimony further revealed that the only damage to the trees was the skinning of the hark of one birch tree. There was further testimony on ap-pellee's behalf indicating that appellee had made several unsuccessful efforts to negotiate for a cleanup after appellant refuse,d to allow appellee to backfill, and that ap-pellee was forced to bring in other earth to fill the excavated ditch. In prosecuting his claim, appellant prayed for treble damages under AS 09.- 45.730 as well as other equitable relief. Appellee's answer admits the entry onto appellant's land, but sets up the defense of consent — that appellant had consented to the entry for the purpose of temporarily storing the excavated material. This case and that of another nearby landowner were consolidated and went to trial before a jury. The cases were submitted to the jury with special interrogatories, and general verdicts were returned against appellant and in favor of the other landowner. At the close of the evidence appellant unsuccessfully moved that the question of trespass be determined as a matter of law and objected to the refusal to give certain requested instructions. After the entry of the verdict appellant moved for a new trial, which was denied. Appellant raises four claims of error: the trial court erroneously refused to give his requested instructions regarding the statute of frauds; the court incorrectly refused to give a requested instruction on trespass ab initio; the court should have determined, as a matter of law, the issue of trespass, instead of submitting it to the jury; and, finally, the court should have granted appellant a new trial. Appellee raises on appeal the question of whether the appeal was timely filed. TIMELINESS OF APPEAL Appellee claims that the notice of appeal filed on March 27, 1969, was not within the 30-day time limit of Supreme Court Rule 7(a). Appellee's reasoning is as follows : Since the superior court clerk entered judgment upon the docket on January 29, 1969, appellant had 10 days from that date to file his motion for a new trial under Civil Rule 59(b). Because the motion was served on February 24th, more than 10 days after the entry of judgment by the clerk, the time limit under Supreme Court Rule 7(a) was not tolled, and the notice of appeal was not timely. Appellant argues that under Civil Rule 58 the time period for serving the motion for a new trial — and consequently for tolling the time period under Rule 7(a) — began to run upon the entry of the written judgment signed by Judge Lewis on February 18, 1969. Civil Rule 58 provides in part: "Entry of Judgment. Unless the court otherwise directs judgment upon the verdict of a jury shall be entered forthwith by the clerk; but the court shall direct the appropriate judgment to be entered upon a special verdict or upon a general verdict accompanied by answers to interrogatories returned by a jury pursuant to Rule 49." The court submitted interrogatories to the jury. Therefore, Civil Rule 58 required the trial judge to direct the entry of judgment, which was done on February 18, 1969. The motion for a new trial filed on February 24th cannot be attacked for untimely filing. The motion was denied March 25, 1969. The notice of appeal was timely filed on March 27, 1969. The case of Vogt v. Winbauer, 376 P.2d 1007 (Alaska 1962), does not support appellee's position. Although the court there held that an untimely filing of a motion for a new trial did not terminate the normal 30-days-from-judgment appeal time, that judgment had been upon a general verdict, not one submitted on interrogatories. Furthermore, a transcript of part of the February 17th proceedings shows that the trial judge indicated that appeal time would run from the entry of the written judgment. APPLICABILITY OF THE STATUTE OF FRAUDS At the close of the evidence appellant submitted to the court the following instructions : Instruction No. 2: "You are instructed that there can be no enforceable agreement concerning real property made by an agent of either the plaintiff or defendant, unless the authority of the agent is in writing. AS 09.25.010." Instruction No. 3A : "I instruct you, as a matter of law, that in order for the defendants or their agents to have a right on the land of the plaintiff, there must have been a written memorandum or both the plaintiff and defendant have admitted that the defendant had the right to enter onto and use the land of the plaintiff. AS 09.25.010(6), AS 09.25.-020(4)." Appellant argues that these instructions should have been given because the alleged agreement whereby appellee was to deposit earth upon appellant's land was an agreement concerning real property under AS 09.25.010(a) (6) and (7) and could not be proved by parol evidence. If this were so, then appellee additionally would not have been able to prove consent by parol because Ledford's authority, as agent, was not in writing and there was no memorandum of the agreement signed by appellee. Since the agreement would not have been enforceable against appellee, it, in turn, should not be enforceable against appellant, under a rule of negative mutuality. We believe that this argument overlooks the nature of a license for the use of real property. "A license, it has been said, 'passeth no interest, nor alters or transfers property in anything, but only makes an action lawful which without it, had been unlawful; " 3 Tiffany, Real Property, § 829 at 401 (3d ed. 1939). It is an almost universal rule of law today that a license is not an interest in real property within the terms of the statute of frauds relating to the transfer of interests in real property. The creation of a license requires only express words, or conduct indicating the landowner's consent to the doing of certain acts upon the land. There was ample evidence in the record from which a jury could reasonably infer that an agreement creating a license had been reached between Ledford and appellant. The record contains no facts which would indicate that a. conveyance of the standing timber on the land was intended or that the parties were attempting to create an easement or a lease to last more than one year. The denial of appellant's requested instructions was not error. Howarth v. Pfeifer, 423 P.2d 680 (Alaska 1967). THE TRESPASS AB INITIO INSTRUCTION Appellant's requested instruction No. 5 provided: "You are instructed that if the defendant had a right to enter into the land of the plaintiff, and that after the defendant entered onto the land of the plaintiff, they performed acts or caused damages over and above that agreed upon between the parties, then you shall consider the defendant to be trespasser [sic] 'ab initio' or from the time they first entered onto the land of the plaintiff. Law of Torts Prosser, page 106." Appellant concedes that the doctrine, even if valid in our law today, is generally applied only to those entering in a governmental capacity or to execute legal process. There was no evidence offered below which would indicate that appellee had asserted that it was acting as a public authority, or by authority of law. Furthermore, it has recently been held that the doctrine does not apply to one who has abused a license. Cartan v. Cruz Construction Co., 89 N.J.Super. 414, 215 A.2d 356 (1965). It was not error to refuse the requested instruction. TRESPASS AS A MATTER OF LAW After the close of the evidence appellant unsuccessfully moved that the court find as a matter of law that appellee had wilfully trespassed on appellant's property, on the ground that there was no evidence of consent. The motion was, in essence, a motion for a directed verdict under Civil Rule 50. Where it appears from the record that there is evidence from which fair-minded jurors could reach differing conclusions, the motion is properly denied. Mallonee v. Finch, 413 P.2d 159 (Alaska 1966); Otis Elevator Company v. McLaney, 406 P.2d 7 (Alaska 1965). The evidence is to be viewed in the light most favorable to the party against whom the motion was made. Otis Elevator Company v. McLaney, supra. The summary of the evidence on the question of trespass indicates that there was certainly a substantial conflict as to consent. The trial court was correct in its ruling. THE MOTION FOR A NEW TRIAL Appellant's motion for a new trial was based upon the trial court's failure to give the requested instructions regarding the statute of frauds. As we have already indicated, an agreement which creates a license is not a conveyance of a substantial interest in real property. In the absence of a miscarriage of justice, Montgomery Ward v. Thomas, 394 P.2d 774 (Alaska 1964), or the lack of an eviden-tiary basis for the jury's decision, Mallonee v. Finch, 413 P.2d 159 (Alaska 1966), there has been no abuse of discretion. There was substantial evidence in the record by which the jury could have found that the appellant consented to appellee's entry. Considering the total lack of evidence that the agreement between the parties was intended to affect a substantial interest in real property, the denial of the motion was quite proper. Bolden v. City of Kodiak, 439 P.2d 796 (Alaska 1968). We find no error. Affirmed. . "Trespass b.v cutting' or injuring trees or shrubs. A person who euts down, girdles, or otherwise injures or carries off a tree, timber, or shrub on the land of another person is liable to the owner of that land * ⅜ * for treble the amount of damages which may be assessed in a civil action." . "When Taken. The time within which an appeal may be taken to the supreme court shall be thirty (30) days from the entry of the judgment appealed from unless a shorter time is provided by law . "The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules of civil procedure for the superior court in suits of a civil nature, and the full time for appeal fixed in this subdivision commences to run and is to be computed from the entry of any of the following orders, made upon a timely motion under such rules: or denying a motion for a new trial under Rule 59." ."Motion : Time for Serving — Statement of Grounds. A motion for a new trial shall be served no later than 10 days after the entry of the judgment." ."Statute of Frauds, (a) In the following cases and under the following conditions an agreement, promise, or undertaking is unenforceable unless it or some note or memorandum of it is in writing and subscribed by the party charged or by his agent: * ⅜ * (6) an agreement for leasing for a longer period than one year, or for the sale of real property, or of any interest in real property, or to charge or encumber real property; (7) an agreement concerning real property made by an agent of the party sought to be charged unless the authority of the agent is in writing; . Sweeney v. Bird, 293 Mich. 624, 292 N.W. 506 (1940); Hotel Markham, Inc. v. Patterson, 202 Miss. 451, 32 So.2d 255 (1947) ; Curtis v. La Grande Water Co., 20 Or. 34, 23 P. 808 (1890) ; Restatement of Property, § 515 (1944) ; 3 Powell, Real Property, ¶ 428 at 526.63-526.64 (perm. ed. rev. repl. 1967) ; 1A Thompson, Real Property, § 215 at 188-89 (perm. ed. rev. repl. 1964). . Zellers v. State, 134 Cal.App.2d 270, 285 P.2d 962 (1955) ; Reed Logging Co. v. Marenakos, 31 Wash.2d 32, 196 P.2d 737 (1948) ; see Hawkins v. Alaska Freight Lines, Inc., 410 P.2d 992 (Alaska 19(56); Restatement of Property, § 516, comment e at 3129 (1944); 3 Tiffany, Real Property, § 830 at 405 (3<1 ed. 1939); 1A Thompson, Real Property, § 222 at 211 (perm. ed. rev. repl. 1964). . The doctrine, originating in the Six Carpenters' Case, 8 Co.Rep. 146a, 77 Eng. Rep. 695, 696 (1610), was in effect a rule of procedure allowing an action in trespass rather than ease when one who entered land under legal authority subsequently abused the authority by positive wrongful acts. The doctrine has little significance in modern law. Konsiker v. B. Goodman, Ltd., (1928) 1 K.B. 421. . I-Iarpor and James, the Law of Torts, § 1.21 at 58 (1956) ; Prosser on Torts. § 25 at 132-34 (3d ed. 1964).

12340676

Nathaniel A. TODESCHI, Appellant and Cross-Appellee, v. SUMITOMO METAL MINING POGO, LLC, Appellee and Cross-Appellant

Todeschi v. Sumitomo Metal Mining Pogo, LLC

2017-04-28

Supreme Court No. S-15542, Supreme Court No. S-15571

562

581

394 P.3d 562

394

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-11T02:30:40.572946+00:00

CAP

Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and Bolger, Justices.

Nathaniel A. TODESCHI, Appellant and Cross-Appellee, v. SUMITOMO METAL MINING POGO, LLC, Appellee and Cross-Appellant.

Nathaniel A. TODESCHI, Appellant and Cross-Appellee, v. SUMITOMO METAL MINING POGO, LLC, Appellee and Cross-Appellant. Supreme Court No. S-15542, Supreme Court No. S-15571 Supreme Court of Alaska. April 28, 2017 Michael W. Flanigan, Flanigan & Bataille, Anchorage, for Appellant/Cross-Appellee. Sean Halloran, Littler Mendelson, Anchoi--age, for Appellee/Cross-Appellant. Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and Bolger, Justices.

10745

67296

OPINION MAASSEN, Justice. I. INTRODUCTION A mine supervisor suffered back injuries over the course of his career and required several surgeries. His employer terminated his employment following his request for an accommodation and his renewed pursuit of a three-year-old workers' compensation claim. The supervisor sued, alleging breach of the covenant of good faith and fair dealing and unlawful discrimination based both on a disability and on his assertion of the workers' compensation claim. The employer defended on grounds that the supervisor could no longer perform the essential functions of his job and had declined an offered accommodation; it also asserted that it was not liable for the workers' compensation claim. A jury returned a special verdict finding the employer liable for breach of the covenant of good faith and fair dealing and awarding the supervisor $215,000 in past lost income, but finding in the employer's favor on the supervisor's other claims. The supervisor appeals. He argues that the superior court erred when it (1) denied his motion for a directed verdict on whether he has a disability; (2) denied his motion for judgment notwithstanding the verdict due to an inconsistency between the jury's decisions of two of his claims; (3) declined to give a burden-shifting or adverse inference instruction based on alleged spoliation of evidence; and (4) raised a statute of limitations defense by way of a jury instruction. The employer cross-appeals, arguing that the superior court erred in excluding one of its witnesses. Seeing no error, we affirm. Because we resolve the appeal in the employer's favor, we do not reach the employer's cross-appeal. II. FACTS AND PROCEEDINGS A. Facts Nathaniel Todeschi began work at Pogo Mine in November 2005. The mine was operated by Teck-Pogo, Inc., which later merged with another company to form Sumitomo Metal Mining Pogo, LLC (Sumitomo), the defendant in this case. Sumitomo stipulated in the trial court that, for purposes of employer liability, it was the operator of Pogo Mine the entire time Todeschi worked there. Todeschi was promoted to a supervisor position after less than a year at the mine. Sumitomo does not dispute that his work performance was at least acceptable. As a supervisor, Todeschi was responsible for the safety and production targets of up to ten employees. He directed their activities, provided support, and ensured their safety and efficiency. This required that he spend a large part of his workday underground. According to Sumitomo's job description, underground mine supervisors could travel up to 30 miles in the mine during one 13-hour shift. For these purposes Sumitomo provided both trucks and Kubota tractors; the tractors had minimal suspension, but Sumitomo claimed it could neither completely eliminate their use nor significantly improve their suspension. Todeschi had a history of job-related back injuries, which he testified were aggravated whenever he had to drive a tractor. His first back surgery was before he worked at Pogo Mine. He had another surgery in 2008, but it was ineffective; according to Todeschi, he had a herniated disk that broke into fragments. He testified that in order to continue working without pain he consumed so many painkillers that his doctor thought he had cirrhosis of the liver. He had a back fusion in May 2009 to address the problem. When Todeschi returned to work at the mine later that year, Paul Brunelle, a Pogo general foreman, assigned him to a special project that kept him at a desk. When the special project was completed Todeschi resumed his duties as an underground supervisor. His physician had given him a full medical release with no restrictions, but, according to Todeschi, the doctor had not anticipated that he would be required to drive a tractor again. Todeschi soon sent an email to Chad Omaha, another Pogo general foreman, stating that he would "not operate a Kubota tractor for any reason" because of the risk of further injury to his back. He said Sumitomo was "asking [him] to choose between [his] job and [his] ability to walk and have a normal life" and he had "made all the compromises [he was] going to make on the issue." He asked for other "suitable reliable transportation . so that [he might] continue in [his] current capacity as a shift supervisor" and concluded that he would "give it [until] Monday to see if suitable arrangements are made[;] if not you do as you choose." Todeschi apparently continued working his shifts for awhile, using a truck. But in the meantime, Sumitomo supervisors and the company's attorney, Sean Hal-loran, began discussing by email how Todes-chi's injury might be accommodated and whether he should be terminated instead. A few weeks after Todeschi's email ultimatum, Sumitomo sent him to an independent medical exam with Dr. John Michael James. Sumitomo's human resources manager, Thomas Brokaw, provided Dr. James with a newly drafted job description that included a requirement that mine supervisors be able to "replace water pumps (lifting 601bs to 2501bs depending on the pump being replaced) on their own." Dr. James found the lifting requirement to be unreasonable for even a healthy employee; he concluded that Todes-chi could lift items up to 50 pounds occasionally, should not lift anything more than 40 pounds repetitively, and should be provided a truck as an accommodation. Having received Dr. James's evaluation, Sumitomo terminated Todeschi's employment effective that day on grounds that he "could not perform his regular job due to strict lifting limitations and other restrictions as indicated by [Dr. James]." Sumitomo claims its motivation for firing Todeschi was his inability to drive a tractor, though the termination notice did not say so. Todeschi contends, on the other hand, that Sumitomo fired him because he requested the accommodation and because he had sought to reopen a workers' compensation claim he originally filed after his 2007 workplace injury. Todeschi testified that he abandoned the 2007 workers' compensation claim after Kim Witt, the Pogo human resources manager at the time, told him he would lose his job if he pursued it. Todeschi testified that he used his private insurance to pay for the required medical care but refused to release the workers' compensation insurer, which is why the claim remained open in 2010, Halloran, Sumi-tomo's attorney, testified that Todeschi's renewed pursuit of the claim was irrelevant to Sumitomo because it predated Sumitomo's operation of the mine and was covered by its predecessor's insurance, Todeschi settled the claim for $80,000 in 2011, while this suit;was pending, Todeschi filed his complaint against Sumi-tomo in February 2011. He alleged claims for (1) discrimination on the basis of a disability under AS 18.80.220(a)(1); (2) failure to accommodate his disability under the same statute; (3) breach of the implied covenant of good faith and fair dealing; and (4) discrimination under AS 23.30.247(a) based, on his assertion of the workers' compensation claim. B. Proceedings 1. Todeschi's motion for burden-shifting or an adverse inference instruction based on Sumitomo's alleged spoliation of evidence Thomas Brokaw, Sumitomo's human resources manager at the time of Todeschi's termination, died before trial and without being deposed. Sumitomo substituted its attorney Halloran on its witness list. It explained that Halloran had discussed Todes-chi's termination with Brokaw and could testify about- those discussions, and it waived the attorney-client privilege to that extent. Todeschi opposed Halloraris designation as a witness as untimely, requesting in the alternative that Sumitomo produce all of Hal-loraris written and electronic legal advice for this ease and any similar eases. The superior court allowed Halloraris testimony but or? dered that Sumitomo produce his billing and phone records for the matter, as well as any related communications or memoranda. The court restricted the required production to the period from a month before Todeschi's email ultimatum to a month after his termination, but it noted that any records outside that scope could be reviewed in camera, and it required Sumitomo to create a privilege log. Halloran turned over few emails and phone records and no billing records. He testified that he never billed Sumitomo during 2010 and that he had destroyed any notes when he changed law firms; that his former firm inadvertently destroyed all his emails; and that some of his phone calls used a "voice over internet protocol" (VOIP) system that did not create a record of the call. Emails between Halloran and Brokaw were produced by Sumitomo, but the collection was not complete; Halloran testified that "Brokaw kept the emails that he believed mattered to anything, and he deleted emails that he thought were unimportant." Todeschi moved for a shifting of the burden of proof on his discrimination claims to Sumitomo, or in the alternative a jury instruction allowing an inference that any missing email, phone, and billing records of Hal-loraris would have supported his case. The superior court denied the motion, saying only, "I'm not giving a presumption instruction. I don't think that you've met the burden for that," 2. Jury instruction arguably raising a statute of limitations defense Todeschi also objected to a jury instruction, contending that it invited the jury to apply a statute of limitations defense that Sumitomo had never pleaded. Instruction Number 12 read: You have heard testimony that Kim Witt engaged in certain conduct. Sumitomo cannot be held responsible for Witt's conduct before 2009. However, if you find that Witt engaged in certain conduct before 2009 you may (but need not) further find that it provides context for Sumitomo's actions or omissions in 2010. Before trial Sumitomo had stipulated that "Teck-Pogo Inc. is the same entity as Sumi-tomo Metal Mining Pogo, LLC. Although the name and corporate form were changed when the company was sold a couple years ago, they are, in fact and law, one and the same entity. Thus, . Kim Witt . [was a] Sumitomo employee[ ]." Todeschi argued that Instruction Number 12 effectively negated Sumitomo's stipulation of fact. He argued that the stipulation allowed him to causally connect Witt's actions in 2008 and his termination in 2010, but the instruction precluded that argument when it said that Sumitomo could not "be held responsible for Witt's conduct before 2009." Sumitomo countered that the instruction only prevented the jury from finding it liable for Witt's alleged threat, and Todeschi had not asserted a claim based on the alleged threat itself; the claim Todeschi did bring involved his 2010 firing by Sumitomo,' and the instruction specifically allowed Todeschi to use Witt's alleged threat as background to that event. The court overruled Todeschi's objection and gave Jury Instruction 12. 3. Directed verdict At the close of the evidence Todeschi moved for a directed verdict on the issue of whether he had a disability. He argued that Dr. James's evaluation conclusively showed he was restricted from a class of jobs and therefore had a physical disability, as defined by federal law, because he was substantially limited in the major life activity of working. The argument relied on federal regulations and the Equal Employment Opportunity Commission's interpretation of the Americans with Disability Act Amendments Act. Sumitomo countered by pointing to Todes-chi's full medical release from his own doctor, differing from Dr. James's more guarded evaluation. Sumitomo also argued that the jury might not believe that Todeschi's claimed restrictions were disabilities: While a lifting restriction might prevent him from doing some jobs, the one cited in Dr. James's evaluation was a restriction any average person might have and did not prevent Todeschi from working at Pogo Mine. And no evidence suggested that an inability to drive a tractor could constitute a physical disability; even if it prevented Todeschi from being a mine supervisor, it did not necessarily bar him from an entire class of jobs, which is what the legal definition of "disability" required. The superior court found Todeschi's argument that he had a disability "extremely strong" but denied his motion for, directed verdict, concluding that whether he had a disability was a question of fact that the jury could reasonably answer either way. 4. Motion for judgment notwithstanding the verdict The jury was asked to answer four questions about liability, It answered "no" to three of them: (1) Whether Sumitomo terminated Todeschi's employment "due to a disability in violation of [AS] 18.80.[220]"; • (2) whether Sumitomo "fail[ed] to make a reasonable accommodation so that [Todeschi] could continue his employment"; and (3) whether "Todeschi's pursuit of workers' compensation benefits" was "a substantial factor in Sumitomo's termination of his employment." The jury answered "yes" to one liability question: Whether Sumitomo "breach[ed] the covenant of good faith and fair dealing when [it] terminated Todeschi's employment." For his one successful claim the jury awarded Todeschi $215,000 in past lost income. Todeschi moved for a judgment notwithstanding the verdict, additur, or a new trial. In support of a judgment notwithstanding the verdict — the only aspect of the motion relevant to this appeal — Todeschi argued that he had conclusively proven his claim for discrimination based on disability and that the jury's special verdict was necessarily inconsistent; he argued that the jury could only have found a breach of the covenant of good faith and fair dealing on a view of the facts that also required it to find disability discrimination. The superior court found no inconsistency in the jury verdict, however, and denied Todesehi's motion. This appeal followed. III. STANDARDS OF REVIEW We review the denial of a motion for judgment notwithstanding the verdict (JNOV) using the same standard we use when reviewing a directed verdict. "[B]e-eause the sufficiency of the evidence to support a jury verdict is a question of law, our review [of motions for JNOV and directed verdict] is de novo." When we review a trial court's decision on a motion for directed verdict, "we must decide 'whether the evidence, when considered in the light most favorable to the nonmoving party, is such that reasonable persons could not differ in their judgment.' " "[Conflicting evidence is not to be weighed and witness credibility is not to be judged on appeal." We scrutinize JNOV and directed verdict motions "under a principle of minimum intrusion into the right to jury trial guaranteed under the Alaska Constitution. . If there is any doubt, questions of fact should be submitted to the jury." We review the superior court's decisions of discovery sanctions, such as spoliation remedies, for abuse of discretion. "The choice of a particular sanction for a discovery violation generally is a matter committed to the broad discretion of the trial court." "We review a trial court's findings of fact underlying its discovery sanction determination for clear error and 'will not declare a trial court's finding to be clearly erroneous unless, after a review of the entire record, we are left with a definite and firm conviction that a mistake has been made.' " Whether there has been spoliation is a finding of fact. " 'Jury instructions involve questions of law to which we apply our independent judgment.' When reviewing a trial court's denial of a proposed instruction, our inquiry focuses upon whether the instructions given, when read as a whole, adequately inform the jury of the relevant law.' " "An error in jury instructions is grounds for reversal only if it caused prejudice." "In evaluating whether there has been prejudicial error with regard to jury instructions, we put ourselves in the position of the jurors and 'determine whether the error probably af- feeted their judgment.' " IV. DISCUSSION A. Viewing The Evidence In The Light Most Favorable To Sumitomo, A Reasonable Jury Could Have Found That Todeschi Did Not Have A Disability. Alaska's human rights statutes proscribe certain employment practices, including "discriminating] against a person in compensation or in a term, condition, or privilege of employment because of the person's . physical or mental disability." "Physical or mental disability" is defined to mean "a physical or mental impairment that substantially limits one or more major life activities." "Major life activities," in turn, are defined as "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Todeschi argues that the trial court should have directed a verdict in his favor on whether he had a disability within the meaning of these statutes — a predicate to his disability discrimination claim — because the evidence at trial demonstrated conclusively that his lifting restrictions substantially limited him in the "major life activity" of working. In support of this argument, Todeschi points to an example in the federal regulations implementing the Americans with Disabilities Act Amendments Act: [I]f a person whose job requires heavy lifting develops a disability that prevents him or her from lifting more than fifty pounds and, consequently, from performing not only Ms or her existing job but also other jobs that would similarly require heavy lifting, that person would be substantially limited in working because he or she is substantially limited in performing the class of jobs that require heavy lifting.[ ] Todeschi argues that this example and his own situation "match[] perfectly" and that both Alaska's anti-discrimination statute and the federal law it incorporates required the conclusion that he had a disability as a matter of law. But whether the example matches Todes-chi's case depends on facts the jury could reasonably have found in Sumitomo's favor. First, Sumitomo presented evidence that the lifting requirement did not prevent Todeschi from performing his "existing job." The job description given Dr. James for purposes of the independent medical exam — stating a job requirement of "lifting 601bs to 2501bs depending on the pump being replaced" — was in Dr. James's opinion unreasonable, but Sumitomo contended that as reasonably interpreted it only described lifting with mechanical aids and that Todeschi never actually had to lift anything so heavy by himself in order to perform his job. Second, the federal example requires the jury to find that Todeschi's inability to meet the lifting requirement barred him from a "class of jobs." He points to the uncontested expert testimony of a vocational counselor that he could not work in several categories of jobs, but the jury could have chosen to assign no weight to that testimony. Rather, using their own experience or relying on evidence such as Dr. James's opinion that the lifting requirement was "fairly unreasonable for a[n] uninjured worker," jurors may have found that Todeschi was no more restricted than an average person. The jury may also have relied on Todeschi's full medical release with no restrictions that predated Dr. James's evaluation to conclude that Todeschi was not precluded from performing a "class of jobs." In short, although Todeschi offered evidence sufficient to support a conclusion that he was limited in the "major life activity" of working and therefore had a disability, the jury was not required to accept it as true in light of the conflicting evidence. We conclude that the superior court did not err when it denied Todeschi's motion for a directed verdict on the disability issue. B. A Reasonable Jury Could Consistently Find That Sumitomo Breached The Covenant Of Good Faith And Fair Dealing But Did Not Discriminate Against Todeschi On The Basis Of A Disability. Todeschi argues that because the jury found that Sumitomo breached the covenant of good faith and fair dealing, it could not consistently find that the company did not discriminate against him on the basis of a disability. Jury Instruction 26 informed the jury how to decide whether Sumitomo had breached the covenant: The defendant violated the implied promise of good faith and fair dealing if you find that it is more likely true than not true that the defendant deprived the plaintiff of a benefit of the contract: 1. by acting in bad faith; or 2. by acting in a manner that a reasonable person would regard as unfair. Todeschi argues that the only act the jury could reasonably have found to satisfy either requirement of this instruction is Sumitomo's submission of the job description to Dr. James suggesting that Todeschi was required to lift as much as 250 pounds as part of his job, "then using the failure to meet those lifting requirements as the basis for a termination." Todeschi asserts that if the jury agreed the job description was unfair and that Sumitomo fired him because of his failure to meet its requirements, it must have believed that he was discriminated against because of a disability. But the jury's verdicts can be harmonized. Instruction 26 allowed the jury to consider a broad landscape of actions and motivations in determining whether Sumitomo breached the covenant of good faith and fair dealing, requiring only a finding that the defendant, at some point, acted "in a manner that a reasonable person would regard as unfair." Conversely, the instructions on disability discrimination required more — and more specific— findings. Instruction 15, defining a "disability discrimination claim under AS 18.80.220," required Todeschi to "prove it is more likely true than not true that: (1) . he is an individual who has a disability within the meaning of the statute; [and] (2) . he could perform the essential functions of the position he held (with or without reasonable accommodation)." The jury could reasonably conclude that although Sumitomo acted "unfairly" by creating a job description that would give the company an excuse for terminating Todeschi's employment, Todeschi did not have a disability discrimination claim as Instruction 15 defined it. Todeschi made arguments in the trial court that are consistent with this harmonization of the jury's verdicts. He successfully opposed a version of Instruction 26 that would have required a finding of discrimination as the basis for a breach of the covenant, arguing that "[a] breach of the covenant of good faith and fair dealing is not limited to discriminatory reasons for termination." The court accordingly removed language from the instruction that would have prevented the jury from finding a breach of the covenant if Todeschi's termination was based on a "permissible, that is[,] a nondiscriminatory reason." (Emphasis added.) Thus, consistent with its instructions, the jury might have found that Todeschi did not have a disability but that Sumitomo nonetheless acted unfairly during the process of terminating him. Todeschi's counsel argued repeatedly in closing that Sumitomo's managers knew that the job description was "rigged," that its lifting requirements "were false," and that this was evidence "that Todeschi was treated unfairly, in bad faith," and in breach of the covenant of good faith and fair dealing. The jury may have agreed. Alternatively, the jury might have found that Todeschi did have a disability but that Sumitomo did not unlawfully discijminate against him on that basis but rather terminated him lawfully because he could not perform the essential functions of his job with or without reasonable accommodation. There was evidence from which the jury could reasonably conclude that driving a tractor was an essential function of the job of underground supervisor; there was also evidence that providing Todeschi with a truck instead — the specific accommodation he demanded — was not "feasible for [Sumitomo] under the circumstances," as the jury instructions required. Steven Job, a mine superintendent, testified that "an integral part of what [they] do in the underground is driving tractors." Todeschi conceded that he had been told driving a tractor was part of his job. According to Larry Davey, a Pogo general manager, the only way Sumitomo could ensure that Todeschi always had a truck available for his use would be "to replace the entire fleet of tractors with trucks," which "was certainly not a viable option." Davey testified that Sumitomo tested equipment to replace tractors "many times during the years while [he] was at Pogo" but "at no point could we arrive at a piece of equipment that had the reliability of tractors." Paul Brunelle, a Pogo underground mine general foreman, testified that trucks broke down about 60 percent of the time when used underground. The jury was entitled to accept this evidence in deciding that Todeschi — if he had a disability — -could- not perform the essential functions of his job and that the accommodation of driving a truck instead of a tractor would either not allow him-to.perform those essential functions or would not be feasible for his employer under the circumstances. The jury's special verdicts can thus be read consistently. Even if they appeared to be inconsistent, "[w]e will not disturb a jury verdict if there is a theory which reconciles the apparent inconsistencies." When viewing the . evidence in the light most favorable to Sumitomo, we conclude that a reasonable jury could find a breach of the covenant of good faith and fair dealing and also find, consistently, that Todeschi did not prove the elements of a claim for discrimination based on disability. We therefore affirm the superi- or court's denial of Todeschi's motion for a judgment notwithstanding the verdict. C. The Superior Court Did Not Abuse Its Discretion When It Denied Todeschi's Request For A Spoliation Remedy. Todeschi moved in limine that the burden of proof on his discrimination claims be shifted to the defense or, alternatively, that the jury be given an adverse inference instruction based on Sumitomo's alleged spoliation of evidence, citing the absence of records— billings, phone records, and emails — memorializing the discussions between Sumitomo and Halloran, its attorney, at the time of Todeschi's termination, Todeschi argued that this evidence might show Sumitomo's improper motivations for firing him, relevant to his discrimination claims, and that the jury should at least be instructed it could infer that the evidence would favor his case. On appeal he contends that the superior "court erred in refusing to give an appropriate instruction in light of the spoliation of evidence." The superior court did not decide Todeschi's motion until ruling on objections to proposed jury instructions. The court then denied the motion, saying only that Todesehi had not "met the burden for [a spoliation instruction]." We conclude this was not an abuse of discretion. 1. It was not an abuse of discretion to refuse to give a burden-shifting instruction. We first addressed remedies for negligent spoliation in Sweet v. Sisters of Providence in Washington, in which we set out the steps that must precede the giving of a burden-shifting instruction. First, it is the plaintiffs burden to "establish to the satisfaction of the court that the absence of the records hinders his ability to establish a pri-ma facie case." This requires the plaintiff to demonstrate how "the absence of an adequate [record] sufficiently hinders [the] plaintiffs ability to proceed." Second, "burden shifting should only occur when the essential . records are missing through the negligence or fault of the adverse party." "Negligence or fault" ai'e concepts that depend on the existence of a duty to preserve the records. When the two elements of negligent spoliation are met, the party who might have benefitted from the missing evidence is entitled to a rebuttable presumption that the missing evidence would support its case. Though this presumption is rebuttable, "[i]t is not overcome until the trier of fact believes that the presumed fact has been overcome by whatever degree of persuasion is required by the substantive law of the case." We held in Sweet that "the trial court should have adopted a rebuttable presumption that [the defendant hospital] was medically negligent in treating [the plaintiff] and that this negligence legally caused [the plaintiffs] injuries" because the hospital failed to maintain its patient's medical records, some of which would likely have contained substantive information directly relevant to the plaintiffs claims: signed informed consent forms, nursing records from the day the plaintiff suffered a prolonged seizure allegedly resulting in brain damage, and "a contemporaneously created record" of that incident from the treatment room. On the other hand, in another medical malpractice case, Zaverl v. Hanley, we found no error in the trial court's refusal to presume negligence when a hospital discharge summary was prepared 45 days after the patient's discharge. In contrast to the facts of Sweet, the record in Zaverl was not absent but delayed, and the plaintiff did not explain how the record would have been different had it been timely prepared or any other way in which his ease was prejudiced. In Miller v. Phillips we affirmed the superior court's rejection of a burden-shifting instruction informing the jury that it must presume a nursing note was complete and accurate and that the health-care providers had the burden of proving they performed any procedures not described in the note. We found Sweet inapposite because it was "expressly based . on two uncontroverted factors: the hospital's negligence in losing the records and the plaintiffs' inability to establish a convincing prima facie case . without them." We explained that in Miller "there was no uncontroverted proof of lost or inadequate records[; t]o the contrary, the adequacy and completeness of the medical records was a hotly disputed factual issue." We noted further that the "alleged deficiencies in the delivery-room records" did not "hinder the [plaintiffs] in presenting a prima facie case of malpractice," but rather allowed them "to attack [the nurse's] trial testimony as inconsistent with her notes and therefore incredible." In this ease, although Todeschi asserted that some records were missing, he failed to demonstrate why their absence hindered his ability to establish a prima facie case. First, with regard to billing records, Halloran admitted he created some records of his time but destroyed them when he left his former firm in March 2011 (about the time Todeschi filed this lawsuit); he testified that he never billed Sumitomo for the work he did for it in 2010 because "it wasn't an amount of money that was worth putting any further effort into, and so [he] didn't have the bill go out." Todeschi argues that the missing billing records would "provide insight" and that their absence is "obviously prejudicial]," but he does not explain how or why. As for phone records, Halloran's land-line calls were reflected in his former firm's records but some calls he testified about were not. Thus Todeschi was given records that showed calls between Halloran and Brokaw, and their length, on the day Todeschi was sent for his medical evaluation with Dr. James, but he had no records to confirm Halloran's testimony that he made two calls to Brokaw on May 11, 2010, the day Todeschi was fired. But Todeschi again does not plausibly explain how his case would be strengthened by records that showed simply when calls were made. Finally, as for emails, Sumitomo produced a number of them between Brokaw and Hal-loran, including a lengthy and substantive one Todeschi relied on heavily in post-trial briefing as definitive proof of Sumitomo's unlawful intent. But again — especially given the evidence he had of Sumitomo's reasoning process — Todeschi does not explain why his lack of additional emails "sufficiently hindered] [his] ability to proceed" in establishing a prima facie case. Todeschi did posit that the missing evidence would aid him in "crossexamin[ing] Halloran about his alleged email and phone communications with Brokaw wherein he claims they discussed Brokaw's reasons for terminating Todeschi," but he had other evidence on which to rely to accomplish that goal. And, as in Miller, the gaps in the record gave Todeschi's counsel the opportunity to attack Halloran's credibility in closing arguments, when he argued essentially that evidence had been purposely withheld because it would have shown that Todeschi was terminated for reasons that violated the law. We conclude that the facts of this case are closer to those in Miller and Zaverl than to those in Sweet. "Although some of Halloran's records are missing, Todeschi does not demonstrate a plausible theory of how their absence "sufficiently hinder[ed] [his] ability to proceed" in establishing a prima facie case. We review a superior court's decision whether to grant sanctions for alleged spoliation, including whether to give a presumption instruction, for abuse of discretion, and we see no abuse of discretion here. Because we conclude that Todeschi's claim fails to satisfy the first element of a spoliation claim — that loss of the evidence sufficiently hindered his ability to establish a prima facie case — we do not need to decide whether he proved the second element, "negligence or fault" on Sumitomo's part. But we do note that while Zaverl, Miller, and Sweet involved the well-recognized duty of a medical care provider to create and maintain medical records, the source of a duty in this case is less obvious. 2. Any error in refusing to give a permissible inference instruction was harmless. As an alternative to burden-shifting, Todeschi also requested a less severe remedy: a jury instruction allowing the jury to make an adverse inference from Sumitomo's destruction of evidence. Todeschi's Proposed Instruction 24 would have instructed the jury that if it concluded that Halloran or Brokaw intentionally deleted emails regarding Todes-chi's request for an accommodation, it could "infer from this fact" the additional fact that "the deleted emails would have proven a discriminatory intent" on Brokaw's part when he decided to terminate Todeschi's employment and that the emails "were de stroyed for the purpose of concealing that evidence." The proposed instruction made clear that the jury was "not required to" make the inference. The court refused to give the proposed instruction but told Todeschi's counsel that he could ask the jury to draw an inference from the records' nonexistence. A permissible adverse inferéncé, un: like the burden shifting addressed in Sweet, merely allows "the inference that the evidence was lost because it was damaging to the opposing party's case." The inference does not shift the burden of proof at trial but rather allows "[a] detrimental conclusion drawn by the fact-finder from a party's failure to produce evidence that is within the party's control." The inference may be the subject of a jury instruction, or, as here, the nonspoliating party may be allowed to argue for the inference in closing arguments. We have not previously discussed permissive adverse inference instructions as a remedy for spoliation, but we have long recognized a trial court's need for flexibility in determining sanctions for discovery violations. "As with any discovery abuse or evi-dentiary issue, there is no one remedy that is appropriate for every incidence of spoliation; the trial court must respond appropriately based upon the particular facts of each individual ease." A number of courts follow- a "totality of the circumstances" approach to determining whether to impose a sanction and what the sanction should be. Such an approach generally considers three factors: (1) "the degree of fault of the party who altered or destroyed the evidence"; (2) "the degree of prejudice suffered by the opposing party"; and (3) "whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future." No single factor is dispositive, and the trial court need not apply equal weight to every factor. Under such a fest, thus, the spoliator's intent is a consideration but not necessarily determinative, and a party that has not shown its entitlement to a burden-shifting instruction may nevertheless be allowed a permissive adverse inference. However, because the logical underpinning of the adverse inference is that the evidence would not have been destroyed had it not been damaging to the spoliatoi''s case, most jurisdictions still require that the spoliator have acted in bad faith or at least negligently before imposing any sanction. The Florida Supreme Court — which we followed in adopting the burden-shifting presumption — takes a different tack. It has approved jury instructions that, while requiring burden-shifting if there has been a breach of a legal duty to maintain the lost records, allow an adverse inference when (1) a party caused evidence "to be unavailable, while it was within [the party's] possession, custody, or control," and (2) the evidence "would have been material in deciding the disputed issues in [the] case." We applied an adverse inference from the loss of evidence in Thorne v. Department of Public Safety, which Todesehi cites in his brief. In Thorne we held that due process required the State to preserve videotape of a driver's performance on field sobriety tests, made in the course of his arrest for driving under the influence, for use in a later license revocation proceeding. In fashioning a sanction we considered "the degree of culpability on the part of the [S]tate, the importance of the evidence lost, the prejudice suffered by the accused, and the evidence of guilt ad duced at the trial or hearing." We decided that the videotape evidence was important, that its loss "infringed Thome's ability to fully contest the issue" of whether he appeared inebriated at the time of his arrest, and that the burden on the State to preserve the videotape was slight. We concluded that "considerations of fundamental fairness dictate that where the burden of preservation is so slight," the State bore "a heavy burden in justifying [the evidence's] destruction," a burden that it failed to carry. We remanded the case to the hearing officer in the license revocation proceeding "with directions to presume that the videotape would have been favorable to Thorne"; the inference was thus required rather than permissive. We have never applied Thorne's due process analysis to a civil case in which Sweet's burden-shifting remedy for spoliation was available to address the same circumstances: i.e., the lost evidence was clearly important and the party that lost it should have recognized the need to preserve it. And we decline to decide today whether a permissive inference instruction must necessarily be considered as an alternative to a burden-shifting instruction, or what a litigant has to show to be entitled to a permissive inference instruction under Alaska law. Several considerations dissuade us from deciding these issues. First, adverse inference instructions take different forms in different jurisdictions, particularly with regard to whether a duty to preserve the evidence is a prerequisite, and the advantages of the varied approaches have not been briefed in this appeal. Second, even if Alaska law were clear on this issue and the superior court had refused to give an instruction stating the law, we would not necessarily find error, as we review such decisions for abuse of discretion. And third, even if the failure to give the proposed instruction was an abuse of discretion, on this record it could only have been harmless. As noted above, when the superior court denied Todeschi's request for an adverse inference instruction, it invited him to make the same point in argument, which his counsel did strongly and repeatedly. Argument may help clarify instructions or ameliorate defects in them. And the spoliation theme of Todeschi's argument was supported by one of the jury instructions that was given, informing the jury that "[i]f weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory evidence was within the power of one party to produce, the evidence offered should be viewed with caution." We conclude that the jury was made well aware that it was free to draw an adverse inference from missing telephone records, billing records, and emails and that the instructions that were given did not conflict with this perception. The burden of proving prejudicial error rests on the appellant. Oh this record we cannot say that the lack of a permissible adverse inference instruction probably affected the jurors' judgment.' We therefore conclude that any error in failing to give such an instruction must have been harmless. D. We Cannot Conclude That The Jury Instruction Arguably Raising An Untimely Statute Of Limitations Defense Probably Affected The Verdict. Todeschi alleged that the former human resources manager at Pogo Mine, Kim Witt, threatened him in 2008 that if he continued to pursue a worker's compensation claim based on his 2007 injury "[t]here would be repercussions, up to and possibly including [Todeschi's]. job." This allegation, he contended, supported his claim that he was fired in 2010 in retaliation for his resurrection of the workers' compensation claim. On appeal he argues that Jury Instruction 12 unlawfully complicated his workers' compensation dis-elimination claim by advising the jury of a statute of limitations defense that Sumitomo had never actually raised. The instruction provided: You have heat'd testimony that Kim Witt engaged in certain conduct. Sumitomo cannot he held responsible for Witt's conduct before 2009. However, if you And that Witt engaged in certain conduct before 2009 you may (but need not) further find that it provides context for Sumitomo's actions or omissions in 2010, (Emphasis added.) The statute of limitations for workers' compensation discrimination claims is two years, and Todeschi brought his claim in February 2011. Sumitomo never raised a statute of limitations defense before trial. The assertion of a defense for the first time mid-trial, by way of a jury instruction, would likely be unfairly prejudicial. We note that Sumitomo took advantage of the jury instruction to argue in its closing that "Mr. Witt's conduct cannot form the basis of a finding against Sumitomo in this case. That's because of statute of limitations issues." On the other hand, as Sumitomo argues, there was no apparent reason for it to assert the statute of limitations as an affirmative defense before trial. The causes of action Todeschi alleged in his 2011 complaint and pursued at trial were based on his termination in 2010. Witt's alleged conduct in 2008, as described in Todesehi's .complaint, was relevant to Todeschi's claim that he had been unlawfully terminated for pursuing a workers' compensation claim, but the challenged jury instruction specifically allowed the evidentiary use of Witt's conduct to "provide[] context for Sumitomo's actions or omissions in 2010," Accordingly, Todeschi's counsel relied heavily on Witt's actions in his closing argument, telling the jury that "Sum-itomo, here in court, did not seriously contest that Kim Witt threatened Todeschi with his job, and that Todeschi acquiesced only under pressure"; that Witt's threat was realized when Todeschi renewed his pursuit of the workers' compensation claim in 2010; and that "given Witt's threat and the termination that quickly followed the reassertion of his compensation claim, it certainly appears to have been at least one of the substantial factors in [Sumitomo's] decision to sack Mr. Todeschi." Todeschi does not dispute that the jury was properly instructed on the elements of his workers' compensation discrimination claim. And Instruction 12 expressly preserved the jury's ability to consider Witt's conduct when deciding that claim. To the extent the instruction at the same time precluded the jury from holding Sumitomo responsible for Witt's conduct, we agree that it presents an ambiguity — one that could have been compounded by Sumitomo's mention in closing argument of a statute of limitations defense it had never pleaded. But even if erroneous, Instruction 12 "is grounds for reversal only if it caused prejudice." We determine prejudice by putting ourselves "in the position of the jurors and 'determin[ing] whether the error probably affected their judgment.' " Reading the jury instructions as a whole, and considering the parties' arguments to the jury about the evidence they should consider in deciding Todeschi's claims, we cannot conclude that the jury's verdict was probably affected by the ambiguity in Instruction 12. It is not probable that the jury believed it was precluded from considering Witt's conduct in 2008 in deciding whether Sumitomo was liable for its own conduct in 2010 in terminating Todeschi's employment. V. CONCLUSION We AFFIRM the judgment of the superior court. . "Except as provided in (c) of this section, it is unlawful for (1) an employer to refuse employment to a person, or to bar a person from employment, or to discriminate against a person in compensation or in a term, condition, or privilege of employment because of the person's . physical or mental disability." AS 18.80.220(a)(1). . Wondzell v. Alaska Wood Prods., Inc., 583 P.2d 860, 864 (Alaska 1978) ("We are persuaded that a duly of reasonable accommodation should be read into [AS 18.80.220(a)]."). ."An employer may not discriminate in hiring, promotion, or retention policies or practices against an employee who has in good faith filed a claim for or received benefits under this chapter. An employer who violates this section is liable to the employee for damages to be assessed by the court in a private civil action." AS 23.30.247(a). . See 29 C.F.R. § 1630 (2013); ADA Amendments Act, Pub. L. No. 110-325, 122 Stat. 3553 (2008) (amending Americans with Disabilities Act, 42 U.S.C. § 1210112213; see also 6 Alaska Administrative Code (AAC) 30.910(b) (2007)) ("In deciding complaints of alleged discrimination under AS 18.80 in employment, state and local government services, or public accommodations because of physical or mental disability, the commission may use 42 U.S.C. 12101-12213 (Americans with Disabilities Act) and relevant federal case law as a guideline."). . Lynden, Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001) (citing Alaska Tae Woong Venture Inc. v. Westward Seafoods, Inc., 963 P.2d 1055, 1062 (Alaska 1998)). . Cameron v. Chang-Craft, 251 P.3d 1008, 1018 (Alaska 2011). . Noffke v. Perez, 178 P.3d 1141, 1144 (Alaska 2008) (quoting Hagen Ins., Inc. v. Roller, 139 P.3d 1216, 1219 (Alaska 2006)); see also Cameron, 251 P.3d at 1017. . Cameron, 251 P.3d at 1017-18. . Id. (alteration in original) (quoting City of Delta Junction v. Mack Trucks, Inc., 670 P.2d 1128, 1130 n.2 (Alaska 1983)). . Mills v. Hankla, 297 P.3d 158, 164-65 (Alaska 2013) (quoting Wooten v. Hinton, 202 P.3d 1148, 1155 (Alaska 2009)). . Powell v. Tanner, 59 P.3d 246, 253 (Alaska 2002). . Mills, 297 P.3d at 165 (quoting Spenard Action Comm. v. Lot 3, Block 1, Evergreen Subdivision, 902 P.2d 766, 776 (Alaska 1995)). . See id. (explaining "[t]he superior court's finding that there was no spoliation was not clearly erroneous"). . City of Hooper Bay v. Bunyan, 359 P.3d 972, 978 (Alaska 2015) (quoting Thompson v. Cooper, 290 P.3d 393, 398 (Alaska 2012)). . Id. (quoting Thompson, 290 P.3d at 398-99). . Id. (quoting Thompson, 290 P.3d at 399). . AS 18.80.220(a)(1). . AS 18.80.300(14)(A). . AS 18.80.300(10). . 29 C.F.R. app. § 1630.2(j)(5) & (6) (2013) (emphasis added). . See supra note 4. . Although Alaska Civil Rule 50(b) generally limits motions for judgment notwithstanding the verdict to parties who have moved for directed verdict "at the close of all the evidence," Todes-chi was not required to make a directed verdict motion in order to preserve his motion for judgment notwithstanding the verdict. He moved for judgment notwithstanding the verdict "because of findings made in die special verdict, rather than notwithstanding them." Borgen v. A & M Motors, Inc., 273 P.3d 575, 584 (Alaska 2012) (emphasis in original). This is the exception to the usual procedural rule, because "a jury's verdict . could not have been known before the case was submitted to the jury." Alaska Interstate Constr., LLC v. Pacific Diversified Invs., Inc., 279 P.3d 1156, 1172 (Alaska 2012). . Jury Instruction No. 21A provided, in part, that "Mo succeed on a claim that the employer has failed to provide a reasonable accommodation, the employee must prove . [t]hat the proposed accommodation would enable him to perform the essential functions of the job and that the accommodation is feasible for the employer under the circumstances." . The jury was given a list of nine factors to consider in deciding "what the essential functions of a job are" and was instructed that "[n]o one factor is necessarily controlling." "The employer's judgment as to which functions of the job are essential" was one of those nine factors. . There was also evidence from which the jury could conclude that Todeschi refused a reasonable accommodation: Davey testified that he approved a "surface trainer" job for Brokaw to offer Todeschi. Todeschi, though denying he was offered such a job, conceded that "[t]here was a mention of a surface trainer job" in his discussions with Brokaw but he voiced his concerns about the possible difference in pay, including loss of the "underground bonus.". . Yang v. Yoo, 812 P.2d 210, 215 (Alaska 1991); see also Conley v. Alaska Commc'ns Sys. Holdings, Inc., 323 P.3d 1131, 1141-42 (Alaska 2014) (affirming the trial court's denial of JNOV because the court could reconcile the jury's verdict). . 895 P.2d 484, 490-93 (Alaska 1995). Todesehi does not argue on appeal for an independent tort based on intentional spoliation. We have held that "where traditional discovery sanctions can sufficiently redress the harm caused by the wrongful withholding of evidence, those remedies are exclusive." Allstate Ins. Co. v. Dooley, 243 P.3d 197, 200 (Alaska 2010). . Sweet, 895 P.2d at 491 (quoting Pub. Health Tr. of Dade Cty. v. Valcin, 507 So.2d 596, 599 (Fla. 1987) (relying in turn on Patrick v. Sedwick, 391 P.2d 453, 457 (Alaska 1964))). . Id. (quoting Valcin, 507 So.2d at 601) (emphasis added); Zaverl v. Hanley, 64 P.3d 809, 821 (Alaska 2003) (distinguishing Sweet on the ground that "[i]n this case, . the estate advances no plausible theory demonstrating that the delay [in the defendant hospital's preparation of a patient's discharge summary] prejudiced its case"). . Sweet, 895 P.2d at 491 (citing Valcin, 507 So.2d at 599). . See Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20, 29-30 & n.9 (Alaska 1998) (distinguishing Sweet in part because of the plaintiff's lack of evidentiary support for its "general allegation that [the defendant] had an obligation to preserve the evidence" or any explanation "why [the defendant] should be held to a superior duty of preservation than [the plaintiff] itself"); In re Standard Jury Instructions in Civil Cases—Report No. 15-01, 192 So.3d 1183, 1187 (Fla. 2016) (per curiam) (noting that a burden-shifting jury instruction "applies only when the court has determined that there was a [legal] duty" to maintain the evidence); Martino v. Wal-Mart Stores, Inc., 908 So.2d 342, 348 (Fla. 2005) (Wells, J., concurring) ("It is fundamental to the entire legal basis for spoliation of evidence that the owner or possessor of property have a legally defined duty to maintain or preserve the property."). . Sweet, 895 P.2d at 492. . Id. (quoting Valcin, 507 So.2d at 600-01). . Id. at 490, 492. . 64 P.3d 809, 820-21 (Alaska 2003). . Id. at 821. . 959 P.2d 1247, 1253-54 (Alaska 1998). . Id. at 1254. . Id. . Id. . This email discussed Sumitomo's options for accommodating Todeschi's claimed disability before concluding: "If, on the other hand, his contributions are such that the mine would just as soon have someone else in the position, or if this is just one instance in a string of his acting like a prima donna, then his refusal to perform the task of driving the tractor presents an opportunity to terminate his employment, replace him, and move on." . Sweet v. Sisters of Providence in Wash., 895 P.2d 484, 491 (Alaska 1995) (quoting Pub. Health Tr. of Dade Cty. v. Valcin, 507 So.2d 596, 601 (Fla. 1987)). . Id. at 491 & n.6 (quoting Valcin, 507 So.2d at 601). . Mills v. Hankla, 297 P.3d 158, 162-63, 164-65 (Alaska 2013). . Sweet, 895 P.2d at 491 ("[B]urden shifting should only occur when the essential medical records are missing through the negligence or fault of the adverse party." (citing Valcin, 507 So.2d at 599)); see also Doubleday v. State, Commercial Fisheries Entry Comm'n, 238 P.3d 100, 106 (Alaska 2010) ("In order to obtain the benefit of the spoliation of evidence doctrine, Doubleday must ., produce some evidence that the records are missing through the intentional or negligent act of the adverse parly."). . We recognized a medical care provider's duty to create and preserve medical records in Patrick v. Sedwick, 391 P.2d 453, 457 (Alaska 1964) (holding that a surgeon "was obligated to his client to prepare" a report that "described accurately and fully . everything of consequence that he did and which his trained eye observed during the operation"). . To establish a duty to preserve evidence, Todeschi relies on the claim he filed with the Equal Employment Opportunity Commission a month after his termination and the notice the Alaska Human Rights Commission then sent Sumitomo instructing the company not to delete Todeschi's personnel records. Other courts recognize that a duty to preserve evidence may arise as soon as litigation is reasonably foreseeable. See, e.g., League of Women Voters of Fla. v. Detzner, 172 So.3d 363, 391 (Fla. 2015); Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596, 605 (2015); Ihli v. Lazzaretto, 864 N.W.2d 483, 485-86 (N.D. 2015). But we are directed to no evidence that Brokaw, who was described as a regular deleter of nonessential emails, deleted relevant emails after he received the EEOC notice. And Halloran, the attorney, had no apparent duty to Todeschi to keep records of his time, his phone calls, and his work product, and no reason to believe that his records (such as they were) would be discoverable until Brokaw died two years after Todeschi's termination and Sumitomo sought to substitute Halloran as a witness in Brokaw's stead. See, e.g., Lewis v. Bloom, 96 N.M. 63, 628 P.2d 308, 310 (1981) (upholding trial court's refusal to impose spoliation sanctions where "[t]he tape recording was the attorney's work product which may be discovered only upon a showing of good cause"). . Osmulski v. Oldsmar Fine Wine, Inc., 93 So.3d 389, 394 (Fla. Dist. App. 2012). . Golden Yachts, Inc. v. Hall, 920 So.2d 777, 780 (Fla. Dist. App. 2006) (citing Anesthesiology Critical Care & Pain Mgmt. Consultants v. Kretzer, 802 So.2d 346, 351 (Fla. Dist. App. 2001)). . Inference, Black's Law Dictionary (10th ed. 2014). . See Mosaid Techs. Inc. v. Samsung Elecs. Co., 348 F.Supp.2d 332, 339 (D.N.J. 2004) (approving and adopting a magistrate's "proposed spoliation inference jury instruction"); Osmulski, 93 So.3d at 394 (allowing inference to be presented in argument); Palmas Y Bambu, S.A. v. E. I. Dupont De Nemours & Co., 881 So.2d 565, 581 (Fla. Dist. App. 2004) ("[T]he option of applying such an inference should have been limited to the arguments of counsel."); Martino v. Wal-Mart Stores, Inc., 835 So.2d 1251, 1257 n.2 (Fla. Dist. App. 2003) ("[W]hile counsel is free to make arguments concerning the adverse inference created by Wal-Mart's failure to produce the shopping cart and videotape, a jury instruction on this matter is not appropriate."); Duquesne Light Co. v. Woodland Hills Sch. Dist., 700 A.2d 1038, 1050 (Pa. Commw. 1997) ("[W]here evidence has been destroyed, referral of the spoliation issue to a jury with accompanying instructions [on permissible inference] is the proper and advisable course of action."). . See Allstate Ins. Co. v. Dooley, 243 P.3d 197, 203 (Alaska 2010) ("Civil Rule 37 grants trial courts broad discretion to fashion remedies for discovery order violations. A court may consider the nature and severity of the violation, the prejudice to the opposing party, and any other factors it deems appropriate,"); Powell v. Tanner, 59 P.3d 246, 253 (Alaska 2002) ("The choice of a particular sanction for a discovery violation generally is a matter committed to the broad discretion of the trial court..,."); Grimes v. Haslett, 641 P.2d 813, 822 (Alaska 1982) ("The trial court has broad discretion in imposing sanctions respecting Rule 26(e), as it does under Rule 37,..."). . Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex. 1998); see also Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 21 (Tex. 2014) ("[T]he remedy crafted by the trial court must be proportionate when weighing the culpability of the spoliating party and the prejudice to the nonspoliating party," (citation omitted)); Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 81 (3d Cir. 1994) ("That sanction was not commensurate with the limited fault and prejudice present in this case."). . Schmid, 13 F.3d at 79; see also, e.g., Apple Inc. v. Samsung Elecs. Co., 888 F.Supp.2d 976, 992 (N.D. Cal. 2012); Tatham v. Bridgestone Ams. Holding, Inc., 473 S.W.3d 734, 746-47 (Tenn. 2015) (applying similar four-factor test). . See Apple, Inc., 888 F.Supp.2d at 992 ("[W]hile a finding of bad faith is not a prerequisite for an adverse inference sanction, 'a party's motive or degree of fault in destroying evidence is relevant to what sanction, if any, is imposed.' " (quoting UMG Recordings, Inc. v. Hummer Winblad Venture Partners (In re Napster, Inc. Copyright Litig.), 462 F.Supp.2d 1060, 1066-67 (N.D. Cal. 2006))); Tatham, 473 S.W.3d at 746 ("Whether the conduct involved intentional misconduct simply should be one of the factors considered by the trial court."). . See Osmulski v. Oldsmar Fine Wine, Inc., 93 So.3d 389, 394 (Fla. Dist. App. 2012) ("[I]n a case like this which does not involve a statutory duty to provide medical records, the more appropriate remedy — if [the plaintiff] had proven entitlement to it — would be an adverse inference instruction from which a jury could infer that the videotape in this case was unfavorable to [the defendant]."); American Hosp. Mgmt. Co. of Minn. v. Hettinger, 904 So.2d 547, 550-51 (Fla. Dist. App. 2005) (holding it was error to give a burden-shifting instruction where the defendant did not have a clear duty to preserve evidence, but that a permissive adverse inference instruction might be appropriate on remand). . Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 553-54 (6th Cir. 2010) ("[I]f there was 'no notice of pending litigation, the destruction of evidence does not point to consciousness of a weak case'...." (quoting Joostberns v. United Parcel Servs., Inc., 166 Fed.Appx. 783, 797 (6th Cir. 2006))); Testa v. Wal-Mart Stores, Inc., 144 F.3d 173, 177 (1st Cir. 1998) (explaining the inference's rationale as a "commonsense notion that a party who destroys a document (or permits it to be destroyed) when facing litigation, knowing the document's relevancy to issues in the case, may well do so out of a sense that the document's contents hurt his position" (citing Beil v. Lakewood Eng'g & Mfg. Co., 15 F.3d 546, 552 (6th Cir. 1994))); Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001) ("The evidentiary value of the inference is derived from the common sense observation that a party who destroys a document with knowledge that it is relevant to litigation is likely to have been threatened by the document."). . See, e.g., Beers v. Bayliner Marine Corp., 236 Conn. 769, 675 A.2d 829, 833 (1996) ("[T]he spoliator must be on notice that the evidence should be preserved."); Kippenhan v. Chaulk-Servs., Inc., 428 Mass. 124, 697 N.E.2d 527, 530 (1998) ("Sanctions may be appropriate for the spoliation of evidence that occurs even before an action has been commenced, if a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action."); State v. Barnes, 777 A.2d 140, 145 (R.I. 2001) ("Such a presumption or inference ordinarily would arise where the act was intentional or intended to suppress the truth, but 'does not ordinarily arise where the destruction was a matter of routine with no fraudulent intent.' " (citing 29 Am. Jur. 2d Evidence § 244 at 256)). . See Sweet v. Sisters of Providence in Wash., 895 P.2d 484, 491 (Alaska 1995) (citing Pub. Health Tr. of Dade Cty. v. Valcin, 507 So.2d 596, 599-601 (Fla. 1987)). . In re Standard Jury Instructions in Civil Cases—Report No. 15-01, 192 So.3d 1183, 1186 (Fla. 2016); see also League of Women Voters of Florida v. Detzner, 172 So.3d 363, 391 (Fla. 2015) ("Even in the absence of a legal duty, . the spoliation of evidence results in an adverse inference against the party that discarded or destroyed the evidence."). . 774 P.2d 1326 (Alaska 1989). . Id. at 1330. . Id. at 1331 (citing Putnam v. State, 629 P.2d 35, 43-44 (Alaska 1980); State v. Contreras, 674 P.2d 792, 821 (Alaska App. 1983)). . Id. at 1330-31. . Id. at 1330-31. . Id. at 1331. . See Sweet v. Sisters of Providence in Wash., 895 P.2d 484, 491 (Alaska 1995). . In support of his cursory argument for a permissive adverse inference, Todeschi cites only Thorne, 774 P.2d at 1330-31, as he did below. Sumitomo's briefing on the issue concerns itself only with the facts. . Mills v. Hankla, 297 P.3d 158, 165 (Alaska 2013) (finding no clear error in superior court's conclusion that relevant records were not missing from personnel file and "that it was not an abuse of discretion for the superior court to deny sanctions"); Stinson v. Holder, 996 P.2d 1238, 1244 (Alaska 2000) ("The decision whether to include a particular instruction rests with the discretion of the trial court." (quoting Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1150 n.21 (Alaska 1999))). . Todeschi's counsel argued that records of communications in a certain time period had "gone poof" and that "[c]oincidentally, or not so coincidentally, Halloran testified that he destroyed [legal bills] about the same time the lawsuit in this case was filed"; that a deleted email from Halloran to Brokaw "might have also had a message" acknowledging the illegality of "the job description with the 250-pound lifting requirement"; that Halloran had "a severe credibility problem" because he had "admitted that his law firm and Brokaw had destroyed evidence in this case, including his own billing records and attachments to e-mails," leaving the juiy with "unrefuted" evidence that Sumitomo had retaliated against Todeschi for pursuing his worker's compensation claim; and that the destruction of emails and phone records "to confirm that [Sumitomo] did anything" was "an uncommon thing to happen" — "it is not usual to have records destroyed, people admitting they destroyed them." . See Riley v. State, 60 P.3d 204, 208 (Alaska App. 2002) ("[W]e have repeatedly held that ambiguities and potential flaws in jury instructions can be cured by the arguments of the parties."); Norris v. State, 857 P.2d 349, 355 (Alaska App. 1993) ("The parties' arguments can cure defects or omissions injury instructions."). . City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska 2004). . Id. (stating that we evaluate whether an erroneous jury instruction "was prejudicial by putting ourselves 'in the position of the jurors and determining whether the error probably affected their judgment'" (quoting Gen. Motors Corp. v. Farnsworth, 965 P.2d 1209, 1214 (Alaska 1998))). . AS 09.10.070(a) ("Except as otherwise provided by law, a person may not bring an action . upon a liability created by statute . unless the action is commenced within two years of the accrual of the cause of action,"). . Barrett v. Byrnes, 556 P.2d 1254, 1255 (Alaska 1976) (holding that defendants waived a statute of limitations defense when it "was not raised prior to trial or in the opening statements of the appellee, but rather for the first time after tire appellant had rested her case" (internal citation omitted)). But see Blake v. Gilbert, 702 P.2d 631, 638-39 (Alaska 1985) (holding that the superior court did not abuse its discretion by allowing a defendant to raise a new statute of limitations defense in his amended answer because raising it before trial did not prejudice the plaintiff, distinguishing Barrett), overruled on other grounds by Bibo v. Jeffrey's Rest., 770 P.2d 290 (Alaska 1989). .The trial court asked Todeschi what damages he suffered from Witt's alleged threat in 2008, to which he responded, "[A]t that point it's accumulating medicals that aren't being paid for." He did not seek medical expenses as damages in this case, and they do not appear relevant to his claims for wrongful termination. . City of Hooper Bay v. Bunyan, 359 P.3d 972, 978 (Alaska 2015) (quoting Thompson v. Cooper, 290 P.3d 393, 398-99 (Alaska 2012)). . Id. (quoting Thompson, 290 P.3d at 399). . Id. ("When reviewing a trial court's denial of a proposed instruction, our inquiry focuses upon whether the instructions given, when read as a whole, adequately inform the jury of the relevant law." (quoting Thompson, 290 P.3d at 398)). . Todeschi also argues "that the [superior court] should have given an instruction that permitted an award of emotional distress damages" for his claim for breach of the covenant of good faith and fair dealing "under the unique facts of this case." Such damages are not ordinarily recoverable on contract claims. See Hancock v. Northcutt, 808 P.2d 251, 258-59 (Alaska 1991) (discussing the types of contracts, "highly personal and laden with emotion," that may present exceptions to the general rule precluding emotional distress damages in contract actions). Todeschi's minimal briefing of the issue gives us no basis on which to conclude that the superior court erred. See Hagen v. Strobel, 353 P.3d 799, 805 (Alaska 2015) ("[W]here a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal." (alteration in original) (quoting Glover v. Ranney, 314 P.3d 535, 545 (Alaska 2013))).

10434118

Cletus R. WHEELER, Appellant, v. STATE of Alaska, Appellee

Wheeler v. State

1983-03-04

No. 5428

1241

1257

659 P.2d 1241

659

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:06:59.788582+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Cletus R. WHEELER, Appellant, v. STATE of Alaska, Appellee.

Cletus R. WHEELER, Appellant, v. STATE of Alaska, Appellee. No. 5428. Court of Appeals of Alaska. March 4, 1983. Robert D. Buckalew and Paul L. Davis, Boyko & Davis, and Elizabeth I. Johnson, Anchorage, for appellant. Timothy J. Petumenos and W.H. Hawley, Asst. Attys. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

9899

62505

OPINION BRYNER, Chief Judge. Judgment of conviction was entered against Cletus R. Wheeler following a jury trial for three counts of selling unregistered securities and three counts of fraudulent sale of securities. Wheeler subsequently filed this appeal, in which he raises a number of issues. Upon consideration of Wheeler's arguments and review of the appellate record, we conclude that no error was committed; we therefore affirm. I. FACTS Our disposition of Wheeler's claims first requires a review of the evidence concerning the transactions for which Wheeler was convicted. Wheeler's convictions arose from a business investment sales scheme planned and organized by him. The scheme involved sale in Anchorage of a program for acquiring and operating vending machines that dispensed snacks and candy bars. Wheeler conducted the scheme purporting to act as an officer of Spectrum Marketing, Inc. (Spectrum), a corporation based in Denver, Colorado, where Wheeler resided. According to Wheeler's testimony at trial, Spectrum had an agreement with a Colorado manufacturer named Vend-A-Matic to purchase vending machines for $395 each. Wheeler planned to sell the machines through Spectrum for $1,095 each. Wheeler developed a package of promotional materials, business documents and contracts, and he recruited an acquaintance and former business associate, Daniel Rhoades, as a sales agent for Spectrum. Having completed plans for Spectrum's sales campaign, Wheeler placed an advertisement in the classified section of the Anchorage Times on September 11, 1978. The advertisement appeared in the following form: BUSINESS OPPORTUNITY POTENTIAL HERSHEY BAR'S [sic] MR. GOODBAR REESE'S RALLY KIT KAT Dispensed through ultra modern equipment. No investment required. Applicant must be a permanent resident available to start business immediately. $700 WEEK FULL TIME WE GUARANTEE $160 WEEK PART TIME to our investors. Company furnishes direct outlets for candy; industry's finest dispensing equipment, high traffic locations and company capital for expansion purposes. APPLICANT must be of sound character and have sincere desire to succeed in business. Investment available upon request. Applicant must have adequate working capital. Not affiliated with Hershey Foods Corp. Call Mr. Simmons Sun., Mon., Tues. Only (907)276-1525 Rhoades went to Anchorage in order to respond to inquiries from prospective investors. The name "Simmons" used in the advertisement was apparently an alias placed in the advertisement by Wheeler at Rhoades' request; however, once in Anchorage, Rhoades primarily dealt with potential investors using his true name. Not long after Spectrum's advertisement was published, Rhoades received a number of inquiries from interested people. On September 13 and 14, 1978, four investors signed contracts with Rhoades for purchase of a total of 110 vending machines; they paid a total of $20,500 to Spectrum as initial deposits on machines that they ordered. A nearly identical sales presentation was made by Rhoades to each customer. Rhoades offered two alternative plans for investment: plan A and plan B. Under plan A, "outside" investors were to provide capital for the purchase of new vending machines; machines would be placed by Spectrum in locations around Anchorage. Local purchasers were to pay no cash for the machines, but would be required to maintain, repair and stock them. Plan A required local purchasers to post a $3,000 performance bond. During the first year of operation under plan A, all profits from machines tended by a local purchaser were to be divided equally between the local purchaser and the outside investor. In the second year of the plan, the outside investor was to receive 70% of total receipts and the local purchaser would get 30%. Local purchasers were to acquire title to vending machines in which they invested after the first two years of the machines' operation. Notably, Spectrum never intended to actually use plan A. According to Rhoades' testimony at trial, plan A was part of a "bait and switch" sales tactic. Rhoades and Wheeler would attempt to switch investors interested in plan A over to plan B. If this could not be accomplished, it was understood by Rhoades and Wheeler that some pretext would ultimately be used to make plan A unavailable. Different terms were offered potential investors under Spectrum's plan B, the package that Wheeler and Rhoades actually intended to sell and in fact did sell in Alaska. Plan B involved direct sales of vending machines; a minimum purchase of ten machines was required. Investors under plan B were expected to pay an initial deposit of approximately 20% of the total purchase price before Spectrum would place an order for the machines. Thus, on its surface, plan B was structured to have the attributes of a simple commercial transaction. Yet, as indicated in Spectrum's newspaper advertisement, plan B entailed substantially more than a straightforward commercial sale of vending machines. Rhoades told each of his Anchorage investors that all machines ordered under plan B would be stocked with candy or snacks; he further led investors to believe either that future supplies of candy at a price of 12½ cents per bar would be arranged by Spectrum or that Spectrum itself would act as supplier of candies at that price. According to Rhoades' sales presentation, Spectrum was to provide the services of experienced "locators," who would arrange for machines to be placed in desirable, high traffic locations around Anchorage. Rhoades told each purchaser that Spectrum's locators either already had negotiated or soon would negotiate location agreements with owners of the premises where the machines were to be placed; Rhoades assured investors that these location agreements would call for payment of only 3½ cents per bar of candy to location owners. Thus, Rhoades led investors to believe that Spectrum could assure profits of nineteen cents for each thirty-five-cent candy bar sold. Rhoades expressly told each investor that, by conservative estimate, the locations provided by Spectrum would result in average daily sales of thirty-five units per machine. By simple mathematical computation, Rhoades demonstrated to his customers that annual earnings for ten machines would thus total slightly more than $24,000. Other significant inducements were offered by Rhoades to garner investors for Spectrum's plan B. Rhoades assured each investor that Spectrum would give him exclusive rights to the Anchorage territory, and each was led to believe that, after an initial 20% cash deposit had been made, Spectrum was capable of financing the balance of the purchase price. As part of the plan B package, Rhoades also expressly promised investors that they would be eligible to participate in an "expansion" program, the terms of which would allow them to purchase as many new machines from Spectrum as they desired after one year of operations. Spectrum committed itself to financing future investments under the expansion program at an annual rate of 8%, simple interest, over a six-year period. Spectrum further agreed to provide locations, on terms similar to those applicable to orginally purchased machines, for any vending machines purchased under the expansion program. Finally, plan B included a guarantee whereby Spectrum represented that it expected the minimum first-year income from each machine, after expenses (cost of candy and location fees), to be 110% of the initial purchase price. Spectrum guaranteed to pay investors the difference between the 110% figure and the amount actually received by investors in the event income fell below the minimum level expected. Significantly, the 110% income guarantee applied only as long as an investor agreed not to alter the location of any machine without securing prior written approval from Spectrum. Key documentary evidence relating to Spectrum's sales in Alaska was also admitted at trial, and it corroborated, to a large extent, the testimony concerning Rhoades' verbal representations as to the broad scope of Spectrum's plan B offering. These documents were also highly probative of Wheeler's knowledge of the various inducements used by Rhoades to convince prospective investors to place an order. Of the various documents, the most prominent were "sales agreements," which were preprinted contracts on Spectrum letterhead. Each investor, in conjunction with Rhoades, executed a sales agreement. The number of vending machines involved in each transaction, together with their purchase price, was filled in by Rhoades. As executed, the agreements obligated Spectrum to secure desirable locations for the machines that were sold. Originally, each agreement included a clause stating: COMPANY agrees to secure initial locations for the placement of the above described equipment. . It is expressly understood and agreed that COMPANY has not agreed to secure any specific location or locations. COMPANY will utilize its best efforts to secure desirable locations, but assumes no responsibility for the success or profitability of any location or number of locations. BUYER represents that COMPANY has not agreed to grant any exclusive territory or guarantee the gross or net receipts of any individual machine or aggregate number of machines. In the case of each investor, Rhoades crossed out the language stating "but assumes no responsibility for the success or profitability of any location or number of locations," as well as the following sentence, which indicated that no exclusive territory or income guarantee had been given. In each case, the interlineated language of the contract was initialled by Rhoades. The sales agreements executed by Rhoades and his Anchorage investors were, by their terms, made subject to approval by an officer of Spectrum within thirty days of execution. Rhoades transmitted all executed agreements to Wheeler, who signed them on the line provided for company approval, purporting to act as Spectrum's president. Wheeler mailed copies of the approved agreements back to individual investors. Documents ancillary to the sales agreements were also significant in revealing the nature of Spectrum's offering. Each investor received a certificate spelling out the terms of the 110% income guarantee by Spectrum. Guarantee certificates were signed by Rhoades and individual investors and, like the sales agreements, were forwarded to Wheeler for approval. A separate certificate, emblazoned with the words "AGREEMENT" and "Credit and Expansion," was also executed by Rhoades and presented to each investor. These certificates gave details of the investors' right to buy additional machines from Spectrum and Spectrum's commitment to finance all future purchases. Finally, Rhoades signed and gave to each investor a certificate of warranty, pursuant to which Spectrum provided a direct warranty against any defect in parts or workmanship on the vending machines that had been sold. Along with the approved copies of sales agreements and guarantee certificates that were returned to Alaska investors, Wheeler mailed personally signed letters congratulating investors on being approved by Spectrum and requesting them to pay, within ten days, the full balance of the purchase price on the machines that they had ordered. Wheeler's letter also stated that the investors' orders had been "scheduled with the factory for shipment" and that upon receipt of the unpaid balance, Spectrum would expedite the orders and "implement the location schedule." According to Wheeler's testimony at trial, Spectrum did in fact place an order for 110 vending machines with the Vend-A-Matic Company shortly after receiving the Anchorage contracts. However, no machines were ever delivered to Alaska, and Spectrum never spent any funds on acquisition of machines. Testimony concerning Spectrum's bank account indicated that it was opened by a deposit of $100 on September 7,1978, shortly before Rhoades first traveled to Anchorage. The next deposit made was on Sep tember 18, 1978, for the sum of $20,000; it constituted the initial deposits given to Rhoades by three Anchorage investors who had signed sales agreements with Spectrum for a total of 100 machines. A $500 deposit was made the next day, consisting of a down payment made by Rhoades' fourth Anchorage investor. On the same day that he deposited the $20,000 in initial deposits from Anchorage, Wheeler wrote a check on Spectrum's account to Rhoades for $10,000, as an advance commission; he wrote another check to himself for $5,000. Over the next two months, funds from the Spectrum account were used to pay travel expenses of Rhoades and Wheeler and for other operating expenses. Additionally, Wheeler withdrew a substantial amount to secure the release of Rhoades on bail after Rhoades was arrested in Fairbanks in October, 1978. Rhoades' arrest resulted from a police investigation commenced in response to another advertisement placed in a Fairbanks newspaper. Wheeler closed Spectrum's account on December 4, 1978. Undisputed evidence was presented by the state at trial that Wheeler did not formally incorporate Spectrum until after Anchorage investors had signed contracts with the company. At no time did Spectrum have contracts or arrangements with any candy suppliers, nor was Spectrum in a position to supply candy itself. Rhoades testified at trial that the wholesale price of 12V2 cents per bar of candy that he used in his sales pitch was entirely speculative, or "blue sky." Similarly, Spectrum had never negotiated for or acquired vending machine locations in the Anchorage area and had no plans to do so. No locators were hired, nor did a "location schedule" for placement of vending machines in Anchorage ever exist. The funds in Spectrum's bank account were the only corporate assets that the company had. Spectrum had no line of credit or other arrangements that might have enabled it to finance current or future purchase of vending machines by its investors. Based on Rhoades' testimony, there was ample evidence to indicate that Wheeler knew of and condoned the various verbal representations Rhoades had made to his Anchorage customers. With this background in mind, we proceed to a consideration of Wheeler's points on appeal. II. SUFFICIENCY OF THE EVIDENCE TO ESTABLISH THE EXISTENCE OF A SECURITY Wheeler's primary argument is that the evidence at trial was insufficient to support the conclusion that Spectrum's vending machine sales program constituted a security under Alaska law. AS 45.55.130(12) defines a security under Alaska law; the statutory definition includes, in relevant part, any "investment contract" or any "investment of money . in the risk capital of a venture with the expectation of some benefit to the investor where the investor has no direct control over the investment or policy decision of the venture." In this case, the jury was given instructions on both the "investment contract" and "risk capital" definitions. of a security and, by special interrogatory, the jury was asked to specify, in the event it found Wheeler guilty, whether its finding was based on the investment contract definition, the risk capital theory, or both. The jury concluded that Wheeler was guilty under both definitions of a security. Accordingly, in order to sustain Wheeler's conviction, it is necessary only to conclude that there was sufficient evidence under either, of the alternative definitions. Until the decision in Hentzner v. State, 613 P.2d 821 (Alaska 1980), the question of what constitutes a security under AS 45.55.-130(12) had not been addressed by the Alaska Supreme Court. In Hentzner, 613 P.2d at 823-24, the court construed the term "investment contract," as used in the statute. Hentzner adopted the basic definition first stated by the United States Supreme Court in the landmark case of Securities and Exchange Comm'n v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946). In Howey, "investment contract" was defined as a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party . Id. at 299-300, 66 S.Ct. at 1103, 90 L.Ed. at 1249. The court in Hentzner, however, indicated that the Howey test should not be applied rigidly or inflexibly. Thus, referring particularly to Howey ⅛ requirement that an investment contract involve profits to be derived "solely from the efforts of the promoter," the Hentzer court, 613 P.2d at 823, cited with approval the holding in Securities and Exchange Comm'n v. Glenn W. Turner Enterprises, 474 F.2d 476 (9th Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973). Turner expressly held that the Howey definition does not preclude the finding of an investment contract where both the investor and the promoter are required to make some efforts in order to obtain a profit. The Turner court ruled that the Howey test is satisfied if "the efforts made by those other than the investor are the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise." 474 F.2d at 482. Applying the flexible interpretation of the Howey standard approved by Hentz-ner, we are convinced that sufficient evidence was presented to support a jury finding that Spectrum's vending machine sales program was an investment contract. Viewed in the light most favorable to the state, the evidence indicates that Rhoades, acting with Wheeler's knowledge and con sent, engaged in significantly more than a garden variety commercial sale of vending machines. Vending machines are not inherently profitable; rather, their profitability depends upon availability at reasonable cost of merchandise to be sold and availability of space in areas where potential buyers can be found. When viewed in its totality, the evidence presented at trial is ample to support the conclusion that Spectrum, through advertisements, verbal representations to potential investors, and various investment documents prepared and signed by Wheeler and Rhoades, sold a package of contractual benefits which included, in addition to vending machines themselves, the precise experience, expertise and resources necessary to assure profits from the machines. Spectrum represented to its investors that it would continue to provide, either directly or indirectly, a supply of candy and snacks at favorable wholesale prices. In addition, Spectrum agreed to lend its own skill and expertise in the vending machine business to place current and future machines in desirable, high traffic locations; these locations were to be provided by Spectrum at a cost that was advantageous to its investors. The extent to which Spectrum relied on the offer of its managerial skill and expertise as an inducement to prospective investors is evidenced by the 110% first year earnings guarantee and, in particular, by the provision in this guarantee that investors would forfeit the right to its benefits if they moved any machine without prior company approval. Spectrum's promises of unlimited future expansion, current and future financing at low interest rates, and exclusive rights to sell in the Anchorage area are further evidence of the fact that Spectrum marketed not just vending machines, but a program for acquisition and operation of machines which assured financial success. Relying on the Howey standard, Wheeler nevertheless contends that there was insufficient evidence to support findings that Spectrum's program created a common enterprise or that investors were led to expect profits through "the sole efforts of the promoter." When all aspects of Spectrum's sales agreements are considered, however, we think it apparent that sufficient evidence existed to establish both a common enterprise and reliance by investors on the efforts of Spectrum to assure profits. The common enterprise requirement of Howey "has come to mean only that the investors' financial interests must be 'inextricably interwoven' with those of the promoter or third party." Hentzner v. State, 613 P.2d at 824 (quoting Securities and Exchange Comm'n v. Commodity Options International, Inc., 553 F.2d 628, 633 (9th Cir. 1977)). See also Securities and Exchange Comm'n v. Glenn W. Turner Enterprises, 474 F.2d at 482 n. 7. Here, Spectrum's program gave rise to a clear financial interdependence between investor and promoter. Spectrum's investors had a high stake in the company's financial success. Only if Spectrum proved to be successful could it be depended on to provide experienced personnel to negotiate for and obtain profitable locations for vending machines currently purchased and for machines that might be bought in the future pursuant to Spectrum's expansion agreement. Similarly, investors depended on Spectrum's continued financial security to assure that the company would be capable of fulfilling its commitments to arrange for supplies of candy at favorable prices, to furnish both present and future financing, to make additional machines available for future expansion, and to live up to its obligation under the 110% first year guarantee. For its part, Spectrum's interests depended heavily upon the success of its investors, since profitable operations by investors could be expected to result in future sales under the expansion agreement. Even more significantly, unsuccessful — or even marginally profitable— performance by investors might result in the need for Spectrum to expend potentially vast sums of money to reimburse investors pursuant to its 110% first year earnings guarantees. We therefore conclude that the evidence presented at trial was adequate to support a finding of common enterprise resulting from Spectrum's sale of its vending machine program. A similar conclusion is warranted with respect to the second part of the Howey standard, which requires reliance by investors for profits on the "sole efforts of the promoter." As previously noted, this portion of the Howey test has been read to require a finding that the efforts to be made by a promoter could be characterized as "the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise." It is undeniable that, under the terms of their agreements with Spectrum, investors were required to engage in substantial efforts to assure profits. It was incumbent upon investors to service and stock their vending machines regularly, to collect money from their machines, and to keep basic records of service to and income from the machines. Yet the investors' duties must be compared to the efforts that were undertaken by Spectrum. These efforts included negotiating for and obtaining, high traffic locations for machines at nominal rates, installation of the machines on location, providing supplies at advantageous wholesale prices to stock the machines, providing future guidance as to relocation of machines operating at unprofitable locations, assuring exclusive sales territory to investors, providing financing for acquisition of machines, and making additional machines and locations available to investors for future expansion. We think that the overall distribution of responsibilities that emerges from the evidence is a virtual paradigm of the division of efforts that has commonly been deemed to satisfy the "sole efforts" facet of the Howey standard: investors here were to make only routine efforts of a ministerial nature to advance their investments, while Spectrum undertook performance of managerial efforts — efforts which would require financial resources as well as experience and expertise in the trade, and which would ultimately determine the profitability of the venture. See, e.g., Smith v. Gross, 604 F.2d 639 (9th Cir.1979); Miller v. Central Chinchilla Group, Inc., 494 F.2d 414 (8th Cir.1974); Pratt v. Kross, 276 Or. 483, 555 P.2d 765, 772-73 (Or.1976); McClellan v. Sundholm, 89 Wash.2d 527, 574 P.2d 371, 374 (Wash.1978). See also Ek v. Nationwide Candy Division, Ltd., 403 So.2d 780 (La.App.1981) (sale of candy vending machines coupled with a guaranteed income refund policy and other obligations held to be a security). We hold that the evidence produced at trial was sufficient to justify a finding that the "sole efforts" requirement of the How-ey standard was met. It follows that the evidence was sufficient to show that Spectrum's marketing scheme, planned and executed by Wheeler, involved the sale or offering of an "investment contract" within the meaning of AS 45.55.130(12). The trial court thus correctly denied Wheeler's motion for judgment of acquittal based on insufficiency of the evidence to show that a security was involved in Wheeler's transactions. III. ADEQUACY OF JURY INSTRUCTIONS ON CRIMINAL INTENT AND GOOD FAITH We next consider Wheeler's complaint that the trial court improperly instructed the jury on the related issues of criminal intent and good faith. Wheeler initially directs his attack at the adequacy of the trial court's instructions concerning the necessary level of criminal intent. The trial court gave identical instructions as to each of the three counts that charged Wheeler with sale of an unregistered security. Wheeler contends that each of the three instructions was improper and that the trial court should have granted his request to give instructions requiring the jury to find, as to all elements of the counts charging the sale of unregistered securities, that he acted "knowingly and deliberately with bad purpose." While the issue of intent that Wheeler raises is conceptually a difficult one, its resolution is in large measure controlled by the decision in Hentzer v. State, 613 P.2d at 824-29, which, like the present case, dealt with a charge of selling unregistered securities in violation of AS 45.55.210(a). Addressing the issue of intent, the court in Hentzner acknowledged that AS 45.55.-210(a) expressly required the conduct of the accused to be committed "wilfully." Id. at 825. The court noted three alternative interpretations of the statute's wilfulness requirement: The issue before us is the meaning of the word "wilfully" as used in AS 44.55.-210(a). There are several possibilities. One is that the defendant must act intentionally in the sense that he is aware of what he is doing; another is that the defendant must be aware that what he is doing is illegal; and a third is that the defendant must know that what he is doing is wrong. It is in this last sense that we think "wilfully" should be interpreted as it is used in Section 210. Id. (footnote omitted). In reaching this conclusion, the supreme court relied strongly upon its traditional aversion to the use of strict liability in cases involving criminal penalties. Id. at 826-27, 829. The court reasoned that, when an offense is only malum prohibitum in nature, there is no broad societal concurrence as to the wrongfulness of the prohibited act. The court concluded that, for this reason, in such cases the term "wilfully" should be defined to require the jury to make a finding that the accused possessed an awareness of wrongdoing in committing the offense. Id. at 826, 828-29. Finding the sale of unregistered securities to be a malum pro-hibitum offense, the court held that the jury should have been instructed that an awareness of wrongdoing was required for Hentzner's sale to be deemed wilful. Id. at 828-29. The court in Hentzner did not discuss the definition or scope of the mens rea standard that it established by requiring awareness of wrongdoing as a component of wilfulness. The question before us in the present case is whether the trial court's instructions on the counts charging Wheeler with sale of unregistered securities satisfied Hentz-ner's awareness of wrongdoing standard. As previously noted, the trial court's instructions on the elements of sale of unregistered securities were identical as to each count. Each instruction required, as the first element of the offense, that the jury find that Wheeler acted "willfully." However, in setting out the fourth element of the offense, each instruction specified that the jury could reach a guilty verdict if it found that Wheeler acted "[w]ith reckless disregard for the fact that the business opportunity being offered was a security." Although the trial court's simultaneous use of the standards of wilfulness and reckless disregard within each of the three instructions that described the necessary elements of sale of an unregistered security might appear to be somewhat inconsistent, we think these instructions, on the whole, adequately informed the jury of the criminal intent requirement formulated by the trial court. We further believe that this requirement comported with the mandate of Hentzner. A common sense reading of the trial court's instructions strongly suggests that their net effect was to inform the jury that, at the very least, it would be required to find that Wheeler's conduct was voluntary and deliberate and that he either actually knew he was unlawfully selling unregistered securities or he recklessly disregarded that fact. Wheeler asserts that this use of the "reckless disregard" standard of criminal intent subjected him to conviction based upon a lesser standard than the awareness of wrongdoing standard mandated by Hentzner. We disagree. Hentzner ⅛ primary concern was to avoid application of strict liability in cases where the accused could be subjected to severe criminal penalties. In the present ease, it is significant that the trial court's jury instruction defining "reckless disregard" closely tracked the definition of criminal recklessness that is contained in the Alaska Revised Criminal Code. This court has recently stated that [t]he definitions contained in the Revised Criminal Code for both recklessness — AS 11.81.900(a)(3) — and negligence — AS 11.-81.900(a)(4) — were expressly formulated to preclude mere civil negligence from forming the basis for a criminal conviction. Thus, both recklessness and criminal negligence require a "gross deviation" from the standard of care that "a reasonable person would observe in the situation." Andrew v. State, 653 P.2d 1063, 1066 (Alaska App.1982) (footnote omitted). We further observed that the definition of recklessness set out in AS 11.81.900(a)(3), unlike the statutory definition of negligence, expressly incorporates a subjective component: actual awareness and conscious disregard by the accused of "a substantial and unjustifiable risk" that his conduct may result in a violation of the law. Id. at 1065. In this case, the trial court's use of the recklessness standard, as defined in AS 11.-81.900(a)(3), appears to meet Hentzner 's chief concern. Reliance on the statutory definition of recklessness provided ample assurance that Wheeler would not be convicted of selling unregistered securities based upon application of strict liability or upon a mere finding of civil negligence. Hentzner's purpose of preventing imposition of criminal penalties based upon strict liability was therefore fulfilled by the instructions adopting the recklessness standard. We further conclude that the trial court's choice of criminal recklessness as the requisite measure of criminal intent was appropriate as a means of implementing the awareness of wrongdoing requirement expressly adopted in Hentzner. The subjective component of criminal recklessness seems entirely consistent with the awareness of wrongdoing standard. When the accused is subjectively "aware of and consciously disregards a substantial and unjustifiable risk" that his conduct may be unlawful or that it may lead to unlawful results, it is difficult to imagine how he could realistically be said to have acted without an awareness of wrongdoing. Moreover, a more stringent definition of the awareness of wrongdoing standard than that contained in AS 11.81.900(a)(3) would require subjective knowledge by the accused that his conduct was in fact illegal. Subjective knowledge of illegality was, however, expressly rejected as a definition of wilfullness by the court in Hentzner. Accordingly, we hold that the trial court's use of criminal recklessness as a measure of the criminal intent requirement applicable to Wheeler's charges of selling unregistered securities fully complied with the court's duty, under Hentzner, to inform the jury that Wheeler could be convicted only if he acted with an awareness of wrongdoing. Wheeler's next two points involve the trial court's instructions on the issue of good faith as a defense to the charges of selling unregistered securities. Wheeler maintains that the court erred in refusing to give a proposed instruction stating that a good faith belief on his part that he was not offering a security for sale would be a defense. This claim can be readily disposed of. Wheeler's good faith defense theory was predicated almost entirely upon his own testimony that he had planned and organized Spectrum's sales program based on advice that he received from an attorney. Wheeler had been arrested in Oklahoma in the summer of 1978 on charges of selling securities without a license; he testified at his trial in the present case that while his Oklahoma charges were pending against him he discussed vending machine sales with his attorney in that case. According to Wheeler, his attorney gave him advice on how a vending machine sales program might be structured so that it would not be a security, and Wheeler relied on this advice in putting Spectrum's program together. Because the trial court gave a specific instruction on Wheeler's theory of defense, expressly informing the jury that good faith reliance on advice of an attorney would constitute a defense to the counts charging Wheeler with sale of unregistered securities, we conclude that no error result ed from the trial court's refusal to give a more generalized good faith instruction. Wheeler also challenges the adequacy of the trial court's instruction concerning reliance on advice of counsel as a defense. Based on Wheeler's testimony concerning the advice he received from his Oklahoma attorney, the trial court instructed the jury as follows: The defendant claims that he is not guilty of wilful wrongdoing because he acted on the basis of advice from his attorney. If the defendant before taking any action sought the advice of an attorney whom he considered competent, in good faith and for the purpose of securing advice on the lawfulness of his possible future conduct, and made a full and accurate report to his attorney of all material facts of which he has the means of knowledge, and acted strictly in accordance with the advice of his attorney given following his full report, then the defendant would not be wilfully doing wrong in doing or omitting something the law forbids or requires, as that term is used in these instructions. Whether the defendant acted in good faith for the purpose of seeking guidance as to questions about which he was in doubt, and whether he made a full and complete report to his attorney, and whether he acted strictly in accordance with the advice received, are questions for you to determine. Wheeler claims that this instruction was inadequate and that an instruction proposed by him and rejected by the trial courts should have been given in its place. Wheeler's proposed instruction differed from that given by the court in two respects. First, it would have deleted reference to the requirement that advice must have been sought "on the lawfulness of [the defendant's] possible future conduct." Second, it would have added a sentence stating: "Reliance in good faith on the advice of an attorney is evidence of the defendant's state of mind as to knowledge and wilfulness.'' Wheeler argues that it was improper for the court to restrict its advice of counsel instruction to advice sought for the purpose of determining the lawfulness of future conduct. He reasons that, for the purpose of determining lawfulness of present conduct, it should be permissible to rely on advice previously given by an attorney, even if that advice was originally solicited in relation to other matters. In context, Wheeler's claim is entirely without merit. In the course of his own testimony — which was the sole basis upon which Wheeler's advice of counsel defense was premised— Wheeler stated that he had solicited advice from his Oklahoma attorney as to what type of vending machine sales program might constitute a security for the express purpose of planning how to establish Spectrum. Given this testimony, we fail to see how Wheeler could have been prejudiced by the restriction contained in the trial court's advice of counsel instruction. We find Wheeler's second contention regarding the advice of counsel instruction to be equally devoid of merit. Wheeler claims that the trial court improperly refused to include in its advice of counsel instruction the language of his proposed instruction stating that good faith reliance on advice of counsel was relevant to the issue of his wilfulness and knowledge. The advice of counsel instruction used by the court followed, almost verbatim, the pattern instruction set out in 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 14.12, at 396 (3rd ed. 1977). Contrary to Wheeler's assertions, this instruction directly addressed the relationship between good faith reliance on advice of counsel and the element of wilfulness, providing in relevant part that if the defendant, in good faith relied on advice given by his attorney, "then the defendant would not be wilfully doing wrong . as that term is used in these instructions." We conclude that the advice of counsel instruction given by the trial court adequately apprised Wheeler's jury of the relationship between reliance on advice of counsel and the element of wilfulness. IV. FAILURE TO GRANT A NEW TRIAL DUE TO ALLEGED MISCONDUCT BY A JUROR The final issue raised by Wheeler involves the trial court's failure to grant motions for a new trial based upon the alleged misconduct of a juror. Shortly after Wheeler was convicted, his trial counsel, Paul Davis, learned that Leo Bailey, fore-. man of the jury that convicted Wheeler, was under indictment by the state for perjury and offering false evidence. Davis further learned that these charges arose from testimony and evidence that Bailey had presented as a defense witness in a misdemeanor trial prosecuted by the Municipality of Anchorage against Paula Newman. Newman had been represented in the municipal case by Davis' law partner, Edgar Paul Boyko. Newman had also been indicted for perjury and offering false evidence as a result of her testimony in the municipal case. State prosecutors had subpoenaed Boyko to testify before the grand jury that indicted both Newman and Bailey. The fact that Bailey weathered the voir dire process and sat as a juror in Wheeler's case appears to have been the combined result of relative inattention by counsel and incorrect or misleading answers given by Bailey to questions posed on voir dire. During selection of Wheeler's jury, Bailey was never told that Paul Davis and Edgar Paul Boyko worked together as partners in legal practice. Nor was Bailey asked whether he had ever been charged with a crime. However, Bailey indicated, in response to a question contained in a written jury questionnaire, that he had never been a party to a lawsuit; he gave the same answer when questioned on voir dire. Additionally, Bailey stated on voir dire that he had only had contact with the criminal justice system on one prior occasion, that being as a witness in a city ease in 1968. Upon discovering Bailey's status and the fact of his involvement in the Newman case, Wheeler, through counsel, filed motions for a new trial. In his first motion, Wheeler alleged that Bailey had given false or misleading answers during voir dire, that Bailey might have been prejudiced against and resentful of Wheeler's counsel because of his association with Edgar Paul Boyko, and that, because Boyko had in effect acted as Bailey's accusor in testifying before the grand jury that indicted Bailey and Newman, Wheeler would have been entitled to disqualify Bailey for cause if the fact that Bailey had charges pending against him had been revealed. Wheeler's second motion for a new trial, based upon the same factual allegations, raised the further assertion that Bailey's non-disclosure deprived Wheeler of his right to informed and intelligent exercise of peremptory challenges during jury selection. The state opposed Wheeler's motions. In so doing, it presented the trial court with an array of evidence and information to bolster its opposition. Wheeler's prosecutor submitted his own affidavit indicating that the state's prosecution against Bailey had at all times been handled by a separate branch of the attorney general's office and that he had no knowledge of the charges against Bailey until after Wheeler's trial had ended. The state further presented an affidavit executed by Bailey himself, in which he explained that his misleading answers on voir dire were unintentional and resulted from misunderstanding and confusion. Bailey's statement that he was a witness in a 1968 city case was actually a reference to his involvement in the Newman case, according to the affidavit; Bailey stated that he merely misspoke himself, intending to say "1978." Bailey went on to indicate that he was not aware before or during Wheeler's trial that Wheeler's attorney was associated with Edgar Paul Boyko. Bailey indicated that, in any event, he harbored no animosity toward Boyko and did not believe that Boyko's testimony before the grand jury was particularly incriminating or that Boyko acted as his accusor in giving grand jury testimony. Bailey concluded by stating that he was not in any way prejudiced against Wheeler and that his participation as a juror in Wheeler's trial was based solely on a fair and impartial consideration of the evidence presented at trial. Bailey's affidavit was corroborated by affidavits of five other members of Wheeler's jury. The affidavit of each juror confirmed that, during deliberations, Bailey had never indicated any prejudice against Wheeler or his attorney, that Bailey had never mentioned the criminal charges pending against him or any other extraneous matters, and that Bailey had at all times restricted his comments to the evidence presented at Wheeler's trial. In addition to these various affidavits, the state presented the trial court with a transcript of the grand jury proceedings that led to Bailey's indictment; the state's purpose in submitting the transcript was to demonstrate that Boyko's testimony concerning Bailey was essentially neutral in character and did not directly incriminate him. Thus, the state maintained that the transcript corroborated Bailey's affidavit by indicating that the nature of Boyko's testimony could not reasonably be expected to have caused Bailey to be hostile toward Boyko. After considering all of the materials presented by Wheeler and the state in connection with the motions for a new trial, the trial court denied Wheeler's motions. Wheeler now contends that a new trial should have been granted; he argues that Bailey's non-disclosure should be deemed to create a presumption of prejudice on Bailey's part because it denied Wheeler of his right to exercise peremptory challenges in an informed and intelligent manner. The correct legal standard for determination of this issue was recently discussed by the Alaska Supreme Court in Fickes v. Petrolane-Alaska Gas Service, 628 P.2d 908 (Alaska 1981), a case involving a similar, though distinguishable, claim of juror misconduct. In Fickes, 628 P.2d at 910, the court reaffirmed the two-tier standard for resolving claims of juror misconduct that was first adopted in West v. State, 409 P.2d 847, 852 (Alaska 1966): Whether the verdict should be set aside and a new trial ordered rests in the sound discretion of the trial judge, but generally the verdict should stand unless the evidence clearly establishes a serious violation of the juror's duty and deprives a party of a fair trial. Applying this test, the court in Fiekes concluded that a new trial was required in light of the evidence of misconduct that had been presented. The record in Fiekes indicated that a juror had either negligently or intentionally failed to disclose, during voir dire, that he knew an important witness in the case, and that, during deliberations, the juror expressly argued that he knew the witness and that the jury could count on the witness' competence and reliability. 628 P.2d at 910. By contrast, in Wheeler's case, there was nothing presented to the trial court indicating that the pending charges against Bailey or Bailey's familiarity with Edgar Paul Boyko had any influence on the jury's deliberation or in any way affected Bailey's consideration of the case. There was, to the contrary, substantial evidence to indicate that Bailey did in fact participate as a fair and impartial juror and that nothing of a prejudicial or improper nature tainted the jury's verdict. It was well within the permissible range of the trial court's discretion to- conclude that Bailey's affidavit was truthful in stating that his misleading answers had been unintentional. Even assuming that Bailey was so negligent in responding to voir dire questions that his misleading answers could, in and of themselves, constitute a "serious violation of a juror's duty," only the first tier of the West standard would be satisfied. The two-tier standard for resolving claims of juror misconduct adopted in West and reaffirmed in Fiekes precludes consideration of Wheeler's argument that a presumption of prejudice should be deemed to arise as a result of Bailey's non-disclosure. A showing that Wheeler was actually de prived of a fair trial.is required. We believe that ample evidence was submitted below to permit the trial court, in the exercise of its discretion, to conclude that Bailey's non-disclosure and his consequent participation as a juror in Wheeler's case did not deprive Wheeler of a fair trial. We thus conclude that Wheeler has not satisfied his burden of demonstrating that the second tier of the West standard was established. Accordingly, we hold that the trial court's refusal to order a new trial did not constitute an abuse of discretion. The judgment of conviction is AFFIRMED. . Wheeler's three sales of unregistered securities were alleged to have occurred in September, 1978; he was charged with these offenses under the provisions of AS 45.55.070 and AS 45.55.210. The securities fraud allegations, stemming from the same transactions, were charged under AS 45.55.010(3) and AS 45.55.-210. Wheeler was convicted on all six counts. . Rhoades was indicted as Wheeler's codefend-ant; he subsequently entered a negotiated plea of nolo contendere and testified against Wheeler at trial. . All four primary investors testified against Wheeler at trial. The investors, and the respective dates and the amounts of their investments, were as follows: No. Date Purchaser's Machines of Down Name Purchased Purchase Payment Donald Lott 30 9-14-78 $6,000 David Ebbert 10 9-14-78 $500 Eric Kaufman 20 9-14-78 $4,000 Waldo Carrasco 50 9-13-78 $10,000 Although David Ebbert testified at Wheeler's trial, his purchase from Spectrum was not the subject of any charges against Wheeler. The remaining three transactions formed the basis for the six counts with which Wheeler was charged, each transaction giving rise to one count of sale of an unregistered security and one count of securities fraud. The transaction involving Eric Kaufman was actually a joint investment by Kaufman and another man; the other investor did not testify at Wheeler's trial. . Kaufman and Lott testified that Rhoades had implied that financing would be available for their initial purchases; Carrasco stated that Rhoades expressly assured him that financing would be arranged through Spectrum. This was consistent with Rhoades' testimony. . Rhoades testified that the sales presentation and the specific representations that he made to prospective investors in Anchorage constituted a standard sales pitch that he and Wheeler had used before. Wheeler gave Rhoades a demonstration of the sales pitch when he was recruiting Rhoades, and Wheeler had previously seen Rhoades do substantially the same presentation when they were working for other companies. Additionally, two of Spectrum's Anchorage investors, Carrasco and Lott, specifically testified that after their agreements had been executed arid approved they spoke by telephone with Wheeler, who confirmed in each case that Spectrum was giving the investor exclusive rights to the Anchorage territory. . AS 45.55.130(12), as it was written at the ' time of Wheeler's offense, provided: (12) "security" means a note; stock; treasury stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in any profit-sharing agreement; collateral-trust certificates; preorganization certificate or subscription; transferable share; investment contract; voting-trust certificate; certificate of deposit for a security; a certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under the title or lease or in any sale of or indenture or bond or contract for the conveyance of land or any interest in land; an option on a contract for the future delivery of agricultural or mineral commodi ties or any other commodity offered or sold to the public and not regulated by the Commodity Futures Trading Commission; however, the contract for option is not subject to the provisions of AS 45.55.070 if it is sold or purchased on the floor of a bona fide exchange or board of trade and offered or sold to the public by a broker-dealer or agent registered under this chapter; investment of money or money's worth including goods furnished or services performed in the risk capital of a venture with the expectation of some benefit to the investor where the investor has no direct control over the interest or policy decision of the venture; or, in general, any interest or instrument commonly known as a "security," or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing; "security" does not include an insurance or endowment policy or annuity contract under which an insurance company promises to pay a fixed sum of money either in a lump sum or periodically for life or for some other specified period.... [Emphasis added.] . The standard we must use to decide questions involving sufficiency of evidence at trial is well settled: In considering a motion for judgment of acquittal, both at trial and on appeal, the court "must take the view of the evidence and the inferences therefrom most favorable to the state. If . fair minded men in the exercise of reasonable judgment could differ on the question of whether guilt has been established beyond a reasonable doubt," the motion must be denied. Hentzner v. State, 613 P.2d 821, 823 (Alaska 1980) (quoting Gray v. State, 463 P.2d 897, 905 (Alaska 1970)). . Securities and Exchange Comm'n v. Glenn W. Turner Enterprises, 474 F.2d at 482. . Wheeler also argues that no common enterprise arose and that the "sole efforts" standard was not met because investors, after paying for their vending machines, were free to use them as they desired and could have located the machines wherever they wanted to or purchased supplies from any source they chose. This argument misses the point. In most contractual arrangements, a party is free to accept less than he is entitled to receive under the terms of the contract. Spectrum's investors were free to do as they pleased in this sense, and this sense only. We believe that the existence of a security should properly be determined by looking to the contractual terms of an offering, as evidenced by a promoter's representations to and agreements with potential investors, rather than by focusing on the "freedom" of investors to accept less than they bargained for. In this case it appears that, as a result of written and verbal representations made by Spectrum, investors entered into contracts which purported to entitle them to significantly more than mere title to and possession of vending machines. . AS 45.55.210(a) provides, in relevant part: Criminal penalties, (a) A person who wilfully violates a provision of this chapter except AS 45.55.160, or who wilfully violates a rule or order under this chapter, or who wilfully violates AS 45.55.160 knowing the statement made to be false or misleading in a material respect or the omission to be misleading by any material respect, upon conviction, is punishable by a fine of not more than $5,000, or by imprisonment for not less than one year nor more than five years, or both. . The trial court's instructions on the three counts charging Wheeler with fraudulent sale of securities required only that the jury find a specific intent to defraud, expressly omitting any requirement of knowledge with respect to the fact that securities were being sold. Wheeler has not challenged the trial court's instructions with respect to these three counts. .A general definition of "wilfully" was given by the court in a separate instruction. "Wilfully" was defined for the jury as follows: An act is done wilfully if done voluntarily and intentionally, and with the specific intent to do something the law forbids; that is to say with bad purpose either to disobey or to disregard the law. . As an example of the instructions at issue, we quote a portion of the relevant instruction given in connection with the transaction involving Waldo Carrasco: The necessary and material allegations of Count V, each of which the state must prove beyond a reasonable doubt before you can find the defendant guilty, are as follows: 1. That on or about September 19, 1978, while outside the state of Alaska, Cletus R. Wheeler did wilfully and unlawfully; 2. Sell a security to Waldo Carrasco at or near Anchorage, Third Judicial District, State of Alaska; 3. Said security having not been registered at the time of its sale as required by the Alaska Securities Act; 4. With reckless disregard for the fact that the business opportunity being offered was a security. . It is possible, as the state argues, that the jury construed the court's general reference to wilfulness at the outset of each instruction as requiring a finding that Wheeler acted with actual knowledge that sales were in fact securities. This could have occurred if the jury strictly followed the definition of "wilfully" that was separately given by the court, and if the jury considered the wilfullness requirement listed in the first element of the offense to override the somewhat inconsistent standard of reckless disregard mentioned as the fourth element of the offense. As Wheeler correctly argues, however, the possibility that a jury would read the instructions in this manner seems relatively remote. In any event, assuming such a reading was given to the trial court's instructions by the jury, it would have resulted in a more stringent intent requirement than the standard of "reckless disregard." Since this alternative reading of the instructions would have worked in Wheeler's favor, our discussion of the intent issue will assume that the jury applied the "reckless disregard" standard in determining whether Wheeler acted with the requisite level of criminal intent as to the fact that his transactions involved the sale of securities. .AS 11.81.900(a)(3) provides, in relevant part: (3) a person acts "recklessly" with respect to a result or to a circumstance described by a provision of law defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . The instruction on recklessness given by the trial court to the jury in this case stated: A person acts recklessly in connection with the sale of a security when he is aware of and consciously disregards a substantial and unjustifiable risk that the business venture he sells is a security. The risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the same circumstances. . Although it has not specifically been argued on appeal, Wheeler's good faith defense theory might also have been premised on his testimony that he was unaware of and did not approve many of the misrepresentations made by Rhoades to Alaska investors. To the extent that Wheeler might have relied on this defense at trial, we believe that the court's instructions on the necessary elements of the offenses with which Wheeler was charged and its instructions informing the jury on applicable law pertaining to accessory liability were sufficient to allow presentation of the good faith claim by Wheeler, without the need for an independent good faith instruction. As the state correctly notes, a generalized good faith instruction is simply the converse of instructions setting forth the criminal intent that must be established before guilt can be found. Accordingly, it has been held that failure to give a general good faith instruction does not constitute error if other instructions properly set forth the elements charged. See, e.g., United States v. Rothman, 567 F.2d 744, 752 (7th Cir.1977); United States v. Tortorello, 480 F.2d 764, 785 (2d Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973). Moreover, as to the three counts charging Wheeler with fraudulent sale of securities, the trial court did give the jury a good faith instruction, which expressly permitted consideration of Wheeler's good faith in determining whether he acted with specific intent to defraud Spectrum's investors. . The applicability of reliance on advice of counsel as a defense to criminal charges has not previously been considered by this court or by the Alaska Supreme Court. Acceptance of this defense is far from universal, and commentators have noted sound reasons for its rejection. See, e.g., Model Penal Code § 2.04 (1962); W. LaFave & A. Scott, Criminal Law § 47, at 368-69 (1972). Because we are not required in this case to decide whether it was appropriate for the trial court to give an instruction on the advice of counsel defense, we express no view as to whether such a defense should formally be recognized under Alaska law. . The trial court restricted application of its instructions on the advice of counsel defense to the three counts charging Wheeler with sale of unregistered securities. Wheeler has not expressly challenged the trial court's decision refusing to extend the advice of counsel defense to the three counts charging him with fraudulent sale of securities. However, in his reply brief, Wheeler seems to imply that restriction of the advice of counsel defense to the three counts involving sale of unregistered securities was arbitrary. Similarly, in arguing that a general good faith instruction should have been given, Wheeler's opening and reply briefs imply that the court's instruction on the advice of counsel defense could not serve as a substitute for a general good faith defense instruction because a proper good faith instruction would have been applicable to Wheeler's charges of fraudulent sale of securities as well as to the charges of selling unregistered securities. The holding of the Alaska Supreme Court in Hentzner v. State, 613 P.2d at 824-29, strongly suggests that, where securities violations involve a component of fraud and are thereby malum in se rather than malum prohibitum, an instruction requiring a finding of specific intent to defraud would suffice, without the need for an independent finding of an awareness of wrongdoing as to the fact that the fraudulent transaction involved a security. This reading of Hentzner finds strong support in at least one relatively recent ruling of the United States Court of Appeals for the Ninth Circuit. United States v. Brown, 578 F.2d 1280, 1284-85 (9th Cir.), cert. denied, 439 U.S. 928, 99 S.Ct. 315, 58 L.Ed.2d 322 (1978). In this case, however, it is not strictly necessary for us to decide whether Hentzner's requirement of an awareness of wrongdoing as to the fact that a security is involved would be applicable to charges of fraudulent sale of securities or to other securities violations that could be characterized as malum in se. Because the three counts of fraudulent sale of securities charged against Wheeler arose from the same transactions as the three counts of sale of unregistered securities, and because appropriate criminal intent instructions were given in connection with the sale of unregistered securities charges, the jury's verdicts convicting Wheeler of all three counts of selling unregistered securities would suffice to cure any error arising from the trial court's failure to separately instruct on awareness of wrongdoing in connection with the counts charging fraudulent sale. . Bailey was one of the last jurors to be selected in Wheeler's case. He was part of a small supplemental panel of jurors called into Wheeler's courtroom toward the end of the jury selection process, when the jury panel originally summoned was exhausted before a full jury could be selected. The record indicates that members of the supplemental panel in which Bailey was included were subjected to only cursory voir dire by the prosecution and the defense.

10376253

John A. HILLMAN and Janet Hillman, individually and Janet Hillman as Personal Representative of the Estate of Julie G. Hillman, a deceased minor, Appellants, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee

Hillman v. Nationwide Mutual Fire Insurance Co.

1993-07-09

No. S-4555

1321

1332

855 P.2d 1321

855

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:06:58.921546+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

John A. HILLMAN and Janet Hillman, individually and Janet Hillman as Personal Representative of the Estate of Julie G. Hillman, a deceased minor, Appellants, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee.

John A. HILLMAN and Janet Hillman, individually and Janet Hillman as Personal Representative of the Estate of Julie G. Hillman, a deceased minor, Appellants, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee. No. S-4555. Supreme Court of Alaska. July 9, 1993. Michael J. Schneider, Mestas & Schneider, P.C., Anchorage, for appellants. Peter J. Maassen, Burr, Pease & Kurtz, Anchorage, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

6681

41673

OPINION MATTHEWS, Justice. John and Janet Hillman sued their insurer, Nationwide Mutual Fire Insurance Company (Nationwide), for bad faith in the handling of their uninsured motorist claim filed after the death of their daughter. The superior court granted Nationwide's motion to dismiss the claim, concluding that the insurer's decisions to deny coverage and to demand arbitration were reasonable. The Hillmans appeal this decision along with the trial court's designation of Nationwide as the prevailing party for attorney's fee purposes. We affirm on the merits but reverse the award of attorney's fees. I. FACTS AND PROCEEDINGS On August 14, 1983, while driving an ATV owned by her father, eleven-year old Julie Hillman collided with an uninsured pickup truck driven by William Amis. Julie died six days later as a result of her injuries. Nationwide had issued an automobile insurance policy to Julie's father, John Hill-man, which provided uninsured motorist coverage up to $25,000 per person or $50,-000 per occurrence. However, when on August 10, 1984, Janet Hillman, Julie's mother, contacted Nationwide to inquire about coverage and claim procedures, Mau-ry Hafford, Nationwide's local adjustor, indicated that Nationwide had no liability. This denial was based on one of the "coverage exclusions" in the uninsured motorist section. On February 7, 1985, after further inquiries by Mrs. Hillman, Hafford referred the claim to Nationwide's legal counsel in order to "clarify this issue of coverage for your understanding and satisfaction," as he wrote Mrs. Hillman. When, in late March 1985, Nationwide's attorney informed Hafford that "the question of coverage appears to be a roughly 50/50 proposition," Hafford wrote Hillman "seeking . further details with regard to Julie's accident." However, he did not relay the attorney's opinion to Mrs. Hillman. On April 1, 1985, the Hillmans filed a complaint against Nationwide for bad faith. The following month Nationwide offered the Hillmans $50,000 as a "compromise payment." The Hillmans rejected the offer, claiming that they were entitled to $150,000 under the insurance policy, plus medical benefits, incidental, consequential, and punitive damages. The following April Judge Katz granted Nationwide's motion for summary judgment and dismissed the Hillmans' claims. The Hillmans appealed the decision. On July 1, 1988, this court held that the Hillmans were covered by the Nationwide policy. Hillman v. Nationwide Mut. Fire Ins. Co., 758 P.2d 1248, 1250 (Alaska 1988) (Hillman I). We agreed with Nationwide's interpretation of the contractual language. However, a majority of the court refused to give effect to the uninsured owned motor vehicle exclusion contained in the policy for statutory and public policy reasons. Id. at 1251-52. Once coverage was established, Nationwide chose to pursue the arbitration procedure mandated by the policy for determining liability. Arbitration was held on January 30, 1989. The arbitrators concluded that Amis was 33% at fault with regard to the claims related to Julie's estate. As for John and Janet's claims for negligent infliction of emotional distress, the panel agreed that Amis' negligence accounted for 15% of the harm. The arbitrators awarded $92,-500 to the Hillmans. Two weeks later Nationwide paid the Hillmans $50,000, the maximum amount of the uninsured motorist coverage provided by the policy. Following arbitration, the Hillmans' bad faith litigation began anew. On June 21, 1990, Judge Michalski granted Nationwide's motion for partial summary judgment, dismissing the bad faith claims associated with Nationwide's denial of coverage and decision to arbitrate. After several pre-trial motions, Judge Mi-chalski reconsidered an earlier ruling and granted Nationwide's motion for summary judgment on the remaining bad faith claims. Dismissal of the claims was based on Judge Michalski's belief that the Hill-mans failed to demonstrate that they could show damages. After issuing the Final Judgment, the superior court identified Nationwide as the prevailing party and awarded costs and partial attorney's fees in the amount of $154,899.57. This appeal followed. II. DISCUSSION A. Dismissal of the Hillmans' Bad Faith Claims 1. Denial of Coverage In State Farm Fire & Casualty Co. v. Nicholson, 777 P.2d 1152 (Alaska 1989), we held that insurance companies could be liable for the tort of bad faith in so-called "first-party" cases — cases in which insureds seek compensation from their own insurers for losses which they have suffered. Id. at 1156. We had no occasion to comprehensively define the elements of the tort of bad faith in a first-party insurance context in Nicholson; we have not done so in subsequent cases, see e.g., State Farm Mut. Auto. Ins. Co. v. Weiford, 831 P.2d 1264 (Alaska 1992); nor do we do so now. In recognizing the tort of bad faith in first-party cases, we aligned Alaska with those jurisdictions that have followed Gruenberg v. Aetna Insurance Co., 9 Cal.3d 566, 108 Cal.Rptr. 480, 510 P.2d 1032 (Cal.1973), apparently the first ease to apply bad faith as a tort in first-party cases. Gruenberg articulated the tort in a manner that seemed to require unreasonable conduct and bad faith: "Accordingly, when the insurer unreasonably and in bad faith withholds payment of the claim of its insured, it is subject to liability in tort." Gruenberg, 510 P.2d at 1038. A similar double requirement was imposed in Noble v. National American Life Insurance Co., 128 Ariz. 188, 624 P.2d 866 (1981), another case on which we relied in Nicholson. The Arizona Supreme Court adopted the standard expressed by the Wisconsin Supreme Court in Anderson v. Continental Insurance Co., 85 Wis.2d 675, 271 N.W.2d 368 (Wis.1978): The Anderson Court states: To show a claim for bad faith, a plaintiff must show the absence of a reasonable basis for denying benefits of the policy and the defendant's knowledge or reckless disregard of the lack of a reasonable basis for denying the claim. It is apparent, then, that the tort of bad faith is an intentional one.... The tort of bad faith can be alleged only if the facts pleaded would, on the basis of an objective standard, show the absence of a reasonable basis for denying the claim, i.e., would a reasonable insurer under the circumstances have denied or delayed payment of the claim under the facts and circumstances. 271 N.W.2d at 376-77. Under the Anderson standard an insurance company may still challenge claims which are fairly debatable. The tort of bad faith arises when the insurance company intentionally denies, fails to process, or pay a claim without a reasonable basis for such action. Noble, 624 P.2d at 868. A leading text has this to say about the standard in first-party bad faith cases: In third party situations, an insurer can be liable for an excess judgment when it has failed to settle a third party action against its insured. However, courts have not agreed on the standard for imposing such liability. Some courts impose liability for a negligent failure to settle the third party action; others apply a "bad faith" test that, in practical terms, amounts to a negligence test; and a third group of courts applies a fairly strict requirement of subjective bad faith. A similar divergence of views concerning the level of wrongdoing necessary to impose tort liability on insurers for denial of benefits appears to exist among courts that have adopted the tort of first party bad faith. Although bad faith is not fully defined in some jurisdictions, courts have consistently held that a refusal to pay benefits based on a reasonable interpretation of the insurance contract is not bad faith. Shernoff, Insurance Bad Faith Litigation, § 5.02[1] at 5-6 (1992) (footnotes omitted). The above authorities make it clear that while the tort of bad faith in first-party insurance cases may or may not require conduct which is fraudulent or deceptive, it necessarily requires that the insurance company's refusal to honor a claim be made without a reasonable basis. Neither party takes issue with this proposition. Instead, the Hillmans argue that summary judgment should not have been granted because (a) reasonableness is always a question of fact for the jury and, alternatively, (b) under the facts and circumstances of this case there was a fact ques tion as to whether Nationwide had a reasonable basis for denying the claim. The Hillmans' argument that reasonableness always presents a question of fact is without merit. Although questions of reasonableness often must be resolved at trial, we have not held that they are never an appropriate subject for summary judgment procedures. If, when viewing the evidence most favorably to the opponent of a motion for summary judgment, the trial court finds that a reasonable jury could only conclude that the challenged conduct must be characterized in one way, then summary judgment in accordance with that conclusion should be entered. Schneider v. Pay 'N Save Corp., 723 P.2d 619, 623 (Alaska 1986). The Hillmans also argue that the superi- or court tacitly accepted the standard of bad faith articulated in National Savings Life Insurance Co. v. Dutton, 419 So.2d 1357 (Ala.1982). In Dutton, the Alabama Supreme Court held that, except in extraordinary circumstances, "if the evidence produced by either side creates a fact issue with regard to the validity of the claim . the [bad faith] tort claim must fail and should not be submitted to the jury." Id. at 1362. In short, under the Dutton test, the plaintiff must prove that plaintiff is "entitled to a directed verdict on the contract claim and, thus, entitled to recover on the contract claim as a matter of law." Id. We need not address whether the superior court adopted the Dutton standard. Dutton does not state the Alaska rule of law. Our position is merely that where the insurer establishes that no reasonable jury could regard its conduct as unreasonable, the question of bad faith need not and should not be submitted to the jury. The Hillmans' alternative argument — that they presented sufficient evidence to raise a fact question as to whether Nationwide's denial of coverage had a reasonable basis — requires more discussion. The Hillmans argue that they presented evidence showing that Nationwide denied coverage before making any investigation of the facts or the law and that Nationwide made subsequent, formal denials of coverage without having conducted significant investigation. They also argue that Nationwide's agents violated its guidelines and policies, which are intended to guarantee fair, honest and reasonable claims handling. Among others, this included violating the company policy requiring local adjustors to consult with higher echelons in the company before denying a death claim; failing to resolve all reasonable doubts about coverage in favor of the policy holder; withholding from the file any explanation for why the policy holder was required to sign a nonwaiver agreement; obtaining a legal opinion just to "paper the file" and for the main purpose of denying the claim; failing to provide a policy holder with a previously promised letter from Nationwide's attorney regarding coverage; lying to the policy holder about whether that letter was available; and "stonewalling" the claim for four years because of vindictiveness towards the Hillmans' attorneys. Finally, the Hillmans argue that even after Nationwide had given its personnel the authority to concede coverage and settle the underlying case for the $50,000 policy limits, its Regional Claims Attorney unilaterally decided not to do so. In our view none of these facts suffice to raise a factual question as to whether Nationwide's denial of coverage lacked a reasonable basis. The denial was based on an explicit exclusion in the policy. The question in this case is whether Nationwide was unreasonable in treating the exclusion as valid. As to this question, the Hillmans have directed us to no evidence suggesting unreasonableness. We have found that "the only reasonable interpretation" of this exclusion was that advanced by Nationwide. Hillman I, 758 P.2d at 1250. We also concluded in Hillman I that the exclusion was invalid on statutory and public policy grounds. Two of the five members of this court disagreed that the exclusion was invalid. Id. at 1255 (dissenting opinion of Justice Burke, joined by Justice Moore). See also State Farm Mut. Auto. Ins. Co. v. Bass, 231 Ga. 269, 201 S.E.2d 444, 445 (1973) (where appellate court was divided on interpretation of uninsured motorist statute, "insurer was legally justified in litigating the issue and cannot, as a matter of law, be liable for . bad faith"). Further, as we acknowledged in Hillman I, a respectable minority of jurisdictions have reached the same conclusion as the dissent. Hillman I, 758 P.2d at 1251. The facts that Nationwide did not follow its standard procedures in denying coverage, that it did not forward its attorney's letter to the Hill-mans, and that its $50,000 offer was conditioned on settling all of Hillmans' claims rather than their uninsured motorist claims, do not suffice to create a fact question as to whether Nationwide's decision to deny coverage lacked a reasonable basis, as they have little or no relevance on that point. We conclude, therefore, that there are no genuine issues of material fact as to whether Nationwide's denial of coverage was reasonable. 2. Demand for Arbitration In the same order dismissing the bad faith claim related to coverage denial, Judge Michalski also dismissed the bad faith claim based on Nationwide's demand for arbitration. Judge Michalski found that the arbitration demand was not in bad faith because Nationwide "merely exercised its right." The court reiterated the decision in its March 7, 1991 order dismissing the Hillmans' remaining bad faith claims. The Hillmans contend that Nationwide had no reasonable basis to demand arbitration. Instead, they argue, Nationwide's agents insisted on arbitration in order to discourage the Hillmans from proceeding with their legitimate claims and because of vindictiveness and aggravation with their attorneys. However, the insurance policy covered the Hillmans "only to the extent the uninsured motorist was liable." Based on evidence from the initial police report, Nationwide could reasonably conclude that Amis was only partially responsible for the accident. The subsequent findings of the arbitrators, that Julie was 66% at fault for the accident and her parents 85% at fault for their emotional distress, lend additional support to Nationwide's claim that its demand for arbitration was reasonable. See Sullivan v. Allstate Ins. Co., 111 Idaho 304, 723 P.2d 848, 850 (1986) (a subsequent arbitrator's decision that a claimant was partially negligent was clear evidence that an insurer's denial of liability was not in bad faith). Consequently, Nationwide's decision to demand arbitration was reasonable and therefore not in bad faith. B. Award of Attorney's Fees An award of attorney's fees will be reversed if the trial court's determination is an abuse of discretion or "manifestly unreasonable." Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1138 (Alaska 1989). Designation of the prevailing party "is committed to the broad discretion of the trial court." Apex Control Systems, Inc. v. Alaska Mechanical, Inc., 776 P.2d 310, 314 (Alaska 1989). The determination will be affirmed on appeal "unless it is shown that the court abused its discretion by issuing a decision which is arbitrary, capricious, mani festly unreasonable, or improperly motivated." Howard S. Lease Constr. Co. & Assoc. v. Holly, 725 P.2d 712, 720 (Alaska 1986) (quoting City of Yakutat v. Ryman, 654 P.2d 785, 793 (Alaska 1982)). After the Final Judgment was issued, Judge Michalski awarded Nationwide approximately $155,000 in costs and partial attorney's fees. The Hillmans argue that the trial court abused its discretion when it determined that Nationwide was the prevailing party. The Hillmans claim that since they prevailed on two of the three issues in the case, coverage and liability, but not on bad faith, they were the "prevailing party." Civil Rule 82(a) directs that attorney's fees be awarded to the prevailing party. "[T]he prevailing party is the one 'who has successfully prosecuted or defended against the action, the one who is successful on the "main issue" of the action and "in whose favor the decision or verdict is rendered and the judgment entered." ' " Day v. Moore, 771 P.2d 436, 437 (Alaska 1989) (quoting Adoption of V.M.C., 528 P.2d 788, 795 n. 14 (Alaska 1974)). This court has recognized that "it is not an immutable rule that the party who obtains an affirmative recovery must be considered the prevailing party." Owen Jones & Sons, Inc. v. C.R. Lewis Co., 497 P.2d 312, 313-14 (Alaska 1972). We have been cited to two cases where the party who obtained an affirmative recovery was held not to be the prevailing party by the trial court and this decision was affirmed on appeal. The cases are Owen Jones and Hutchins v. Schwartz, 724 P.2d 1194 (Alaska 1986). In Hutchins, the plaintiff sought $275,000 in compensatory damages. After a trial the jury returned a verdict in favor of the plaintiff, awarding some $1,900, which in turn had to be reduced by 40% because of the plaintiff's comparative negligence. Id. at 1204. Thus the plaintiff's affirmative award was only approximately $1,100. This recovery is so small in comparison with what was sought that it may properly be considered de minimis. The verdict essentially was a defense verdict. Owen Jones may not be so easily distinguished. There, Jones-Western, a contractor, sued its subcontractor, C.R. Lewis Co., to recover approximately $120,000 in progress payments that Jones-Western had paid C.R. Lewis in connection with construction of a building that was destroyed by an earthquake before it was completed. The subcontractor counterclaimed for services rendered and materials furnished before the collapse. The trial court held that Jones-Western was not entitled to recover progress payments and that the subcontractor had a claim in quantum meruit for the reasonable value of the services and materials supplied prior to the earthquake. The trial court fixed this sum at approximately $142,000. Thus, the subcontractor would have been entitled to an affirmative recovery of some $22,000 except for the fact that it salvaged some materials from the building after the earthquake on which the court placed a value of $30,000. Because of this, Jones-Western was left with a small affirmative recovery. We described this recovery in Owen Jones as merely "incidental": "This recovery based on the accounting can be classified as an incidental recovery which will not be a sufficient recovery to bar a party who has defended a large claim from being consid ered a prevailing party." Owen Jones, 497 P.2d at 314, n. 5. We also noted that the "main issue" in the case below was whether the subcontractor had an obligation to refund the progress payments. The subcontractor prevailed on this issue. Id. at 314. Accordingly, we affirmed the trial court's holding that the subcontractor was the prevailing party. Id. In reaching our conclusion in Owen Jones, we distinguished Buza v. Columbia Lumber Co., 395 P.2d 511 (Alaska 1964). Buza was a suit brought for conversion of a quantity of logs. The plaintiff sought the return of the logs, worth some $8,000, plus compensatory and punitive damages of $31,000. After a trial the plaintiff was awarded the logs, but no damages. We held, nonetheless, that the plaintiff was the prevailing party, defining that term to mean the party "who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of the original contention." Buza, 395 P.2d at 514. In Owen Jones we distinguished Buza as follows: The main issue in that case was the ownership of a quantity of logs, and the plaintiff proved his right to the logs although he was not able to obtain compensating or punitive damages. The instant case differs because the recovery of appellants was based only on an accounting for materials salvaged by the appellee. It was clear that the main issue had been resolved against appellants when the court found that appellee had no obligation to refund its progress payments under the contract.... Owen Jones, 497 P.2d at 314 (footnote omitted). In our view the present case more closely resembles Buza than Owen Jones. Here, as in Buza, plaintiff prevailed on the basic liability question and received an affirmative recovery based on its successful litigation of that question, which was substantial in amount. Owen Jones is distinguishable because the plaintiffs affirmative recovery there was based on a minor accounting issue, not on the liability theory which plaintiff tried unsuccessfully before the court. In the present case, the Hillmans are no doubt disappointed that they did not receive compensatory and punitive damages against the insurance company on their claim of bad faith. Nonetheless, they prevailed against vigorous opposition on their claim of policy coverage and received $50,-000 on that claim. This recovery cannot be classified as an incidental one unrelated to the main focus of the litigation in this case. We conclude therefore that the trial court erred in refusing to designate the Hillmans as the prevailing party. Accordingly the award of attorney's fees must be reversed and this case remanded so that an award of reasonable attorney's fees may be made in favor of the Hillmans. III. CONCLUSION We affirm the decision of the superior court granting Nationwide's motion for summary judgment on the Hillmans' bad faith claims. Nationwide's decisions to deny coverage and then to demand arbitration were reasonable. In light of our decision, there is no reason to consider the damages issue. The superior court's designation of Nationwide as the prevailing party was an abuse of discretion. Since the Hillmans prevailed on two of the three issues central to the case and won a substantial affirmative recovery based on these issues, they were the prevailing party. The trial court should make a new award reflecting this determination. The superior court's decision granting summary judgment on the bad faith claims is AFFIRMED. The award of attorney's fees is REVERSED and REMANDED. . The pertinent exclusion stated that [t]his Uninsured Motorists insurance does not apply as follows: 4. It does not apply to bodily injury suffered while occupying a motor vehicle owned by you or a relative living in your household, but not insured for Uninsured Motorist coverage under this policy. It does not apply to bodily injury from being hit by any such vehicle. (Emphasis deleted.) .In Hillman /, we rejected the Hillmans' argument that Nationwide had waived its right to arbitration. Hillman I, 758 P.2d at 1253. The trial court held that although " 'Nationwide acted in bad faith in failing to disclose the availability of the arbitration procedure in four separate pieces of correspondence to Mrs. Hillman,' arbitration should proceed because the Hill-mans were represented by counsel who 'simply made a calculated decision to attempt to obtain relief through the court system, knowing that the policy actually required dispute resolution through arbitration.'" Id. The court added that since " 'none of the litigants herein has clean hands,' '[t]he balance tips in favor of submitting appropriate issues to the contractually mandated arbitration process.' " Id. We found no error in the trial court's reasoning or conclusion. . On June 12, 1989, Judge Gonzalez granted Nationwide's motion for partial summary judgment and barred the Hillmans from recovering arbitration damages for emotional distress. The arbitration award was consequently reduced to $55,000. . What these claims consisted of is not brought into focus in the briefs before us. . The jurisdictions that have followed Gruen-berg are listed in William M. Shernoff, et al., Insurance Bad Faith Litigation, § 5.01 at 5.3 n. 4 (1984 and Supp.1992). . The Wisconsin Supreme Court may have modified the Anderson standard. In Fehring v. Republic Insurance Co., 118 Wis.2d 299, 347 N.W.2d 595 (1984), the court held that proof that a reasonable insurer would not have acted as the defendant did under the circumstances establishes bad faith. . In Loyal Order of Moose v. International Fidelity Insurance Co., 797 P.2d 622 (Alaska 1990), a case involving the somewhat analogous relationship between a surety and its obligee, we stated: "A surety may satisfy its duty of good faith to its obligee by acting reasonably in response to a claim by its obligee, and by acting promptly to remedy or perform the principal's duties where default is clear." Id. at 628. In a footnote, we quoted an Arizona decision, Dodge v. Fidelity and Deposit Co. of Maryland, 161 Ariz. 344, 778 P.2d 1240 (1989), which uses language mirroring the rule of law employed in today's opinion: "So long as a surety acts reasonably in response to a claim made by its obligee, the surety does not risk bad faith tort liability." Loyal Order of Moose, 797 P.2d at 627 n. 8. . The Hillmans maintain that Nationwide's District Claims Manager and its Regional Claim Attorney concede that Nationwide failed to follow its own policies and procedures in all these respects. . This conclusion is consistent with State Farm Mutual Automobile Insurance Co. v. Bass, 231 Ga. 269, 201 S.E.2d 444 (1973) and Aetna Casualty & Surety Co. v. Superior Court, 161 Ariz. 437, 778 P.2d 1333 (App.1989). In both cases, courts found that an insurer was not liable for bad faith when it denied coverage to an insured on the basis of an uninsured motorist exception which was later held invalid. See also Hanson v. Prudential Insurance Co. of America, 772 F.2d 580 (9th Cir.1985) (applying California law). . The report stated that Julie had "failed to yield when entering Long Lake Road from a side road." The Hillmans note that the information available to Nationwide when it insisted on arbitration was insufficient to prove that Amis was not at all at fault. This is true but irrelevant. Nationwide was entitled to arbitration if it could reasonably maintain that Amis was not completely at fault. . The total consisted of $44,448.57 in costs and $110,451.00 in fees. The attorney's fees award was 40% of the total amount of attorney's fees Nationwide incurred after July 1988. . Alaska R.Civ.P. 82(a)(2) states: In actions where the money judgment is not an accurate criterion for determining the fee to be allowed to the prevailing side, the court shall award a fee commensurate with the amount and value of legal services rendered. . Buoy v. ERA Helicopters, Inc., 771 P.2d 439 (Alaska 1989), is not a case in which the plaintiff received an affirmative recovery. The $141,676 jury verdict the plaintiff received in that case was reduced to nothing because of prior settlements which the plaintiff had made. Id. at 441. .In addition, in Hutchins the defendant had made an offer of judgment under Civil Rule 68 for $35,000 and therefore under that rule he was in any case entitled to attorney's fees incurred after the date of the offer. Id. at 1203. . The fact that Nationwide made an offer of settlement of $50,000 is irrelevant to the question of who the prevailing party is since this offer was not made under Civil Rule 68. Myers v. Snow White Cleaners & Linen Supply, Inc., 770 P.2d 750, 753 (Alaska 1989) ("no offers not in compliance with Civil Rule 68 should be considered in determining questions of costs and attorney's fees"). . In addition, we decline to address the Hill-mans' claim that several of the superior court's evidentiary rulings were an abuse of discretion. Even if the superior court's rulings concerning the admissibility of evidence during trial were erroneous, such error was harmless where the case was never submitted to the jury.

10433539

ALASCOM, INC., Appellant and Cross-Appellee, v. NORTH SLOPE BOROUGH, BOARD OF EQUALIZATION, Appellee and Cross-Appellant

Alascom, Inc. v. North Slope Borough, Board of Equalization

1983-02-18

Nos. 6037, 6090

1175

1181

659 P.2d 1175

659

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:06:59.788582+00:00

CAP

Before BURKE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ.

ALASCOM, INC., Appellant and Cross-Appellee, v. NORTH SLOPE BOROUGH, BOARD OF EQUALIZATION, Appellee and Cross-Appellant.

ALASCOM, INC., Appellant and Cross-Appellee, v. NORTH SLOPE BOROUGH, BOARD OF EQUALIZATION, Appellee and Cross-Appellant. Nos. 6037, 6090. Supreme Court of Alaska. Feb. 18, 1983. Mary K. Hughes, Steven S. Tervooren, Hughes, Thorsness, Gantz, Powell & Brun-din, Anchorage, for appellant/cross-appel-lee. Charles K. Cranston, Cranston, Walters & Dahl, Anchorage, for appellee/eross-appel-lant. Before BURKE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ.

3297

20848

OPINION RABINOWITZ, Justice. I. FACTS This appeal involves a property tax dispute between Alascom, Inc. (Alascom) and the North Slope Borough (Borough). In 1979, the Borough audited Alacom's books and determined that a substantial amount of real and personal property owned by Alascom had not been taxed in fiscal years 1974 through 1979. Based upon this audit, the Borough demanded additional property taxes of approximately a quarter-million dollars, plus interest and penalties. Alas-com paid the demanded sums under protest and appealed the assessment to the Borough's Board of Equalization, contending that the Borough did not have authority to levy taxes for prior years. The Board rejected Alascom's claim, and its ruling was affirmed by the superior court. For the reasons set forth below we conclude that the superior court's holding regarding Alas-com's tax liability should be affirmed. However, we reverse that portion of the judgment awarding the Borough interest and penalties on the tardily-assessed real property taxes. II. THE BOROUGH'S POWER TO TAX ESCAPED PROPERTY The threshold question in this casé is when the Borough may assess and tax property that should have been, but was not, taxed in prior years. The state statutes and Borough ordinances governing property taxation recognize that property will occasionally escape taxation and require the Borough to prepare a supplemental assessment roll including the escaped property. The statutes and ordinances do not, however, provide a clear answer to the question that is of importance here: when, if ever, does the Borough's power to assess and tax escaped property expire? Alascom's first point is that a supplemental assessment roll for omitted property must be prepared annually because AS 29.-53.150 requires that a supplemental roll be prepared "using the procedures . for the original roll" and AS 29.53.100(a) requires that an original roll be prepared annually. Alascom argues that the Borough's failure to include property on a supplemental roll during a given fiscal year precludes later inclusion of that property on a supplemental roll. In preparing a supplemental assessment roll, however, the Borough will never be able to comply with all of the "procedures . for the original roll." Literal compliance would require that the Borough follow the time-table for preparation of the original roll. If compliance with this timetable were required, there would be no occasion to prepare a supplemental roll and the statutory requirement of a supplemental roll would be rendered superfluous. In order to avoid rendering that requirement irrelevant, we construe the statutory language requiring adherence to the "procedures . for the original roll" as addressing the manner in which the Borough must apprise a taxpayer of his tax liability and the procedures for review of an assessment rather than as addressing the time as of which a supplemental assessment roll must be prepared. Alascom's second argument is that the principle of finality announced in Anchorage Independent School District v. Stephens, 370 P.2d 531 (Alaska 1962) prevents the Borough from demanding prior years' taxes. We disagree. In Stephens we ruled that a taxing authority may not reassess a parcel after giving the taxpayer notice of the assessed value and accepting payment of taxes. In the case at hand, however, we are dealing not with an attempt to revalue retroactively property that has already been taxed, but with an attempt to tax for the first time property that has escaped taxation entirely. Although our ruling in Stephens would prevent the Borough from retroactively raising the assessed value of a parcel or an item, that ruling has no applicability, in a case in which the property in question escaped assessment and taxation. III. STATUTE OF LIMITATIONS The next issues in dispute are whether any statute of limitations may be applied to supplemental assessments and, if so, whether the appropriate limitations period is two years or six years. The Borough argues that application of any statute of limitations would contravene Article 9, section 1 of the Alaska Constitution, which provides: The power of taxation shall never be surrendered. This power shall not be suspended or contracted away, except as provided in this article. The Borough's position is that applying a statute of limitations to tax assessments and collections would constitute an unconstitutional surrender or suspension of the taxing power. We believe that the response to the Borough's contention is provided by Article 9, section 4, of the Alaska Constitution, the provision addressing exemptions from taxation. After setting forth specific exemptions this provision states that "[o]ther exemptions of like or different kind may be granted by general law" (emphasis supplied). In our view this constitutional grant of power to except encompasses the power to require that taxes be assessed and collected within a certain period of time or be forever barred. Alascom argues that the two-year statute of limitations applicable to liabilities created by statute, AS 09.10.070(3), should be applied to the Borough's efforts to levy past years' taxes. The superior court ruled, however, that the six-year statute of limitations governing actions by political subdivisions, AS 09.10.120, is instead applicable. Our review of the history of the six-year statute has convinced us that that statute was intended to apply. Prior to 1962, the statute of limitations governing actions by political subdivisions provided: The limitations prescribed in this article shall apply to actions brought in the name of any public corporation in the Territory, or for its benefit, in the same manner as to actions by private parties. Alaska Comp.Laws Ann. § 55-2-12 (1949). Under this provision the appropriate statute of limitations was determined in the same manner as statutes of limitations applicable to private parties — by the nature of the underlying claim. In 1962, the legislature repealed this provision and substituted in its place AS 09.10.120. This 1962 version deletes any reference to actions by private parties, thus substituting an across-the-board six-year statute of limitations for the earlier rule that the limitations period would be determined by the nature of the claim. In our view, the 1962 amendment evinces a legislative intent that a general six-year statute of limitations applies when a borough pursues a claim, regardless of the nature of the claim. Thus, we hold that the six-year statute of limitations applies in this case. IV. INTEREST AND PENALTIES The final issue before us is whether the Borough may demand interest and penalties on the tardily-assessed taxes. In answering this question, we believe it is necessary to distinguish between real property taxes and personal property taxes. As to real property the responsibility for assessing taxable parcels and for notifying a taxpayer of his tax liability rests solely with the borough. As we have previously ruled, a tax on real property is ineffective until the borough discharges its responsibilities by making an assessment, notifying the taxpayer of his liability, and providing the taxpayer with an opportunity to pay his taxes. Until the borough has exercised its right to demand real property taxes in the manner provided by statute there can be no valid tax and hence no delinquency within the meaning of AS 29.-53.180, which authorizes penalties and interest on delinquent taxes. As to personal property taxes, however, the taxpayer participates in the taxing process by furnishing the borough with a personal property tax return listing his taxable property. When a taxpayer un-derreports his holdings, the borough will have no reason to assess the omitted property until its independent investigation reveals the taxpayer's omission. This kind of situation is governed by our ruling in Hickel v. Stevenson, 416 P.2d 236, 239 (Alaska 1966), where we held that, for purposes of assessing interest, a taxpayer's income tax is delinquent on the date that his income should have been reported and his tax paid rather than when the deficiency was later discovered and the additional tax demanded. V. CONCLUSION In sum, we hold that all of the taxes demanded by the Borough are within the relevant statute of limitations and thus Alascom is liable for those taxes. The case is, however, REVERSED IN PART and REMANDED with instructions that interest and penalties paid by Alascom on real property taxes be refunded with interest at the statutory rate. CONNOR, J., not participating. .The record does not reveal why this property was not timely assessed and taxed. As a result of this shortcoming in the record we address in this opinion only the legal issue presented by the parties: whether, and when, the Borough may tax omitted property. Our ruling in this case should not, however, be construed to mean that a different result would not follow in a case in which the taxpayer adequately explains why his property was not timely taxed and thus meets his burden of proving that he is entitled to relief. .The Borough demanded the following amounts from Alascom: Year Interest Penalties 1979 $ 83,041.32 $ 2,657.32 $ 8,304.13 1978 49,602.06 5,555.44 4,960.21 1977 46,492.00 8,926.47 4,649.20 1976 38,630.67 10,507.54 3,863.07 1975 29,098.71 10,249.15 2,909.88 1974 5,576.17 2,410.13 557,62 Total $252,440.93 $40,306.05 $25,244.11 . AS 29.53.010-.410; North Slope Borough ["NSB"] Code 3.20.100, 3.28.010-.390, 3.40.040. . AS 29.53.150; NSB Code 3.28.230. Alascom argues that escape assessments are permissible only if the legislature has enacted an "escaped property" statute specifically authorizing tardy taxation. See, e.g., Cal.Rev. & Tax.Code § 531 (West Supp.1982) ("If any property belonging on the local roll has escaped assessment, the assessor shall assess the property on discovery . It shall be subject to the tax rate in effect in the year of its escape _"). We agree that Alaska's property tax statutes are less than clear on the question of the Borough's power to make escape assessments and that both taxpayers and taxing authorities would benefit from a more definite statement from the legislature of its intent regarding escape assessments. Nonetheless, we believe that the legislature's requirement that the Borough prepare a supplemental assessment roll for "property omitted from the [original] assessment roll," AS 29.53.150, is adequate authorization for the Borough to assess and tax escaped property. . "A statute should be construed so that effect-is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant _" 2A C. Sands, Statutes & Statutory Construction § 46.06 (4th ed. 1973). See Libby v. City of Dillingham, 612 P.2d 33, 39 (Alaska 1980). For this reason we also reject Alascom's argument that a tardy assessment is an attack on the validity of the original assessment roll and thus is proscribed by AS 29.53.200, which provides that "[cjertifled assessment and tax rolls are valid and binding on all persons, notwithstanding any defect, error, omission or invalidity in the assessment rolls or proceedings pertaining to the assessment roll." Were an original assessment conclusive for all purposes there would, again, be no occasion to prepare a supplemental roll and the requirement of a supplemental roll would be superflous. In our view, AS 29.53.200 is designed to prevent wholesale invalidation of a year's taxes because of errors or omissions affecting only one taxpayer, see Valentine v. City of Juneau, 36 F.2d 904, 906 (9th Cir.1929), and not to render irrelevant the requirement of a supplemental roll. . E.g" AS 29.53.110. . AS 29.53.130, .140. . We note that in this case we are not faced with a situation in which the Borough has failed to levy any taxes in a given year, see City of Yakutat v. Ryman, 654 P.2d 785 at 794 (1982), and thus the "substantial compliance" rule announced in Ryman is inapplicable. We wish to make clear, however, that our ruling in the case at hand is applicable only when the Borough has timely assessed taxes in a given year but has, for some reason, omitted an insignificant portion of the total taxable property from its assessment roll. Our ruling is not designed to permit the Borough to fail to levy any taxes in a timely manner and then to make a late assessment affecting all taxpayers under the guise of taxing omitted property. .[Wjhere the power to tax had been exercised by the District and concurred in by the taxpayer, a point of finality had been reached. The District no longer had the authority to go back and create an additional obligation for the taxpayer by increasing the assessed valuation of the property. This rule is reasonably required from the necessity of having a stable system of taxation prevail throughout the taxing area, and to avoid uncertainty as to a taxpayer's financial obligations to the District and as-to the status of his property with respect to tax liens. Anchorage Independent School District v. Stephens, 370 P.2d at 533 (footnote omitted). . AS 09.10.070(3) ("liability created by statute"). . AS 09.10.120 ("action brought in the name of . [a] political subdivision"). . Article 9, section 4 states: The real and personal property of the State or its political subdivisions shall be exempt from taxation under conditions and exceptions which may be provided by law. All, or any portion of, property used exclusively for non-profit religious, charitable, cemetery, or educational purposes, as defined by law, shall be exempt from taxation. Other exemptions of like or different kind may be granted by general law. All valid existing exemptions shall be retained until otherwise provided by law. .Although we have previously suggested that an action to collect interest and penalties on past-due taxes is an action for a "forfeiture or penalty" and thus is governed by AS 09.10.-070(2), see State v. Baker, 393 P.2d 893, 901 (Alaska 1964), State v. American Can Co., 362 P.2d 291, 297-98 (Alaska 1961), we conclude that the 1962 amendment to the statute of limitations governing actions by political subdivisions plainly indicates the legislature's intent that a six-year statute of limitations apply without regard to the nature of the claim, and thus we hold that the longer statute of limitations applies to assessments of interest and penalties as well as to the underlying tax obligations. . AS 29.53.180. . Id . Although the Borough argues that we should decline to address this issue because it was not raised in the superior court, our review of the record reveals that Alascom raised the issue both at oral argument in the superior court and on motion for reconsideration. The issue has been adequately preserved for review by this court. . See, e.g., Stephens v. Rogers Construction Co., 411 P.2d 205, 207 (Alaska 1966). . AS 29.53.070. . Our ruling in Hickel addressed only the question of interest, but we believe that ruling is equally applicable to penalties for late payment. Although we have indicated that it may be appropriate to waive statutory penalties in some situations, see North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534, 546 (Alaska 1978), in this case Alascom has failed to explain why its property was underreported and thus has failed to meet its burden of demonstrating that a waiver of statutory penalties is appropriate. .AS 29.53.390.

10417007

James A. BURCELL, Appellant, v. Deborah L. BURCELL, Appellee

Burcell v. Burcell

1986-01-31

No. S-603

802

806

713 P.2d 802

713

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:08:26.184312+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

James A. BURCELL, Appellant, v. Deborah L. BURCELL, Appellee.

James A. BURCELL, Appellant, v. Deborah L. BURCELL, Appellee. No. S-603. Supreme Court of Alaska. Jan. 31, 1986. Deidre S. Ganopole, Anchorage, for appellant. M. Ashley Dickerson, Anchorage, for ap-pellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1887

11692

OPINION MOORE, Justice. This is an appeal of a property division entered by the superior court in a divorce action. James Bureell challenges the property division as clearly unjust and based on erroneous findings of fact. We reverse. I. FACTUAL BACKGROUND Deborah and James Bureell were married in Washington in August 1982. No children were born of the union, but both parties have children from previous marriages. Deborah had custody of a young daughter, who lived with Deborah and James. At the time of their marriage James lived in Juneau, Alaska, and Deborah lived in Washington. Both were employed. They decided to relocate to Anchorage after James' employer, the State of Alaska, offered to transfer him and to pay both parties' moving expenses. Deborah and her daughter joined James in Anchorage in October, and they lived together until March 1983. During that period James earned approximately $3,000 per month before taxes. Deborah was employed for three days during the time the couple lived together. She testified that she tried, but was unable to find a job that would be commensurate with her skills and allow flexibility so she could arrange for daycare. The record does not reflect that James contributed any separate property assets to the marriage. The controversy centers mainly on the three assets Deborah owned going into the marriage — two cars and approximately $1,200 to $1,400 in a retirement fund. Shortly before their wedding, Deborah sold one of the cars and deposited $2,050 into her bank account. Some of the money from the car sale and her retirement fund was used to pay for the couple's wedding. Deborah testified that she was unsure how much remained at the time of the marriage. In October 1982 the couple decided to buy a condominium, so Deborah sold her remaining car for $5,100. The money was used mainly to pay off credit card bills in order for the couple to qualify for a commercial loan to purchase the condo. James also borrowed $1,500 from his father to pay initial condo expenses. The Burcells moved in prior to closing, but became dissatisfied with the condo because of apparent defects. They discontinued the purchase, hired an attorney and instituted legal action. A settlement resulted, under which James and Deborah were to receive $2,350. At the time of the divorce trial, approximately $1,885 from the settlement remained in a trust fund of the lawyer who handled the settlement. In March 1983 Deborah moved to Juneau, where she had been offered a job. James filed for divorce in June 1983. After a one-day bench trial on May 29, 1984, the superior court granted a divorce and awarded Deborah a $6,825 cash settlement with 10.5 percent interest calculated from June 1, 1983. The court also ordered James to pay $2,500 of Deborah's attorney • fees, plus costs. The court awarded the parties their own personal effects, including household items. There were no other assets to distribute. The court's oral findings indicate that the judge calculated the cash settlement by valuing the separate property he found Deborah had contributed to the marriage (two cars and retirement money), and then subtracting for payment of certain premarital debts. The court gave James a $1,000 "credit" for his estimated contribution to the support of Deborah's child. James appeals both the property division and the award of attorney's fees. II. DISCUSSION The division of property in a divorce proceeding is within the broad discretion of the trial court and will not be disturbed unless it is clearly unjust. Hunt v. Hunt, 698 P.2d 1168, 1171 (Alaska 1985). AS 25.24.160(4) places all property acquired during the marriage, "whether joint or separate," before the court for division. The statute also authorizes invasion of pre-mar-ital holdings of either spouse "when the balancing of the equities between the parties requires it...." We have held that the trial court has broad discretion to invade pre-marital assets, and that "some fact situations are sufficiently compelling that a refusal to invade is clearly unjust." Wanberg v. Wanberg, 664 P.2d 568, 571 n. 10 (Alaska 1983); Burrell v. Burrell, 537 P.2d 1, 6 (Alaska 1975). James contends the property division is clearly unjust because the court ignored certain relevant factors, including the gross salary of approximately $21,000 that James earned while he and Deborah lived together and the couple's outstanding debts at the time of separation. James challenges the fact findings as clearly erroneous, and asserts that the court abused its discretion by not dividing the property and debts equally. On review, findings of fact "are clearly erroneous if, based on the record as a whole, the court is left with the definite and firm conviction that a mistake has been made." Headlough v. Headlough, 639 P.2d 1010,1012 (Alaska 1982). This is such a case. The trial court's findings make no mention of the $1,885 remaining from the condominium settlement, the $1,500 owed to James' father, or certain credit card debts existing at the time the parties separated. Although the record is muddy, James contends that marital charges were made on the credit card accounts and that the debts should have been divided. In any event, the court should have explained its reason for not dividing such debts and settlement money. We conclude, after reviewing the record, that the property division was clearly unjust. There is no indication that the trial court took into account James' salary contribution to the marriage. We have held that, when deciding a property division, a court should consider each spouse's relative contributions to the marriage, "whether of a pecuniary or of a more intangible nature." Bussell v. Bussell, 623 P.2d 1221, 1223 (Alaska 1981) (quoting Vanover v. Vanover, 496 P.2d 644, 648 (Alaska 1972)). Thus, both earnings and nonmonetary contributions are relevant. During the time James and Deborah lived together, he earned approximately $21,000 in gross salary, which essentially provided the sole financial support for Deborah and her daughter. The parties shared household responsibilities. Both these facts should have been considered, rather than just Deborah's contribution of pre-marital assets. In determining an equitable division of property, a court's starting point is the presumption that an equal division is the most just. Jones v. Jones, 666 P.2d 1031, 1034 (Alaska 1983). From there, the division is governed by the application of the factors announced in Merrill v. Merrill, 368 P.2d 546 (Alaska 1962). While a trial court need not make findings on all of the Merrill factors, the court here failed to mention several relevant considerations, including the parties' ages, their health, their financial circumstances and future needs. Because we conclude that the trial court findings are clearly erroneous and the division of property unjust, we must set aside the property settlement and remand for the court to take additional evidence and enter new findings. See Brooks v. Brooks, 677 P.2d 1230, 1233-34 (Alaska 1984). The court should consider not only the assets and money that Deborah contributed to the marriage, but also the settlement from the condominium litigation and James' salary contributions. The court also should clearly identify all debts incurred by the parties immediately preceding and during the marriage, including credit card charges and loans from all sources. We note that in determining the property settlement the trial court took into account James' voluntary support of Deborah's child from a previous marriage. We find no abuse of discretion in considering such support. See Burgess v. Burgess, 710 P.2d 417, 422 (Alaska 1985). Howevér, the court did not explain its basis for finding that $1,000 was the amount James had contributed for support. There is no evidence in the record regarding specific expenditures for the child, nor did the parties' trial testimony cover the subject. Upon remand, the court should reconsider this issue. One final aspect of the superior court's decision deserves mention. James asserts error because the court divided the property based on the date of permanent separation, in accord with the doctrine of "equitable divorce," rather than the date of divorce. The doctrine of equitable divorce "essentially provides that, where there is clear and unequivocal evidence that at a particular point prior to divorce the parties' marriage is no longer viable, identification of marital assets for the purposes of property division will be made as of that time rather than as of the date of divorce." Bussell v. Bussell, 623 P.2d 1221, 1223 (Alaska 1981). We cannot say that the trial court abused its discretion in treating June 1,1983 as the date of termination of the Burcells' marriage. See Hunt v. Hunt, 698 P.2d 1168, 1171-72 (Alaska 1985); Burgess v. Burgess, 710 P.2d 417, 421 n. 6 (Alaska 1985). James and Deborah separated in March 1983, after only seven months of marriage. In late May a reconciliation effort failed, and James filed for divorce on June 29, 1983. The divorce was not granted until May 29, 1984. Given these circumstances, the court did not abuse its discretion in relying on the date of permanent separation in its division of property and award of interest. The superior court's division of property is REVERSED and the case REMANDED for further proceedings consistent with this opinion. . AS 25.24.160 provides, in relevant part: In a judgment in an action for divorce or action declaring a marriage void or at any time after judgment, the court may provide (4) for the division between the parties of their property, whether joint or separate, acquired only during coverture, in the manner as may be just, and without regard to which of the parties is in fault; however, the court, in making the division, may invade the property of either spouse acquired before marriage when the balancing of the equities between the parties requires it; and to accomplish this end the judgment may require that one or both of the parties assign, deliver, or convey any of their real or personal property to the other party; The above subsection was designated as subsection (6) prior to October 1, 1985. . The court also erred in finding that SI,350 of Deborah's retirement money was spent for wedding expenses. Even if the court properly concluded that James should reimburse Deborah for one-half the cost of the wedding, the record does not support the court's $1,350 figure. As Deborah's counsel conceded in her brief, the mathematical computations the court made were "a little confusing." According to Deborah's trial testimony, she spent "six-seven-eight hundred, I don't know" on the wedding. . Merrill enunciated the following as the principal factors that should be considered: each party's respective age, earning ability, station in life, health and physical condition, and circumstances and needs; the duration of the marriage; the conduct of the parties during the marriage; and the parties' financial circumstances, including the time and manner of acquisition of property, its value at the time of divorce, and its income-producing capacity, if any. 368 P.2d at 547 n. 4. The list of factors is not exhaustive. Id. at 548 n. 10. . Because we remand for further proceedings, we need not consider James' contention that the court abused its discretion in awarding attorney's fees to Deborah.

10408474

William BAILEY, Jr., Appellant, v. LITWIN CORPORATION and Travelers Insurance Company, Appellees

Bailey v. Litwin Corp.

1986-01-17

No. S-378

249

259

713 P.2d 249

713

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:08:26.184312+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

William BAILEY, Jr., Appellant, v. LITWIN CORPORATION and Travelers Insurance Company, Appellees.

William BAILEY, Jr., Appellant, v. LITWIN CORPORATION and Travelers Insurance Company, Appellees. No. S-378. Supreme Court of Alaska. Jan. 17, 1986. Rehearing Granted in Part and Opinion Amended April 7, 1986. Chancy Croft, Anchorage, for appellant. Kenneth P. Jacobus, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

5701

35767

OPINION BURKE, Justice. This case involves a claim for workers' compensation benefits by William Bailey, Jr. After incurring a work-related injury, Bailey received temporary total disability benefits from November 1980 until July 1981. In April 1982, he received a $6000 lump-sum payment for permanent partial disability. Bailey now maintains that he was entitled to continue receiving temporary total disability compensation between July 1981 and May 1982. He also claims the Workers' Compensation Board (Board) erred in calculating his permanent partial disability award and in refusing to award him attorney's fees and costs. I. FACTUAL BACKGROUND Appellant Bailey is fifty-one years old and has been a pipefitter for the last twenty-eight years. He injured his back on August 14, 1980, while leaning over a pipe to pick up a tool box and a transmitter. At the time, he was working for Appellee Lit-win Corporation (Litwin), on a construction project at the Tesoro plant in Kenai, Alaska. After his injury, Bailey was examined by several doctors and chiropractors, who formed differing assessments of his condition. In August 1980, Dr. Bruce W. Teag-ue, a chiropractor, examined Bailey and released him for work. Bailey immediately resumed work for Litwin as a pipefitter. Dr. William West, another chiropractor, examined Bailey the following September and October and released him for regular work on September 29,1980. Bailey was laid off November 4, 1980 when Litwin reduced its workforce. On the same day, a third chiropractor, Dr. Gene Kremer, examined Bailey and took him off work through January 1981. Dr. Michael Newman, an orthopedic specialist, treated Bailey and released him for work, without restrictions, effective April 21, 1981. In April, Dr. Kremer again took Bailey off work, but released him for work, without restrictions, as of July 6, 1981. Bailey resumed work as a hydro-tester with National-NANA on the North Slope from July 13 to August 16, 1981, when he was terminated due to a reduction in force. On October 1, 1981, he began work on the North Slope in "instrumentation" for Professional Contractors, Inc. (PCI) and continued until November 4, 1981. Christopher W.M. Horton, M.D., conducted an independent medical examination of Bailey on November 25, 1981, and recommended that Bailey continue his work without any restrictions. He evaluated Bailey as medically stationary and rated him as having a ten percent whole body permanent physical impairment. Ross Brudenell, M.D., an orthopedic surgeon, examined Bailey on February 23, 1982, and determined that he was not medically stationary and did not release him for work. Later, Dr. Brudenell stated that Bailey's condition was medically stationary as of March 3, 1982, but that he "will probably risk increasing symptoms if he tries to do heavy, manual labor . [and that] his working activity which related to instrument controls, was much more appropriate than any attempts to try to get back his original occupation." On March 8, 1982, Bailey returned to the North Slope to work for the F.J. Early Company, primarily in hydro-testing and instrumentation. He was terminated April 26, due to a reduction in forces, but hoped to be recalled. Dr. Newman examined Bailey again on May 18, 1982, and considered his condition medically stationary and unchanged since April, 1981. In sum, during the ten-month period from July 7, 1981 through May 7, 1982, Bailey worked a total of 1170 hours and earned $36,807.85 (approximately $876 per week). In 1977 his average weekly wage was also $876. In 1978 and 1979 Bailey worked approximately 1138 and 1227 hours, with average weekly wages of $517.88 and $523.68, respectively. His average weekly wage in 1980 before he was injured was $832.94. Bailey received temporary total disability benefits from November 10, 1980, through July 6, 1981. While the payment date is unclear from the record, it is undisputed that the insurance carrier, Travelers Insurance Company (Travelers), awarded Bailey a lump sum payment of $6,000, based on a ten percent loss of earning capacity and Dr. Horton's impairment rating. In February 1982, Bailey filed a petition for adjustment of claim with the Workers' Compensation Board. In its second decision and order, the Board determined that Litwin and Travelers properly terminated Bailey's temporary total disability benefits in July 1981. The Board decided Bailey was entitled to $6000 in permanent partial disability benefits. It arrived at this figure by multiplying his ten percent loss of earning capacity by $60,000, the maximum benefits allowable under AS 23.30.190(b). Because Litwin and Travelers had already paid $6000 to Bailey voluntarily, the Board denied Bailey's claim for costs and attorney's fees. The superior court affirmed the Board's decision and order. II. TEMPORARY TOTAL DISABILITY The Board found that by July 16, 1981, both Dr. Newman and Dr. Kremer had released Bailey for work without restriction, and that he had in fact returned to work on July 13. In the Board's opinion, these facts overcame any presumption that Bailey continued to be temporarily totally disabled; thus, the Board concluded that Litwin and Travelers properly terminated his temporary benefits. The Board found also that any periods of unemployment Bailey experienced between July 1981 and May 1982 were "due to the economy and construction cycles and not to the employee's injury." Bailey argues that he is entitled to temporary total disability benefits from July 1981 through May 1982 because he was not medically stable as of July 1981, his medical condition prevented him from working full-time, and he was being retrained in instrumentation. The Alaska Workers' Compensation Act (Act), AS 23.30.005-.270, creates a presumption of compensability. AS 23.30.-120(1). If, however, substantial evidence is introduced to the contrary, the presumption is rebutted and "drops out." The claimant then bears the burden of proving all elements of the claim. Veco, Inc. v. Wolfer, 693 P.2d 865, 870 (Alaska 1985); Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). The Board's written decision and order explicitly states that evidence introduced by Litwin and Travelers was sufficient to overcome the presumption. Although the Board did not expressly so state, we assume this same evidence lead it to conclude that Bailey had failed to prove the necessary elements of his claim. In reviewing the Board's decision, our task is to determine if its findings of fact and conclusions of law are supported by "substantial evidence in light of the whole record." Delaney v. Alaska Airlines, 693 P.2d 859, 863 (Alaska 1985); Beauchamp v. Employers Liability Assurance Corp., 477 P.2d 993, 997 (Alaska 1970). Under this standard, we may not reweigh the evidence or choose between competing reasonable inferences. Delaney, 693 P.2d at 863; Beauchamp, 477 P.2d at 997. The substantial evidence test, however, is applicable "only where the Board has applied the proper legal test in reaching its findings." Burgess Construction Co. v. Smallwood, 623 P.2d 312, 317 (Alaska 1981) (quoting Riddle v. Broad Crane Engineering Co., 53 Mich.App. 257, 218 N.W.2d 845, 846-47 (Mich.App.1974)). A. The Test for Termination of Temporary Disability Bailey claims that he is entitled to additional temporary benefits after July 1981 because he was not considered medically stable until after November 1981. In concluding that his temporary benefits were properly discontinued in July 1981, the Board made no express findings of fact regarding Bailey's medical stability. Our first task is to determine if the Board erred in its apparent failure to consider medical stability in deciding when temporary total benefits should cease. The Act defines "disability" generally as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." AS 23.30.265(10). The Alaska territorial court defined temporary total disability as "the healing period or the time during which the workman is wholly disabled and unable by reason of his injury to work." Phillips Petroleum Co. v. Alaska Industrial Board, 17 Alaska 658, 665 (D.Alaska 1958) (quoting Gorman v. Atlantic Gulf & Pacific Co., 178 Md. 71, 12 A.2d 525, 529 (1940)). The Phillips court explained: A claimant is entitled to compensation for temporary total disability during the period of convalescence and during which time the claimant is unable to work, and the employer remains liable for total compensation until such time as the claimant is restored to the condition so far as his injury will permit. The test is whether the claimant remains incapacitated to do work by reason of his injury, regardless of whether the injury at some time can be diagnosed as a permanent partial disability. 17 Alaska at 666 (citations omitted) (emphasis added). We reiterated this emphasis on earning capacity in Vetter v. Alaska Workmen's Compensation Board, 524 P.2d 264 (Alaska 1974), by stating: The concept of disability compensation rests on the premise that the primary consideration is not medical impairment as such, but rather loss of earning capacity related to that impairment. An award for compensation must be supported by a finding that the claimant suffered a compensable disability, or more precisely, a decrease in earning capacity due to a work-connected injury or illness. 524 P.2d at 266 (footnote omitted); see also Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 594 (Alaska 1979). Our previous cases stress the claimant's ability to return to work and indicate that medical stability is not necessarily the point at which temporary disability ceases. We hold, therefore, that the Board did not err in focusing on Bailey's employment and in failing to explicitly address the stability of his medical impairment. B. Substantial Evidence in the Record The Board found that both Dr. Newman and Dr. Kremer released Bailey for work without restrictions by July 16, 1981. Even though both doctors subsequently retracted these releases, the fact that Bailey returned to work on July 13, 1981, is sufficient evidence to rebut the presumption of continuing compensability for temporary total disability. Bailey argues that his medical impairment prevented him from working full-time; thus, he was entitled to additional temporary compensation during the gaps in his employment between July 1981 and May 1982. The record supports the Board's finding that Bailey's periods of unemployment were due to the economy and construction cycles, and not due to his disability. The pipefitting trade involves gaps in employment, and Bailey's work history prior to his injury reflects this fact. Bailey's terminations from National-NANA on August 16, 1981, and from F.J. Early Company on April 26, 1982, were both due to a reduction in force, not because of his incapacity to work. Bailey claims the gaps in employment were due to his disability. He states that he turned down a pipeline repair job in January or February 1982 because he was physically unable to perform the work. However, while the job did involve heavy work, there were other reasons presented for Bailey's decision to not take the job, including uncomfortable working conditions, the short duration of the work, and the possibility of losing a favorable position on the union employment list. Bailey also indicated that he asked the foreman at PCI to give him a termination on a reduction in force because he did not want to continue the job when it changed from instrumentation to heavier haylon system pipe installation. However, Mr. Cable, the project superintendent for PCI, testified that Bailey was hired specifically to do instrumentation work, and he had no intention of hiring him as part of the haylon system. We conclude that the Board's finding that Bailey's gaps in employment were due to the economy and construction cycles, and not the result of his physical impairment, is supported by substantial evidence in light of the whole record. Moreover, we hold that Bailey suffered no actual wage loss during the ten-month period and was, therefore, not entitled to temporary partial disability benefits, much less compensation for temporary total impair^ ment. During the ten-month period, from July 1981 to May 1982, Bailey earned an average of $876 per week. The Board applied AS 23.30.220(2) and made an uncontested finding that Bailey's pre-injury average weekly wage was $859.08. Even if Bailey could have earned more if he had been able to work as a pipefitter, AS 23.30.-200 does not provide for a comparison between actual post-injury wages and what wages would have been without the impairment. We affirm the Board's determination that Bailey's temporary total disability benefits were properly terminated in July 1981. Even though he may not have been medically stationary, there is substantial evidence in the record that he was capable of earning wages. III. PERMANENT PARTIAL DISABILITY The Board found, and the parties do not dispute, that Bailey has a "loss of earning capacity because he has a permanent impairment, [that] his post-injury earnings are less than this pre-injury average weekly wage and [that] he cannot perform all phases of pipefitting." Litwin and Travelers voluntarily paid Bailey $6000 on April 29, 1982, as an advance on permanent partial disability. The Board determined that no further payments were due. Bailey contends that the Board incorrectly calculated loss of earning capacity and that the Board erred in limiting his benefits to $6000. A. Loss of Wage Earning Capacity AS 23.30.19O(a)(2O) provides that in case of an unscheduled disability, such as Bailey's back injury, compensation is 66% percent of the difference between the claimant's average weekly wages and his post-injury wage-earning capacity. In determining Bailey's wage-earning capacity, the Board found that because of increases in hourly pay, and because pipefitting involves sporadic employment, Bailey's post-injury earnings were unreliable and could not be used. The Board then considered the other factors listed in AS 23.30.210 and the applicable case law, but still could not quantify Bailey's loss of earning capacity. Ultimately, the Board based its determination on the average number of days Bailey worked per month in 1978 and 1979, compared with the number he worked during the ten-month period between his return to work and the Board's hearing (July 13, 1981 to May 27, 1982). The Board found that he worked 148 days in 1978 (average of twelve days per month), 158 days in 1979 (average of thirteen days per month), and only 85 days in the preceding ten months (average of nine days per month). Thus, the difference in his wage earning capacity was three to four days per month. The Board then assumed "that he could work an additional average of two to three days more per month than he has." The Board concluded that Bailey misses between one and two days of work per month because of his injury — a loss of between eight and twelve percent. The Board averaged his wage earning capacity loss at ten percent. While the Board's computations may not reflect precisely Bailey's lost earning capacity, we believe that they fairly represent his future losses. AS 23.30.210 allows the Board in the interests of justice to utilize factors other than actual earnings to fix a wage earning capacity. We affirm the Board's calculation that Bailey's wage earning capacity is ten percent impaired for purposes of determining permanent partial disability. B. Limitation on Amount of Permanent Disability Compensation The Board calculated Bailey's weekly benefits to be $57.27, but Bailey requested a lump sum. The Board multiplied Bailey's impairment of ten percent by the $60,-000 limit of AS 23.30.190(b) and awarded him a lump sum of $6000. In the Board's opinion, the payment of weekly benefits to Bailey up to the $60,000 limit "would produce an unreasonable result considering the minimal loss of earning capacity and minimal impairment rating." In taking this action, the Board relied on Foster v. Wright-Schuchart-Harbor, 644 P.2d 221 (Alaska 1982), where we stated: In Absher v. State, Department of Highways, 500 P.2d 1004 (Alaska 1972), we discussed the purpose of the lump sum provision and determined that it should be used "when the use of the first part of AS 23.30.190(20) would produce an unreasonable result," i.e., a worker with an unscheduled injury would recover more than a worker with a more serious scheduled injury. 644 P.2d at 223-24. Absher, is directly on point. At issue in Absher was the method of computing a lump sum award for an unscheduled permanent partial disability. We upheld an award of $3,400 calculated by multiplying the twenty percent loss of earning capacity by $17,000, the maximum amount payable at the time. We explained: While the legislature did not adopt a formula for computing lump sum payments, it may reasonably be inferred that this was left to the discretion of the board. There is no showing of an abuse of this discretion. The board's decision to base the lump sum award on the relationship between impaired earning capacity and the statutory maximum award is a reasonable one. This method of computation is the same as that for a scheduled injury of comparable degree of impairment. In addition it avoids the unreasonable result of a disparity in awards between scheduled and unscheduled injuries. 500 P.2d at 1006 (emphasis added). However, our recent decision in Providence Washington Insurance Co. v. Grant, 693 P.2d 872 (Alaska 1985), places considerable doubt on the continuing viability of Absher. In Providence Washington, the Board awarded lump sum benefits for Mr. Grant's injuries by multiplying the percentage impairments to his knee and foot by the maximum amounts allowed for a knee and foot injury under AS 23.30.190(a)(2) and (4), respectively. The board chose this method over a weekly award, which would have resulted in greater total benefits. The board based its action on Cesar v. Alaska Workmen's Compensation Board, 383 P.2d 805 (Alaska 1963), where we approved compensating Cesar's loss of half a thumb by multiplying the maximum allowable recovery by fifty percent impairment. In Providence Washington we overruled Cesar and stated: We agree that the results compelled by Cesar are contrary to the plain meaning of and policies behind AS 23.30.190_ The plain language of this provision does not require that the maximum amount recoverable be multiplied by the percentage impairment to the body member or function. Instead, it states the maximum amount that is recoverable under the subsection without making reference to the percentage impairment. . To follow Cesar and require that the maximum awards be pro-rated according to the employee's percentage impairment to the body member or function does not further the policy of placing absolute limits on an employer's liability under the act. 693 P.2d at 877-78. Under Absher, the Board acted reasonably in basing Bailey's lump sum award on the relationship between impaired earning capacity and the statutory maximum for unscheduled injuries. Providence Washington, however, forbids the identical method for scheduled injuries. The same reasons that lead us to overrule Cesar in the area of scheduled injuries compel us to overrule Absher in the case of unscheduled injuries. The result demanded by Absher is "contrary to the plain meaning and policies behind AS 23.30.190." See Providence Washington, 693 P.2d at 877. While AS 23.30.190(a)-(20) states that a lump sum may be awarded in the "interests of justice," the "plain language of [the] provision does not require that the maximum amount recoverable be multiplied by the percentage impairment to the body member or function." Id. AS 23.30.190(b) states that $60,-000 is the maximum recoverable under (a)(20) "without referring to the percentage impairment." Id. As we stated in London v. Fairbanks Municipal Utilities, 473 P.2d 639 (Alaska 1970): Where, as here, the statutory mandate is clear and would allow compensation, it is improper for the Workmen's Compensation Board to inject its own views on the policies underlying the Workmen's Compensation Act by imposing additional restrictions on the statutory language. 473 P.2d at 642. Overruling Absher is "consistent with the policies behind the Worker's Com pensation Act." See Providence Washington, 693 P.2d at 877. By establishing a $60,000 limit on permanent partial disability for unscheduled injuries, "the legislature intended to assure employers that their liability under [AS 23.30.190(a)(20) ] would never exceed [$60,000]." Id. To follow Absher and allow a maximum recovery based on percentage impairment "would not further the policy of placing absolute limits on an employer's liability under the Act." Id. at 878. Instead, this calculation could lead to arbitrary and inequitable results. For example, while Bailey has a minor unscheduled injury, he could very possibly lose more than $6000 in wages during the years remaining before his retirement. Inequity could also result if two employees with ten percent impairment ratings both received a lump sum payment of $6000, even though a large discrepancy exists in their pre-injury wages. This would be contrary to the statutory dictates of AS 23.30.190(a)(20) that compensation be based on the difference between the employee's average weekly wages and his wage-earning capacity after the injury. Furthermore, we now hold it to be improper for the Board to reduce the benefits of an employee with an unscheduled injury so that he will not receive more than an employee with a more serious scheduled injury, as we suggested might be reasonable in Absher, 500 P.2d at 1006, and in Foster, 644 P.2d at 224. See London, 473 P.2d 639, 642 (Alaska 1970) (improper for the Board to limit a partially disabled worker's recovery to the amount afforded someone totally disabled). Ordinarily, compensation is paid on unscheduled injuries according to the formula set forth in AS 23.30.190(a)(20) until the $60,000 maximum is paid. Where, as here, the employee requests a lump sum, we hold that the Board should first determine whether it is in the interest of justice that a lump sum be paid. Should that determination be made, the Board should project the employee's total future loss, up to the $60,000 limit. The employee can then receive the present value of his total future loss in a lump sum. We reverse the Board's lump sum award of $6000 to Bailey, and remand for redetermination' of whether a lump sum is in the interest of justice in this case, and if so, for recalculation of the amount in light of this opinion. IV. ATTORNEY'S FEES AND COSTS The Board denied and dismissed Bailey's claim for costs and attorney's fees. Litwin and Travelers had already paid $6000 to Bailey. The award of attorney's fees is governed by AS 23.30.145 which provides in part: (a) . When the board advises that a claim has been controverted, in whole or in part, the board may direct that the fees for legal services be paid by the employer or carrier in addition to compensation awarded; the fees may be allowed only on the amount of compensation controverted and awarded.... (b) If an employer fails to file timely notice of controversy or fails to pay compensation . within 15 days after it becomes due or otherwise resists the payment of compensation . and if the claimant has employed an attorney in the successful prosecution of the claim, the board shall make an award to reimburse the claimant for his costs in the proceedings, including a reasonable attorney fee. The award is in addition to the compensation . ordered. "[T]he award of the minimum statutory fees [under subsection (a)] applies only in cases where a claim has been controverted." Haile v. Pan American World Airways, 505 P.2d 838, 840 (Alaska 1973). An award for costs, including attorney's fees, is due under subsection (b) when the employer "resists the payment of compensation." Id. Under our decision today, Bailey may be entitled to additional permanent partial disability benefits beyond those already paid by Litwin and Travelers. If so, Bailey, should receive an award for attorney's fees "on the amount of compensation controverted and awarded," AS 23.30.-145(a), and for costs in the proceedings. AS 23.30.145(b). We remand this case to the Board for a determination of attorney's fees and costs. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. MATTHEWS, Justice, joined by RABI-NO WITZ, Chief Justice, concurring. I continue to believe that medical stabilization marks the end of temporary disability under the Alaska Worker's Compensation statute. Bignell v. Wise Mechanical Contractors, 651 P.2d 1163, 1169 (Alaska 1982) (Rabinowitz, J., with whom Matthews, J. joins, dissenting). In this case, the Board implicitly found that Bailey's medical condition had stabilized as the majority opinion has recognized. See supra at 252-53 n. 10. This implicit finding is supported by substantial evidence and therefore I agree that Bailey's temporary total disability payments were properly ended. In all other respects, I concur with the majority opinion. . It should be noted, however, that Dr. Newman stated that it was his experience that if someone was sent back to the North Slope with written restrictions, they would generally not be accepted for work. Thus, an employer would often give the person a modified job as long as he was released without restrictions. Later, Dr. Newman stated that he thought Bailey was restricted in the sense that his back might hurt when he had to work with heavy equipment. .In a report dated February 25, 1982, Dr. Kremer qualified this release: Initially he was released with no work restrictions on July 6, 1981. But in follow up reports after that date it was indicated that awkward bending and lifting positions would likely induce back spasms. Mr. Bailey still should not put that type of stress on his lower back nor should he in the future unless his low back weakness completely resolves. He can at this time and since 7-6-81 do "instrumentation" work which requires little more physical effort other than standing and walking. . "Instrumentation" is a specialty trade within the general trade of pipefitting. It involves the fitting of small, lightweight pipes. Instrumentation accounts for approximately ten percent of all pipefitting work. Of the members in Bailey's union, about ten percent are qualified in instrumentation. . The original decision and order was void. The Board reconsidered the matter and issued a different decision and order on January 24, 1983. . AS 23.30.185 provides: Compensation for Temporary Total Disability. In case of disability total in character but temporary in quality, 66⅜ percent of the injured employee's average weekly wages shall be paid to the employee during the continuance of the disability. A recent amendment substitutes "80 percent" for "66V3 percent," and "spendable weekly wages" for "average weekly wages." It applies to injuries sustained on or after January 1984 only. Ch. 70, § 6, SLA 1983. . Bailey's last argument is without merit. While Bailey learned new skills in instrumentation, there is no evidence that he had undertaken an "approved vocational rehabilitation program." Cf. Bignell v. Wise Mechanical Contractors, 651 P.2d 1163 (Alaska 1982) (temporary benefits continue while employee is enrolled in an approved vocational rehabilitation program). . "Substantial evidence" has consistently been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska 1978). See also Veco, Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska 1985); Delaney v. Alaska Airlines, 693 P.2d 859, 862-63 (Alaska 1985). . See abo Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 317 (Alaska 1981); Ketchikan Gateway Borough v. Soling, 604 P.2d 590, 593 n. 8 (Alaska 1979); Miller, 577 P.2d at 1049; Vetter v. Alaska Workmen's Compensation Bd., 524 P.2d 264, 265 (Alaska 1974). . See abo Hewing v. Alaska Workmen's Compensation Bd., 512 P.2d 896, 898 (Alaska 1973) (scope of review not limited to substantial evidence test where Board's decision rests on erroneous legal foundations); Vetter, 524 P.2d at 265 (court may consider whether an award is contrary to law). . In its second decision and order, the Board stated, "We find the doctors' release and the employee's return to work overcame any presumption that the employee continued to be temporarily totally disabled_" This statement could imply that Bailey's medical condition had stabilized. . Some jurisdictions have determined that "medical stabilization or maximum physical recovery, marks the end of temporary disability." Bignell v. Wise Mechanical Contractors, 651 P.2d 1163, 1169 (Alaska 1982) (Rabinowitz, J., & Matthews, J., dissenting) (footnote omitted). Professor Larson concurs, observing that in most states temporary benefits cease when the "healing period" has ended and "stabilization" has occurred. 2 A. Larson, The Law of Workmen's Compensation, § 57.12 at 10-9 (1983). Professor Larson states: The disability period is not automatically terminated merely because claimant obtains some employment, if maximum recovery had not been achieved at the time. Id. at 10-17 to 10-18 (footnote omitted). Other jurisdictions, however, view restored earning capacity, rather than medical stability, as the end of temporary disability. The California Court of Appeals stated: Temporary disability concerns the injured's inability to work.... Thus, an injured may be fully capable of working full time (and hence not be entitled to temporary disability) and his medical condition not yet permanent and stationary. Harold v. Workers' Compensation Appeals Bd., 100 Cal.App.3d 772, 784, 785, 161 Cal.Rptr. 508, 514 (Cal.App.1980) (citations omitted). . "Temporary disability may be total (incapable of performing any kind of work), or partial (capable of performing some kind of work)." Huston v. Workers' Compensation Appeals Bd., 95 Cal.App.3d 856, 868, 157 Cal.Rptr. 355, 362 (Cal.App.1979) (emphasis in original). . August 16-September 30, 1981; November 4, 1981-March 8, 1982; April 26-May 27, 1982. . AS 23.30.200 provides in part: Temporary Partial Disability. In case of temporary partial disability resulting in decrease of earning capacity the compensation shall be 662/⅞ per cent of the difference between the injured employee's average weekly wages before the injury and his wage earning capacity after the injury in the same or another employment.... See supra note 5 regarding amendment to this statute. . AS 23.30.220 was repealed and reenacted in 1983. Ch. 70, § 12, SLA 1983. At the time of the Board's decision, AS 23.30.220(2) provided: the average weekly wage is that most favorable to the employee calculated by dividing 52 into the total wages earned, including self-employment, in any one of the three calendar years immediately preceding the injury; The Board properly used Bailey's 1977 earnings because they were higher than his earnings in 1978 or 1979. . AS 23.30.190 provides, in relevant part: Compensation for Permanent Partial Disability. (a) In case of disability partial in character but permanent in quality the compensation is 66⅜ per cent of the injured employee's average weekly wages . and shall be paid to the employee as follows: (20) in all other cases in this class of disability the compensation is 66¾ percent of the difference between his average weekly wages and his wage-earning capacity after the injury in the same employment or otherwise, payable during the continuance of partial disability, . whenever the board determines that it is in the interest of justice, the liability of the employer for compensation, or any part of it as determined by the board, may be discharged by the payment of a lump sum; (b) Total compensation paid under (a)(20) of this section may not exceed $60,000. See supra note 5 regarding amendment to this statute. . AS 23.30.210 provides: Determination of wage-earning capacity. In a case of partial disability under AS 23.30.-190(20) or 23.30.200 the wage-earning capacity of an injured employee is determined by his actual earnings if the actual earnings fairly and reasonably represent his wage-earning capacity. If the employee has no actual earnings or his actual earnings do not fairly and reasonably represent his wage-earning capacity the board may, in the interest of justice, fix the wage earning capacity which is reasonable, having due regard to the nature of his injury, the degree of physical impairment, his usual employment, and any other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition, including the effect of disability as it may naturally extend into the future. A recent amendment substitutes "spendable weekly wage" for "earnings" throughout the section. Ch. 70, § 9, SLA 1983. .The Board may fix wage-earning capacity by considering these factors: (1) nature of injury, (2) degree of physical impairment, (3) usual employment, and (4) other factors, including (a) age, (b) education, (c) availability of suitable employment in the community, and (d) the employee's future employment intentions, traina-bility, and vocational rehabilitation assessment and training. Bignell, 651 P.2d at 1167; Hewing v. Peter Kiewit & Sons, 586 P.2d 182, 186 (Alaska 1978); Vetter, 524 P.2d at 266; Hewing, 512 P.2d at 896. . The Board used a five day week rather than a seven day week in making its calculations. Bailey argues that there was no evidence to support this choice. The Board's inference that Bailey worked five eight hour days per week was reasonable in light of the evidence in the record. In 1978 and 1979, Bailey worked approximately 1138 and 1227 hours, respectively. If Bailey worked seven days per week, (192 days in 1978 and 216 days in 1979) as he claims, he would only have worked an average of 5.7 to 5.9 hours per day. This contradicts Bailey's own testimony that his hours were 8:00-4:30 for at least six months in 1978, and approximately four months in 1979. . Bailey argues that this assumption is arbitrary and without basis. The Board supports its conclusion by the fact that Bailey has limited himself to instrumentation work even though not all instrumentation is light. The Board concluded that if he can do all instrumentation work, he could do some pipefitting as well. The Board also found that Bailey took a hunting trip in the fall of 1981 and adjusted for this period of unemployment because it was not due to the injury. . The Board used the formula in AS 23.30.-190(a)(20): ($859.08 X 10% x 66⅜% = $57.27). . See supra note 16. . In Foster the Board awarded a $3,000 lump sum for an unscheduled back injury by multiplying a five percent rating by $60,000. We reversed the Board's action only because the $60,000 statutory limit of AS 23.30.190(b) was not in effect at the time of Foster's injury. . This statement is no longer true, according to our recent decision in Providence Washington Ins. Co. v. Grant, 693 P.2d 872 (Alaska 1985).

10424091

Julie ANDERSON, Appellant, v. STATE of Alaska, Appellee

Anderson v. State

1986-02-14

No. A-1028

1220

1221

713 P.2d 1220

713

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:08:26.184312+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Julie ANDERSON, Appellant, v. STATE of Alaska, Appellee.

Julie ANDERSON, Appellant, v. STATE of Alaska, Appellee. No. A-1028. Court of Appeals of Alaska. Feb. 14, 1986. Brigette E. Siff, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant. Carl Forsberg, Asst. Dist. Atty., Victor C. Krumm, Dist. Atty., Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

894

5406

OPINION SINGLETON, Judge. Julie Anderson was arrested for driving while intoxicated (DWI), AS 28.35.030(a)(1) and (2), on February 5, 1985. She was transported to the Anchorage headquarters of the Alaska State Troopers where she was given field sobriety tests and submitted to a breathalyzer test. Prior to the breathalyzer test, Anderson was asked a number of questions. The interview was videotaped. An Alaska State Trooper read Anderson the "implied consent warning" pursuant to AS 28.35.-031, including an explanation that there was a twenty-minute waiting period before the taking of a breath sample. At that point, Anderson asked if the twenty-minute period was to allow her to contact an attorney. The trooper replied that if she wanted to talk to an attorney, he would turn off the tape and allow her to do so. Anderson then asked the trooper, "Do you have a phone number?" The trooper answered that he did not have a number but that he would supply her with a telephone book if she wanted. The discussion went on for approximately twenty minutes, during which Anderson asked about the possible penalty she faced, and repeated her statement that she wanted to call an attorney. The trooper, again, told her that he would allow her to call, but that he had "done all [he] can do." At the time of the interview, a sign with the public defender's twenty-four hour phone number was posted on the wall of the interrogation room. The record is silent regarding Anderson's knowledge of the sign. The trooper never mentioned the public defender to Anderson. She never inquired regarding the public defender, claimed that she was indigent or indicated an inability to pay for an attorney's services. Anderson ultimately submitted to the breathalyzer test without attempting to contact an attorney. At trial, Anderson moved to suppress statements she made during the interview, the videotape, and the results of the breathalyzer test on the ground that she was effectively denied her statutory right to contact an attorney. The trial court denied the motion, and Anderson was convicted. She appeals. We affirm. Alaska Statute 12.25.150 provides in part: (b) Immediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with the prisoner's attorney and any relative or friend, and any attorney at law entitled to practice in the courts of Alaska shall, at the request of the prisoner or any relative or friends of the prisoner, have the right to immediately visit the person arrested. The Alaska Supreme Court in Copelin v. State, 659 P.2d 1206 (Alaska 1983), held that when a person is arrested for DWI and asks to contact an attorney, Alaska Statute 12.25.150(b) and Alaska Rule Criminal Procedure 5(b) require that the arres-tee be afforded a reasonable opportunity to do so before deciding whether or not to take a breathalyzer test. If the opportunity is denied, then all subsequent evidence must be suppressed. Copelin, 659 P.2d at 1214. Anderson argues that because the state trooper did not provide her with the public defender telephone number, she did not have a reasonable opportunity to consult an attorney before taking the breathalyzer test. In Anderson's view, the trooper should have understood from her questions that she wished to consult an attorney, but knew of no attorney to consult. Under the circumstances, she reasons, the state was under an affirmative duty to inform her that the public defender maintained a twenty-four hour number for consultation with people in Anderson's position. The state troopers have no duty to inform a DWI arrestee of the right to have counsel present before field sobriety tests are administered. Anchorage v. Geber, 592 P.2d 1187, 1192 (Alaska 1979). See Svedlund v. Anchorage, 671 P.2d 378, 382 (Alaska App.1983). Copelin imposes a duty on the state not to unreasonably interfere with a DWI arrestee's attempts to obtain consultation with counsel. 659 P.2d at 1215. The record before us does not establish that Anderson attempted to contact counsel and was prevented from doing so by the state troopers. Since the troopers have no duty to inform an arrestee of a right to consult counsel, it necessarily follows that they have no duty to inform her of the availability of the public defender agency or a number at which a public defender may be reached. The trial court did not err in denying Anderson's motion to dismiss. The judgment of the district court is AFFIRMED. . Alaska Rule of Criminal Procedure 5(b) is substantially the same as AS 12.25.150(b). Rule 5(b) reads: (b) Rights of Prisoner to Communicate With Attorney or Other Person. Immediately after his arrest, the prisoner shall have the right forthwith to telephone or otherwise to communicate with both his attorney and any relative or friend. Any attorney at law entitled to practice in the courts of Alaska, at the request of either the prisoner or any relative or friend of the prisoner, shall have the right forthwith to visit the prisoner in private.

10373594

Garland M. GREEN, Appellant, v. STATE of Alaska, Appellee

Green v. State

1993-08-06

No. A-4246

1197

1202

857 P.2d 1197

857

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:09:06.214921+00:00

CAP

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

Garland M. GREEN, Appellant, v. STATE of Alaska, Appellee.

Garland M. GREEN, Appellant, v. STATE of Alaska, Appellee. No. A-4246. Court of Appeals of Alaska. Aug. 6, 1993. Randall Cavanaugh, Anchorage, for appellant. Eric A. Johnson, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

3122

19385

OPINION MANNHEIMER, Judge. Garland M. Green was convicted of first-degree burglary, AS 11.46.300(a)(1), and third-degree theft, AS 11.46.140(a)(1), following a jury trial in the Anchorage superi- or court. Green appeals his convictions, asserting that the State had no authority to prosecute him for burglary and theft because the police who arrested and interrogated him promised him immunity from prosecution if he cooperated by returning the property he had stolen. Green also appeals his sentence. We affirm. In the early morning of October 2, 1990, Michael Reed was working the night shift for Offshore Systems in Unalaska. At approximately 3:00 a.m., Reed saw someone inside the supervisor's trailer; knowing that his supervisor was generally asleep at that hour, Reed approached the trailer to investigate. As Reed neared the trailer, he saw a man climb out of the window. Reed asked the man, "Who the hell are you?" The man held up a wallet and answered, "I'm a friend of yours." When Reed responded, "You're no friend of mine," the man shoved Reed aside and ran away. Reed woke his supervisor, Robert Nufer. Nufer searched the trailer and discovered that his wallet and $40 cash were missing. He then called the Unalaska police. Officer John Nichols interviewed Nufer and Reed. Reed gave Nichols a physical description of the burglar; he told Nichols that he recognized the burglar but did not know his name. Later that morning, Nufer called the Unalaska police and told them that he had discovered that the burglary had been committed by Green, who was an Offshore Systems employee living in room 28 of the company bunkhouse. Officer Meta Parker went to room 28 and confronted Green, who denied being involved in the burglary. Officer Parker left to get Nufer and Reed; when she returned with the two men, Reed identified Green as the man he had seen climbing out of the trailer. Parker arrested Green and took him to the Unalaska Department of Public Safety. Officers Nichols and Parker interviewed Green. Green initially denied committing the burglary and theft, but he soon confessed. Green told the officers that he had hidden Nufer's wallet in the men's restroom at the Offshore Systems bunkhouse and that he had put the $40 in his own wallet, which was hidden under his mattress. Nichols had attempted to tape record the interview with Green, but when the interview was over he discovered that the tape recorder had malfunctioned. When Nichols found that there was no tape of the interview, he decided to ask Green to fill out a "voluntary statement" form. Green sat in his cell and reiterated his confession in writing on the form. In stark contrast to the fact that Green had been arrested and had been interrogated about the burglary, the "voluntary statement" form begins with the following language: VOLUNTARY STATEMENT (NOT UNDER ARREST) I, (Garland Green), am not under arrest for, nor am I being detained for any criminal offenses concerning the events I am about to make known to (the Unalas-ka police). Without being accused of or questioned about any criminal offenses regarding the facts I am about to state, I volunteer the following information of my own free will, for whatever purposes it may serve. Green also gave Nichols permission to search his room at the bunkhouse. Nichols found the wallet and the money where Green had said they would be. On April 11, 1991, a grand jury indicted Green for burglary and theft. Green asked the superior court to dismiss the indictment with prejudice, claiming that the Unalaska police had promised him immunity from prosecution if he cooperated with them by returning the stolen articles. At the hearing on Green's motion to dismiss, Green testified that he had told the officers that he had a ticket for a flight out of Unalaska at 2 o'clock that afternoon. According to Green, Officer Nichols replied, "Mr. Green, this is not a very serious crime. Just tell us where the wallet is, and you can catch your flight." Green testified that he interpreted Nichols's comment as a promise that he would not be prosecuted if he returned the wallet and the money. Green stated that, when he read the wording of the "voluntary statement" form, this confirmed to him that he would not be detained or charged if he returned the stolen property. Officer Nichols took the stand and denied making the statements Green attributed to him. Nichols declared that the only promise he had made to Green was that, if Green cooperated with the police, this cooperation would be made known to the district attorney, but with no guarantee that this would affect the charges against Green. Superior Court Judge pro tem Michael Wolverton ruled that Green's confession at the Unalaska police station had to be suppressed under Stephan v. State, 711 P.2d 1156 (Alaska 1985); Judge Wolverton found that, under all the circumstances, the officers' failure to tape record the interview was not excusable. The judge also suppressed the recovered wallet and money because they were fruits of the unlawful interrogation. However, because the State could still prove its case through the testimony of Reed and Nufer, the question remained whether the indictment should be dismissed. Judge Wolverton denied Green's motion to dismiss the indictment. The judge found that Officer Nichols might have unwittingly said things to Green that caused Green to think he would not be prosecuted if he returned the wallet and the money, but the judge also found that Nichols had not knowingly offered immunity to Green. Therefore, Judge Wolverton concluded, there had been no "meeting of the minds" — no contract. Green challenges Judge Wolverton's ruling. He relies on the principle of contract law that the existence and scope of a contract must be proved by the objective manifestations of the parties, and that a party's self-serving declarations about the party's subjective intention, made after litigation commences, will not be allowed to prove, disprove, or vary the terms of a contract. See, for example, Peterson v. Wirum, 625 P.2d 866, 870 (Alaska 1981). Green argues that Nichols's statements to him during interrogation and the wording of the "voluntary statement" form that Nichols asked Green to sign later are objective proof that Nichols offered Green immunity, and that Nichols cannot defeat this conclusion by testifying that this was not what he subjectively intended. We conclude, however, that the existence or non-existence of a contract between Green and the Unalaska police is a moot issue. Even if the Unalaska police promised immunity to Green, this promise would not be enforceable against the State of Alaska. While "a prosecutor's promise of immunity made in return for a surrender of the privilege against self-incrimination is binding on the prosecution", Surina v. Buckalew, 629 P.2d 969, 975 (Alaska 1981), the effect of a police officer's promise of immunity has not been decided in Alaska. This issue was mentioned in passing by the supreme court in Closson v. State, 812 P.2d 966, 971 n. 6 (Alaska 1991), but the court found it unnecessary to resolve the issue because the police promises in Closson had been contemporaneously ratified by an assistant district attorney. Turning to decisions from other jurisdictions, the clear rule is that the police have no authority to promise immunity to a criminal defendant. For example, in People v. Gallego, 430 Mich. 443, 424 N.W.2d 470 (1988), affirming 143 Mich.App. 639, 372 N.W.2d 640 (1985), state police officers promised the defendant immunity from prosecution if he returned $33,000 that had been used by the officers to make an undercover purchase of drugs. Gallego told the officers where to find the money, but several months later he was nevertheless charged with sale of cocaine. 424 N.W.2d at 471. Gallego sought dismissal of the charge, claiming that he had a right to specific performance of the officers' promise. The Michigan Supreme Court disagreed: We base our decision to deny defendant specific performance on the fact that the police lacked the authority to make a binding promise of immunity or not to prosecute. The case at bar involves a non-plea agreement for which specific performance amounts to preclusion of an otherwise valid prosecution, and the Court has available an alternative remedy short of specific performance, i.e., suppression, which essentially restores defendant to the position he enjoyed prior to making the agreement in question with the police. The absence of authority of the police in this matter is significant for several reasons_ Since the police possess neither the authority to withhold prosecution nor to grant immunity, no formal system exists by which to check the potentially unbridled discretion the police would possess if allowed to make binding promises precluding prosecution. The potential for abuse seems obvious. In addition, enforcing the unauthorized promise made by the police to defendant raises the question of the logical limits of the power of the police to control the criminal justice system. If the police may make unauthorized, yet binding promises that preclude prosecution, why could they also not make binding plea bargains or sentence agreements? Thus, in granting defendant specific perfor- manee, this Court would create a dangerous precedent.... [Dismissal of criminal charges as a remedy for alleged police misconduct is a drastic and disfavored remedy. See, e.g., United States v. Blue, [384 U.S. 251, 255, 86 S.Ct. 1416, 1419, 16 L.Ed.2d 510 (1966)]; United States v. Rogers, 751 F.2d 1074, 1076-1077 [(9th Cir.1985)]. In this case, dismissal of criminal charges is even less desirable . because it advances no other legitimate interests . [A]n alternative remedy [exists] which essentially restores defendant to the position he enjoyed prior to making the agreement in question with the police. . Moreover, we are not required, as a result of the "constable's blunder," to place defendant in a better position than he enjoyed prior to making the agreement with the police. People v. Gallego, 424 N.W.2d at 473-76 (footnotes omitted). The Michigan Supreme Court's ruling is echoed in other decisions from around the country. In Winkles v. State, 40 Md.App. 616, 392 A.2d 1173 (1978), the Maryland Court of Special Appeals said: [The defendant asserts that a police officer promised him] that these charges would not be prosecutedf.] . That promise could only be made by the State's Attorney. The discretion as to whether to prosecute is solely in the State's Attorney, and only that official (or his authorized assistants, in his name) could validly exercise that discretion^] . [A] police officer has neither the power himself to make such a promise, nor to bind the State's Attorney to it. To conclude otherwise would not only risk the serious possibility of corruption, abuse, and substantial mischief and uncertainty in the prosecution of criminal cases, but would infringe upon the discretion constitutionally committed to the State's Attorney. Winkles, 392 A.2d at 1175-76. In Yarber v. State, 368 So.2d 868 (Ala.Crim.App.1978), cert. denied, 368 So.2d 871 (Ala.1978), the court stated: [L]aw enforcement officers are without question totally lacking in power to authorize or grant immunity from arrest or prosecution to one criminally culpable under the laws of this state. Any right of an accused not to be prosecuted because of such a promise of immunity is equitable only. Breach of such a promise cannot be pled in bar of an indictment, as grounds for dismissal of the prosecution, or as grounds for reversal on appeal. Yarber, 368 So.2d at 869-870. See also Yarber v. State, 375 So.2d 1212, 1227 (Ala.Crim.App.1977) ("Under the settled law of this state[,] law enforcement officers are utterly without power and authority to grant an accused immunity from arrest and prosecution for violating our criminal laws. To clothe them with such power and authority would strike at the very heart of our system of criminal justice and oust the courts of the powers invested in them by the Constitution and statutes."), rev'd on other grounds, 375 So.2d 1229 (Ala.1978); Application of Parham, 6 Ariz.App. 191, 193, 431 P.2d 86, 88 (1967) ("We address ourselves first to the question of whether the petitioner is entitled to the relief he seeks — specific performance of his 'bargain' with the law enforcement officers that if he would help in a criminal investigation, all charges, including the one for which he was sentenced, would be dropped. We hold that such promises, if made by police officersf,] are unenforceable, as being beyond the scope of authority of such officers."); People v. Thompson, 88 Ill.App.3d 375, 43 Ill.Dec. 600, 410 N.E.2d 600 (1980) (holding that, despite an apparent promise made by an auditor from the state department of revenue, the state's attorney could prosecute the defendant for tax offenses); State v. Crow, 367 S.W.2d 601, 605-06 (Mo.1963) ("[I]t seems quite clear that the sheriff has no standing to grant or offer immunity as a bar to a prosecution. 15 Am.Jur., Criminal Law, § 322, p. 19, in discussing who may grant immunity states: 'Nor can police officers or a sheriff grant immunity from prosecution to one of two or more persons accused of a crime on condition of confession and readiness to become a witness against the others accused, at least where the promise is made without authority of the prosecuting attorney[,] and such a promise cannot be pleaded in bar of an indictment for the crime.' "); State v. Cox, 162 W.Va. 915, 253 S.E.2d 517, 521 (1979) ("Every court addressing this issue has held that law enforcement officers do not have authority to promise that in exchange for information, a defendant will not be prosecuted for the commission of a erime[,] and such a promise is unenforceable as being beyond the scope of their authority_ We hold . that law enforcement officers do not have authority to promise immunity from prosecution in exchange for information, and such promises are generally unenforceable."). In accord with these authorities, we likewise hold that police officers, acting on their own, cannot enter into a binding immunity or non-prosecution agreement with a suspect or defendant. If Officer Nichols promised immunity to Green to secure Green's cooperation and his incriminating statements, and the State nevertheless brought charges against Green, then Green's remedy would be suppression of all evidence yielded by the officer's promise. "It is well settled that a confession is improperly induced if it is made in response to a promise of immunity from prosecution." Smith v. State, 787 P.2d 1038, 1039 (Alaska App.1990). However, the fact that a defendant's confession has been improperly obtained does not entitle a defendant to dismissal of all charges. In United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966), the Supreme Court stated: Even if . the Government [acquired] incriminating evidence in violation of the Fifth Amendment, [a defendant] would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial.... Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by the exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book. Blue, 384 U.S. at 255, 86 S.Ct. at 1419 (footnote omitted). Accord, People v. Manning, 672 P.2d 499, 512 (Colo.1983): In cases . involving [a defendant's] reasonable and detrimental reliance upon a governmental promise, the question of remedy turns ultimately on what type of relief will accord the defendant substantial justice.... When [remedies other than specific performance] are available, then the court should exercise a reasonable discretion in fashioning a form of relief that can secure substantial justice to the defendant and at the same time accommodate the legitimate interests of the government. See also People v. Dandridge, 152 Ill.App.3d 941, 105 Ill.Dec. 904, 906, 505 N.E.2d 30, 32 (1987), appeal denied, 115 Ill.2d 545, 110 Ill.Dec. 460, 511 N.E.2d 432 (1987). Judge Wolverton had already suppressed Green's confession and its fruits because the Unalaska police had violated Stephan. Green was entitled to no additional relief. We recognize that courts may have the equitable power to order specific performance of an unauthorized promise of immunity in exceptional cases — cases in which a defendant's detrimental reliance on the unauthorized promise has put the defendant in a position where suppression of the evidence obtained through the unenforceable promise would not cure the injustice to him or her. Green's case, however, does not present such circumstances. Green's final contentions on appeal concern his sentence. Green, a second felo ny offender, was subject to presumptive sentencing. Relying on the fact that he had told the police where to find Nufer's wallet and money, Green proposed one statutory mitigating factor: AS 12.55.-155(d)(10), that "before the defendant knew that the criminal conduct had been discovered, the defendant fully compensated or made a good faith effort to fully compensate the victim of the defendant's criminal conduct for any damage or injury sustained". Green also asserted that his cooperation with the police demonstrated his uncommonly good potential for rehabilitation, the non-statutory mitigator recognized by this court in Smith v. State, 711 P.2d 561, 569-572 (Alaska App.1985). Judge Wolverton was obviously correct when he concluded that mitigating factor (d)(10) did not apply to Green's case. To prove mitigator (d)(10), Green had to show that his effort to compensate the victim was made "before [Green] knew that the criminal conduct had been discovered". Green revealed the location of Nufer's wallet and money only after Reed had identified him as the burglar and Officer Parker had arrested him. Thus, mitigator (d)(10) was unavailable to him. For similar reasons, Judge Wolverton rejected Green's argument that his cooperation with the police demonstrated his uncommonly good potential for rehabilitation. Judge Wolverton concluded that Green's cooperation had been motivated, not by remorse or desire to do the right thing, but by the prospect of having the charges dropped. Judge Wolverton's conclusion is not clearly erroneous. Lepley v. State, 807 P.2d 1095, 1099 n. 1 (Alaska App.1991). The judgement of the superior court is AFFIRMED. . See, for example, Rihl v. State, 413 N.E.2d 1046, 1053 (Ind.App.1980), refusing to enforce an alleged promise of immunity by the police when "factors which [might] justify the equitable enforcement of an agreement between a representative of the State and a defendant on public policy grounds simply are not present".

10393496

Wayne L. DeHART, Appellant, v. STATE of Alaska, Appellee

DeHart v. State

1989-10-20

No. A-2617

989

992

781 P.2d 989

781

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:09:08.575920+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Wayne L. DeHART, Appellant, v. STATE of Alaska, Appellee.

Wayne L. DeHART, Appellant, v. STATE of Alaska, Appellee. No. A-2617. Court of Appeals of Alaska. Oct. 20, 1989. Marcia E. Holland, Asst. Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellant. Nancy R. Simel, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1629

10094

OPINION BRYNER, Chief Judge. Following a jury trial, Wayne L. DeHart was convicted of three counts of assault in the third degree, in violation of AS 11.41.-220(a)(1). Superior Court Judge Richard D. Saveli sentenced DeHart to concurrent presumptive terms of one year. DeHart appeals, contending that the superior court erred in failing to instruct the jury that reasonable fear is a necessary element of third-degree assault. DeHart also contends that the court erred in imposing one year presumptive sentences. We affirm DeHart's conviction but remand for resen-tencing. On November 4, 1987, DeHart unlawfully shot two moose out of season while hunting with friends in the vicinity of Clear. The following morning, three Alaska State Troopers contacted DeHart near the scene of the kill. As the troopers began to question DeHart about the illegal kill, DeHart drew a pistol from his holster and cocked it. Ignoring warnings to put the gun down, he pointed it away from the troopers and fired a shot into the woods. The troopers immediately disarmed DeHart and placed him under arrest. DeHart subsequently claimed that his only purpose in drawing and firing the pistol was to warn his nearby hunting companions that the troopers were present. Nevertheless, all three troopers testified that DeHart's actions had placed them in fear of being shot and that this was their reason for disarming and arresting him. At trial, DeHart asked for an instruction requiring the jury to find that the troopers' fear of injury was reasonable. The trial court denied the request. DeHart claims error on appeal. Our recent decision in Wyatt v. State, 778 P.2d 1169 (Alaska App., 1989), rejected an identical argument. Wyatt is controlling here and compels rejection of DeHart's claim. At the sentencing hearing, the state alleged that DeHart was subject to presumptive sentencing under AS 12.55.125(e)(3), which requires a one-year presumptive term for any first offender convicted of a class C felony when the offender "knowingly directed the conduct constituting the offense at a uniformed or otherwise clearly identified peace officer . who was engaged in the performance of official duties_" Judge Saveli found that De-Hart was aware at the time of the assault that the three victims were state troopers engaged in the performance of their official duties. On this basis, the judge found the presumptive term specified in AS 12.-55.125(e)(3) to be applicable. In imposing the presumptive term for DeHart's offenses, Judge Saveli specifically found that DeHart had fired his gun solely to warn away his hunting compan ions, without any intent to threaten or intimidate the troopers. The judge concluded that, under the circumstances, DeHart's conduct was among the least serious within the definition of the offense and that a mitigated presumptive term would, ordinarily, be appropriate under AS 12.55.-155(d)(9). Nevertheless, Judge Saveli believed that he lacked authority to adjust DeHart's presumptive term — either as a single judge or by referral to the three-judge panel — because neither AS 12.55.-155(a) nor AS 12.55.165 expressly incorporated the presumptive term provided for in AS 12.55.125(e)(3) within its provisions. On appeal, DeHart asserts, and the state concedes, that Edwin v. State, 762 P.2d 499 (Alaska App.1988), governs. In Edwin, we found that the legislature's failure to mention AS 12.55.125(e)(3) in AS 12.55.155(a) and AS 12.55.165 was an oversight. We concluded that the one-year presumptive term is subject to adjustment by a single judge under AS 12.55.155(a) and by the three-judge panel under AS 12.55.165 and AS 12.55.175. Assuming that DeHart were subject to presumptive sentencing under AS 12.55.125(e)(3), the court would not have been precluded from adjusting his presumptive term. DeHart contends, however, that the sentencing court erred in finding him subject to presumptive sentencing under AS 12.55.-125(e)(3). Although DeHart does not dispute being aware that his victims were troopers engaged in performing their,official duties, he maintains that the court erred in concluding that he "knowingly directed the conduct constituting the offense" at the troopers, since his assault on the troopers was reckless rather than intentional and his sole purpose in firing his gun was to alert his fellow hunters. The state counters that AS 12.55.125(e)(3) should be construed to apply so long as DeHart knew that his victims were troopers and acted knowingly in firing his gun. The state's argument is unpersuasive. By its literal terms, AS 12.55.125(e)(3) applies only when the defendant "knowingly directed the conduct constituting the offense" at a clearly identified officer. As used in the statutory language, the adverb "knowingly" modifies the verb "directed." Thus, the express language of the statute requires more than an act resulting in harm to a person known to be a police officer. For the statute to apply, the court must also find that the defendant's actions were "knowingly directed" at the victim. The ordinary meaning of "direct" is: 1) To manage the affairs, course, or action of; guide, conduct; regulate 2) To order or command with authority 3) To turn or point (a person or thing) toward an object or goal; aim; head.... Webster's New World Dictionary 399 (2d c. ed. 1980). Accordingly, by requiring that the defendant's conduct be "knowingly directed," the statute clearly contemplates a conscious aiming or guiding of the prohibited conduct at an officer. The question of whether the defendant's conduct was "knowingly directed" at a police officer presents a factual issue to be independently determined by the sentencing court, based on the specific circumstances of each ease; the state bears the burden of proving the issue beyond a reasonable doubt. Huf v. State, 675 P.2d 268 (Alaska App.1984). To meet its burden under AS 12.55.125(e)(3), however, the state need not establish that the defendant acted with any particular objective or goal in mind. In this regard, the statute does not require the state to prove specific intent. In the present case, Judge Saveli found that DeHart drew his pistol and fired it into the woods for the sole purpose of warning his hunting companions. While DeHart's conduct was undoubtedly reckless and placed the three troopers who were speaking with DeHart in fear of imminent harm, the sentencing court's findings preclude a conclusion that DeHart knowingly directed his conduct at the troopers. Insofar as DeHart's conduct was knowingly directed at anyone, it appears to have been directed at his hunting companions and away from the troopers. Under these circumstances, DeHart acted, at most, in conscious disregard of the risk that the troopers would mistake his purpose and be placed in fear. We therefore conclude that the sentencing court erred in finding DeHart subject to presumptive sentencing under AS 12.55.125(e)(3). The sentence is VACATED, and this case is REMANDED for imposition of a non-presumptive sentence. . Alaska's Revised Criminal Code deals with the traditional concept of specific intent by requiring certain offenses to be committed "intentionally." In AS 11.81.900(a)(1), the code defines "intentionally" as follows: (1) A person acts "intentionally" with respect to a result described by a provision of law defining an offense when the person's conscious objective is to cause that result; when intentionally causing a particular result is an element of an offense, that intent need not be the person's only objective_ The state is not required to show that the defendant consciously intended to cause any particular result to meet its burden of proof under AS 12.55.125(e)(3). However, if the elements of an offense require proof of specific intent on the part of the defendant toward the victim, then proof of the elements of the offense will almost invariably meet the requirements of AS 12.55.125(e)(3) when the victim is a uniformed or otherwise clearly identified police officer. On the other hand, AS 12.55.125(e)(3) may also apply to cases involving crimes of recklessness. The crime of third-degree assault provides a useful example. Under AS 11.41.-220(a)(1), third-degree assault occurs when a person recklessly places another in fear of imminent serious physical injury by means of a dangerous instrument. The offense may be established by proof of a knowing act in combination with reckless disregard for the consequences of that act. Thus, a defendant who knowingly pointed a pistol at another person without any particular intent or objective but in disregard of a substantial and unjustifiable risk that his action would place the other person in fear of imminent serious physical injury would be guilty of assault in the third degree. Assuming the victim was a uniformed officer engaged in the performance of official duties, the defendant would be subject to presumptive sentencing under AS 12.55.125(e)(3), even if the defendant had no intent to place the officer in fear. . Although the sentencing court's finding that DeHart's sole purpose was to warn his companions precludes a finding that he directed his conduct toward the troopers or intended to place them in fear, DeHart's conviction of recklessness establishes that he was aware of and disregarded a substantial and unjustifiable risk that the troopers would be placed in fear as a result of his actions. As defined in AS 11.81.-900(a)(3): a person acts "recklessly" with respect to a result . described by a provision of law defining an offense when the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur .

10393118

Don DOYLE, Appellant, v. Max PEABODY, Appellee

Doyle v. Peabody

1989-10-20

No. S-2474

957

964

781 P.2d 957

781

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:09:08.575920+00:00

CAP

Before MATTHEWS, C.J., and RABINO WITZ, BURKE and COMPTON, JJ.

Don DOYLE, Appellant, v. Max PEABODY, Appellee.

Don DOYLE, Appellant, v. Max PEABODY, Appellee. No. S-2474. Supreme Court of Alaska. Oct. 20, 1989. Rehearing Denied Jan. 8, 1990. George A. Dickson, Anchorage, for appellant. Max N. Peabody, Foulds, Felker, Pierson & Ryder, Seattle, Wash., for appellee. Before MATTHEWS, C.J., and RABINO WITZ, BURKE and COMPTON, JJ.

3878

23449

OPINION RABINO WITZ, Justice. This case presents the question whether a landowner who supplies water to his neighbor is precluded from terminating the arrangement or doing so without paying damages. In resolving this question, we examine common-law doctrines concerning licenses, relevant provisions of Alaska's environmental conservation statutes, and the Alaska Water Use Act. I. FACTS. In 1959, Roland Kickbush started construction on a home on what is now Lot 23 of the Tanaina Hills Subdivision in Anchorage. He drilled a -well to supply the home with water at a cost of approximately $3,500. In the summer of 1965, Jack Stephl built Don and Marie Doyle a house on adjacent Lot 24. Stephl and Kickbush were business partners in developing the Tanaina Hills Subdivision, but it seems that Stephl alone was the Doyles' grantor. Apparently the pre-construction understanding was that Stephl would build the Doyles a house for about $40,000. Prior to completion of the house, Kick-bush agreed to tap the Doyles into his well. The Doyles agreed to pay Kickbush $12/month for using the well. This arrangement continued until Kickbush sold his house to James McCourt in 1974. Kick-bush told McCourt about the water arrangement with Don Doyle (hereinafter "Doyle"). McCourt accepted annual payments in the amount of $144 from Doyle until the former moved away in 1981. In June of 1981 McCourt sold his house to Max Peabody. Apparently McCourt did not tell Peabody of the arrangement to supply water to Doyle. Peabody testified that he became aware of Doyle's use of the well when doing some heating and plumbing work "several months after purchasing the house." In 1982, Peabody's well pump had to be replaced. The well service told Peabody that the cause of the pump's demise was Doyle's ineffective or nonexistent pressure tank. Doyle paid the $981.64 bill for the new pump and had a new pressure tank installed on his own lot at a cost of $328.00. In his brief, Doyle states that Peabody declined the 1982 payment "because Doyle had gone through the expense of well repair." Doyle paid Peabody $144 in 1983 and 1984, and tendered a $144 check in 1985, which Peabody did not cash. In 1985, Peabody installed a new leach field for his septic system. Peabody's contractor sought a permit from the Municipality of Anchorage for a new leach field, but was refused because septic systems serving more than one residence come within not the Municipality's jurisdiction but the jurisdiction of the State Department of Environmental Conservation (DEC). DEC refused to issue Peabody a permit because his well and septic system were less than 150 feet apart. Peabody then sought a waiver of the 150-foot rule from DEC, which refused his request. By the end of Peabody's third unsuccessful request to DEC, his new, non-complying leach field had been installed. In the spring of 1986, Peabody put his house up for sale and informed Doyle that he should drill his own well because Peabody intended to cut off Doyle's water supply in order to sell his house. By transforming his well from one serving two single-family dwellings to a well serving only one single-family dwelling, jurisdiction over the sewage system would be transferred from DEC to the Municipality. The system complied with the Municipality's regulations. Peabody found a buyer for his house. Doyle asked Peabody to pay 50 percent of the cost of a new well; Peabody refused. On July 3, Peabody wrote Doyle to warn that he would have "no choice but to close the line running between [his] well and [Doyle's] house [by July 23] in order to insure that [he] obtain Municipal approval for [his] water system". On July 24, 1986, Peabody cut off Doyle's water supply. On July 25, 1986, Doyle filed a lis pendens and complaint for injunctive relief and damages. In August 1986, Doyle installed a well on his property at a cost of $6,974.50. A year later, in July 1987, the dispute proceeded to trial. On May 7, 1987, just prior to the trial-setting conference, Peabody offered to settle on a walk-away basis; Doyle refused. After a two-day bench trial, the superior court decided in favor of Peabody on the basis that the 1965 agreement was not intended to be irrevocable. The superior court subsequently awarded Peabody $1,063.29 in costs and $7,000.00 in attorney's fees. This appeal followed. II. DISCUSSION. Doyle alleges statutory causes of action under AS 46.03 and AS 46.15, and a common-law cause of action based on an irrevocable license. See also note 6. The statutes cited by Doyle were discussed at trial, but the superior court did not mention them in its Findings of Fact and Conclusions of Law. Doyle's attorney objected in writing to their omission. A. Doyle Has No Private Cause of Action for Damages Under AS 46.03. Doyle's first statutory cause of action relies on Peabody's alleged violation of the first sentence of 18 AAC 80.100(a), which states: No person may construct, install, alter, renovate, or improve a public water system, or any part of one, without written approval of engineering plans submitted to the department under this section. (Emphasis supplied.) Peabody was operating a "public water system," which is defined in 18 AAC 80.900(22) as any source of water, intake works, collection system, treatment works, storage facility, or distribution system from which water is available for human consumption; the term includes, but is not limited to, systems providing water to more than one residential dwelling unit, . but does not include a system serving only a single-family residence. (Emphasis supplied.) AS 46.03.790 makes violations of 18 AAC 80.100 a class B misdemeanor if the violation is negligently committed, and a class A misdemeanor if knowingly committed. The state can obtain civil damages for violations under AS 46.03.760. AS 46.03.870, titled "Actionable rights," states in full: (a) Except as specified in AS 46.03.822— 46.03.828 [relating to strict liability for the discharge of hazardous substances], the bases for proceedings or actions resulting from violations of this chapter or a regulation adopted under this chapter inure solely to and are for the benefit of the state, and are not intended in any way [to] create new or enlarge existing rights of persons or groups of persons in the state. (b) Except as specified in AS 46.03.822— 46.03.828, a determination or order of the department does not create a presumption of law or finding of fact inuring to or for the benefit of persons other than the state. (c) This chapter does not estop the state, persons, or political subdivisions of the state in the exercise of their rights to suppress nuisances, to seek damages, or to otherwise abate or recover for the effects of pollution or other environmental degradation. We conclude that subsection (a) is dispos-itive. Doyle cannot recover damages simply on the basis of a violation of 18 AAC 80.100, but can seek to "recover for the effects of pollution or other environmental degradation" under subsection (c) under existing common-law theories. However, Doyle has not alleged that his land has suffered pollution or environmental degradation, or that he has suffered any compen-sable damages as a result of pollution or environmental degradation. Therefore, even in a negligence action, Doyle could not rely on 18 AAC 80.100 as the applicable standard of care because the regulation was not designed to prevent the harm alleged, that is, the incidental and consequential damages flowing from being cut off from one's water supply. See Lundquist v. Department of Pub. Safety, 674 P.2d 780, 782 (Alaska 1983). B. Doyle Has No Private Cause of Action for Damages Under the Alaska Water Use Act. The Alaska Water Use Act, AS 46.15.-010-.270, governs the appropriation and distribution of water rights in Alaska. See AS 46.15.010. Appropriation is defined as "the diversion, impounding or withdrawal of a quantity of water from a source of water for a beneficial use or the reservation of water under AS 46.15.145." AS 46.15.260(2). Doyle argues that he had an existing water appropriation which Peabody unlawfully terminated on July 24, 1986. Peabody argues that even if Doyle had a valid appropriation in 1965 under AS 46.15.060, that appropriation was extinguished on July 31, 1967, by operation of 11 AAC 93.020 (promulgated pursuant to AS 46.-15.065(b)(1)) because Doyle did not file a claim for that right by July 31, 1967. Although 11 AAC 93.020 (which was not adopted until 1979) purports to extinguish existing water rights if a declaration of rights is not filed by the appropriate date in 1967 or 1968, AS 46.15.065 does not explicitly state the effect of a failure to file. Compare Trelease, Alaska's New Water Use Act, 2 Land & Water L.Rev. 1, 34 (1967) (suggesting the desirability of concluding that a failure to file results in the loss of rights) with F. Trelease, A Water Code for Alaska: A Report to the State of Alaska 61 (Jan. 12, 1962) (suggesting that forfeiture for failure to file is probably neither necessary nor desirable in Alaska). We need not decide this issue because disputes concerning water rights are to be adjudicated by the Department of Natural Resources (DNR) under AS 46.15.-010. Doyle has never filed a permit or appropriation application with DNR to establish his rights in the water from the Kickbush-Peabody well. If he had done so, or if he had asserted a continuing right to water from the well, the appropriate remedy would be to remand the dispute to the DNR Commissioner under AS 46.15.-168(b) so that available administrative procedures might be exhausted. See Standard Alaska Prod. Co. v. State, Dep't of Revenue, 773 P.2d 201, 206 (Alaska 1989). The Water Use Act does not create any public or private damage remedy for interference with existing appropriations. The Act does provide criminal penalties for cer tain actions. AS 46.15.180. C. Doyle's Claim of an Irrevocable License. The superior court found that "[t]he license given to Don and Marie Doyle by Roland Kickbush to use water from the well located on Lot 23 for their residence was a revocable license." Doyle claims that the license was irrevocable because he purchased the house in reliance upon a permanent supply of water. We agree with the superior court: [A] license for the use of land is revocable, both at law and in equity, whether the license is or is not executed by the expenditure of money by the licensee; and . the latter, upon the revocation of the license can claim compensation for expenditures made by him on the faith of the license, as against the original li-censor only. Mayor and City Council of Baltimore v. Brack, 175 Md. 615, 3 A.2d 471, 475 (1939). Thus, whatever expenditures Doyle incurred in reliance on the license granted by Kickbush cannot be recovered from Peabody. Because Peabody purchased his property without notice that Doyle was taking water from the Kickbush-Peabody well, any license possessed by Doyle to take water from the well did not survive the 1981 conveyance from McCourt to Peabody. See City of Anchorage v. Nesbett, 530 P.2d 1324, 1329-30 (Alaska 1975) (license generally revocable by alienation of servient estate). Thus, any legal right possessed by Doyle to take water from Peabody's well must have been granted by Peabody. Assuming that Peabody granted Doyle a license to take water from his well between 1982 (when Peabody learned that Doyle was taking water from his well and charged Doyle for a new pump) and 1986 in exchange for $144/year, Peabody nevertheless had the right to revoke this license in 1986. As a consequence of this revocation, Doyle can claim compensation for expenditures made by him in reliance upon the license to the extent that the value of such expenditures had not yet been realized and was lost by the termination of the license. Thus, under this scenario, Doyle cannot recover the cost of his new well because this expenditure was not made in reliance upon the license granted by Peabody, but rather was made after and as a result of the revocation of the license. Given that the installation of a well on Doyle's property has probably appreciated its value, this result equitably deprives Doyle of a possible windfall. Nor, under this scenario, can Doyle recover the $144 payments he made to Peabody in 1983 and 1984, as these payments were the quid pro quo for the water Doyle used for two years. Thus, the only possible qualifying expenditures made by Doyle are the $981.64 he expended in 1982 for a new pump for Peabody's well, and the $328 he expended in the same year for a new pressure tank as part of his own water system. Assuming that Doyle is not equitably estopped from seeking to recover the cost of the new pump on the basis that the need for it was attributable to him, Doyle may recover the cost of this expense, less an appropriate deduction for four years' use of the pump. Doyle may similarly recover the costs of the new pressure tank (less an appropriate reduction for four years' use) if the pressure tank was rendered useless by the rev-. ocation of the license. If, however, the pressure tank could be utilized by Doyle in his new water system, then he is not entitled to any recovery for this expense because, in this case, the revocation of the license did not deprive him of the value of his expenditures. In addition, we think it equitable that any recovery by Doyle for the lost value of expenditures be reduced by any amounts owed to Peabody for water used by Doyle from 1984 to 1986. Should these amounts exceed Doyle's damages, however, Peabody is not entitled to an affirmative recovery because he never sought them. Therefore, we remand this issue to the superior court to determine whether Peabody granted Doyle a license to take water from his well, and if so, the amount of damages, if any, to which Doyle is entitled as a result of Peabody's revocation of the license. D. Attorney's Fees. Although our remand on the main issue of this case dictates setting aside the superior court's award of attorney's fees, we will nevertheless address Doyle's claims of error with regard to the superior court's award in order to assist the court in making a proper award on remand. 1. The Superior Court Erred in Augmenting Its Award Based on Plaintiffs Failure to Accept a Pre-Trial Settlement Offer. Doyle appeals the superior court's increase of partial attorney's fees from 50 percent of actual fees to 70 percent of actual fees based on his "exceptional degree of litigious tenacity." The court based its view on Doyle's refusal to accept Peabody's settlement offer prior to trial: Although no bad faith litigation is attributed to plaintiff, in the Court's view plaintiff's case was disastrously weak on both the law and the evidence. Setting aside the former, since a rule of law can always be debated, the facts certainly had to have been known to plaintiff. Foreseeing what his own testimony and the testimony of the neighborhood would amount to, plaintiff's failure to settle with the defendant on an "each walk away" basis seems extremely ill-advised. Reluctantly the Court concludes that plaintiff pressed this suit, which at one time he would have settled for less than one-sixth the total attorney's bill (by the Court's estimate), in the face of a determined adversary who did not conceal the strengths of his ease. In so doing the Court believes plaintiff demonstrated that exceptional degree of litigious tenacity which justifies an augmented fee award above that which partially compensates the prevailing party. The Court awards 50% of actual fees as partial compensation, augmenting the award to a total of 70%. Our recent decisions in Myers v. Snow White Cleaners & Linen Supply, 770 P.2d 750, 752-53 (Alaska 1989), and Day v. Moore, 771 P.2d 436, 438-39 (Alaska 1989), counsel that Civil Rule 68 is the exclusive mechanism for penalizing a party for its failure to accept a pre-trial settlement offer. Thus, the superior court erred in taking past settlement negotiations into account in making an award under Civil Rule 82. 2. The Superior Court Did Not Abuse Its Discretion in Taking into Account Peabody's Legal Services. Doyle also appeals the superior court's award of attorney's fees based on the court's failure to consider the segregation rule of Sherry v. Sherry, 622 P.2d 960 (Alaska 1981). In essence, Doyle is attacking the court's grant of attorney's fees based on Peabody's services as an attorney, which the court valued at $7,500: Further the Court concludes that the 75 hours defendant claims as counsel in his own behalf are accurately characterized as attorney activity, and not activity appropriate only as to a party witness. Defendant is entitled to a fee award based in part upon those hours. Applying a conservative figure of $100 per hour and adding the Shimek bill produces a total attorney fee in excess of $10,000. In Sherry this court stated: We therefore conclude that if the court wished to award attorney's fees for Alan's time it should have done so only after making a clear segregation of his compensable time, expended as an attor ney active in the litigation, and his non-compensable time, expended as client. 622 P.2d at 966 (footnote omitted). Doyle's argument that the superior court failed to abide by our decision in Sherry is without merit. The superior court properly segregated compensable from noncompensable time. He based this segregation on Peabody's Memorandum in Support of Attorney's Fees, which states-in part: [Defendant himself expended in excess of 75 hours rendering legal services on his own behalf. This time included, but is not limited to: (a) taking the deposition of Roland Kickbush; (b) preparing interrogatories and request for production to be answered by defendant; (c) answering interrogatories and request for production propounded by plaintiff; (d) filing a motion to set the case for trial with accompanying witness and exhibit lists; (e) doing the legal research necessary for and preparing and filing a motion for summary judgment and all memoranda thereto; (f) contacting witnesses prior to trial and arranging for their presence at trial; and (g) preparing a trial brief and otherwise preparing for and participating in the conduct of the two day trial. The above estimate of hours spent providing legal services does not include hours which might more appropriately be considered to be hours necessarily spent by defendant in his capacity as a party to this action. That is, no requests for attorney's fees [are] being made for that time which defendant necessarily spent as a witness at trial or otherwise acting in his capacity as a party defendant. 3. The Superior Court Did Not Err in Failing to Consider Peabody's Apparently Abandoned Counterclaim. In his amended answer, Peabody posited a counterclaim, the essence of which is contained in the following paragraphs: 7. On July 25, 1986 the plaintiff caused a lis pendens to be filed against the defendant's property. 8. This action by plaintiff at a time when plaintiff knew of defendant's contract of sale of his property to a third person, knew of the difficult real estate market in Anchorage at that time, and knew that defendant had left the state, was wrongful and an attempt to interfere with the defendant's beneficial contractual rights with third persons and to coerce the defendant to pay for the cost of drilling a well on plaintiff's property for plaintiff's use. 9. This action was accomplished maliciously and wrongfully for an improper purpose and constitutes an actionable interference with contract. 10. As a proximate result of plaintiff's wrongful actions, defendant has sustained damages in an amount to be proven at trial, including but not limited to the engineering and construction costs incurred in removing plaintiff's access to defendant's well, increased closing costs related to the sale of defendant's house, increased travel cost incurred by defendant in order to accomplish closing of the sale and other damages related thereto. 11. In view of the intentional and malicious nature of plaintiff's actions, defendant is entitled to recovery of punitive damages against plaintiff. On July 2, 1987, Doyle's attorney filed a motion to dismiss Peabody's counterclaim. We assume that the motion was deemed denied because we can find no order of the court dismissing it in the record. Doyle claims on appeal that the superior court failed to consider that he had "prevailed" on the counterclaim. However, the counterclaim was not litigated at trial and was presumably abandoned. Therefore, the superior court did not abuse its discretion in not taking into account the counterclaim in making its attorney's fees award. REVERSED and REMANDED to the superior court for further proceedings consistent with this opinion. . Marie is not a party to this appeal. Don and Marie had separated and divorced around this time. . Alaska Statute 46.15.060 provides: Existing rights. A water right acquired by law before July 1, 1966 or a beneficial use of water on July 1, 1966, or made within five years before July 1, 1966, or made in conjunction with works under construction on July 1, 1966, under a lawful common law or customary appropriation or use, is a lawful appropriation under this chapter. The appropriation is subject to applicable provisions of this chapter and regulations adopted under this chapter. . 11 AAC 93.020 provides, in relevant part: "A claim to an existing right is extinguished unless the claim was filed by . (3) July 31, 1967, for the Anchorage, Palmer, and Whittier Recording Districts...." . Alaska Statute 46.15.065(a) (formerly AS 46.-15.135(a)), titled "Determination of existing rights," requires claimants of an existing water right under AS 46.15.060 to file a declaration of appropriation. 11 AAC 93.020. . AS 46.15.168(b) states: "The commissioner may accept a remand from a state or federal court of a water rights dispute and may administratively adjudicate the dispute under AS 46.-15.165." . In G & A Contractors, Inc. v. Alaska Greenhouses, Inc., 517 P.2d 1379 (Alaska 1974), cited by Doyle, this court mentioned AS 46.15.180 in a footnote. Id. at 1381 n. 3. In deciding a suit by a downstream property owner against two upstream property owners for, inter alia, damages, the court relied on common-law causes of action, and not the Water Use Act. See id. at 1383-88. . In light of our resolution of this issue, we need not address Peabody's contention that a cause of action under this statute was not properly pled. . See also R. Cunningham, W. Stoebuck & D. Whitman, The Law of Property § 8.1, at 437, § 8.8, at 456-58 (1984); 3 R. Powell & P. Rohan, The Law of Real Property ¶ 427-429 (1987); 3 H. Tiffany & B. Jones, The Law of Real Property § 829-838 (1939 & Supp.1989); Singer, The Reliance Interest in Property, 40 Stan.L.Rev. 611, 670-72 (1988); Conard, Unwritten Agreements for the Use of Land, 14 Rocky Mtn.L.Rev. 294 (1942); Annotation, Right of Licensee for Use of Real Property to Compensation for Expenditures Upon Revocation of License, 120 A.L.R. 549 (1939).

10387187

PROPERTY OWNERS ASSOCIATION OF THE HIGHLAND SUBDIVISION A PORTION OF USMS 769, KETCHIKAN, ALASKA, Appellant, v. CITY OF KETCHIKAN, a Home Rule Alaska Municipal Corporation, Appellee

Property Owners Ass'n of the Highland Subdivision A Portion of USMS 769 v. City of Ketchikan

1989-10-20

No. S-2760

567

576

781 P.2d 567

781

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:09:08.575920+00:00

CAP

Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

PROPERTY OWNERS ASSOCIATION OF THE HIGHLAND SUBDIVISION A PORTION OF USMS 769, KETCHIKAN, ALASKA, Appellant, v. CITY OF KETCHIKAN, a Home Rule Alaska Municipal Corporation, Appellee.

PROPERTY OWNERS ASSOCIATION OF THE HIGHLAND SUBDIVISION A PORTION OF USMS 769, KETCHIKAN, ALASKA, Appellant, v. CITY OF KETCHIKAN, a Home Rule Alaska Municipal Corporation, Appellee. No. S-2760. Supreme Court of Alaska. Oct. 20, 1989. Michael W. Flanigan and Susan M. Williams, Clark, Walther & Flanigan, Anchorage, for appellant. Mitchell A. Seaver, Asst. Municipal Atty., and Russell W. Walker, Municipal Atty., Ketchikan, for appellee. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

4473

27721

OPINION MOORE, Justice. This case involves the construction and financing of capital improvements in the Highlands subdivision of the City of Ket-chikan. Following construction, the Ket-chikan City Council levied a special assessment against the land which benefitted from the improvements. The subdivision lot owners appeal the amount of the assessment and the interest rate charged during the payment period. The lot owners raise due process and estoppel issues, among others, in their attack on the Ketchikan City Council's financing decision. I. In 1978, Charles and Mary Hoyt decided to subdivide a parcel of land in Ketchikan into thirty-two lots. They petitioned the Ketchikan City Council to create a local improvement district ("LID") encompassing the proposed subdivision. LIDs are vehicles by which private landowners may benefit from advantageous financing methods available to cities, such as tax free municipal bonds. The Hoyts asked the Council to provide LID financing for capital improvements including road, water, sewer, telephone, and power line installation. Following a public hearing at which no objections were raised, the Council created the Highlands LID for the Hoyts' property. When the LID was created, the Council, developer, and city staff all contemplated that construction would be financed by the issuance of bonds. At that time, the maximum legal interest rate for LID bonds was eight percent. Former Ketchikan Municipal Code [hereinafter KMC] 03.16.130. In May 1979, the Council amended the Highlands LID. Although it continued to authorize the issuance of bonds, the amendment also permitted interim construction financing through such short-term obligations as would be approved by the Council. Construction commenced with interim financing from the Ketchikan General Fund. During 1980, it became clear that municipal bonds could not be marketed at eight percent due to an unprecedented rise in interest rates. In December 1980, the Council amended KMC 3.16.130 to remove the cap on special assessment bond interest rates. The capital improvements were substantially completed and inspected in October 1980, although work was not fully completed until August 1981. Until December 1980, the funds borrowed from the Ketchi-kan General Fund accrued interest at eight percent. Between December 1980 and January 1982, the funds accrued interest at eleven percent. In December 1981, the Council approved the final assessment roll which assessed total accrued construction, interest, and administrative expenses of $968,468.16 against the lot owners. The Council proposed that the lot owners pay the assessment over ten years at thirteen percent interest. At a public hearing on the assessment on January 22, 1982, the lot owners objected to the amount of the assessment, the proposed thirteen percent interest rate, and the length of the repayment period. The Council passed a motion retaining the amount and the thirteen percent interest rate, but extended the repayment period from ten to fifteen years. The Council reaffirmed this decision in February 1982. Certain lot owners identifying themselves as the Property Owners Association of the Highlands Subdivision appealed the assessment amount and repayment terms to the superior court. The owners moved for a trial de novo and shortly thereafter submitted the affidavit of real estate broker Charles Elliott. The superior court ordered the Elliott affidavit stricken from the record as untimely and later denied the motion for a trial de novo. Following briefing and oral argument, the court affirmed the decision of the Council and entered final judgment. This appeal followed. H. A municipality may create a LID to help property owners finance capital improvements. AS 29.46 (formerly AS 29.63). Ketchikan implemented its delegated authority in chapters 3.16 and 3.18 of the Ketchikan Municipal Code. A LID involves an agreement by the Council to pay interim construction costs. KMC 3.16.110. The Council may finance construction by issuing warrants or bonds, or by transferring funds from the city general fund. Id.; KMC 3.16.120(a). Once the project is complete and the total costs known, the Council levies a special assessment against the property benefitted by the improvements. The owners are entitled to notice of the proceedings and may object to the assessment roll or any separate assessment during the public hearing. KMC 3.18.060. After the assessment roll is completed, the Council establishes a repayment schedule and interest rate. KMC 3.18.070. III. The lot owners argue that they were deprived of due process of law because the levy of special assessments is an adjudicative function and they were not afforded trial-like procedures. Ketchikan argues that trial-like procedures were not required because the Council acted in its legislative capacity. This is a question of law upon which we exercise our independent judgment. Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988). We review the decision of the Council directly because the superior court was acting as an intermediate court of appeals. Barcott v. State, Dep't. of Pub. Safety, 741 P.2d 226, 228 (Alaska 1987); City of Nome v. Catholic Bishop, 707 P.2d 870, 875 (Alaska 1985). The question whether a governmental action is "legislative" or "adjudicatory" implicates important due process considerations. Where an act is deemed to be legislative, trial-type procedures need not be afforded to affected members of the public. The contrary is true where an act is deemed to be "adjudicatory." See 2 K. Davis, Administrative Law Treatise § 12:1, at 406-09 (2d ed. 1979) (citing Londoner v. City of Denver, 210 U.S. 373, 386, 28 S.Ct. 708, 714, 52 L.Ed. 1103 (1908); I.C.C. v. Louisville & Nash. R.R., 227 U.S. 88, 91- 92, 33 S.Ct. 185, 186-87, 57 L.Ed. 431 (1913)). Assessment proceedings which affect individual taxpayers, rather than taxpayers as a group, and which involve the ascertainment of facts material to those individuals are "adjudicatory." The requirement that an individual specifically targeted by a taxing authority be afforded a hearing has been interpreted to entitle the taxed party to trial-type procedures where disputed material facts must be ascertained. 2 K. Davis, supra p. 9, § 12:1, at 407. The Council's decision in this case involved two components. First, the council decided how and at what interest rate it was going to fund the subdivision's improvements. This clearly involved a policy determination which is "legislative." The legislative character of the decision is evidenced by the fact that the Council did not sift through and decide evidentiary questions unique to any of the affected parties. See Greene v. McElroy, 360 U.S. 474, 496-97, 79 S.Ct. 1400, 1413-14, 3 L.Ed.2d 1377 (1959) (where government action seriously invades individual interest and requires findings of fact, trial-type procedures are required). A more difficult question is whether the Council's decision to charge the taxpayers for delays caused by work allegedly benefitting only the city was "legislative" or "adjudicative." The Council based its decision to charge the taxpayers for these delays on testimony that the work which caused the delays benefitted the taxpayers as well as the city. We believe that this was a legislative decision because the decision affected a large development and a group of similarly situated taxpayers. To hold otherwise would encroach upon and make too cumbersome the legislative policy-making function. In a legislative assessment proceeding, due process requires notice and an opportunity to be heard, both of which were provided to the affected owners in this case. See, e.g., Hinz v. City of Phoenix, 118 Ariz. 161, 575 P.2d 360, 363 (App.1978); South Ferry St. Project v. City of Schenectady, 72 Misc.2d 134, 338 N.Y.S.2d 730, 733-34 (Sup.Ct.1972); Tramel v. City of Dallas, 560 S.W.2d 426, 429-30 (Tex.Civ.App.1977). Because the lot owners received all the process due, we conclude that the superior court did not abuse its discretion in refusing to conduct a trial de novo. See State v. Lundgren Pac. Constr. Co., 603 P.2d 889, 895-96 (Alaska 1979); see also Alaska Appellate Rule 609. IV. The owners asserted that the changes which delayed completion of the project until August 1981 were undertaken at the behest of and for the exclusive benefit of the city. City staff members, however, indicated that the rerouting of one water line, which delayed the project until the spring of 1981, was required to remain eligible for grants from the Alaska Department of Environmental Conservation. The installation of overhead power and telephone lines by Ketchikan Public Utility, which was not completed until January 1981, was done at the request of the Hoyts and saved the project at least $60,000. Finally, replacement of one old wood stave water main, while beneficial to the city, also facilitated the project's hookup to another water main. Our review of a council's legislative assessment decisions is very limited. The Council's decision is presumed correct. City of Wasilla v. Wilsonoff, 698 P.2d 656, 657 (Alaska 1985). We will reverse only upon a showing "of fraud or conduct so arbitrary as to be the equivalent of fraud, or so manifestly arbitrary and unreasonable as to be palpably unjust and oppressive." Id. at 658 (quoting Kissane v. City of Anchorage, 159 F.Supp. 733, 737 (D. Alaska 1958)). The complaining party bears the burden of proving the arbitrariness and injustice of the determination by producing competent evidence not "based on mere conjecture," including "objective documentation to support [their] assertions." Wilsonoff 698 P.2d at 658. The owners have not introduced competent evidence rebutting the presumption of correctness to which the council's determination is entitled. There was conflicting testimony at the hearing about who bene-fitted from the various improvements. The owners have not met their burden of proving fraud or manifest arbitrariness and unreasonableness. V. The lot owners argue that the Council should be estopped from charging more than eight percent interest on the deferred assessment installments. Estoppel may be asserted against a public agency. Municipality of Anchorage v. Schneider, 685 P.2d 94, 97 (Alaska 1984) (building permit issued in violation of zoning ordinance; municipality estopped); Jackson v. Kenai Peninsula Borough, 733 P.2d 1038, 1040 (Alaska 1987) (same; city not estopped). The elements of equitable estoppel are: (1) assertion of a position by conduct or word, (2) reasonable reliance thereon, and (3) resulting prejudice. A fourth element . is that the estoppel will be enforced only to the extent that justice so requires.... [T]his factor should play an important role when considering estoppel against a municipality. Often, even where reliance has been foreseeable, reasonable, and substantial, the interest of justice may not be served by the application of estoppel because the public interest would be significantly prejudiced. Schneider, 685 P.2d at 97 (citations omitted); see also City of Long Beach v. Mansell, 3 Cal.3d 462, 91 Cal.Rptr. 23, 48, 476 P.2d 423, 448 (1970) (Estoppel against the government is appropriate only where "the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel."). Elliott stated that Ketchikan Finance Director A1 Learned assured him in October 1978 that the interest rate would be eight percent. Even if Learned made the alleged assurance to Elliott, we have little difficulty in concluding that this does not estop Ketchikan. Elliott and Elber-'son appear to be sophisticated businessmen. We are thus not moved by the concerns we expressed in Schneider, 685 P.2d at 96-97, which involved an average citizen's good faith reliance upon an erroneously issued building permit. Northway advertised a payment term of fifteen years at eight percent interest. Some purchasers, including Mr. Enger, assumed this was a binding promise by the city. But Elliott does not allege that Learned promised a fifteen year term. Further, the advertisement does not mention that purchasers probably would have to refinance the lien with private lenders in order to get a construction loan. It is thus apparent that any statement Learned made to Elliott could easily have been distorted by Elliott and Elberson's "salesmanship" before reaching the lot owners' ears. The city could not have promised any terms of payment at the time of the advertisement because they were not yet set. KMC 3.18.070 provides that the city council shall set rates and repayment schedules for assessments after the final assessment roll is completed. This is not "an unsettled area of law" as in Tetlin Native Corp. v. State, 759 P.2d 528, 535 (Alaska 1988), where we found that the imposition of estoppel was necessary to prevent an unjust result. The present case also is not analogous to City of Kenai v. Filler, 566 P.2d 670, 676 (Alaska 1977), where the city accepted the benefits of a contract and then sought to be released from the contract for its failure to comply with its own ordinances. Ketchi-kan has not accepted the benefit of any contract. Not only was there no contract here, but the benefit of the project has flowed almost entirely to the developer and the owners of the improved lots themselves. The benefit to Ketchikan from an increased tax base pales in comparison and lies largely in the future. The owners' estoppel claim thus must depend on the ordinances which provided that bonds would be issued to finance the improvements. The owners' argument here is best summarized by Enger's statement at the January 22 hearing that the owners' were willing to pay all of the costs of improvements, "but only . at the interest rate set by law at the time these improvements were contractually required to be completed." The Council never asserted that bonds would be issued at eight percent. The Ket-chikan Municipal Code did limit such bonds to eight percent at the time of LID formation, at the time originally scheduled for completion, and at the time of substantial completion. However, the cap was removed by the time the project was fully completed, and that was the time that the assessment was made. We believe that the only reasonable interpretation of the interest rate cap provision is that it applied only to those bonds issued, rather than authorized, when it was in effect. The rate cap provision dealt exclusively with the requirements for issuance of bonds and was inapplicable to any bonds other than those presently being issued pursuant to its terms. See former KMC 3.16.130, quoted in supra note 3. The owners' argument reduces to the contention that the owners only should have to pay eight percent on their assessments while the taxpayers of Ketchikan subsidize the difference between eight percent and the market interest rate or the rate of any bonds issued. The record, however, is full of statements by council members that the city had no intention of subsidizing the owners of the benefitted lots. Moreover, the council refrained from issuing bonds in order to pass on to the owners the benefit of any future decreases in market interest rates. The fourth element of estoppel allows enforcement only to the extent justice requires. Because of the importance of this element in cases against the government, we are not inclined to find estoppel at all. It would be unjust to force the population at large to subsidize the purchasers of Ketchikan's "most exclusive" lots as a result of an ambiguous assertion by a city council which had repeatedly expressed the opposite intent. See generally Earthmovers of Fairbanks v. State, Dept. of Transp. and Pub. Facilities, 765 P.2d 1360, 1370-71 (Alaska 1988). We thus find no merit in the estoppel claim. VI. The owners argue that by raising the interest rate cap on bonds, the council caused an increase of more than twenty percent in the project's costs. This, it is urged, required notice to the owners and an opportunity to object pursuant to KMC 3.16.110(d). The code provision in question refers to "contract cost plus all other costs of improvement," but we do not think this reasonably can be construed to include interim or post-construction finance expenses. The relevant paragraph refers to "Construction by Contractor," not financing. The lot owners' contention that the rise in rates caused costs to rise by twenty percent is based on a comparison of the costs of eight percent financing and thirteen percent financing and the assumption that every owner will finance the entire balance over fifteen years. This argument lacks merit. Not only are most owners likely to pay off their assessments prior to building on their lots, but the determination of the payment schedule is clearly allocated to the Council after completion of the project. We believe the statute was intended to be limited to actual and projected costs of construction, which are capable of fairly precise quantification. Subjecting the LID process to interruption on the basis of something as mercurial as market interest rates would prevent homeowners, contractors, and the city from being able to plan ahead with any reasonable degree of certainty. Moreover, the interpretation urged by the lot owners would place on the Council the risk that interest rates will rise during the course of construction. Once interest rates reached a point where total cost estimates increase by twenty percent, the owners might compel the Council to terminate the project and bear the total expense of the uncompleted improvements. We thus conclude that KMC 3.16.110(d) was not triggered by the council's decision to remove the cap on bond interest or its decision after completion of the project to charge thirteen percent interest on deferred assessments. The judgment of the superior court is AFFIRMED. . Former KMC 3.16.130 provided that such "bonds shall bear interest at a rate not to exceed 8% per annum." . Current KMC 3.16.130 provides that such "bonds shall bear interest at a rate or rates to be determined by the city council." . KMC 3.16.110(e) and (f) state: (e) L.I.D. Funds. Each L.I.D. of the city shall be given a number in the ordinance or resolution creating the district, and each such ordinance or resolution shall create an "L.I.D. No. _ Fund." Into such fund shall be paid all receipts pertaining to the L.I.D. including, but not limited to, proceeds from the sale of warrants and/or bonds, transfers from the city general fund and assessments as paid. Such funds shall be drawn upon for the purpose of paying construction costs of such L.I.D., redemption of warrants and bonds and the payment of interest thereon. Within such fund, accounts such as may be necessary, such as construction revenue, bond redemption and sinking fund accounts, may be set up. (f) Warrants. The city may provide by resolution or ordinance for the issuance of warrants payable out of such L.I.D. fund in payment of the cost and expenses of any L.I.D. improvements. The warrants . shall be redeemed either in cash or by exchange for special assessment district bonds of such district. Such warrants shall be redeemed in order of their number whenever there is enough money in such fund to redeem such lowest number warrant or warrants. Warrants may be issued to the city general fund when the general fund advances the costs of improvements. . KMC 3.16.120(a) provides in full: Bonds to be entitled "L.I.D. No._, City of Ketchikan, Alaska, Bonds" may be issued to provide funds to pay any part or all of the costs of improvements in any special assessment district, provided that such bonds shall not be issued in a total principal amount in excess of such costs of improvement. . Total costs include construction costs, accrued interest, and administration expenses. . KMC 3.18.050(b), Contents of published notice, states in part: The published notice of such hearing shall specify the number of the L.I.D. and a short statement of the nature of the improvements completed therein and shall contain any other information deemed relevant by the council o[r] the city clerk, and shall notify all persons who may desire to object to such assessment roll or any of the separate assessments appearing thereon: (2) That at the time and place fixed for such hearing and at times to which the hearing may be adjourned the council will sit as a board of equalization for the purpose of considering the roll and the separate assessments appearing thereon; and (3) That at the hearing or the times to which it may be adjourned the council will consider the objections made and will correct, revise, raise, lower, change or modify the roll or any part thereof, or set aside the roll and order the assessment to be made de novo, and at the conclusion of such hearing or hearings will confirm the roll by ordinance or resolution. . KMC 3.18.060, Hearing objections and settlement of assessment roll, provides in full: At the hearing, all persons concerned may present their objections to the assessment or any part of it, and point out errors and inequities, and submit reasons for amendment and corrections. The council may continue the hearing from time to time. After the council has heard all objections and suggestions, it shall correct any errors which it finds in the assessment roll as originally made, and when the roll is finally settled, the mayor shall sign the assessment roll certifying that it is the assessment roll as finally settled by the council. The assessment roll as certified shall be recorded in the recorder's office,, Ketchikan recording district, first judicial district, state of Alaska. . KMC 3.18.070, Assessment — Interest and method of payment, states in full: After the assessment roll has been completed, the council shall fix by resolution: (a) The type of payments, whether lump sum or installment; (b) The date of payment or payments; (c) The percentage of the total cost of the project which the first payment shall be equal to, if to be repaid in installments; and (d) The interest rate on all deferred payments. . Compare Londoner, 210 U.S. 373, 385-86, 28 S.Ct. 708, 713-14 (due process requires hearing where municipal tax is on particular property) with Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 444-45, 36 S.Ct. 141, 142, 60 L.Ed. 372 (1915) (where tax applicable to more than a few people individual input at hearing not required by due process). See generally United States v. Florida E.C. Ry., 410 U.S. 224, 244-45, 93 S.Ct. 810, 820-21, 35 L.Ed.2d 223 (1973) (discussing Londoner and Bi-Metallic). . We assume for purposes of appeal that the facts asserted in the Elliott affidavit are true. Thus, we need not address the question whether the superior court erred in refusing to consider the affidavit on appeal. Following the lot owners' second unsuccessful attempt to include the Elliott affidavit in the record on appeal, the superior court awarded Ketchikan actual attorney's fees for opposing the frivolous motion. The award of attorney's fees is affirmed. . At the public hearing, the owners argued that since the project was substantially completed in October 1980, when the eight percent rate cap was still in effect, they should be charged interest at eight percent. The project was not fully completed until August 1981. It is only when the project is fully completed that the Council can determine the total cost and make an assessment. Since the rate cap was repealed by August 1981, the date of "substantial completion" is not relevant in determining whether the city is estopped from charging thirteen percent interest. . We also find no merit in the argument that the Council's action effected an "ex post facto" increase in the owners' obligations. The owners had no vested right to eight percent financing of their assessments. The record is devoid of support for the assertion that at the time the LID was approved and construction began "there was no foresight possible that the interest rate in effect could or would be changed." .KMC 3.16.110(d), Unanticipated costs, provides in full: (1) Construction by Contractor or Contractors. (A) When the improvements in any L.I.D. are to be acquired, constructed and installed by a contractor or contractors, and if it appears after consideration of the contract cost plus all other costs of improvements that the total costs of improvements will exceed the estimated cost as it appears on the approving resolution or ordinance, by twenty percent or more, then at least fifteen days before the notice to proceed is given the contractor or contractors the director of public works of the city shall give notice of such estimated increased cost by certificate mail to the owners of the lots, tracts and parcels of land within the district at their last known address, and shall also publish, on or before the same date, a similar notice at least once in a newspaper of general circulation in the city. (B) Said mailed and published notice shall state the amount, and percentage, of total cost of the expected additional charges over the last complete estimated cost, and shall further state that unless written objections to the city's ordering the contractor or contractors to proceed are filed with the city clerk by the owners of property within the district bearing fifty percent or more of the estimated cost of the improvements to be paid from assessments within ten days from the date of the mailing and publishing of such notice, said contractor or contractors will be ordered to proceed, and that said estimate of costs as increased shall be the cost of improvements until all actual costs after completion are known. (C)In the event such written objections are so filed by the owners of property within the district bearing fifty percent or more of the estimated costs of the improvements to be paid from assessments, then no notice to proceed shall be given the contractor and further work on the project shall cease. The city shall bear the costs of the project to date of termination. . Their argument also rests on the faulty premise that by eliminating the interest cap in December 1980, the council set the rate at thirteen percent. This is not true. In December 1980, the Council merely eliminated the bond rate cap and provided that the rate would be set by the Council upon issuance of bonds. If interest rates had fallen in 1981, the total financing costs may not have risen by twenty percent. . The Highlands LID involved undeveloped property. Comments by the developer at the public hearing indicate that private lending institutions rarely lend against property without requiring the assessment lien to be paid off. Thus, virtually every owner who builds a house on his or her lot will pay off the city by borrowing from a private lender. The lender will include the lien amount in the construction loan and ultimately in the 10- to 30-year mortgage. The city will likely finance the assessment for the entire term only if the lot remains unimproved.

10416704

Larry ORSINI, individually, and Larry Orsini Associates, Inc., Appellants, and Cross-Appellees, v. Donald BRATTEN and Elaine Bratten, Appellees, and Cross-Appellants

Orsini v. Bratten

1986-01-24

Nos. S-700, S-701

791

795

713 P.2d 791

713

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:08:26.184312+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS and MOORE, JJ.

Larry ORSINI, individually, and Larry Orsini Associates, Inc., Appellants, and Cross-Appellees, v. Donald BRATTEN and Elaine Bratten, Appellees, and Cross-Appellants.

Larry ORSINI, individually, and Larry Orsini Associates, Inc., Appellants, and Cross-Appellees, v. Donald BRATTEN and Elaine Bratten, Appellees, and Cross-Appellants. Nos. S-700, S-701. Supreme Court of Alaska. Jan. 24, 1986. James S. Magoffin, Jr., Fairbanks, for appellants and cross-appellees. Lloyd I. Hoppner, Rice, Hoppner, Brown & Brunner, Fairbanks, for appellees and cross-appellants. Before RABINOWITZ, C.J., and BURKE, MATTHEWS and MOORE, JJ.

2007

12895

OPINION RABINOWITZ, Chief Justice. I. Background. Larry Orsini of Larry Orsini Associates provided investment advice to Donald and Elaine Bratten. Thereafter the Brattens sued Orsini seeking damages for negligent misrepresentations and breach of contract. The superior court awarded the Brattens $59,276.86 in damages together with prejudgment interest. Orsini appeals certain facets of the damage award as well as the superior court's award of prejudgment interest. The Brattens cross-appeal, claiming that the damages awarded are inadequate. In 1977, Donald and Elaine Bratten sought investment advice for money received from the sale of a motel they owned. They contacted Larry Orsini of Larry Orsi-ni Associates, Inc., a management consulting firm whose services included "tax planning" and "investment analysis and management." Orsini recommended investing in a purchase-lease-back of equipment (mostly furniture) with Wilmer Preising, doing business as the "Roaring 20's Hotel" in Fairbanks. Orsini furnished the Brattens with a statement projecting the return on their investment with Preising. The statement indicated that an investment of $54,000 would produce a direct cash flow of $57,200 ($235,200 in rental income less the down payment, interest and other expenses) and an indirect cash flow, consisting of tax savings of $69,985 over the seven year leaseback period. According to Orsini's calculations, the total return on the Brat-tens' investment would be $158,085 or 41.8 percent. Based on Orsini's recommendation, the Brattens invested $54,000 in the Roaring 20's purchase-leaseback arrangement. Or-sini prepared the Brattens' 1977 income tax return and amended their 1974 and 1975 tax returns to claim investment tax credits for those years. In 1980, the Internal Revenue Service (IRS) audited the Brattens' 1974, 1975, and 1977 returns and determined that the Roaring 20's investment did not qualify for an investment tax credit. Under the Internal Revenue Code it is clear that the Brattens' investment does not qualify for investment tax credits. Because of the disqualification, a total of $15,000 in federal credits and $1,194 in state credits was disallowed for the years 1974, 1975 and 1977. In addition, the IRS and the State of Alaska assessed $8,082 and $2,310 in interest penalties respectively. The state also assessed a failure to file penalty of $719. According to the Brattens, in addition to his erroneous advice regarding investment tax credits, Orsini failed to consider the tax consequences of the lease rental payments the Brattens would be receiving from the Roaring 20's. Orsini does not deny that the rental income was excluded by "mistake" from the statement he furnished the Brattens. As indicated previously the Brattens then brought a tort action for negligent misrepresentation against Orsini, claiming that as a result of Orsini's errors their total investment return was only $14,745, which was $143,340 less than the projected return of $158,085. They further claimed that had Orsini correctly projected the tax consequences of the purchase-leaseback investment, they would not have entered into an agreement with Preising and would likely have invested in Fairbanks rental property. At trial the Brattens argued that the true measure of damages was either $143,-340 — the difference between what Orsini told them they would receive ($158,085) and what they claim to have actually received ($14,745), or $123,059 — the difference between what they would have received had they invested in Fairbanks real estate ($137,804) and what they actually received. After a non-jury trial, the superior court entered judgment in favor of the Brattens in the amount of $59,276.86. The superior court found that the Brattens entered the purchase-leaseback agreement on Orsini's advice, that they would not have done so if Orsini had correctly projected the return on investment, and that Orsini had been negligent. Damages were awarded to the Brat-tens as follows: Fees billed to the Brattens by Orsini $ 1,594.59 Amount of tax credit repaid to the State of Alaska plus interest penalties. $ 4,038.00 Amount of tax credit repaid to the federal government plus interest penalties for 1977 . $18,324.27 "Prospective tax liability". $35,320.00 Total. $59,276.86 The superior court also awarded the Brattens prejudgment interest from November, 1977. Orsini's motion for reconsideration was denied and this appeal and cross-appeal followed. II. The Superior Court's Award of Damages. On appeal Orsini argues that the superi- or court erred by awarding damages and prejudgment interest contrary to the undisputed evidence. However, Orsini does not dispute that part of the award constituting the fees he billed Bratten ($1,594.59) and concedes that the Brattens should be awarded $1,914 for state tax investment credits and $15,000 for federal investment tax credits that were disallowed for the years 1974, 1975 and 1977. He does challenge the "prospective tax liability" portion of the superior court's award and the award for state and federal interest penalties. The Brattens, in turn, contend that the damages awarded are inadequate. A. Tax Credits Awards. The Brattens note that the $18,-324.27 awarded by the superior court for the tax credits and interest penalties repaid to the federal government is only for the year 1977, even though they had to repay the IRS a total of $12,823.40 for investment tax credits and penalties that were disallowed for 1974 and 1975. They argue that the $12,823.40 should have been included in the award, and thus the trial court should have awarded at least $35,185.67, which would include the investment tax credits disallowed in all three years, plus interest penalties. The Brattens correctly observe that there are logical difficulties with the superior court's award. Were the Brattens entitled to receive damages for the disallowance of federal investment tax credits for 1977, they also should have received damages for the 1974 and 1975 tax years. Arguably, the Brattens should receive no recovery at all for lost investment tax credits, as the investment scheme was invalid and therefore they were never entitled to the return promised them by Orsini. However, since Orsini has conceded that he must pay the Brattens $15,000 in federal and $1,914 in state lost investment tax credits, we will not consider whether these amounts are properly recoverable. Further, we agree with Orsini that the Brat-tens are not entitled to receive damages for interest repaid to either the federal government or to the state government. The Brattens had the use of the these monies and, presumably, were able to earn interest while they held it. Therefore, paying the interest penalties effectively cost the Brat-tens nothing. B. "Prospective Tax Liability" Award. Orsini asserts that there "was and is no prospective tax liability." At the outset of the trial, there was concern that the Brattens might incur future tax liability if the IRS were to consider the purchase-leaseback an actual sale to Preising. However, the Brattens' own expert witness testified that even if the IRS were to treat the transaction as a sale, the tax consequences would remain unaltered. The superior court agreed with the expert's conclusion. Thus, Orsini argues that since there was no "prospective liability," the award of $35,-320 is invalid. We agree with Orsini that the $35,320 award cannot be sustained as an award for prospective liability. C. The Brattens' Cross-Appeal. The Brattens argue that in assessing damages the superior court failed to take into account Orsini's error regarding the tax consequences of the lease rental income. On cross-appeal, they urge this court to award them either what Orsini promised them or what they would have received had they invested in other real estate in the Fairbanks area. Orsini urges us to reject a measure of damages based on hypothetical real estate ventures that the Brattens might have invested in, but for his advice. We agree with Orsini that as a matter of law such an approach is too speculative to provide a legal basis for damages. Neither should the Brattens be awarded the difference between what Orsi-ni projected and what they actually received. This is not the bargain they made with Orsini. The Brattens contracted with Orsini for investment advice. The objective or "benefit" of their bargain was to obtain accurate advice, not a guaranteed 41.8 percent return. Conclusion. Based upon the foregoing the Brattens are entitled to recover the following items of damages: the amount of Orsini's fee ($1,594.59) plus prejudgment interest from November 1977; the amount of tax credit they were required to repay the federal government ($15,000) plus prejudgment interest from June 1982 (the time when this sum was actually repaid); the amount of tax credit they were required to repay the state ($1,194) plus prejudgment interest from July 1983 (the time when the state required repayment); and the penalty the state assessed ($719) plus prejudgment interest. The superior court's judgment is AFFIRMED in part, and MODIFIED in part in accordance with this opinion. COMPTON, J., not participating. .' The Brattens were also considering investing in real estate and had looked at rental units in Fairbanks and Anchorage. The Brattens discussed real estate investment with Orsini extensively. They also discussed investing in tax-exempt municipal bonds. . I.R.C. § 46(e)(3) (1984) allows non-corporate lessors (such as the Brattens) an investment tax credit only if the term of the lease is less than 50% of the estimated useful life of the property. Moreover, for the first 12 months after property is transferred to the lessee, the deduction allowable to the lessor must exceed 15% of the rental income produced by the property. The Roaring 20's purchase-leaseback met neither of these requirements. In addition, the leased property was neither new nor acquired from a third party and thus the investment tax credit claim violated I.R.C. Regs. 1.48 — 3(a)(2)(i). .Orsini claims that he provided the Brattens with handwritten statements of projected tax liability which corrected the rental income error made in the original statement. He was, however, unable to explain why he did not correct the original statement if he knew that it was incorrect. . The Brattens obtained this figure from a report prepared by their expert witness, Dr. Clifford Cox. The report set out a hypothetical alternative investment in rental property that the Brattens might have made in 1977. Dr. Cox based his calculations on two actual Fairbanks properties containing a total of eight two-bedroom units that were purchased by someone else in 1976 and sold in 1983. Dr. Cox derived a hypothetical ten-unit property from the two actual properties by using the average unit cost. He presumed an interest rate of 10¼ % on a 20% down payment (which he stated were the prevailing financial terms for this sort of investment in 1977), and obtained a presumed vacancy rate from a document entitled the "Community Research Quarterly" which reported vacancy rates from 1977 through 1983. Dr. Cox also considered operating expenses, a 4.5% "credit loss adjustment," and property depreciation. . In their cross-appeal the Brattens correctly point out that since the award of $35,320 includes the disallowed 1977 tax credits, the superior court's award effectively created a "double recovery." . Damages should not be awarded on the basis of speculation, surmise or conjecture. City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 222 (Alaska 1978). It is impossible to ascertain whether any building comparable to the ten-unit building Dr. Cox used for his hypothetical alternative investment even existed in 1977. It is speculative even to assume that the Brattens would have bought real estate had Orsini given them correct information on the Roaring 20⅛ investment, since they also were investigating other possible investments, including municipal bonds. Although not briefed or argued by the parties we note that as to the negligent misrepresentation claim, the Brattens were entitled to be placed in the position they would now be in had they received accurate advice, so long as the damages were reasonable and certain. Trans-america Title Insurance Co. v. Ramsey, 507 P.2d 492, 497 (Alaska 1973); Restatement (Second) Torts § 552B(2) (1977).

10387215

Hugh MALONE, Commissioner; and State of Alaska, Department of Revenue, Appellants/Cross-appellees, v. ANCHORAGE AMATEUR RADIO CLUB, INC.; Amvets # 2; and Diamond Bingo and Buffet, Inc., Appellees/Cross-appellants

Malone v. Anchorage Amateur Radio Club, Inc.

1989-10-27

Nos. S-2723, S-2740

576

578

781 P.2d 576

781

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:09:08.575920+00:00

CAP

Before MATTHEWS, C.J., and RABINO WITZ, COMPTON and MOORE, JJ.

Hugh MALONE, Commissioner; and State of Alaska, Department of Revenue, Appellants/Cross-appellees, v. ANCHORAGE AMATEUR RADIO CLUB, INC.; Amvets # 2; and Diamond Bingo and Buffet, Inc., Appellees/Cross-appellants.

Hugh MALONE, Commissioner; and State of Alaska, Department of Revenue, Appellants/Cross-appellees, v. ANCHORAGE AMATEUR RADIO CLUB, INC.; Amvets # 2; and Diamond Bingo and Buffet, Inc., Appellees/Cross-appellants. Nos. S-2723, S-2740. Supreme Court of Alaska. Oct. 27, 1989. Peter B. Froehlich, Asst. Atty. Gen., Douglas B. Baily, Atty. Gen., Juneau, for appellants/cross-appellees. David Gorman and Russell A. Nogg, Law Offices of Russell A. Nogg, Anchorage, for appellees/cross-appellants. Before MATTHEWS, C.J., and RABINO WITZ, COMPTON and MOORE, JJ.

1086

6995

OPINION MATTHEWS, Chief Justice. Although gambling is generally unlawful in'Alaska, the Commissioner of Revenue may issue permits to- municipalities and non-profit organizations to conduct certain games of chance, including bingo. AS 05.-15.100. The Commissioner is authorized to adopt regulations concerning "the method and manner of conducting authorized activities and awarding of prizes or awards, and the equipment that may be used" and "other matters the Commissioner considers necessary to carry out this chapter or protect the best interest of the public." AS 05.15.-060(7), (12). Bingo is defined as a game of chance of, and restricted to, the selling of rights to participate, and the awarding of prizes, in the specific kind of game of chance sometimes known as bingo or lotto, played with cards bearing numbers or other designations, five or more in one line, the holder covering numbers when objects similarly numbered are drawn from a receptacle, and the game being won by the person who first covers a previously designated arrangement of numbers on the card[.] AS 05.15.210(3). Under AS 05.15.180(a), coin-operated instruments are barred for gambling pur poses. Paragraph (b) of section 180 provides that "an activity may not be licensed under this chapter unless it existed in the state in substantially the same form and was conducted in substantially the same manner before January 1, 1959." Appellees sought permission from the Commissioner to operate computerized bingo games. The Commissioner refused based on the statutes set forth above. Ap-pellees sued for declaratory and injunctive relief. We set forth the facts as found by the superior court: Plaintiff-Appellant Anchorage Amateur Radio Club, Inc. and AMVETS #2 are Alaskan non-profit corporations ("permittees"), holding gaming permits issued by Defendant-Appellee Department of Revenue ("Department"), pursuant to AS 05.15.100. The permits authorize them to, among other things, conduct the game of "bingo." Plaintiff-Appellant Diamond Bingo and Buffet, Inc. ("contractor") has contracted with per-mittees to operate bingo games on its premises in Anchorage. A Canadian corporation, "Diamond Bingo," has leased various bingo equipment to contractor, and allows contractor to use its name, "Diamond Bingo," in operating the bingo games. No ownership or other interests exist between the two corporations. In about 1984, according to testimony presented at the hearing herein, Canadian/Diamond Bingo developed and began marketing computerized bingo games. In 1987, Diamond Bingo developed and leased to Permittees and/or Contractor a more advanced computerized bingo game, which is the subject of the instant dispute. The computerized bingo game is coin activated, in the sense that a player has to drop a coin-like "token" into a slot in the bank on which playing boards are located and before which the player sits. The token trips a microswiteh, which, in turn, activates the playing boards situated on the bank before a player's seat. The playing boards are electronically linked to the operator's central station and computer terminal . to allow the operator to verify a player's claim to have "bingoed" the game. Instead of selecting numbers from a "ball blower" machine, the game operator pushes a tab on his terminal, and the computerized numbers-generator randomly selects a number, which the operator announces to the players and which is simultaneously displayed on television monitors throughout the room. Significantly, the generation of the number to be called is performed by a microprocessor programmed to randomly generate certain numbers — i.e., by software and not through the operation of a coin passing through the internal workings of a gambling machine or device, as with a "slot machine." When a player claims to have won the bingo game, the operator calls the player's board up on his screen as well as the other television monitors, and verifies the claim. Advantages of the computerized bingo game are said to be that it generates numbers in a more truly random fashion than is done by conventional "ball blowers" (i.e., some of the balls used may be cracked or unevenly weighed and thus may not randomly bounce around their container); the bingo games can be played more quickly and efficiently and thus can generate more income to the sponsoring charitable institutions (and no doubt, also to the promoters or contractors operating the games); and the computer keeps a "hard copy" of the results of the games, income, prizes paid etc., making an accounting therefor easier and, perhaps, reducing the risk of theft or embezzlement of proceeds of the games. The operator using the more conventional bingo game equipment, by contrast, would reach into a "ball blowing" machine — something akin to a "fishbowl" wherein ping pong balls with numbers on them are rattling around — select one such ball by hand, and orally announce the number to the players who would then manually cover or mark the corresponding number on the hard "cards" before them. When a player claims to have won a game, an assistant would walk over to the player's station and confirm the claim. Playing fees would be manually collected from the players by the assistants. The superior court granted the permit-tees' request for injunctive relief. The state has appealed. The question as to what equipment may be used in bingo has been committed by statute to the discretion of the Commissioner. AS 05.15.060(7). In reviewing a decision on a matter committed to the agency's discretion, we will reverse only if the decision was arbitrary, unreasonable, or an abuse of discretion. North Slope Borough v. LeResche, 581 P.2d 1112, 1115 (Alaska 1978). In our view the superior court erred in granting injunctive relief. The Commissioner reasonably read the statutes to authorize a game played with mechanical rather than electronic devices. The computerized number generator used in the ap-pellees' games does not comport with the requirement in AS 05.15.210(3) that numbered objects be "drawn from a receptacle." Moreover, AS 05.15.180(b) requires that bingo be conducted substantially as it was conducted before January 1, 1959. Computerized bingo games were not played in Alaska before that date. REVERSED. . The permittees cross-appealed on procedural grounds seeking relief only if this case were remanded. Since no remand is required, the cross-appeal is moot.

10393560

Robert ALLEN, Appellant, v. STATE of Alaska, Appellee

Allen v. State

1989-10-25

No. A-2864

992

994

781 P.2d 992

781

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:09:08.575920+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Robert ALLEN, Appellant, v. STATE of Alaska, Appellee.

Robert ALLEN, Appellant, v. STATE of Alaska, Appellee. No. A-2864. Court of Appeals of Alaska. Oct. 25, 1989. Michael S. Pettit, Asst. Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellant. Gayle L. Garrigues, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

850

5322

OPINION SINGLETON, Judge. Robert Allen pled no contest to driving while license suspended (DWLS), AS 28.15.-291(a), preserving the right to appeal the denial of his motion to suppress the fruits of an alleged improper stop. See Cooksey v. State, 524 P.2d 1251 (Alaska 1974). The sole question on appeal is whether the investigatory stop of Allen's vehicle was proper based on information supplied to the police by an anonymous informant. We reverse. At approximately 1:00 a.m. on July 17, 1988, an anonymous caller reported to the police that someone was selling drugs from a green 1972 Ford Suburban with a brown rear door in the "core" area of Fairbanks. The caller stated that the license plate number of the vehicle was Alaska BFF-812. This information was immediately relayed by radio to Fairbanks Police Officer Peggy Sullivan who observed a vehicle which matched the description at approximately 1:25 a.m. Sullivan pulled the vehicle over and learned that the driver, Allen, had a suspended operator's license. Allen's arrest for DWLS followed. Allen moved to suppress, arguing that the stop was improper because the anonymous caller was not a reliable informant. In Allen's view, the informant provided insufficient details about the alleged drug sales which necessitated that the police corroborate the informant's accusation prior to making the stop. District Court Judge Christopher E. Zimmerman denied the motion to suppress. On appeal, Allen raises essentially the same arguments he raised below. An investigatory stop may only be conducted where there are specific and ar-ticulable facts which create a reasonable suspicion that imminent public danger exists, or serious harm to persons or property has recently occurred. Coleman v. State, 553 P.2d 40, 46 (Alaska 1976); State v. G.B., 769 P.2d 452 (Alaska App.1989); Dionne v. State, 766 P.2d 1181 (Alaska App.1989); Smith v. State, 756 P.2d 913 (Alaska App.1988); Effenbeck v. State, 700 P.2d 811, 812 (Alaska App.1985). We recently addressed the Coleman rule in G.B., where we concluded that a flexible test should be applied based on practical necessity, rather than a rigid standard of categorical exclusion. The imminence and nature of the danger presented by the conduct being investigated must be evaluated in light of (1) the strength of an officer's reasonable suspicion and (2) the actual intrusiveness of the investigative stop. 769 P.2d at 455-56. We cautioned that courts must be sensitive to the risk that a stop was a mere pretext to conduct a search for evidence. Id. at 456. We reasoned: A given threat to public safety might not justify an investigative stop when the danger threatened is not immediate and when circumstances would permit additional efforts to obtain probable cause. As the danger becomes more immediate and the opportunity for additional investigation diminishes, the same threat might justify a stop based on reasonable suspicion alone. Id. A stop may be based upon an informant's tip, so long as there is reason to believe that the informant is credible and a basis for concluding that the information provided by the informant was based on personal knowledge. Dionne, 766 P.2d at 1183-84. The facts in Dionne and Effenbeck are distinguishable from those in Allen's case. In Effenbeck, the police had to act immediately to intercept a potential drunk driver. 700 P.2d at 812. Drunk drivers present an immediate risk of danger. See Ebona v. State, 577 P.2d 698, 701 (Alaska 1978). Also, the circumstances in Dionne and Ef-fenbeck supported a finding that citizen informants were involved. See Erickson v. State, 507 P.2d 508, 517 (Alaska 1973) (where citizen provides information, there is less need to establish credibility of informant). In Dionne, the informant personally contacted the police and pointed out the alleged drunk driver. In Effenbeck, the informant called on a special line established to report drunk drivers and gave a sufficiently detailed report to suggest personal knowledge. Applying these tests, we conclude that there was an insufficient basis for a stop in this case. First, the informant was completely anonymous, thus, there was no basis for determining whether the informant was a citizen acting from a sense of civic duty or a member of the criminal milieu acting from spite. Second, there was no imminent harm. There was nothing to suggest that the police could not have observed the subject's vehicle in order to corroborate some of the details of the informant's claim without endangering the public. In summary, the credibility of the informant was not established, the record does not establish the basis for the informant's knowledge, and the circumstances did not prevent the police from delaying the stop to enable some corroboration of the informant's statements. The trial court erred in denying the motion to suppress. The judgment of the superior court is REVERSED.

10416902

Bruce H. BOYD and Lots 2, 3,13, and 14, Sunny Hills Terrace Subdivision, Block 3, Fairbanks Recording District, Fourth Judicial District, State of Alaska, Appellant/Cross-Appellee, v. Thomas A. ROSSON, d/b/a Rosson & Company, Appellee/Cross-Appellant; Bruce H. BOYD, and Lots 2,3,13, and 14, Sunny Hills Terrace Subdivision, Block 3, Fairbanks Recording District, Fourth Judicial District, State of Alaska, Appellant, v. Loyal R. TURLEY, d/b/a Alaskaloyal Enterprises, Appellee

Boyd v. Rosson

1986-01-31

Nos. S-760, S-775 and S-853

800

802

713 P.2d 800

713

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:08:26.184312+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

Bruce H. BOYD and Lots 2, 3,13, and 14, Sunny Hills Terrace Subdivision, Block 3, Fairbanks Recording District, Fourth Judicial District, State of Alaska, Appellant/Cross- Appellee, v. Thomas A. ROSSON, d/b/a Rosson & Company, Appellee/Cross-Appellant. Bruce H. BOYD, and Lots 2,3,13, and 14, Sunny Hills Terrace Subdivision, Block 3, Fairbanks Recording District, Fourth Judicial District, State of Alaska, Appellant, v. Loyal R. TURLEY, d/b/a Alaskaloyal Enterprises, Appellee.

Bruce H. BOYD and Lots 2, 3,13, and 14, Sunny Hills Terrace Subdivision, Block 3, Fairbanks Recording District, Fourth Judicial District, State of Alaska, Appellant/Cross- Appellee, v. Thomas A. ROSSON, d/b/a Rosson & Company, Appellee/Cross-Appellant. Bruce H. BOYD, and Lots 2,3,13, and 14, Sunny Hills Terrace Subdivision, Block 3, Fairbanks Recording District, Fourth Judicial District, State of Alaska, Appellant, v. Loyal R. TURLEY, d/b/a Alaskaloyal Enterprises, Appellee. Nos. S-760, S-775 and S-853. Supreme Court of Alaska. Jan. 31, 1986. William R. Satterberg, Jr., Mike Brain, Fairbanks, for appellant/cross-appellee. James Parrish and Lance Parrish, Fairbanks, for appellee/cross-appellant. Lyle Carlson, Fairbanks, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

717

4603

OPINION PER CURIAM. This is a breach of contract case arising from two agreements between Bruce Boyd and a contractor and a painter, respectively. Thomas Rosson, a contractor, and Loyal Turley, a painter and drywaller, separately filed suit against Boyd for failure to pay them for work performed under their respective contracts. The cases were consolidated, and the jury awarded judgments to Rosson and Turley. APPEAL Boyd maintains on appeal that the superior court erred in not allowing Boyd to testify about a conversation he had with Turley during settlement negotiations. Boyd's offers of proof disclosed that he sought to have Turley's statements admitted against Rosson. This testimony would have been inadmissible hearsay, however. The superior court never prevented Boyd's counsel from questioning Turley directly about the conversation. Boyd's contention that the superior court erred in excluding the testimony of the bank officer is also meritless. Boyd failed to establish the relevance of the bank officer's testimony. Boyd also alleges error in the jury instructions. The jury instructions adequately covered Rosson's duty to perform in a workmanlike manner, a contractor's duty to advise an owner of defective designs, and a contractor's liability for unauthorized changes. Boyd was not entitled to an instruction that would have protected him from any responsibility on the basis of apparent authority. CROSS-APPEAL The superior court awarded Rosson attorney fees of $20,328. In its Conclusions of Law and Judgment, the court explained why it awarded this amount: Normally, Rule 82 provides for partial compensation only by applying the Rule 82 schedule to the judgment amount. However, the Rule 82 schedule is not an accurate criteria for determining the fee in this case. In fixing partial compensa tion, the court considers the nature of the litigation, its length and complexity, the benefits received by the prevailing party and the level of bona fides with which a party has brought his claim. Boyd claims on appeal that it was an abuse of discretion for the superior court to award $20,328 in attorney fees; Rosson argues on cross-appeal that he is entitled to $27,847.50 in attorney fees. While Boyd's argument is without merit, Rosson's argument requires a remand. Under A.S. 34.35.005(b), Rosson is entitled to reasonable attorney fees for foreclosure of the lien. This means that full fees should be awarded to successful lien claimants so long as the fees are reasonable. It is unclear whether the superior court considered A.S. 34.35.005(b) in determining the attorney fee award. We therefore remand this aspect of the case for determination of the full amount of reasonable attorney fees pursuant to A.S. 34.35.-005(b). Rosson also argues on cross-appeal that because Boyd took possession of the house before the bank performed a final inspection, he was obligated to pay Rosson the full construction contract price. We do not agree. The reason that Boyd moved into the house before final inspection is that Rosson was six weeks late in completing the contract. In contract law, it is a condition of each party's remaining duties to render performances under an exchange of promises that there be no uncured material failure by the other party to render any such performance due at an earlier time. Restatement (Second) of Contracts § 237 (1979). Boyd's duty not to occupy the house until Rosson completed the work was discharged because Rosson was more than six weeks late under the terms of the contract. Therefore, the superior court did not err in allowing an offset for construction deficiencies. The judgment of the superior court is affirmed in part and remanded on the issue of attorney fees for further proceedings in accordance with the foregoing.

10345371

NENANA CITY SCHOOL DISTRICT, Appellant, v. Arlene COGHILL, Appellee

Nenana City School District v. Coghill

1995-07-21

No. S-6340

929

934

898 P.2d 929

898

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:17:46.954789+00:00

CAP

Before MOORE, C.J. and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

NENANA CITY SCHOOL DISTRICT, Appellant, v. Arlene COGHILL, Appellee.

NENANA CITY SCHOOL DISTRICT, Appellant, v. Arlene COGHILL, Appellee. No. S-6340. Supreme Court of Alaska. July 21, 1995. Anne S. Brown and Shauna F. Morris, Guess & Rudd, Fairbanks, and Christopher J. Heaphey and John M. Sedor, Bankston & McCollum, P.C., Anchorage, for appellant. A. Rene Broker and Howard Staley, Cook Schuhmann & Groseclose, Inc., Fairbanks, for appellee. Before MOORE, C.J. and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

3176

19673

OPINION COMPTON, Justice. I. INTRODUCTION A tenured teacher's teaching certificate lapsed for part of a school year, but was renewed before the year ended. The local school board held a hearing, after which it concluded that the lapse revoked her tenure, and that the teacher had been overpaid during the lapse period. The teacher filed suit in superior court, which reversed both issues on summary judgment. The school board appeals, arguing not only the above two issues, but also that the employment contract with the teacher for the following year was void. We affirm. II.FACTS AND PROCEEDINGS Arlene Coghill, a tenured teacher, was employed by the Nenana City School District (NCSD) for the 1992-93 school year. She was required by AS 14.20.010 to maintain a current teaching certificate. Her certificate expired on February 7, 1993, and was not renewed until April 12, 1993. Neither she nor NCSD was aware the certificate had expired. In early March 1993 NCSD offered its teachers, including Coghill, contracts for the next school year. Coghill accepted the offer and signed a new contract. On April 8 the State Department of Education (Department) issued a "Notification of Non-Compliance" to NCSD, informing it that Coghill's certificate had lapsed. On April 10 Cheryl L. Brady, Nenana City School Board President, sent a letter to Pamela VanWeehel, NCSD Superintendent, directing that on April 12 Coghill be sent "a letter of termination as of 2-7-93 due to a violation of her contract." The Department reinstated Coghill's certificate on April 12, after proper application by Coghill. At Coghill's request, NCSD held a hearing in late July to assess her status, and entered written findings and conclusions. NCSD found that Coghill's certificate had lapsed, that she had been notified by NCSD's business manager to renew her certificate, and that she had been eligible for renewal during the lapse. NCSD also found that Coghill "accepted $9,894.28 in salary and benefits to which she was not entitled because her teacher's certificate had expired. It was illegal for the school district to employ her as a full-time teacher during that time." NCSD concluded that Coghill's maximum permissible pay was that of a substitute teacher, $65 per day for 20 days. Therefore, Coghill owed the district $8594.28. Additionally, NCSD concluded that "Alaska Statute 14.20.160 provides that tenure rights are lost when the teacher's employment in the School District is interrupted or terminated." Thus the lapse of certification resulted in a loss of tenure. Lastly, NCSD concluded that the 1993-94 contract should not be rescinded, since Coghill would have a valid certificate for that year; however, her status was that of a non-tenured teacher. Coghill filed a complaint in the superior court. She sought a judgment that she remained a tenured teacher and that NCSD was not entitled to reimbursement. NCSD moved to convert the lawsuit into an appeal from an administrative agency. This motion was denied, although the trial court's order is unclear. Both parties moved for summary judgment; the court granted summary judgment to Coghill, ruling that Coghill was entitled to tenured status for the 1993-94 school year and that reimbursement "is not granted, on these facts as a matter of law." NCSD appeals. III. DISCUSSION NCSD raises four different arguments on appeal: (1) the superior court's refusal to convert the case to an administrative appeal, and application of de novo review; (2) tenure status; (3) reimbursement; and (4) status of the 1993-94 contract. A. Nature of the Proceeding and Standard of Review The first issue, largely ignored by the parties, is the determination of the appropriate standard of review. Although the case arises from an agency proceeding, it was treated as a civil suit by the superior court, and decided on summary judgment. When a school board "applies policy to particular persons in their private capacity," it is functioning as an administrative agency and an appeal will be treated as an administrative appeal. Kleven v. Yukon-Ko- yukuk Sch. Dist., 853 P.2d 518, 523-24 (Alaska 1993) (quoting Ballard v. Stick, 628 P.2d 918, 920 (Alaska 1981)). Issues of law arising from an agency proceeding are reviewed de novo when agency expertise is not involved. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). Although the superior court's order on NCSD's motion to convert the case to an administrative appeal is unclear, the motion was effectively denied. The superior court ruled on cross-motions for summary judgment. In general, a court's grant of summary judgment is reviewed de novo. Pride v. Harris, 882 P.2d 381, 384 (Alaska 1994). Issues of law arising from a superior court determination are reviewed de novo. See Langdon v. Champion, 745 P.2d 1371, 1372 n. 2 (Alaska 1987). Therefore, the same standard of review applies regardless of how the action is denominated. The question becomes irrelevant since the complaint was filed within thirty days, as an administrative appeal must be. Alaska R.App.P. 602(a)(2). The material facts are undisputed, and the parties are arguing about matters of law. No agency expertise is involved, so the standard of review before this court is de novo. B. Coghill Did Not Lose Tenure Status NCSD found that Alaska Statute 14.20.160 provides that a teacher's tenure rights are lost when the teacher's employment in the School District is interrupted or terminated. Due to the fact that it was illegal for [NCSD] to employ . Coghill between February 8, and April 12, 1993, her period of employment with the School District was interrupted. As a result, she lost her tenure rights by operation of statute. The superior court reversed NCSD. The parties and the superior court devote their energies largely to debating the implications of three cases from other jurisdictions: Ames v. Board of Education, Regional School District No. 7, 167 Conn. 444, 356 A.2d 100 (1975), Mass v. Board of Education, 61 Cal.2d 612, 39 Cal.Rptr. 739, 394 P.2d 579 (1964), and Snyder v. Jefferson County School District R-1, 842 P.2d 624 (Colo.1992). None of these authorities is helpful to our decision. The parties dispute the meaning of AS 14.20.010, which provides: "A person may not be employed as a teacher in the public schools of the state unless that person possesses a valid teacher certificate." The only other Alaska authority cited on this issue is AS 14.20.160, which states: "Tenure rights are lost when the teacher's employment in the district is interrupted or terminated." No Alaska case has construed or even cited this statute. Other law and regulation on point are AS 14.20.215(6) and 4 AAC 12.010. NCSD contends that an invalid certificate results in interruption of employment and loss of tenure by operation of law. It asserts that it was statutorily precluded from employing Coghill, and therefore her employment and tenure were terminated. Alaska Statute 14.20.010 prohibits employment unless the teacher holds a valid teacher's certificate. However, AS 14.20.170 provides that (a) A teacher, including a teacher who has acquired tenure rights, may be dismissed at any time only for the following causes: (3) substantial noncompliance with the school laws of the state, the regulations or bylaws of the department, the bylaws of the district, or the written rules of the superintendent. Unless Coghill can be said to be in "substantial noncompliance," she could not be dismissed. Without a dismissal, her employment would not be "interrupted or terminated," and her tenure would not be lost. AS 14.20.160. Our analysis of the substantial noncompliance issue is aided by examining three cases involving the substantial compliance doctrine. This doctrine disposes of this case in Cog-hill's favor, as it protects her from the loss of tenure status, and therefore also protects her from any alleged reimbursement. In Jones v. Short, 696 P.2d 665 (Alaska 1985), a general contractor's license lapsed. After not being paid for work, he sued the contractee. The contractee argued that the contractor was barred statutorily from both working as a contractor and from suing, since he was not registered. The requirements for registration were "paying a fee, filing a surety bond, and filing evidence of . insurance." Id. at 667 (footnotes omitted). The court first noted: "The proper interpretation of the registration provisions is one which carries out the legislative intent and gives meaning to every part of the statute without producing harsh and unrealistic results." Id. (footnotes omitted). We stated that the doctrine of "substantial compliance involves conduct which falls short of strict compliance with the statutory registration requirements, but which affords the public the same protection that strict compliance would offer." Id. at 667 n. 10. We remanded to the superior court for a determination whether the public had access to the same information that a current registration would give, and whether the contractor's bond remained in effect. Id. at 668. If these conditions were met, then the court held that substantial compliance was satisfied, as the contractor reasonably believed his registration was renewed and had made a good faith effort to comply with the statute. Id. In Alaska Protection Services, Inc. v. Frontier Colorcable, Inc., 680 P.2d 1119 (Alaska 1984), the contractor was registered under one name but worked under another. The defendant argued that suit could not be maintained by an unregistered contractor. We held that the appropriate sanction was misdemeanor prosecution, rather than a bar from suit, and that "fs]ubstantial compliance requires that the contractor be registered and have bonding and insurance coverage, since these are the primary means by which the statute seeks to protect parties dealing with contractors." Id. at 1122. We held that these requirements were met, and that suit was not barred. Id. at 1122-23. Frontier Colorcable relied on Latipac, Inc. v. Superior Court, 64 Cal.2d 278, 49 Cal.Rptr. 676, 411 P.2d 564 (1966). There a contractor was initially licensed, but the license lapsed for the last forty percent of the performance period. Id. 49 Cal.Rptr. at 679, 411 P.2d at 567. The license was not timely renewed because of a mental breakdown on the part of the manager in charge of renewal. Id. The statute at issue precluded the use of the courts to enforce a contract when the contractor was not licensed at all times during performance. Id. 49 Cal.Rptr. at 678 n. 1, 411 P.2d at 566 n. 1. The court noted the importance of the fact that the contractor possessed a license at the time of contracting, as that is the time when the other party decides whether the contractor is appropriate. Id. 49 Cal.Rptr. at 679-80, 411 P.2d at 567-68. The court next noted that a renewal was readily secured. Id. 49 Cal.Rptr. at 681, 411 P.2d at 569. Finally, the court noted that the statute required a responsible officer in the contracting company; at all times this officer was responsible and competent. Id. 49 Cal.Rptr. at 682, 411 P.2d at 570. The court held the policy of the statute realized, and the parties who the legislature intended to be protected were protected in fact. Id. 49 Cal.Rptr. at 683, 411 P.2d at 571. In the instant case, renewal of a teacher's certificate requires the following: (1) a signed and notarized application, (2) transcripts of all college work, (3) a fee, (4) a background check if required, and (5) six semester hours of credit in the preceding five years. 4 AAC 12.010(b)(l)-(4), .020(b), .075(a). The application also asks if any criminal laws have been violated since the last certificate was issued. The parties do not dispute that the continuing education requirement was fulfilled before the certificate expired. They also do not dispute that no background check was required. Further, no section of the Alaska Statutes indicates the legislative intent behind the certification requirement. Coghill's certificate lapsed for only a short period of time. She was properly certificated at the time the contract was formed. She easily and promptly obtained renewal. Those requirements which would provide apparent protection of the public, i.e., continuing education, background check, and notification of arrest, were not in issue. The doctrine of substantial compliance protects her from losing tenure. C. Coghill Is Not Required to Reimburse the School District NCSD held that Coghill could not have been employed as a teacher unless she possessed a valid certificate, under AS 14.20.010. Therefore, it reasoned that her employment was illegal and she could only have been paid a substitute's pay. The superior court reversed. Since Coghill substantially complied with the certification requirements this same doctrine leads to the conclusion that she was entitled to full pay. D. The 1993-94. Contract Issue Has Been Waived NCSD argues that since Coghill's certificate had lapsed at the time she signed the contract for the upcoming year, she was not employable under AS 14.20.010, and the contract is void for illegality. It also argues voidness because of mistake. This argument has been waived by failure to raise it in the superior court. Waiver in superior court may occur either in a suit initiated there, or when the superior court is reviewing agency action. In agency review, an issue may be abandoned on appeal to the superior court, either by failing to include it in the points on appeal or by inadequate briefing. Trustees for Alaska v. State, Dept. of Natural Resources, 865 P.2d 745, 748 (Alaska 1993). NCSD did not cross-appeal. Furthermore, an argument not raised in a suit before the trial court will not be considered on appeal. Williams v. Alyeska Pipeline Serv. Co., 650 P.2d 343, 351 (Alaska 1982); Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985) ("As a general rule, a party may not present new issues or advance new theories to secure a reversal of a lower court decision.") (citing O'Neill Investigations v. Illinois Employers Ins., 636 P.2d 1170, 1175 n. 7 (Alaska 1981)). IV. CONCLUSION Coghill did not lose her tenured status due to the temporary lapse in her teacher certification. She is protected from repayment by the doctrine of substantial compliance. The contract validity issue has been waived. Therefore, we AFFIRM the judgment of the superior court. . William Spear, business manager for NCSD, testified that NCSD was not required to inform teachers that their certification was about to expire. However, he produced a hard copy of teacher records sometime between July and September each year. As a courtesy to teachers, he informed "the office" and requested that notices be sent to teachers who needed to renew their teaching certificates or their physical exam results during the next year. He assumes such a notice was sent to Coghill, because she did renew her physical results, which had to be done before commencement of the school year. . Specifically, NCSD found that [Coghill] was eligible for a renewal of her teaching certificate, but simply never applied to the Department of Education for a renewal of the certificate and never produced the fees and documents showing that she was eligible for recertification prior to the lapse of her teaching certificate on February 7, 1993. . Coghill argued that she should be forgiven the lapse because of personal difficulties. She alleged, and NCSD did not dispute, the following events: the death of her brother in May 1992; major surgery for her mother in the summer of 1992; major surgery for her husband that fall, with poor recovery on his part; protracted home care for her husband cumulating in his eventual suicide in December 1992; and the death of her father shortly thereafter. The Board held first that it had no authority to excuse expiration of a certificate, and second that any stress was over at the end of December 1992. We also note that although NCSD asserted that the certification process was solely between the teacher and the State, NCSD apparently made no effort to secure the Department's interpretation of the effect of a certification lapse on tenure. .Alaska Statutes require de novo judicial review of school board action affecting a tenured teacher. AS 14.20.205. NCSD argues that Coghill was a non-tenured teacher and had no right to de novo review by the superior court. However, NCSD does not assert that Coghill received de novo review. Coghill responds that she cannot understand why NCSD raises the issue, as the superior court decided the case on summary judgment on the basis of the record before the Board. She notes that any supporting affidavits were merely summaries of positions taken before the Board. The issue is irrelevant, as Coghill's assertions are correct. Summary judgment is proper when no material facts are in dispute. Alaska R.Civ.P. 56(c). Neither side argues that the superior court improperly made factual findings, or that factual issues were in dispute. Since no new evidence was adduced, the case was decided on the agency record in favor of the parly to be protected by de novo review. Therefore, de novo issues are irrelevant. . NCSD asserts that the superior court erred in denying its motion to convert the suit to an administrative appeal. It claims that the suit should have been converted, and the appellate rules followed. The exact nature of the proceeding below is not relevant, as this court reviews the superior court's decision under the same standard in either event. . Ames involved a teacher who argued that his three-year employment, although without certification, led to tenure. The court disagreed since the employment was contrary to law. Ames is irrelevant to this case. Holding that employment without certification without prior tenure does not lead to tenure is different than holding that a lapse in a certificate divests a teacher of tenure. Mass involved back pay for a tenured teacher whose certificate had lapsed during an improper suspension. The school board argued that the teacher could be automatically terminated once his certificate lapsed since his tenure also must have lapsed. The board cited statutory sections restricting employment to teachers with certificates and restricting payment to such teachers. 39 Cal.Rptr. at 743, 394 P.2d at 583. The court noted that these statutes did not affect tenure rights, as those rights were defined in other statutes. Id. The court held that the certificate lapse did not prevent reinstatement and hack pay. Id. 39 Cal.Rptr. at 744-46, 394 P.2d at 584-86. Snyder involved the issue of whether dismissal was appropriate when Snyder failed to report to work and held no certificate, not whether his tenure lapsed. ."[Tleacher" means an individual who, for compensation, has primary responsibility to plan, instruct, and evaluate learning of elementary or secondary school students in the classroom or an equivalent setting and also includes individuals holding other positions as determined by the department by regulation. AS 14.20.215(6). . "A teacher in a public school . must hold a valid Alaska teacher certificate...4 AAC 12.010(a).

10418085

STATE of Alaska, Petitioner, v. R.H. and Mitchell Wetherhorn, Respondents

State v. R.H.

1984-06-01

No. 7768

269

284

683 P.2d 269

683

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:21:41.023872+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

STATE of Alaska, Petitioner, v. R.H. and Mitchell Wetherhorn, Respondents.

STATE of Alaska, Petitioner, v. R.H. and Mitchell Wetherhorn, Respondents. No. 7768. Court of Appeals of Alaska. June 1, 1984. As Modified on Rehearing July 6, 1984. Elizabeth H. Sheley, Asst. Dist. Atty., Victor C. Krumm, Dist. Atty., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for petitioner. Phillip Paul Weidner, and Linda R. Mac-Lean, Drathman & Weidner, Anchorage, for respondent, R.H. Gregory J. Grebe, Kelly, Luce & Grebe, Anchorage, for respondent, Mitchell Weth-erhorn. Donald N. Bersoff, Ennis, Friedman, Bersoff & Ewing, Washington, D.C., for amici curiae, American Psychological Association and Alaska Psychological Association. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

8732

55488

OPINION SINGLETON, Judge. The state petitions for review of an order of the superior court quashing a subpoena directing Dr. Mitchell Wetherhorn, a clinical psychologist, to appear before a grand jury. The grand jury is investigating charges that R.H., Dr. Wetherhorn's patient, sexually molested his daughter, S.H. The trial court found that any testimony Wetherhorn might give would be protected by the psychotherapist/patient privilege established in Alaska Evidence Rule 504. The state asks us to set aside the trial court's order, reasoning that the legislature abrogated the privilege in criminal child abuse cases through the enactment of AS 47.17.060. Alternatively, the state argues that two exceptions to the evidentiary privilege are applicable to this case, Evidence Rules 504(d)(5) and (6). We affirm the decision of the trial court. The H. family has apparently been experiencing turmoil for some time. On February 1, 1983, fifteen-year-old S.H. ran away from home. She saw a counselor on February 4, and reported that she and her sixteen-year-old sister, D.H., had been sexually abused by their father, R.H. S.H. reported that the last incident of sexual abuse had occurred two years earlier. According to a report subsequently filed by the counselor, S.H. accused her father of sexually abusing her on numerous occasions from the time she was ten until she was thirteen years of age. The counselor reported the alleged abuse to the Division of Family and Youth Services (DFYS) pursuant to statute. AS 47.17.010-.070. On February 7, the DFYS prepared a written report alleging R.H.'s sexual abuse of S.H. The report was sent to the offices of the district attorney and the attorney general. At'this time, S.H. was apparently under the care of a foster parent. On February 16, 1983, S.H. was interviewed by the police. She repeated her allegations of sexual abuse, this time indicating that the abuse had occurred over a five-year period, between her eighth and thirteenth birthdays. On February 23, 1983, the state initiated a petition in family court, seeking custody of S.H. AS 47.10.-010; AS 47.10.142. The petition alleged that S.H. was a "child in need of aid" by virtue of family conflict and sexual abuse. A hearing on the petition was held before the children's court master on February 25. The state's attorney advised the court that S.H. did not want to testify about "certain issues." He therefore proposed that the parties stipulate to a finding of probable cause that the minor was a child-in-need of aid because she refused to return home. The parties could then consider the charges of sexual abuse at a later time. The parties agreed to this stipulation, and the master predicated his finding that S.H. should be in the temporary custody of the state solely on her refusal to return home. The court made no findings regarding the alleged sexual abuse. The state also requested "an order requiring psychiatric and/or psychological evaluations of the mother, the father and the child." Counsel for R.H. stipulated to psychiatric and psychological evaluations of the H. family stating, "I have my client's permission." Master Hitchcock recommended the evaluations, stating: I will recommend assumption of temporary custody and placement as requested and evaluations as requested. Also that all parties keep appointments — necessary appointments with counseling and evaluation proceedings. I do want to emphasize that the emphasis in these proceedings is one of getting to the root of whatever problems exist and dealing with them in a treatment sense, trying to keep — trying to get the family back together if at all possible. It's going to require a lot of hard work on everybody's part of any case of this nature and I would hope that that goal is kept in everyone's mind. At the hearing, counsel for R.H. indicated that the parents were already seeing Dr. Wetherhorn. R.H.'s first conference with Wetherhorn was on February 22, 1983. On March 15, Superior Court Judge Justin Ripley, acting as a family court judge, adopted Master Hitchcock's recommendations and entered an order formally directing that "[a]ll family members shall attend all group and individual evaluative and therapy sessions scheduled by the approved agency." On April 25, 1983, R.H. was criminally charged with ten counts of sexual abuse of S.H.: three counts of rape, former AS 11.-15.120; two counts of lewd or lascivious acts toward children, former AS 11.15.134; three counts of first-degree sexual assault, former AS 11.41.410(a)(4); and two counts of sexual abuse of a minor, former AS 11.41.440(a)(2). Wetherhorn was subpoenaed to appear before the grand jury on May 3, 1983, and ordered to bring a "copy of files on R.H." The state's planned area of inquiry at the grand jury proceeding was whether R.H. had admitted to Wether-horn that he had molested his daughters, S.H. and D.H. Counsel for R.H. apparently claimed -i privilege as to the requested material. Wetherhorn sought an order from the superior court quashing the subpoena. He contended that his disclosure of R.H.'s confidential communications would violate his ethical obligations as a psychologist. On May 6, 1983, Judge Rowland orally ruled that the matters were privileged and quashed both the subpoena to testify and the subpoena to turn over records. This petition followed. This is the first occasion upon which we have been asked to interpret AS 47.17.010-070, and to examine the extent to which these child abuse reporting statutes serve to abrogate the psychotherapist/patient privilege established in Alaska Evidence Rule 504. We are satisfied that this is an appropriate case for interlocutory review. Judge Rowland's order involves an important question of law on which there is substantial ground for differences of opinion. Immediate review of his order will materially advance the ultimate termination of the litigation in question and will protect important public interests which might otherwise be compromised were we to deny review. Alaska R.App.P. 402(b)(2). We assume but do not decide that a motion to quash a subpoena to appear before a grand jury is a proper vehicle for presenting issues of privilege to the trial court for resolution. See 2 C. Wright, Federal Practice and Procedure: Criminal § 273 at 149, § 275 at 162-63 (2d ed. 1982). Initially, we address the state's contention that two evidentiary exceptions to the psychotherapist/patient privilege apply to this case. Alaska Rule of Evidence 504(b) provides: General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional conditions, including alcohol or drug addiction, among himself, his physician or psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family. The parties appear to be in agreement that R.H. is a patient, that Dr. Weth-erhorn is a psychotherapist, and that the testimony that the state wishes to introduce before the grand jury qualifies as "confidential communications" between R.H. and Wetherhorn. A.R.E. 504(a)(1), (3)(B), (4). Wetherhorn's testimony would therefore appear to be covered by the privilege unless it falls within one or more exceptions. A.R.E. 504(d). The state argues that two exceptions apply. It first relies on A.R.E. 504(d)(5), which provides: There is no privilege under this rule . [a]s to information that the physician or psychotherapist or the patient is required to report to a public employee, or as to information required to be recorded in a public office, if such report or record is open to public inspection. The state argues that Wetherhorn is required to report evidence of child abuse pursuant to AS 47.17.020, that such reports are made to public employees, and that they are required to be recorded in public offices. Finally, the state argues that such reports or records are in essence open to public inspection because they are wide ly distributed among social service and law enforcement agencies. The child abuse reporting statute is, however, to the contrary. AS 47.17.040(b) provides: Investigation reports and reports of harm filed under this chapter are considered confidential and are not subject to public inspection and copying under AS 09.25.110 and 09.25.120. However, in accordance with department regulations, investigation reports may be used by appropriate governmental agencies with child-protection functions, inside and outside Alaska, in connection with investigations or judicial proceedings involving child abuse, neglect, or custody. A person, not acting in accordance with department regulations, who makes public information contained in confidential reports is guilty of a misdemeanor. We find this statute dispositive. Child abuse reports are not open to the public, and are therefore not within A.R.E. 504(d)(5). Alternatively, the state contends that Wetherhorn's testimony would fall within A.R.E. 504(d)(6), which provides: There is no privilege under this rule . [a]s to communications made in the course of an examination ordered by the court of the physical, mental or emotional condition of the patient, with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise. This exception does not apply where the examination is by order of the court upon the request of the lawyer for the defendant in a criminal proceeding in order to provide the lawyer with information needed so that he may advise the defendant whether to enter a plea based on insanity or to present a defense based on his mental or emotional condition. The state argues that, though R.H. and his wife were seeing Wetherhorn prior to any court proceeding, they continued to see him after the February 25th hearing pursuant to a stipulation with the understanding that Wetherhorn would report to the family court regarding S.H.'s case. This agreement was confirmed by Judge Ripley's order. Thus, the state concludes, since R.H.'s therapy with Wetherhorn constituted "an examination" ordered by the court, R.H.'s statements should be held exempt from the privilege. We disagree. The commentary to Evidence Rule 504(d)(6) states: In a court ordered examination, the relationship is likely to be an arm's length one though not necessarily so. In any event, an exception is necessary for the effective utilization of this important and growing procedure. When the psychotherapist is appointed by the court, it is most often for the purpose of having the psychotherapist testify concerning his conclusions as to the patient's condition. It would be inappropriate to have the privilege apply in this situation. The exception, it will be observed, deals with a court ordered examination rather than with a court appointed physician or psychotherapist. Also, the exception is effective only with respect to the particular purpose for which the examination is ordered. The final sentence of the exception provides that an accused in a criminal case may have the benefits of private counseling with the psychotherapists. E.R.C. 125. In this case, Master Hitchcock made it clear to R.H. that the "proceeding" to which the therapy pertained was a child protective proceeding, and that the purpose for requiring R.H. and his family to consult with Wetherhorn was to reunite the H. family if possible, and if not, to provide for S.H.'s custody. No mention was made of any criminal proceeding, nor was R.H. warned that any statements he made to Wetherhorn could be used against him at future criminal proceedings. See Alaska Children's Rule 12(e)(2); In re P.N., 533 P.2d 13, 19-20 (Alaska 1975). Cf. Loveless v. State, 592 P.2d 1206, 1209 and n. 7 (Alaska 1979) (psychologist's testimony at criminal trial was limited to a description of his observations of defendant at jailhouse interview; the privilege against self-incrimination would require exclusion of state ments indicating involvement in crime); Post v. State, 580 P.2d 304, 306 (Alaska 1978) (privilege against self-incrimination is implicated if psychiatrist appointed to determine a defendant's sanity is permitted to testify as to defendant's admission of guilt). Consequently, we conclude that when Judge Ripley ordered R.H. to continue counseling with Wetherhorn he simply adopted Master Hitchcock's previous recommendations and, in so doing, continued to limit the purpose of the examination to the pending child protection proceeding. The exception in Evidence Rule 504(d)(6) would therefore not apply to testimony before a grand jury investigating a criminal charge against R.H., since preparing evidence for the grand jury was not the purpose for which the evaluation and examination were ordered. We therefore conclude that Judge Rowland properly held that the testimony which the state sought to obtain from Wetherhorn and use before the grand jury was privileged under Alaska Evidence Rule 504(b), and did not fall within any of the exceptions to that privilege. We next address the state's contention that the legislature abrogated the psychotherapist/patient privilege in child abuse cases by enactment of AS 47.17.060. The parties agree that Dr. Wetherhorn, as a psychologist, is obligated by statute to report evidence of child abuse even if it originates from a patient, AS 47.17.010. They disagree over the admissibility of Wether- horn's testimony concerning the reported evidence in criminal proceedings. The state argues that AS 47.17.060 abrogates the psychotherapist/patient privilege in criminal prosecutions for sexual abuse. That section provides: Neither the physician-patient nor the husband-wife privilege is a ground for excluding evidence regarding a child's harm, or its cause, in a judicial proceeding relating to a report made under this chapter. The parties are in disagreement as to whether a criminal proceeding is "a judicial proceeding relating to a report made under this chapter." The state argues that the legislature has established two separate procedures for addressing physical and sexual abuse of minors. First, it has established a civil proceeding for identifying victims of child abuse and neglect and protecting them as children in need of aid. See AS 47.17.-010-.070. Secondly, the legislature has made physical and sexual abuse of children a crime and has provided for its punishment. See AS 11.41.410-.470. Furthermore, the state contends, either a child protection proceeding under Title 47, or a criminal proceeding under Title 11 may result from a report that a specific child was subjected to physical or sexual abuse. The state concludes that both types of proceedings relate to child abuse reports made under AS 47.17, and that the psychotherapist/patient privilege should therefore not apply in criminal proceedings for sexual abuse. Judge Rowland found that AS 47-17.060 only applied to child protective proceedings instituted under AS 47.10.-010-.070. While we believe that the issue is very close and recognize that the state has cited respectable authority in support of its position, see People v. Corbett, 656 P.2d 687 (Colo.1983); State v. Brydon, 626 S.W.2d 443 (Mo.App.1981); State v. Suttles, 287 Or. 15, 597 P.2d 786 (1979); State v. Fagalde, 85 Wash.2d 730, 539 P.2d 86 (1975), we affirm Judge Rowland's conclusion. Alaska enacted a series of statutes in 1965 providing for reporting of child abuse and neglect. Former AS 11.67.010-070. The statute in question was enacted in its present form as AS 11.67.060. Ch. 98, § 1, SLA 1965. As originally enacted, AS 11.-67.010 did not mention sexual abuse and permitted, but did not require, doctors and' nurses to report instances of physical abuse of children to the Department of Health and Welfare without fear of legal repercussions. Former AS 11.67.010, .050. Both the placement of the section in the criminal code and the specific requirement that the Department of Health and Welfare forward the results of its investigations to the district attorney, former AS 11.67.040, support the state's position that as originally enacted the reporting statutes contemplated criminal as well as civil proceedings. In 1968, the reporting statutes were amended to make reporting mandatory rather than permissive. Ch. 72, § 2, SLA 1968. In addition, for the first time, the legislature spelled out the purposes of the reports. Former AS 11.67.005 provided: Declaration Of Purpose. In order to protect children whose health and welfare may be adversely affected through the infliction, by other than accidental means, of physical injury or physical neglect requiring the attention of a practitioner of the healing arts, the legislature hereby provides for reporting of these cases by practitioners and others to the appropriate public authorities. It is the intent of the legislature that, as a result of these reports, protective services shall be made available in an effort to prevent further abuses, and to safeguard and enhance the general welfare of the children in this state. In 1971, AS 11.67.010-070 was repealed and reenacted as AS 47.17.010-070 Ch. 100 SLA 1971. The legislative purposes previously set out in former AS 11.67.005 were continued in AS 47.17.010 with one significant addition. The legislature added an intent to "preserve family life whenever possible" while providing protective services to children. More significant were the changes made to former AS 11.67.040, which had provided: Action on reports. Upon receipt of a report of injury, the department shall investigate and take action, as prescribed by law, which may be necessary to prevent further injury to the child or to insure the proper care and protection of the child. The department shall forward the results of an investigation made pursuant to a report to the district attorney of the area in which the injury was discovered. This section was rewritten in AS 47.17.030, which provides: Action on Reports; Termination of Parental Rights, (a) If a child, concerning whom a report of harm is made, is believed to reside within the boundaries of a local government exercising health functions for the area in which the child is believed to reside, the department may, upon receipt of the report, refer the matter to the appropriate health or social services agency of that local government. For cases not referred to an agency of a local government, the department shall, for each report received, investigate and take action, in accordance with law, which may be necessary to prevent further harm to the child or to insure the proper care and protection of the child. (b) A local government health or social services agency receiving a report of harm shall, for each report received, investigate and take action, in accordance with law, which may be necessary to prevent further harm to the child or to insure the proper care and protection of the child. In addition, the agency receiving a report of harm shall forward a copy of its report of the investigation, including information the department requires by regulation, to the department. (c) Action shall be taken regardless of whether the identity of the person making the report of harm is known. (d) Before the department or a local government health or social services agency may seek the termination of parental rights, under AS 47.10.080(c)(3), it shall offer protective social services and pursue all other reasonable means of protecting the child. This change is important because the legislature eliminated the requirement in former AS 11.67.040 that the "department shall forward the results of an investigation made pursuant to a report to the district attorney of the area in which the injury was discovered." In summary, moving the reporting statute from Title 11, governing crimes, to Title 47, governing health and welfare, adding a family preservation purpose to the statute, and eliminating the requirement that the district attorney automatically be notified of child abuse reports, gives some indication that in 1971 the legislature intended the reports to prompt judicial pro ceedings relating to the provision of protective services under AS 47.10.010, rather than criminal prosecutions under former AS 11.15.120 (statutory rape) and former AS 11.15.134 (lewd or lascivious acts toward children). While it is true that the amended statute retains provisions for notification to law enforcement agencies where local conditions preclude recourse to the Department of Health and Social Services, it is also clear that law enforcement agencies are to act as temporary agents of the department by instituting civil proceedings; they are not necessarily required to institute criminal proceedings. See AS 47.17.020(c). See also AS 47.10.140 (allowing peace officer to detain minor for minor's own protection, t>ut requiring notification to the department within twelve hours). In contrast, AS 47.10.142, which was added when these provisions were moved from Title 11 to Title 47 in 1971, provides that the department may take emergency custody of and provide temporary placement for children thought to be abused or neglected. Ch. 100, § 3, SLA 1971. Giving the department primary control of the abused child again indicates a legislative intent that the "judicial proceedings" referred to in AS 47.17.060 occur through the department in relation to protective services, and are civil rather than criminal. Further, in 1976, AS 47.17.030 was amended to provide: (e) In all actions taken by the department or a health and social services agency of a local government under this chapter that result in a judicial proceeding, the child shall be represented by a guardian ad litem in that proceeding. [Emphasis added.] See 42 U.S.C. § 5103(b)(2)(G) (1982) (requiring that states accepting federal funds enact such a provision). A guardian ad litem would be necessary where the child was a party to the proceeding, such as in a child protection proceeding, but would be unnecessary where the child was merely a witness, such as in a criminal sexual abuse proceeding. Therefore, this provision also tends to indicate that the legislature, in using the phrase "judicial proceeding" in AS 47.17.060, was referring to child protective proceedings under Title 47 rather than criminal proceedings under Title 11. We recognize that the legislature amended the child abuse reporting statute again in 1982, adding AS 47.17.025, which provides: Duties of Public Authorities, (a) A law enfoiyement agency shall immediately notify the department of the receipt of a report of harm to a child from abuse. Upon receipt from any source of a report of harm to a child from abuse, the department shall notify the Department of Law and investigate the report and, within 72 hours of the receipt of the report, shall provide a written report of its investigation of the harm to a child from abuse to the Department of Law for review. (b) The report of harm to a child from abuse required from the department by this section shall include: (1) the names and addresses of the child and the child's parent or other persons responsible for the child's care, if known; (2) the age and sex of the child; (3) the nature and extent of the harm to the child from abuse; (4) the name and age and address of the person known or believed to be responsible for the harm to the child from abuse, if known; (5) information that the department believes may be helpful in establishing the identity of the person believed to have caused the harm to the child from abuse. [Emphasis supplied.] The state vigorously argues that this recently enacted section requiring notification to the Department of Law establishes legislative intent that child abuse reports result in criminal prosecutions. We are not convinced. The Department of Law serves a number of functions. It represents state departments, such as Health and Social Services, in legal proceedings, such as civil actions for the protection of children. AS 44.23.020(b)(2). In addition, the Department of Law prosecutes violations of state law. AS 44.23.020(b)(3). Former AS 11.-67.040 required reports to be made to the district attorney, whose primary responsibility is prosecution of violations of law. Current AS 47.17.025 refers to the Department of Law, without reference to the criminal division. Thus, AS 47.17.025 does not, standing alone, necessarily resurrect the requirement of former AS 11.67.040 that the district attorney rfeceive child abuse reports; nor does it establish an intent that child abuse reports result in criminal prosecutions. Consequently, we cannot find that a criminal prosecution for child sexual abuse is necessarily "a judicial proceeding related to a report made under this chapter" pursuant to AS 47.17.060. Since the reference to "judicial proceedings" in AS 47.17.060 could mean either civil proceedings alone under AS 47.-10.010, or civil and criminal proceedings, the reference to "judicial proceedings" is ambiguous. We therefore apply the normal rule that ambiguous statutes affecting criminal proceedings should be strictly construed in favor of criminal defendants. We hold that the phrase "judicial proceeding related to a report made under this chapter" in Alaska Statute 47.17.060 only refers to child protection proceedings under AS 47.10.010. We therefore affirm Judge Rowland's decision. This conclusion is reinforced by a number of policy considerations. As we noted in Parker v. State, 667 P.2d 1272, 1274 (Alaska App.1983), ambiguous statutes should be interpreted in such a way as to avoid conflict with the constitution. The state's interpretation of these statutes raises potential conflicts with the constitutional right to privacy, Alaska Const, art. 1, § 22, and the right against compulsory self-incrimination, Alaska Const, art. 1, § 9. As the supreme court noted in Falcon v. Alaska Public Offices Comm'n., 570 P.2d 469 (Alaska 1977), article 1, section 22, of the state constitution protects its citizens in their reasonable expectations of privacy. The court specifically concluded that the relationship between a patient and a psychologist was deserving of protection under the privacy guarantee of our state constitution. 570 P.2d at 480. In Falcon, the supreme court considered the constitutionality of state statutes requiring financial disclosures by public officers and members of public boards. Falcon was a practicing physician who was also a member of the Kodiak Island School Board. Id. at 470. He refused to list his patients as required by the financial disclosure law, claiming an infringement of his patients' rights to privacy. Id. at 472. The Alaska Supreme Court agreed with Falcon, and reversed the lower court, in part based upon its interpretation of the state constitution. The court recognized that Falcon was seeking to preserve his patients' rights to confidentiality in seeking medical treatment. Though the court noted that many forms of illness do not stigmatize their sufferers, it felt that in certain areas of treatment patients have a substantial privacy interest protected by the state constitution. Id. at 479-80. These areas include abortions, psychological and psychiatric treatment, and treatment for venereal disease. Until the Public Offices Commission adopted a regulation clearly protecting these categories of patients, the court held that the constitution precluded requiring a physician who accept ed membership on a public board from disclosing his patients' names. Id. at 480. To require a psychologist to testify in a criminal proceeding, over his objection, to confidential communications with a patient raises analogous problems. Proceedings pursuant to AS 47.10 and AS 47.17 are essentially confidential. Only the immediate participants are aware of what transpires. Testimony by a psychologist or psychiatrist in the context of such a proceeding would not amount to general publication of his patient's problems. In addition, the nature of the proceedings are corrective rather than punitive. A psychologist or psychiatrist testifying in such a proceeding might well be perceived as helping rather than harming his patient. In contrast, in a criminal proceeding the psychologist would necessarily be cast as an adversary of his former patient. Under these circumstances, interpreting AS 47.-17.060 to abrogate the psychotherapist privilege in criminal proceedings would raise serious questions under article 1, section 22, of our state constitution that are best reserved until such time as the legislature manifests a clear intention to require such testimony in criminal proceedings. Such an interpretation would also raise problems under article 1, § 9, of the Alaska Constitution, which establishes a privilege against self-incrimination. The state argues that the use of R.H.'s statements to Wetherhorn does not violate the Fifth Amendment to the United States Constitution because R.H. waived his rights by participating in therapy. Some constitutional rights may be forfeited, while others can only be lost through waiver. See Lemon v. State, 654 P.2d 277, 279 (Alaska App.1982) (distinguishing between forfeiture — the loss of a right through failure to assert it — and waiver — the loss of a right through knowing, intelligent and voluntary relinquishment). Generally, the privilege against self-incrimination is forfeited if not asserted. See Garner v. United States, 424 U.S. 648, 655-56, 96 S.Ct. 1178, 1183-84, 47 L.Ed.2d 370, 378 (1976). Waiver is required, however, where one is in custody and subjected to interrogation. Miranda v. Arizona, 384 U.S. 436, 474-75, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 723-24 (1966). Where a psychiatrist or psychologist acts as a state agent and interviews a defendant in police custody, waiver is required before the defendant's statements to the therapist may be used against him. Estelle v. Smith, 451 U.S. 454, 467, 101 S.Ct. 1866, 1875, 68 L.Ed.2d 359, 371-72 (1981). See also Loveless v. State, 592 P.2d 1206, 1209 n. 7 (Alaska 1979); Loveless v. State, 634 P.2d 941, 942-43 (Alaska App.1981) (on remand from the supreme court). The state vigorously argues that R.H. was represented by counsel and was not in custody. Hence, the state contends that a forfeiture standard applies to R.H.'s statements to Wetherhorn. However, the Alaska Supreme Court has applied a waiver standard rather than a forfeiture standard in a situation similar to the present case. See In re P.N., 533 P.2d 13, 19 (Alaska 1975) (defendant's testimony at child protection proceeding admitting sexual abuse of his child did not, in the absence of Miranda warnings, establish waiver of privilege against self-incrimination). Contra United States v. Jones, 640 F.2d 284, 287 (10th Cir.1981) (defendant's statement during a court-ordered psychiatric examination admissible as evidence of mental status; privilege against self-incrimination inapplicable unless invoked at time of questioning). Master Hitchcock assured R.H. that any examination by Dr. Wetherhorn would be solely for purposes of the child protection proceeding. R.H. was not given the warnings required by Children's Rule 12(e)(2). Therefore, even though R.H. was represented by counsel, we do not find a waiver of R.H.'s privilege against self-incrimination on this record. Moreover, we believe that similar fifth amendment problems would arise in future eases, if we were to hold that a patient loses the psychotherapist/patient privilege in a subsequent criminal proceeding by cooperating in court-ordered psychotherapy in a child protection proceeding. We recognize that constitutional rights are not absolute. Perhaps the public interest in preventing child abuse would render constitutional a carefully drafted statute or court rule abrogating the psychotherapist/patient privilege in child abuse prosecutions. We believe, however, that the constitutional problems are sufficiently substantial that we should interpret the ambiguous statute in a manner that avoids potential constitutional problems. See Parker v. State, 667 P.2d 1272, 1274 (Alaska App.1983). The average person facing an eight-year presumptive term for sexual abuse of a minor will not confess to a psychotherapist and seek treatment if he knows that the psychotherapist will testify against him at a criminal trial. An interpretation of AS 47.17.060 favorable to the state would only trap the uninformed. Arguably, in this context, the fifth amendment privilege against self-incrimination requires that the uninformed be informed before the evidence may be used. See In re P.N., 533 P.2d at 19. Alternatively, professional ethics might impose such a requirement on psychotherapists. On the other hand, knowledge that statements made to a psychotherapist could be used at a subsequent child protection proceeding does not apparently chill a parent's willingness to seek therapy and submit to examinations. Perhaps the legislature recognized this and concluded that limiting the use of child abuse reports to child protective proceedings would increase child protection. This could account for the transfer of the child abuse reporting statutes from Title 11 to Title 47 and deletion of the requirement that the area district attorneys be informed of such reports. We cannot be sure. We are satisfied, however, that such an interpretation avoids constitutional difficulties without sacrificing child protection and should be adopted in this case. The judgment of the superior court is AFFIRMED. . Alaska Evidence Rule 504(b) provides: General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional conditions, including alcohol or drug addiction, among himself, his physician or psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family- . Alaska Statute 47.17.060 provides: Evidence not privileged. Neither the physician-patient nor the husband-wife privilege is a ground for excluding evidence regarding a child's harm, or its cause, in a judicial proceeding related to a report made under this chapter. . Alaska Evidence Rule 504(d) provides the following exceptions to the physician and psychotherapist-patient privilege: (5) Required Report. As to information that the physician or psychotherapist or the patient is required to report to a public employee, or as to information required to be recorded in a public office, if such report or record is open to public inspection. (6) Examination by Order of Judge. As to communications made in the course of an examination ordered by the court of the physical, mental or emotional condition of the patient, with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise. This exception does not apply where the examination is by order of the court upon the request of the lawyer for the defendant in a criminal proceeding in order to provide the lawyer with information needed so that he may advise the defendant whether to enter a plea based on insanity or to present a defense based on his mental or emotional condition. .It appears that S.H. had moved in with a friend whose home was not licensed as a state-approved foster home. The state agreed to investigate the possibility of licensing that home so that S.H. could remain there until the children's proceeding was resolved. . The parties have not briefed this issue. The state seems to concede that Dr. Wetherhorn would have nothing relevant to tell the grand jury besides that which is covered by the privilege, if it is available. If it had appeared at the hearing that some potential testimony was privileged but other potential testimony was not privileged, we assume that Judge Rowland would have defined the scope of the privilege in an appropriately drawn order in limine or protective order, rather than quashing the subpoena. There are a number of other issues which the parties have not briefed and which we do not decide. For example, the parties have not addressed the concern expressed in In re P.N., 533 P.2d 13, 19-20 (Alaska 1975), that AS 47.10.-090(a), which requires confidentiality of juvenile court records, might independently privilege a parent's confession of sexual abuse during a children's proceeding, against use in a subsequent criminal action. A similar statute requires confidentiality in relation to investigative reports of sexual abuse. AS 47.17.040. Therefore, such a privilege might extend to statements made during a psychological evaluation ordered by the children's court in a child protection case where sexual abuse is suspected. The parties have not briefed the extent to which the federal statutes imposing obligations on states receiving federal funds to fight child abuse might control the decision in this case, or at least provide guidance about the legislature's intent in transferring child abuse reporting from Title 11 to Title 47. See Child Abuse Prevention and Treatment Act of 1974, 42 U.S.C. § 5101-5106 (1983) (§ 5103(b)(2)(E) provides, for example, that states accepting federal funds must maintain confidentiality of child abuse records "to protect the rights of the child, his parents or guardians."); 45 C.F.R. § 1340.1-.20 (1983). The federal regulations permit the state to expressly allow disclosure of information in child abuse reports to, inter alia, grand juries. 45 CFR § 1340.14(i)(2)(iii) (1983). AS 47.17.040 provides that investigative reports of child abuse may be used in conjunction with investigations and judicial proceedings involving child abuse. It does not specifically mention grand juries. 7 AAC § 36.010-900 prohibits disclosure, with limited exceptions, of information received concerning recipients of DFYS services. However, 7 AAC § 36.100 specifically allows disclosure to criminal justice officials where aid to such officials is necessary to carry out family and youth service programs. In other cases disclosure to criminal justice officials requires a court order. It is not clear what procedure must be followed to obtain the court order. Nor is it clear what standards the court is to apply in granting or denying an order. 7 AAC § 36.100 provides: Disclosure To Criminal Justice Officials, (a) The division may not disclose safeguarded information, in the absence of a court order, to federal, state, or local law enforcement officers, or other criminal justice officials unless that information will be used for purposes directly connected with the administration of family and youth services programs. Included in those purposes may be requests for assistance from law enforcement officers in obtaining physical custody of a child, requests for assistance in investigation of harm to an adult or child, and requests for assistance where disclosure is necessary to protect the safety of the client or the public. (b) When a court order is issued directing the division to disclose information not otherwise disclosable under this chapter to a law enforcement or criminal justice agency, the division shall apprise the court of the statutes and regulations concerning confidentiality and ask the court to rule on disclosability before disclosing the information. The relaxation of the confidentiality requirement in the federal and state regulations implies that child abuse reports might not be privileged in criminal proceedings related to that abuse, if a prior court order authorizes a release of such reports to criminal justice officials. . The parties appear to agree that the phrase "if such report or record is open to public inspection" governs both clauses of this exception. . Even in the context of the children's proceeding, it is arguable that the trial court's order directing R.H. to continue counseling with Wetherhorn contemplated treatment in addition to an evaluation. It would appear that only Wetherhorn's evaluation would be within the exception to the privilege and not information which was gained thereafter in the course of treatment. . We assume but do not decide that AS 47.17.-060 applies to psychologists, who are not physicians. In Allred v. State, 554 P.2d 411, 415-16 (Alaska 1976), the supreme court held that any statute creating a privilege, and by implication modifying a privilege, would be an amendment to former Criminal Rule 26 and former Civil Rule 43(h), both of which address evidentiary privileges. To be effective, such an amendment would have to specifically address the rules and be passed by a two-thirds majority in each house. AS 47.17.060 was originally enacted, with nearly identical language, as AS 11.67.060. When the legislature enacted AS 11.67.060 it specifically addressed Civil Rule 43(h)(1) and (4) but not Criminal Rule 26. The "amendment" was passed by a two-thirds majority of both houses. Ch. 98, § 2, SLA 1965. There is no reference to the court rules in the bill which transferred AS 11.67.060 from Title 11 to Title 47. See Ch. 100 SLA 1971. Arguably, under Allred, since the legislature never addressed Criminal Rule 26, it intended to abolish the named privileges in civil, but not criminal cases. Furthermore, under the now superseded Civil Rule 43, the Alaska Supreme Court specifically addressed AS 11.67.060 by incorporating its language into a "child abuse and neglect" privilege. Former Civil Rule 43(h)(8) stated: (8) Child Abuse And Neglect. Neither the physician-patient nor the husband-wife privilege shall be a ground for excluding evidence regarding a child's injury, or its cause, in any judicial proceeding resulting from a report made under Chapter 67 AS 11. This language is virtually identical to the language in AS 11.67.060. The rules cross-referenced AS 11.67.060 as well. No such language appears in former Criminal Rule 26 under privileges. This language indicates that AS 11.67.-060, even as originally enacted, was only applicable to abrogate the named privileges in civil proceedings and not in criminal proceedings. The supreme court recognized a common law psychotherapist/patient privilege for the first time in 1976 in Allred v. State, 554 P.2d at 418. It is instructive that the court did not view the new privilege as part of the existing physician/patient privilege which did not apply in criminal cases or to psychiatric social workers. 554 P.2d at 415. The supreme court codified the psychotherapist/patient privilege as part of the new Alaska Rules of Evidence in 1979. A.R.E. 504. It is noteworthy that the supreme court established an exception to the husband/wife privilege for criminal child abuse prosecutions, A.R.E. 505(a)(2)(D)(i)-(ii), but established no similar exception to the psychotherapist/patient privilege. The supreme court did create an exception to the physician/patient privilege in child protection proceedings. Children's Rule 13(b). Thus, the legislature has never directly addressed abrogating the psychotherapist/patient privilege in criminal proceedings, and under Allred the enactment of AS 47.17.060 may not have validly done so. The parties have argued the applicability of AS 47.17.060 to psychologists but they have not considered the relevance of Allred and the supreme court's rule making power. We therefore decline to consider the issue and will assume, without deciding, that psychologists are covered by AS 47.17.060. . The purpose of the reports referred to in AS 47.17.060 is described in AS 47.17.010: In order to protect children whose health and well-being may be adversely affected through the infliction, by other than accidental means, of harm through physical abuse or neglect requiring the attention of a practitioner of the healing arts, the legislature requires the reporting of these cases by practitioners and others to the appropriate public authorities. It is the intent of the legislature that, as a result of these reports, protective services will be made available in an effort to prevent further harm to the child, to safeguard and enhance the general well-being of the children in this state, and to preserve family life whenever possible. . It is instructive, however, that in enacting AS 11.67.060, the legislature specifically stated an intention to amend the civil rules regarding privileges but did not mention the criminal rules. Ch. 98, § 2, SLA 1965. While the physician/patient privilege did not apply to criminal cases, the husband/wife privilege did. Former Alaska R.Crim.P. 26(b)(2). See supra note 8. This treatment of privileges gives some support to an interpretation limiting former AS 11.67.-060 to civil proceedings. . See supra note 9. . The state disputes the applicability of this rule of construction, reasoning that evidentiary privileges in litigation are not favored and should be narrowly construed. Herbert v. Lando, 441 U.S. 153, 175-76, 99 S.Ct. 1635, 1648, 60 L.Ed.2d 115, 133 (1979). See also United States v. Nixon, 418 U.S. 683, 711, 94 S.Ct. 3090, 3109, 41 L.Ed.2d 1039, 1066 (1974). However, we are satisfied that the close nexus between the psychotherapist/patient privilege and the state constitutional. right to privacy requires us to apply the privilege literally and strictly construe any limitation on the privilege. Alaska Const. art. 1, § 22. See People v. Stritzinger, 34 Cal.3d 505, 194 Cal.Rptr. 431, 435-36, 668 P.2d 738, 742-43 (1983). See also Falcon v. Alaska Public Offices Comm'n., 570 P.2d 469, 478-80 (Alaska 1977) (forced disclosure of patients' names by physician, specifically including psychiatrist or psychologist, implicates privacy interests). . We recognize that in Allred v. State, 554 P.2d 411, 416 (Alaska 1976), the Alaska Supreme Court found no state action which would trigger a constitutional right to privacy and form the basis for a psychotherapist/patient privilege. However, Allred is distinguishable. In that case the defendant requested to see his own psychiatrist or a psychiatric social worker employed by the psychiatrist. The therapist who talked with Allred apparently had no objection to testifying. 554 P.2d at 413. Under those circumstances, the court found no state action triggering application of Alaska Constitution article 1, section 22. Here, R.H. was ordered to consult with Dr. Wetherhorn and the state is using a subpoena to force Dr. Wetherhorn to disclose the results of that consultation. The court order and the subpoena would appear to provide as much "state action" as the disclosure regulations discussed in Falcon. . The state argues that a criminal proceeding is needed to prevent future abuse of other children in the abuser's family by imprisoning the abuser. It reasons, mistakenly we believe, that a child protection proceeding only benefits the abused child involved in that proceeding. However, a verified report that one of several children in a family was the victim of sexual abuse might justify protective services to all the children, including those who had not been abused. In re P.N., 533 P.2d at 16. . We do not decide whether AS 47.17.060 abrogates the privilege in child protective proceedings. See supra note 7. That issue is not before us. Since appeals from decisions in child protective proceedings go to the supreme court rather than this court, this issue will never be before us. AS 22.07.020(3) (court of appeals jurisdiction over children's court matters limited to adjudications of delinquency and waiver of children's court jurisdiction, AS 47.10.-010(a)(1); AS 47.10.060). . After the initial publication of this opinion, the state petitioned for rehearing apparently concerned that our decision suggests that, in the absence of (1) a request for assistance by the Department of Health and Social Services or (2) a previously obtained court order, the Department of Law would be in violation of AS 47.17.-010 et seq. (as interpreted in 7 AAC 36.100) if it permitted its agents who were primarily involved in prosecuting crimes to have access to the reports of child abuse and neglect filed pursuant to the reporting statutes. The state is concerned that others will read our opinion as establishing an exclusionary rule in criminal cases governing all information contained in child abuse and neglect reports and the source of such information. See ARE 412. We grant the petition for rehearing in order to clarify our decision. Our opinion does not address the propriety of the dissemination of information about child abuse or neglect reports within the Department of Law except to hold that such dissemination, if it occurs, does not make the reports open to the public. See ARE 504(d)(5). Nor does our opinion construe 7 AAC 36.100 or attempt to apply it to district attorneys. While we have concluded that the 1982 legislative amendment to AS 47.17.025, making child abuse and neglect reports available to the Department of Law, does not necessarily reflect an intent by the legislature that grand jury proceedings fall within the definition of a "judicial proceeding related to a report made under this chapter," AS 47.17.060, our opinion should not be construed as a holding that the statute was intended to restrict the flow of information to prosecuting authorities. We express no view on that issue. Finally, our opinion only addresses psychiatrists and psychologists whose testimony is privileged by Evidence Rule 504. It does not address anyone else who might make a report under AS 47.17.010 and thereafter wish to testify in a criminal proceeding about matters related to the report.

10415390

Harold OSTROSKY, Appellant, v. STATE of Alaska, Appellee

Ostrosky v. State

1985-08-02

No. A-206

786

794

704 P.2d 786

704

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:21:28.159013+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Harold OSTROSKY, Appellant, v. STATE of Alaska, Appellee.

Harold OSTROSKY, Appellant, v. STATE of Alaska, Appellee. No. A-206. Court of Appeals of Alaska. Aug. 2, 1985. Susan Orlansky, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant. Cynthia M. Hora, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

4033

23991

OPINION COATS, Judge. This case raises the question of the extent to which a defendant can rely on mistake of law as a defense to a fish and game violation. Harold Ostrosky and his two daughters were convicted of fishing without a valid limited entry permit in 1979. Ostrosky's daughters moved for post-conviction relief, contending that the Limited Entry Act violated equal protection. Judge Victor D. Carlson found the act unconstitutional and vacated the convictions on August 14,1981. Ostrosky was allowed to join in the action, and his conviction was set aside on August 25, 1981. The state appealed. This court certified the case to the supreme court, and the supreme court accepted the case for decision. On July 3, 1983, Ostrosky was fishing with a drift gill net in open waters off Naknek. Trooper Gary Folger, acting as a fish and wildlife protection officer, boarded Ostrosky's boat and checked it for fish. Despite Ostrosky's admission that he had no permit, the trooper did not arrest Ostro-sky or try to stop him from fishing. On July 7, 1983, while the state's appeal in Ostrosky's earlier case was still pending, the state filed an emergency request with the supreme court for a stay of the effect of Judge Carlson's ruling in that case, pursuant to Appellate Rule 504. The request alleged that "irreparable harm" would result if the stay were not granted, because Ostrosky had continued to fish the waters of Bristol Bay without a permit, creating a "serious potential for violence" in the area and "undermining the fishermen's confidence in the limited entry system." An affidavit from an assistant attorney general was attached in support of these charges. The request ended with this statement: "A stay of the Memorandum Decision is necessary to accord the Division of Fish and Wildlife Protection the necessary authority to arrest Mr. Ostrosky for violation of [the Limited Entry Act]." Chief Justice Edmond Burke, acting as a single justice, entered an order granting the stay pending the announcement by the supreme court of a decision in Ostrosky's case. The order states, "the intent of this order is to permit the continued enforcement of the Limited Entry Act pending this court's decision on the merits." On July 8, 1983, Trooper Folger cited Ostrosky for fishing without a permit on that date, for fishing without permit on July 3, and for illegal possession of salmon. On July 19, 1983, the Alaska Supreme Court reversed Judge Carlson's ruling and upheld the Limited Entry Act. State v. Ostrosky, 667 P.2d 1184 (Alaska 1983), appeal dismissed, — U.S. —, 104 S.Ct. 2379, 81 L.Ed.2d 339, reh'g denied, — U.S. —, 104 S.Ct. 3572, 82 L.Ed.2d 871 (1984). After the supreme court's decision, Ostrosky filed a motion to dismiss in the present case alleging that, at the time he was charged with violating the Limited Entry Act, the Act had been declared unconstitutional in a case in which he was a party. Ostrosky argued that he was entitled to rely on Judge Carlson's ruling. Judge Carlson ruled that Ostrosky had no right to rely on his earlier decision and that by fishing, Ostrosky had taken the risk that the earlier decision would be reversed by the supreme court. Ostrosky then asked the court to instruct the jury that reasonable reliance on a judicial decision was a defense to this prosecution. Judge Carlson denied this request. He also ruled that Ostrosky could not present testimony concerning reasonable reliance on a judicial decision since that testimony would be irrelevant. Ostrosky at this point made an offer of proof that he would testify that at the time he was fishing he believed that he was fishing legally. He represented that he relied on Judge Carlson's decision declaring the Limited Entry Act unconstitutional and that he had read an article in the Fisherman's Journal which reported that a magistrate in Kenai had also ruled that the Limited Entry Act was unconstitutional. He also indicated that after Judge Carlson's ruling declaring the Limited Entry Act to be unconstitutional, Ostrosky had talked to his attorney who had assured him that he would not be arrested for fishing without a permit during the 1983 season. After Judge Carlson ruled Ostrosky's defense of mistake of law was irrelevant and that he would not give a jury instruction on this defense, Ostrosky agreed to a court trial on the condition that his objection to this ruling would be preserved for appeal. Ostrosky was convicted following a court trial. He now appeals to this court. The defense of reasonable reliance on a statute or judicial decision is discussed in W. LaFave and A. Scott, Criminal Law § 47, at 366-67 (1972): An individual should be able reasonably to rely upon a statute or other enactment under which his conduct would not be criminal, so that he need not fear conviction if subsequent to his conduct the statute is declared invalid. A contrary rule would be inconsistent with the sound policy that the community is to be encouraged to act in compliance with legislation. Thus, just as it is no defense that the defendant mistakenly believed the statute under which he was prosecuted to be unconstitutional, it is a defense that he reasonably relied upon a statute permitting his conduct though it turned out to be an unconstitutional enactment. For essentially the same reason, the better view is that it is a defense that the defendant acted in reasonable reliance upon a judicial decision, opinion or judgment later determined to be invalid or erroneous. The clearest case is that in which the defendant's reliance was upon a decision of the highest court of the jurisdiction, later overruled, whether the first decision involved the constitutionality of a statute, the interpretation of a statute, or the meaning of the common law. A contrary rule, whereby the subsequent holding would apply retroactively to the defendant's detriment, would be as unfair as ex post facto legislation. Under the majority view, reasonable reliance upon a decision of a lower court is likewise a defense. Thus, if the lower court has found a repealer statute constitutional, has declared the relevant criminal statute unconstitutional, or has enjoined enforcement of the statute, there may be a basis for reasonable reliance. However, in the case of lower court decisions there is more likely to arise a question of whether the reliance is reasonable. It has been suggested, for example, that reliance should not be a defense when it was known that the decision of the lower court was on appeal. [Footnotes omitted.] We note also that the Model Penal Code provides for mistake of law as an affirmative defense. Section 2.04(3) of the Model Penal Code provides in part: (3) a belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense. Model Penal Code § 2.04(3) (Proposed Official Draft 1962). There is little state law to guide us in defining when mistake of law is a defense. Apparently the only Alaska appellate court decision concerning a mistake of law based upon reliance on a judicial decision is Cleveland v. Anchorage, 631 P.2d 1073, 1083 (Alaska 1981). In that case the supreme court held that as a matter of law it was unreasonable for the defendants to rely on trial court decisions from another state to justify their conduct. Cleveland does not appear to be helpful in resolving the issue before us in this case. We note that the revised criminal code, which appears to attempt to codify defenses to criminal acts, does not provide for a defense of mistake of law. AS 11.81.620(a) provides: (a) Knowledge, recklessness, or criminal negligence as to whether conduct constitutes an offense, or knowledge, recklessness, or criminal negligence as to the existence, meaning, or application of the provision of law defining an offense, is not an element of an offense unless the provision of law clearly so provides. Use of the phrase "intent to commit a crime", "intent to promote or facilitate the commission of a crime", or like terminology in a provision of law does not require that the defendant act with a culpable mental state as to the criminality of the conduct that is the object of the defendant's intent. The commentary to the code indicates that this section is intended to codify "the universal principal that ordinarily ignorance of the law is not a defense." In tracing AS 11.81.620(a) to the tentative draft of the Alaska Criminal Code prepared by the Alaska Code Revision Commission, Sub-commission on Criminal Law, we discover that AS 11.81.620(a) is derived from Oregon Revised Statutes § 161.115(4) and that AS 11.81.620(b) is derived from New York Penal Law § 15.20(1). New York Penal Law § 15.20 provides for a defense of reasonable mistake of law. Therefore, it ap pears probable that the drafters of the revised criminal code were aware of the New York provision and did not include it in the revised criminal code. This could mean that the legislature did not intend to allow a mistake of law defense in the revised code. It could also mean that the legislature overlooked the provision or wanted to leave the defense of mistake of law for later court determination. Since the commentary is silent, it is difficult for us to ascertain the legislative intent. Furthermore, even if we were to conclude that the legislature rejected a defense of reasonable mistake of law in the revised code, that would not mean that the legislature intended that rejection to apply to fish and game offenses. AS 11.81.620(a) only applies to those offenses set forth in Title 11. See AS 11.81.640. The state concedes that "most courts and commentators recognize that a person should be able to rely upon a judicial decision, even if that decision is later overruled." However, the state argues that we should hold that the defense of reasonable reliance on a court decision should be limited to decisions by the state appellate courts or the United States Supreme Court. See State v. Striggles, 202 Iowa 1318, 210 N.W. 137, 138 (1926). In the absence of any statutory or case law establishing or rejecting such a defense, we conclude that a concern for due process of law requires us to establish at least a limited defense. Fish and game laws regulate legitimate activity. Violations of those regulations are malum prohibitum, not malum in se. As the court stated in Kratz v. Kratz, 477 F.Supp. 463, 481 (E.D.Pa.1979): It would be an act of "intolerable injustice" to hold criminally liable a person who had engaged in certain conduct in reasonable reliance upon a judicial opinion instructing that such conduct is legal. Indeed, the reliance defense is required by the constitutional guarantee of due process as illuminated by the Supreme Court in Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965) and Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959). [Footnotes omitted.] However, we believe that the defense of reasonable mistake of law must be a limited defense in light of the fact that the general rule of law is that mistake of law is not a defense. The policy behind this rule is to encourage people to learn and know the law; a contrary rule would reward intentional ignorance of the law.' The traditional rule of law that mistake of law is not a defense is based upon the fear "that its absence would encourage and reward public ignorance of the law to the detriment of our organized legal system, and would encourage universal pleas of ignorance of the law that would constantly pose confusing and, to a great extent, insolvable issues of fact to juries and judges, thereby bogging down our adjudicative system." United States v. Barker, 546 F.2d 940, 954 (D.C.Cir.1976) (Merhige, District J., concurring). Model Penal Code § 2.04(4) (Proposed Official Draft 1962) provides: (4) The defendant must prove a defense arising under Subsection (3) [quoted above] of this Section by a preponderance of evidence. An earlier version of this subsection contained similar language but added: The reasonableness of the belief claimed to constitute the defense shall be determined as a question of law by the Court. § 2.04(4) (Tentative Draft No. 4,1955). We believe that the 1955 Tentative Draft provision sets forth a reasonable procedure for a trial court to follow in deciding whether a defense of mistake of law has been established. We hold that a defense of mistake of law is an affirmative defense which the defendant must prove to the court by a preponderance of the evidence. We believe that this procedure will allow a defendant in a criminal case to obtain relief in cases where it would be unfair to hold him to knowledge of the law. Making the defense an affirmative defense argued to the court should protect against abuses of the defense and should ultimately make the law in this area more uniform as judges make decisions concerning what is a reasonable mistake of law. The determination of whether the defense applies requires a legal, technical application of due process considerations, a task within the judicial function. This determination will often depend on an understanding of the legal prec-edential value of decisions of courts at various levels, and of the appeals process. There is great potential for confusion and distraction if the jury were required, for instance, to determine whether it was reasonable to rely on a superior court decision reversing a district court decision (but in accord with the decisions of another district judge) which is being appealed to the supreme court. The state would have us rule as a matter of law that it was unreasonable for Ostrosky to rely on Judge Carlson's decision that the Limited Entry Act was unconstitutional. The state argues that since the decision was a trial court decision it was not binding on other courts and, since the decision was on appeal, Ostrosky should have been aware that the decision could be reversed. There is support in the cases and commentary on this issue which suggests that normally it might be unreasonable to rely on a decision of a trial court which is on appeal. See W. LaFave and A. Scott, Criminal Law § 47, at 367 (1972). However, the question of whether a person's reliance on a lower court decision is reasonable or not is in the first instance a question for the trial court. See id.; Kratz v. Kratz, 477 F.Supp. at 481 n. 47 (E.D.Pa.1979). We are not prepared to rule, as a matter of law, that in every case it would be unreasonable to rely on a lower court decision which is on appeal. We note that in this case Ostro-sky does not just represent that he relied on the ruling of the superior court. The court ruling involved was a case in which Ostrosky was a party. He also claims that his attorney assured him that the decision meant that he could fish. When Ostrosky started fishing, Trooper Folger did not cite him or warn him not to fish. Furthermore, the papers filed with the courts by the Department of Law in July of 1983, taken on their face, indicate that the Department of Law was operating under the assumption that it needed to stay Judge Carlson's decision in order to enforce the Limited Entry Act. If we look at these factors alone, in the light most favorable to Ostro-sky, it appears that he has a sufficient claim of reasonable mistake of law to at least allow him to have a hearing on this issue. We therefore remand the case to allow Ostrosky to develop his defense of reasonable mistake of law at a hearing. We direct the superior court to make find ings of fact and conclusions of law following the hearing. The case is REMANDED. BRYNER, C.J., dissents. . N.Y.Penal Law § 15.20(2) (McKinney 1975) provides: A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment, or (b) an administrative order or grant of permission, or (c) a judicial decision of a state or federal court, or (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law. . The drafters of the Model Penal Code did not provide for a mistake of law defense based solely upon the advice of an attorney, and we are not today recognizing such a defense. See W. LaFave and A. Scott, supra, at 368-69. We hold only that when a defendant is seeking to establish the defense of reasonable reliance on a judicial decision, the fact that he consulted an attorney and was told that the decision meant he could embark on a contemplated course of conduct is probative evidence of the reasonableness of the reliance. . The record does not reflect whether the issue of the constitutionality of the Limited Entry Act had been decided by any other courts in the state. If other courts, particularly the superior courts, had held the Limited Entry Act constitutional, this would tend to undermine Ostrosky's defense of reasonable reliance, particularly if he was aware of those decisions. . Ostrosky has argued other issues in this appeal. He argues that the Limited Entry Act is unconstitutional. This contention is controlled by State v. Ostrosky, 667 P.2d 1184 (Alaska 1983), appeal dismissed, — U.S. —, 104 S.Ct. 2379, 81 L.Ed.2d 339, reh'g denied,— U.S. —, 104 S.Ct. 3572, 82 L.Ed.2d 871 (1984). Ostrosky also contends that because he was a party in the case where Judge Carlson declared the Limited Entry Act to be unconstitutional, he should be allowed to rely on that ruling until it was overturned even if it would be unreasonable for a non-party to rely on the lower court decision. We have not found any authority which indicates that Judge Carlson's decision would be binding on the parties until the decision was stayed or overturned but would not necessarily be binding on anyone else. We believe that the fact that Ostrosky was a party to the original decision is a matter which, along with other facts, should be weighed by the superior court to determine whether Ostrosky can show that he made a reasonable mistake of law. Ostrosky also has appealed his sentence. We order the sentence vacated. In the event that the superior court rejects Ostrosky's defense of reasonable mistake of law, in passing sentence the superior court should consider whether Os-trosky intended to violate the law, the extent of his good faith, and the extent of the reasonableness of his belief that his actions were lawful. If Ostrosky did not intend to violate the law, that fact is a relevant consideration in sentencing. See Nickolas v. State, 689 P.2d 510 (Alaska App.1984).

10415278

Michael F. BEIRNE and Lake Otis Clinic, Inc., an Alaskan non-profit corporation, Appellants, v. Robert London SMITH, Commissioner of the Department of Health and Social Services; the Department of Health and Social Services of the State of Alaska; Humana Hospital Alaska, Inc., an Alaska corporation; and the Sisters of Providence in Washington, d/b/a Providence Hospital, Appellees

Beirne v. Smith

1985-08-27

No. S-810

786

786

704 P.2d 786

704

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:21:28.159013+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS and MOORE, JJ.

Michael F. BEIRNE and Lake Otis Clinic, Inc., an Alaskan non-profit corporation, Appellants, v. Robert London SMITH, Commissioner of the Department of Health and Social Services; the Department of Health and Social Services of the State of Alaska; Humana Hospital Alaska, Inc., an Alaska corporation; and the Sisters of Providence in Washington, d/b/a Providence Hospital, Appellees.

Michael F. BEIRNE and Lake Otis Clinic, Inc., an Alaskan non-profit corporation, Appellants, v. Robert London SMITH, Commissioner of the Department of Health and Social Services; the Department of Health and Social Services of the State of Alaska; Humana Hospital Alaska, Inc., an Alaska corporation; and the Sisters of Providence in Washington, d/b/a Providence Hospital, Appellees. No. S-810. Supreme Court of Alaska. Aug. 27, 1985. Rehearing Denied Sept. 16, 1985. Before RABINOWITZ, C.J., and BURKE, MATTHEWS and MOORE, JJ.

125

835

ORDER IT IS HEREBY ORDERED: The judgment of the superior court is AFFIRMED by an evenly divided court. COMPTON, J., not participating. . Rabinowitz, Chief Justice, and Matthews, Justice, would remand to the commissioner, with instructions to file a decisional document explaining the basis of his decision.

10415075

Erwin Nick HERTZ, Appellant, v. Lawrence W. BERZANSKE, Jr.; Adam F. Pierce, By and Through his father and next friend, Albert H. Pierce; Albert H. Pierce and Joanne Pierce, Appellees

Hertz v. Berzanske

1985-08-16

No. S-371

767

773

704 P.2d 767

704

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:21:28.159013+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

Erwin Nick HERTZ, Appellant, v. Lawrence W. BERZANSKE, Jr.; Adam F. Pierce, By and Through his father and next friend, Albert H. Pierce; Albert H. Pierce and Joanne Pierce, Appellees.

Erwin Nick HERTZ, Appellant, v. Lawrence W. BERZANSKE, Jr.; Adam F. Pierce, By and Through his father and next friend, Albert H. Pierce; Albert H. Pierce and Joanne Pierce, Appellees. No. S-371. Supreme Court of Alaska. Aug. 16, 1985. James R. Webb, Faulkner, Banfield, Doo-gan & Holmes, Juneau, for appellant. Douglas L. Gregg and Peter M. Page, Juneau, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3808

23245

OPINION BURKE, Justice. On appeal is the final judgment in a personal injury suit filed against appellant Erwin Hertz. Hertz contends, among other things, that the superior court abused its discretion in refusing to set aside an entry of default against him. Because we agree, we need not decide most of the other arguments raised on appeal. In anticipation of an issue which may arise again on remand, however, we hold that the superior court properly awarded prejudgment interest on that part of its damage award for lost future earning capacity. BACKGROUND On August 28, 1981, Erwin Hertz, Lawrence Berzanske, Jr., and Adam Pierce were involved in a truck-motorcycle collision in Haines, Alaska. Within a week of the collision, Hertz's insurer, Providence Washington Insurance Company (Providence Washington), retained Wilton Adjusting Services (Wilton) to investigate and adjust the accident. Wilton assigned the case to its office manager, Ernie Dean, who began an active investigation of the claim shortly thereafter. In early September, Dean contacted the plaintiffs' attorney, Douglas Gregg, to discuss settlement of the claim. Berzanske, Pierce and Pierce's parents filed a complaint against Hertz on November 30, 1981, alleging that Hertz's negligence was the proximate cause of the collision. Hertz was served in Haines on December 7, 1981. He notified Dean of the complaint the same day. On December 23, 1981, Dean telephoned Gregg to obtain an extension of time in which to answer the complaint. The substance of the conversation between Dean and Gregg is sharply disputed. Dean claims he asked for and obtained an "open 20 day extension," meaning that the plaintiffs granted an open extension of the time to answer the complaint and would not seek entry of default except upon twenty days' notice to the defendant. Gregg contends Dean requested and obtained a twenty day extension of time in which to answer the complaint. Following the telephone conversation, Gregg sent a letter to Dean reviewing their conversation, amplifying his clients' position, and discussing settlement possibilities. The letter pointed out the possible conflict between the insured and insurer in cases where potential liability exceeds amount of coverage, and recommended that Dean provide Hertz with counsel. The letter stated that Dean could have "an extension of 20 days in which to get an answer filed," established a specific due date for the answer, and noted that if serious progress toward a satisfactory resolution were being made, "the entry of an appearance is all that would be necessary to protect the defendant." Dean denies receiving the letter. As of January 19, 1982, no answer had been filed on Hertz's behalf. Gregg obtained an entry of default for the plaintiffs the same day. Gregg made no effort to notify Dean of his intent to obtain an entry of default. Neither Dean nor Hertz learned of the default until nearly one month after its entry. In the meantime, Gregg scheduled an evidentiary hearing for February 19, 1982, to establish proof of damages. On February 18, 1982, Gregg filed a memorandum in support of default judgment. Dean telephoned Gregg the same day. He asked Gregg if he had any medical bills or reports, and indicated that Providence Washington was interested in settling the matter. Gregg responded that there had been an entry of default and that a hearing on damages was set for the next day. Dean claimed that this was the first time he learned of the entry of default. Providence Washington had not yet assigned counsel to the case. The morning of the hearing, an attorney for Providence Washington contacted Gregg to request a continuance, but Gregg refused. Hertz appeared through counsel at the hearing and moved to set aside the default entry. He was represented by James Webb, who was retained by Providence Washington only one hour before the hearing. The superior court heard the motion to set aside the default entry, but proceeded with the hearing on damages, allowing Hertz's counsel to participate. This hearing was the primary basis for appellees' claim that setting aside the default entry would be prejudicial. On February 25, 1982, an evidentiary hearing was held on the motion to set aside the entry of default. Gregg and Dean were the only witnesses. The thrust of Dean's testimony was that he believed he would be given twenty days' notice of the plaintiffs' intent to obtain an entry of default. Evidence submitted included the relevant portions of Dean's time log as well as Dean's "verbal communication records," allegedly contemporaneous records of his telephone calls. Gregg testified that a twenty day extension of time was all that had been requested and granted. He submitted several pieces of documentary evidence: the above-mentioned letter from Gregg to Dean, copies of telephone logs from Gregg's office, copies of telephone bills of Gregg's office and copies of notes, a time sheet, and a "time and money recap." Also introduced was a tape recording of the February 18, 1982, telephone conversation between Gregg and Dean, which Gregg claims to have been made inadvertently. The superior court denied the motion to set aside the default entry. Favoring Gregg's version of the facts over Dean's, the court concluded there was no "good cause" to set aside the default entry, as required under Alaska Rule of Civil Procedure 55(e). The court notified the parties that it would allow Hertz a fuller opportunity to be heard on the question of damages, but that Hertz would not be entitled to make any argument concerning Pierce's and Berzanske's alleged negligence or the effect of such negligence on damages, on the ground that inquiry into issues relating to liability was foreclosed by the entry of default. Subsequently, the court denied Hertz's motion for leave to file a counter claim to enforce his alleged right to contribution from Adam Pierce, for Berzanske's damages. After the damages hearing was held, the court awarded the plaintiffs $436,319.43, which included costs, attorneys fees, and prejudgment interest. Hertz filed a motion for a new trial, the motion was denied, and this appeal followed. Hertz contends that the superior court both applied an incorrect legal standard in deciding his motion to set aside the default entry and abused its discretion in refusing to set aside the default entry. We agree. RULE 55(e) The standard applicable to setting aside an entry of default is set forth in Alaska Rule of Civil Procedure 55(e): For good cause shown the court may set aside an entry of default and, if a default judgment has been entered, may likewise set it aside in accordance with Rule 60(b). Hertz submits that the superior court misapplied the "good cause" requirement of Rule 55(e) by applying the Rule 60(b) standard, instead of the "good cause" standard, and by interpreting "good cause" to require a good excuse or justification. Hertz maintains that Rule 55(e) establishes a different, more lenient standard for setting aside an entry of default than for setting aside a default judgment. The superior court held that while there is a proper distinction between the two standards, the distinction applies principally to the time limit within which a motion for relief can be made. The difference between the standard for setting aside a default entry and a default judgment has never been addressed by this court. Since Rules 55(e) and 60(b) are identical to their federal counterparts, Rules 55(c) and 60(b), we look to federal case law for guidance. The majority view expressed in federal cases and by commentators is that the "good cause" standard for setting aside a default entry is more flexible and lenient than the Rule 60(b) standard for setting aside a default judgment. 6 J. Moore, Moore's Federal Practice ¶ 55.10[1] and [2] (2d ed. 1983); 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2692 (1983). The "good cause" standard "frees a court considering a motion to set aside a default entry from the restraints of Rule 60(b) and entrusts the determination to the discretion of the court." 10 Wright, Miller & Kane, supra, § 2694, at 493. See Meehan v. Snow, 652 F.2d 274, 276 (2d Cir.1981); Broder v. Charles Pfizer & Co., 54 F.R.D. 583 (S.D.N.Y.1971). While in practice federal courts consider many of the same factors when deciding whether to grant relief from default judgment or from entry of default, they evaluate and weigh the factors more liberally in the case of a default entry. 6 J. Moore, Moore's Federal Practice ¶ 55.10[1] (2d ed. 1983); 10 Wright, Miller & Kane, supra, § 2692. We agree that granting the superior court greater flexibility to set aside default entries is a sensible practice. The default entry is simply an interlocutory order that in itself determines no rights or remedies, whereas the default judgment is a final judgment that terminates the litigation and decides the dispute. Setting aside a final judgment may be more disruptive to the judicial process and to the parties, who may have relied thereon, than setting aside an interlocutory order. In addition, a default judgment typically involves a much greater commitment of judicial resources, because recovery determinations, complicated hearings and jury trials often take place. 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2692 (1983). The superior court held that to establish "good cause," the movant must show there exists a good excuse, or justification, as well as a meritorious defense. It is undisputed that a meritorious defense is a prerequisite to setting aside an entry of default. Hertz argues, however, that once a meritorious defense has been shown, the court should inquire only into whether there are any intervening equities which require that the entry of default stand. While some states have embraced the superior court's rule, we prefer the approach taken by the Third Circuit, which considers the following three factors when ruling on motions to set aside default entries and default judgments: 1) whether the plaintiff will be prejudiced; 2) whether the defendant has a meritorious defense; and 3) whether culpable conduct of the defendant led to the default (whether he acted willfully or in bad faith). The Third Circuit notes that "[ljess substantial grounds may be adequate for setting aside a default [entry] than would be required for opening a default judgment." Felici-ano v. Reliant Tooling Co., 691 F.2d 653, 656 (3d Cir.1982); Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir.1982). We conclude that whether "good cause" exists to set aside an entry of default does not depend on a showing of "excusable neglect" or some other excuse or justification, as is required to set aside a default judgment. Instead, "good cause" is a question of equity, left to the discretion of the trial court upon the showing of a meritorious defense. In exercising its discretion to set aside an entry of default, a court should consider the following factors: whether the defendant has established the required meritorious defense, prejudice to plaintiffs, the culpability of defendant's conduct, the length of the period of default, the size of any potential award to plaintiffs, and alternative sanctions against the defendant. See Gregor v. Hodges, 612 P.2d 1008, 1009-1010 (Alaska 1980); Hill v. Vetter, 525 P.2d 529, 531 (Alaska 1974). The court should also consider whether the parties had prior contact such that the plaintiff should have given defendant notice that a default would be sought. City of Valdez v. Salomon, 637 P.2d 298, 299 (Alaska 1981); Cook v. Aurora Motors, Inc., 503 P.2d 1046, 1049 n. 6 (Alaska 1972). Disposition of a ease on its merits is strongly favored. Gregor, 612 P.2d at 1010. MERITORIOUS DEFENSE The superior court found that Hertz showed a meritorious defense of compara tive negligence. The appellees argue that, equities notwithstanding, the motion to set aside default was denied correctly because Hertz has no meritorious defense. The meritorious defense requirement demands "something more than a perfunctory statement that a meritorious defense exists. The defaulting party may be required to demonstrate . that there is a factual or legal basis for the tendered defense." 6 J. Moore, Moore's Federal Practice ¶ 55.10[1] at n. 14 (2d ed. 1983). See Corso v. Commissioner of Education, 563 P.2d 246, 248 (Alaska 1977). It demands a showing that "if relief is granted the outcome of the suit may be different than if the entry of default or the default judgment is allowed to stand_" 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2697 (1983). While in some jurisdictions, a meritorious defense must be one which would "defeat plaintiff's action," Horn v. Intelectron Corp., 294 F.Supp. 1153, 1156 (S.D.N.Y.1968), we interpret "different outcome" more broadly. Although the existence of a comparative negligence defense might not result in a different prevailing party, it could reduce a plaintiff's award, and thereby alter the outcome of the suit. Hertz adduced testimony showing that he could produce evidence at trial that Berzanske and Pierce were traveling substantially in excess of the speed limit at the time of the collision, that the rear tire of Pierce's motorcycle was bald and that the motorcycle was being operated in a negligent manner other than by speeding. The superior court concluded, and we agree, that such evidence could well support a finding by the trier of fact that Pierce and Berzanske (or at least Pierce) were partly at fault and, therefore, not entitled to full recovery under the doctrine of comparative negligence. Kaatz v. State, 540 P.2d 1037, 1049 (Alaska 1975). See also State v. Kaatz, 572 P.2d 775 (Alaska 1977). A meritorious defense was thus shown. ABUSE OF DISCRETION The superior court denied Hertz's motion to set aside the default entry primarily because of the lack of a good excuse or justification for the default. But it found in addition that there were two intervening equities operating against Hertz. First, Dean was substantially untruthful, and offered evidence that had been substantially fabricated. Second, the plaintiffs would be prejudiced if the motion to set aside default were granted, because they had already submitted a memorandum regarding damages and had adduced testimony from several witnesses concerning damages. The size of the potential award was considered, but the superior court believed the other factors were more compelling, and noted that Hertz would be able to participate in the damage hearing. We disagree with the superior court's assessment of the equities in this case. Gregg obtained a default entry against Hertz only one day after the deadline for filing his answer. While Gregg did send a letter to Dean advising him of the twenty day extension, he made no effort to notify Dean of his intent thereafter to seek a default, or to inquire about Dean's intention to proceed. We have adopted the following rule of trial conduct: When [a lawyer] knows the identity of a lawyer representing an opposing party, he should not take advantage of the lawyer by causing any default or dismissal to be entered without first inquiring about the opposing lawyer's intention to proceed. American College of Trial Lawyers Code of Trial Conduct No. 14(a), at 149 (1971-72); City of Valdez v. Salomon, 637 P.2d 298, 299 (Alaska 1981); Cook v. Aurora Motors, Inc., 503 P.2d 1046, 1049 n. 6 (Alaska 1972). The same rule of inquiry should apply when a lawyer knows the identity of an agent representing an opposing party, even if he does not know the identity of opposing counsel. "[T]he purpose of the default procedure is to prevent a procrastinating defendant from unduly delaying a case; it should not be regarded as a tactical tool by which a plaintiff may obtain judgment without the bother and expense of litigation." City of Valdez, 637 P.2d at 299, n. 1. While Gregg had the procedural right to seek a default entry, he was obligated to inquire into Hertz's intent to proceed and to inform Hertz of his intent to seek a default entry. The plaintiffs originally prayed for damages "in excess of" $45,000, but they received $436,319.43. Unless there are intervening equities, a controversy concerning damages of this magnitude should be resolved on its merits whenever possible. Gregor v. Hodges, 612 P.2d 1008, 1010 (Alaska 1980). The superior court attempted to minimize the harshness of the magnitude of the award by noting that Hertz had the opportunity to participate in the determination of damages. Such an opportunity, however, is relatively meaningless once the determination of liability has been made. The superior court was preoccupied with Dean's untruthfulness regarding the reasons for the default. We have no reason to doubt the court's estimation of Dean's credibility. However, plaintiffs do not argue, and nothing suggests, that Dean acted in bad faith or intentionally by allowing the default to occur. Instead, it seems that Dean was later untruthful in order to dispel his own negligence. While we do not condone Dean's conduct, his conduct, in itself, does not prevent a finding of good cause for setting aside an entry of default. We also disagree with the superior court's conclusion that the appellees would be prejudiced if the motion to set aside the default entry were granted. Appellees claim they would be prejudiced because they had already submitted their memorandum on damages when Hertz moved to set aside the default, and had appeared at the hearing on damages with out-of-town witnesses whose testimony could have been delayed only at substantial inconvenience. We fail to see any prejudice to appellees resulting from setting aside the default entry. The information appellees presented in their memorandum on damages was discoverable. The costs of witnesses and attorney's fees could have been reimbursed by Hertz as a condition to setting aside the default, using the court's equitable powers. Gregor v. Hodges, 612 P.2d 1008, 1009-1010 (Alaska 1980). "The mere fact that the nondefaulting party will be required to prove his case without the inhibiting effect of the default upon the defaulting party does not constitute prejudice which should prevent a reopening." BDM, Inc. v. Sageco, Inc., 57 Haw. 73, 549 P.2d 1147, 1150 (1976); Montez v. Tonkawa Village Apartments, 215 Kan. 59, 523 P.2d 351 (1974). In sum, we find no equitable reason why the entry of default should not have been set aside, given the short period of default, the amount of the potential award, the availability of alternative equitable sanctions, and strong policy favoring resolution of cases on their merits. We hold for the foregoing reasons that there was "good cause" under Civil Rule 55(e) to set aside the default entry and that the superior court abused its discretion in refusing to set it aside. REVERSED in part, AFFIRMED in part, and REMANDED for further proceedings consistent with this opinion. . Pierce was the owner-operator of the motorcycle, Berzanske was Pierce's passenger, and Hertz was driving the truck. . Without any extension, the answer would have been due on Monday, December 28,.1981. Alaska R.Civ.P. 12(a). With a twenty day extension it would have been due on Monday, January 18, 1982. Gregg's letter to Dean stated that the answer was due, under the extension, on Friday, January 15, 1982. . The claim by Lawrence W. Berzanske was later settled, and he has been dismissed from this appeal. . Alaska R.Civ.P. 60(b) provides in part: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. . We have previously held that a default judgment will not be set aside, except in very unusual cases, unless the defendant has presented a meritorious defense. Gregor v. Hodges, 612 P.2d 1008, 1009-1010 (Alaska 1980); Balchen v. Balchen, 566 P.2d 1324, 1328 n. 11 (Alaska 1977); Markland v. City of Fairbanks, 513 P.2d 658, 659-660 (Alaska 1973). A meritorious defense is similarly required for setting aside an entry of default. See 6 J. Moore, Moore's Federal Practice ¶ 55.10(1] (2d ed. 1983); 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2697 (1983). . BDM, Inc. v. Sageco, Inc., 57 Haw. 73, 549 P.2d 1147, 1149-1150 (1976); McClurg v. Flathead County Comm'rs, 188 Mont. 20, 610 P.2d 1153, 1155-1156 (1980); Intermountain Lumber & Builders Supply v. Glens Falls Ins. Co., 83 Nev. 126, 424 P.2d 884 (1967). .For other, federal courts using a similar approach, see Meehan v. Snow, 652 F.2d 274, 276 (2d Cir.1981); Jackson v. Beech, 636 F.2d 831, 835 (D.C.Cir.1980); Bavouset v. Shows of San Francisco, 43 F.R.D. 296, 297-298 (S.D.Tex.1967). See also 6 J. Moore, Moore's Federal Practice ¶ 55.10(2] (2d ed. 1983); 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 2696 at 518-19 (1983). See generally Project, Relief From Default Judgments Under Rule 60(b) — A Study Of Federal Case Law, 49 Fordham L.Rev. 956 (1980-81) (proposing that the rules regarding set aside motions be modified to provide greater consistency and predictability). . The superior court is not foreclosed from sanctioning Hertz for violation of any court rules and orders. Alaska R.Civ.P. 90 and 95. . In the event of a new trial, the amount of the damage award to plaintiffs, if any, should also be redetermined. We need not address Hertz's contention that the superior court abused its discretion by refusing to permit him to file a counterclaim for contribution, because Hertz conceded that the issue is now moot. Hertz's contention that the superior court erred in failing to limit plaintiffs' recovery to $15,000 per plaintiff need not be addressed in light of our reversal and remand of the case. Finally, Hertz maintained on appeal that the superior court erred by awarding prejudgment interest on Pierce's damage award for lost future earning capacity. We wish to state at this time that the superior court's award was proper under State v. Phillips, 470 P.2d 266 (Alaska 1970).

10418309

Ronald BROWER, Appellant, v. STATE of Alaska, Appellee

Brower v. State

1984-06-15

No. 7816

290

293

683 P.2d 290

683

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:21:41.023872+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Ronald BROWER, Appellant, v. STATE of Alaska, Appellee.

Ronald BROWER, Appellant, v. STATE of Alaska, Appellee. No. 7816. Court of Appeals of Alaska. June 15, 1984. Charles R. Pengilly, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellant. Anne D. Carpeneti, Asst. Atty. Gen., Daniel W. Hickey, Chief Prosecutor and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1565

9549

OPINION SINGLETON, Judge. Ronald Brower was convicted of attempted sexual assault in the first degree. AS 11.41.410; AS 11.31.100. He appeals, arguing that the method used to select the grand jury in his case violated his right to equal protection of the law under the state and federal constitutions. U.S. Const, amend. XIV; Alaska Const, art. 1, § 1. He also contends that numerous delays which occurred between his arrest and trial violated his right to a speedy trial under the Sixth Amendment to the United States Constitution and Alaska Criminal Rule 45. We affirm. On February 22, 1981, Brower attempted to rape D.T. Brower, who was born on June 15, 1963, was seventeen years old at the time. He was initially prosecuted as a juvenile, AS 47.10.010, but the state obtained a waiver of juvenile jurisdiction from the superior court, AS 47.10.060. An indictment was subsequently returned, and Brower was convicted. Brower argues that his grand jury was selected in violation of his rights under the equal protection clauses of the state and federal constitutions because of systematic exclusion of Alaska Natives. Brower was indicted by a grand jury convened in Fairbanks, which has a substantially smaller population of Alaska Natives than Barrow, where the offense occurred. He relies on Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). Partida, a Mexican-American, was indicted by a grand jury in Hidalgo County, Texas. The grand jury was selected through a "key man" procedure; jury commissioners, in effect, selected people they knew to serve on grand juries. Partida argued that his grand jury substantially underrepresented Mexican-Americans. The Supreme Court announced a three-part test for evaluating such a challenge: Thus, in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial under-representation of his race or of the identifiable group to which he belongs. The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. This method of proof, sometimes called the "rule of exclusion," has been held to be available as a method of proving discrimination in jury selection against a delineated class. Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case. 430 U.S. at 495-96, 97 S.Ct. at 1280, 51 L.Ed.2d at 510-11 (citations omitted; footnote omitted). Brower argues and the state concedes that Alaska Natives are a identifiable group. He then argues: Alaska Natives comprise . 76.8% of the total population of the North Slope Borough, where Barrow is located; Alaska Natives account for only . 5.5% of the Fairbanks North Star Borough. As of 1970, 99.8% of the Native population of Barrow was Eskimo, while only 24.0% of the Natives in Fairbanks were members of that sub-class. Assuming that the same ratios existed in 1980, these figures identify an even more radical disparity in racial composition between the communities in question: while approximately 77.6% of the population of the North Slope Borough is Eskimo, only 1.3% of the total population of the Fairbanks North Star Borough is Eskimo. Thus, although 76.8% of the community where this incident occurred is Native and 76.6% of that community is Eskimo, the community from which Mr. Brower's grand jury was selected is only 5.5% Native and 1.3% Eskimo. It is clear that Brower has substantially misunderstood the requisites of a prima facie case under Castaneda. In order to establish underrepresentation of a significant group under Castaneda, a comparison must be made between the proportion of the allegedly disfavored group that exists in the population from which the grand jury is chosen and the proportion of that group ultimately selected to serve on grand juries. It is a substantial disparity between those two figures which establishes circumstantial evidence of intentional discrimination. Here, the population or community from which the grand jury was chosen was the Fairbanks North Star Borough. There is no evidence in the record that Alaska Natives were substantially underrepresented given the proportionate membership of that group in the Borough's population. Thus, Brower has failed to establish a prima facie case under Castaneda. Brower's argument is really quite different than the issue in Castaneda. He is contending that the grand jury was drawn from an improperly constituted community, an issue not addressed in Castaneda or the other federal cases upon which he relies. That issue was, however, addressed by the Alaska Supreme Court in Alvarado v. State, 486 P.2d 891 (Alaska 1971). The court in that case held that a petit jury must be chosen from a fair cross section of the total community and that the concept of community encompasses the location of the alleged offense. 486 P.2d at 902. The court concluded that limiting the jury panel to those within a fifteen-mile radius of Anchorage, which excluded the village in which Alvarado's crime occurred, was not an appropriate community from which to choose a jury. The court reasoned that an urban area such as Anchorage did not adequately represent the total community. Id. at 901. However, the supreme court has declined to apply Alvarado to grand jury selection. See Peterson v. State, 562 P.2d 1350, 1366 (Alaska 1977). See also Crawford v. State, 408 P.2d 1002, 1007 (Alaska 1965) (reaffirmed in Alvarado v. State, 486 P.2d at 904). We hold that Judge Hanson did not err in denying Brower's motion to dismiss the indictment. As long as the area from which the grand jury is chosen does not underrepresent a cognizable group when compared to the state as a whole, we will find no equal protection violation. There is nothing in the record to establish that Brower's grand jury, which was chosen from the Fairbanks North Star Borough, substantially underrepresented Alaska Natives when compared to that group's representation in the state as a whole. Brower next argues that his constitutional right to a speedy trial, construed in light of Alaska Criminal Rule 45, was violated. Brower concedes that less than 120 days elapsed from the time he was waived to adult status to the time he entered his plea. He also concedes that Rule 45 is not directly applicable to juvenile proceedings. He argues, nevertheless, that where juvenile jurisdiction is waived, part of the time prior to the waiver should be considered. We reject Brower's argu ment. The supreme court has specifically held that Rule 45 does not apply to juvenile proceedings. In re R.D.S.M., 565 P.2d 855, 858 (Alaska 1977). We see no reason to modify In re R.D.S.M. where a juvenile is waived to adult court. We hold that Rule 45 begins to run on the day the waiver order is signed. Courts interpreting similar speedy trial provisions have reached the same result. See, e.g., People v. Woodruff, 88 Ill.2d 10, 58 Ill.Dec. 869, 871-72, 480 N.E.2d 1120, 1122-28 (1981); State v. White, 223 N.W.2d 173, 175 (Iowa 1974); State v. Howell, 89 N.M. 10, 546 P.2d 858, 859 (1976); State ex. rel. Williams v. Court of Common Pleas, 42 Ohio St.2d 433, 329 N.E.2d 680, 681 (1975); State v. Jacks, 25 Wash.App. 141, 605 P.2d 363, 364-65 (1980). Cf. Commonwealth v. Bell, 245 Pa.Super. 164, 369 A.2d 345, 346 (1976), aff'd mem., 481 Pa. 229, 392 A.2d 691 (Pa.1978). But cf. State v. Benton, 337 So.2d 797, 798 (Fla.1976) (juvenile speedy trial rule requires contrary result). We also reject Brower s constitutional argument. In order to show a violation of his constitutional right to a speedy trial, Brower must show prejudice resulting from any delay. Springer v. State, 666 P.2d 431, 434-35 (Alaska App.1983). Brow-er makes no showing of prejudice. He argues that the supreme court in In re R.D.S.M. suggested that Rule 45, which eliminates any need to show prejudice, applies to juvenile proceedings by analogy. However, our review of that case indicates that Brower is in error. The trial court did not err in rejecting Brower's contention that he was denied his right to a speedy trial. The judgment of the superior court is AFFIRMED. . Brower argues that Rule 45 is "a valuable guide" in determining whether a juvenile's right to speedy trial has been violated. See Alaska Const. art. I, § 11; U.S. Const. amend. VI. He relies on In re R.D.S.M., 565 P.2d 855, 858 n. 13 (Alaska 1977). But cf. State v. Williams, 681 P.2d 313, 315 (Alaska 1984) (Rule 45 will generally provide a speedier trial than is constitutionally required).

10417870

Stephen W. NOEY, individually and d/b/a Stephen W. Noey & Associates, Ltd., a division of Pacific Rim Properties, Inc., an Alaska Corporation; and Pacific Rim Properties, Inc., an Alaskan Corporation, Petitioners, v. UKPEAGVIK INUPIAT CORPORATION, Respondent

Noey v. Ukpeagvik Inupiat Corp.

1984-06-22

No. S-278

260

262

683 P.2d 260

683

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:21:41.023872+00:00

CAP

Before BURKE, C.J., and RABINOW-ITZ, MATTHEWS, COMPTON and MOORE, JJ.

Stephen W. NOEY, individually and d/b/a Stephen W. Noey & Associates, Ltd., a division of Pacific Rim Properties, Inc., an Alaska Corporation; and Pacific Rim Properties, Inc., an Alaskan Corporation, Petitioners, v. UKPEAGVIK INUPIAT CORPORATION, Respondent.

Stephen W. NOEY, individually and d/b/a Stephen W. Noey & Associates, Ltd., a division of Pacific Rim Properties, Inc., an Alaska Corporation; and Pacific Rim Properties, Inc., an Alaskan Corporation, Petitioners, v. UKPEAGVIK INUPIAT CORPORATION, Respondent. No. S-278. Supreme Court of Alaska. June 22, 1984. Peter A. Galbraith, Anchorage, for petitioners. J. Michael Robbins, Walker & Robbins, Anchorage, for respondent. Before BURKE, C.J., and RABINOW-ITZ, MATTHEWS, COMPTON and MOORE, JJ.

1622

9957

OPINION PER CURIAM. In February, 1981 Stephen W. Noey & Associates, Ltd., et al. (hereafter Noey) and Ukpeagvik Inupiat Corporation (hereafter UIC), the Barrow Village corporation, entered into a written agreement whereby Noey would appraise certain properties owned by UIC in and around Barrow. UIC paid Noey $10,000 when the contract was signed. A dispute arose between the parties and on May 27, 1983 UIC filed suit for rescission and restitution in the superior court in Barrow claiming that Noey had not fully performed his duties under the contract. On May 31, 1983, unaware of the Barrow suit, Noey filed suit in the superior court in Anchorage claiming that it had performed all required appraisal services and that UIC owed it $13,000 under the written agreement and $3,500 for additional services performed at the request of UIC. On June 6, 1983 Noey was served with notice of the UIC Barrow complaint. Noey responded by filing a motion to dismiss the complaint on the grounds of improper venue, or, in the alternative, to have venue transferred to the Third Judicial District at Anchorage. Noey's motion argued, inter alia, that it could not get a fair trial in Barrow because a large percentage of the jury pool there are UIC shareholders and therefore biased toward UIC. Judge Jeffery rejected this argument and held that the interest in having the controversy decided locally outweighed any prejudice that could result from the Barrow jurors' ownership in UIC. Judge Jeffery further stated that UIC shareholders would not be subject to a challenge for cause under Civil Rule 47(c)(12). Noey then filed a petition for review. We hereby GRANT the petition for review of Judge Jeffery's ruling solely as to the question whether UIC shareholders would be subject to a Rule 47(c)(12) challenge for cause. Civil Rule 47(c)(12) states: (c) Challenges for Cause. After the examination of prospective jurors is completed and before any juror is sworn, the parties may challenge any juror for cause. A juror challenged for cause may be directed to answer every question pertinent to the inquiry. Every challenge for cause shall be determined by the court. The following are grounds for challenge for cause: (12) That the person has a financial interest other than that of a taxpayer in the outcome of the case. The superior court held that the financial interest that the shareholders of ANCSA-created village corporations presently have is so attenuated as to not be the basis of a challenge for cause when such a corporation is involved in litigation. We disagree. "That a stockholder in a company which is a party to a lawsuit is incompetent to sit as juror is so well settled as to be black letter law." Chestnut v. Ford Motor Company, 445 F.2d 967, 971 (4th Cir.1971). This rule extends to village and regional corporations irrespective of whether the shares are freely alienable or are earning dividends at the time of trial. Ownership of shares in a village corporation constitutes a direct financial interest in that corporation and consequently a financial interest in the outcome of the litigation to which the corporation is a party. We thus REVERSE that portion of the superior court's ruling which held that ownership in UIC is not a ground for challenge for cause under Civil Rule 47(c)(12). The motion to change venue is REMANDED to the superior court for redetermination in light of the views expressed herein. RABINO WITZ, J., dissents. . This case is distinguishable from Maier v. City of Ketchikan, 403 P.2d 34 (Alaska 1965), overruled on other grounds, Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska 1978) where the prospective jurors were rate-payers of the municipal utility. In that situation, the jurors did not effectively have a financial interest in the outcome of the case other than that of taxpayers which is an insufficient ground for challenge under Civil Rule 47(c)(12). . Judge Jeffery suggested in his order that he might grant the motion to transfer venue if shareholders in UIC were disqualified. The order states: In this case, the interest in having "localized controversies decided at home" so that the case can be decided in the "view and reach [of local people] rather than in remote parts of the country where they could learn of it by report only" must prevail . It may be that this balancing would be different following 1991, if shares in the village and regional corporations become freely alienable on the open market. [Memorandum Decision and Order, pp. 4-5 (citations omitted) ] We express no view on whether the motion should be granted.

11627417

Charlie N. FALCONER, Appellant and Cross-Appellee, v. Donald F. ADAMS, Appellee, and Karla Taylor-Welch, Appellee and Cross-Appellant

Falconer v. Adams

1999-03-26

Nos. S-7637, S-7657

406

417

974 P.2d 406

974

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:22:12.382875+00:00

CAP

Before MATTHEWS, Chief Justice, and COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

Charlie N. FALCONER, Appellant and Cross-Appellee, v. Donald F. ADAMS, Appellee, and Karla Taylor-Welch, Appellee and Cross-Appellant.

Charlie N. FALCONER, Appellant and Cross-Appellee, v. Donald F. ADAMS, Appellee, and Karla Taylor-Welch, Appellee and Cross-Appellant. Nos. S-7637, S-7657. Supreme Court of Alaska. March 26, 1999. Michael W. Flanigan, Walther & Flanigan, Anchorage, for Appellant/Cross-Appellee. Clifford W. Holst, Law Office of Clifford W. Holst, Anchorage, for Appellee Donald F. Adams. Gary Foster, Law Office of Gary Foster, Fairbanks, for Appellee/Cross-Appellant Karla Taylor-Welch. Before MATTHEWS, Chief Justice, and COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

6622

41717

OPINION BRYNER, Justice. Karla Taylor-Welch was driving a vehicle that rear-ended a stopped vehicle driven by Charlie Falconer; Falconer sued Taylor-Welch and a third driver, Donald Adams, who had allegedly forced Falconer to stop. A jury, finding Adams not negligent and Taylor-Welch and Falconer both partially negligent, awarded Falconer damages against Taylor-Welch. The trial court granted Falconer a judgment notwithstanding the verdict (JNOV) on the issue of his own negligence, denied him attorney's fees against Adams, and entered a final judgment reducing the net award of damages by the amount of medical payments Falconer had received from his own insurer. These rulings are now challenged. We conclude: (1) because Taylor-Welch failed to prove that Falconer received unsubrogated collateral-source benefits, the jury verdict should not have been reduced; (2) Falconer failed to establish that he was entitled to prevailing-party fees against Adams; and (3) Taylor-Welch's cursory discussion of her challenge to the JNOV amounts to a waiver of the point. I. FACTS AND PROCEEDINGS A. The Collision, the Trial, and the Verdict On February 3,1992, Falconer was driving north on Cushman Street in Fairbanks. He began to turn left onto Seventh Avenue, but stopped abruptly. Taylor-Welch was following Falconer; she applied her brakes but slid on the icy pavement and collided with Falconer's car. Falconer claimed that he was forced to stop because he saw Adams's car on Seventh Avenue facing him in the wrong lane of traffic. Falconer sued Taylor-Welch and Adams for personal injuries sustained in the collision, seeking, among other things, reimbursement of $8038.24 in medical expenses. At trial, Taylor-Welch confirmed Falconer's version of events. She testified that she saw Falconer signal prior to turning; when Falconer stopped, she hit her brakes but her car slid into Falconer's. When she got out of her car and approached Falconer, she saw that he had been unable to complete his turn because Adams's car was in the wrong lane and was blocking him. Adams denied being in the wrong lane of traffic. He testified that he was stopped in the middle lane — the designated left-turn lane — on Seventh Avenue when the collision occurred. He did not actually see the collision, but he heard the sound of impact, looked up, and saw the stopped cars. Officer Haydon Bartholomew of the Fairbanks Police Department investigated the collision. At trial, Bartholomew testified from his original investigation report; he had no independent recollection of the incident. Bartholomew testified that neither Taylor-Welch nor Falconer told him that Adams had been in the wrong lane, but he confirmed that Falconer reported that "there was an obstacle or a vehicle, something in front of him, that caused him to brake — apply his brake." According to Bartholomew, this was essentially what Taylor-Welch and Adams reported, also. Bartholomew's understanding was that Falconer had stopped to avoid something on Seventh Avenue. Bartholomew knew of no witnesses apart from Falconer, Taylor-Welch, and Adams. The jury returned a verdict finding Taylor-Welch forty percent negligent, Falconer sixty percent comparatively negligent, and Adams not negligent. The jury further determined that Falconer's total damages were limited to $5064 in past medical expenses and $510 in past non-economic loss (pain and suffering). B. The JNOV on Comparative Negligence During the trial, Falconer moved for a directed verdict establishing Taylor-Welch's negligence and his own lack of comparative negligence. Taylor-Welch resisted these motions. Relying on Officer Bartholomew's conclusion that the major factor contributing to the collision was an obstruction in the roadway that precluded Falconer from turning, Taylor-Welch argued that reasonable jurors could find that she had not been negligent. And based on the possibility that the jury might find that "Adams was where he was supposed to be," Taylor-Welch argued that Falconer's abrupt stop might itself support a finding of negligence on Falconer's part. The trial judge, noting a desire "to present as much to the jury as I can," declined to direct the verdict but indicated that he would likely overturn a jury verdict actually finding Falconer comparatively negligent. Immediately upon the jury's return of its verdict finding him sixty percent negligent, Falconer requested a judgment notwithstanding the verdict, pointing out that the court "already . had reached a tentative decision." The judge deferred the issue pending a formal motion but indicated "that if the motion[ ] come[s] in I will likely grant that motion." Falconer later filed a formal motion for JNOV against Taylor-Welch on comparative negligence; Taylor-Welch filed opposition, and the court granted the motion, without comment, upon entry of the final judgment. C. Reduction of the Jury Award for Medical Loss Falconer's trial began on January 18,1996, and culminated in a verdict on January 30. On January 18, as the court addressed legal issues to be resolved before jury selection was completed, Adams informed the court that Falconer's insurer, State Farm, had paid Falconer $5000 in medical bills and that Falconer had admitted receiving the payment in answer to a request for admissions. Adams claimed that the payment was "not a recoverable expense in this litigation." Falconer responded that the payment was "a collateral source" and that State Farm was "subrogat-ed to our recovery." Falconer further asserted that if the defendants "wanted to pay State Farm they should have done [that] a long time ago and under AS 09.16.070, [sic, apparently referring to AS 09.17.070] . the court's suppose[d] to take that up after the trial and decide whether or not that's a recoverable damage." Adams disagreed, insisting that Falconer had earlier admitted that he was not trying to recover the expense. The trial court dismissed the argument, however, commenting that "all I know is that's not an issue that we have to resolve before the jury is instructed." In the midst of trial, on January 23, Adams returned to the medical payment issue, supplying the court with a copy of the request for admission that he had mentioned on January 18 and arguing that it was "conclusive proof of the plaintiffs position in this case." Falconer acknowledged the apparent admission but insisted that in later discovery he had made it clear that he did in fact intend to seek recovery of all medical expenses, including those for which he had received payment from his own carrier, State Farm. This prompted the following comment by Adams: Now my understanding is State Farm, as its typical practice is, is inclined and will recover on its own right, its damages with regard to its $5,000 dollars. I've seen nothing the plaintiff has provided which says that State Farm intends to have lien rights so they could attempt to get the money allocated here. So what we have here is the potential of a double recovery. . In response, Falconer insisted that "we've already told the court . in open court, that they are subrogated to that $5,000 and that we have to pay that back. So, so much for the double recovery, there is no double recovery." Falconer reiterated his position that "this matter is best handled after the trial which is specifically what AS 09.16.070[sic] says the court is supposed to do." The court moved on to another subject and the discussion ended. That same day or the day after, Adams's and Taylor-Welch's insurers — Allstate and GEICO — evidently tendered payment of $5000 to State Farm as reimbursement for medical expenses that State Farm had paid for Falconer. State Farm apparently accepted Allstate's payment as extinguishing State Farm's "Medical Payments Coverage inter est" with regard to the medical expenses it paid for Falconer. After trial, Falconer, Taylor-Welch, and Adams all submitted proposed forms of judgment. Taylor-Welch's proposed judgment form incorporated a $5000 reduction of the jury award for "the amount of the subrogat-ed medical payment lien paid by the defendants." Adams's judgment form included a provision for an award of prevailing party costs and attorney's fees. Falconer objected to the defendants' forms of judgment. As to Taylor-Welch's proposed $5000 reduction, Falconer acknowledged that the defendants' insurers had paid medical expenses to State Farm but argued that the defendants had failed to establish a right of offset under AS 09.17.070. Falconer further argued that, in any event, the direct payments from defendants' insurers to State Farm could not reduce the jury's net award; the payments were at most subject to offset against his full medical expense claim of $8200, and before any offset was allowed he was entitled to an award of prejudgment interest on the amount of the verdict and to reimbursement for his attorney's fees. As to Adams's request for prevailing-party attorney's fees, Falconer argued that Adams's $5000 midtrial payment to State Farm was "a limited admission of liability and damages" that effectively made Falconer "the prevailing party as to that payment." Falconer thus demanded prevailing party attorney's fees against both defendants. Taylor-Welch and Adams both opposed Falconer's demands. Taylor-Welch argued that Falconer had not prevailed and that he was not entitled to prejudgment interest "on the subrogated medical pay lien amount," since his bills had been paid by State Farm and he had never lost the use of the money awarded by the jury. Adams argued that "[djuring the course of trial, Allstate and GEICO extinguished the State Farm subro-gation interest that State Farm attempted to recover directly from them." Adams further argued that, for purposes of prevailing party attorney's fees, "[t]he fact [that] Allstate and GEICO extinguished State Farm's interest proves nothing other than the fact [that] the insurance carriers settled claims between themselves." Without explanation, the court entered judgment on the forms proposed by Taylor-Welch and Adams, reducing the verdict against Taylor-Welch by $5000 and awarding Adams — rather than Falconer — prevailing party fees and costs. Falconer appeals, challenging the $5000 reduction of the jury's award and the court's failure to grant his request for fees and costs against Adams. Taylor-Welch cross-appeals, contesting the court's entry of a JNOV against her on the issue of Falconer's negligence. II. DISCUSSION A. Falconer's Appeal — Effect of Allstate's Mid-Trial Tender of State Farm's Medical Payments on the Jury's Verdict and on Adams's Prevailing-Party Status On appeal, Falconer renews the arguments he raised below. As to Taylor-Welch he claims that no offset for Allstate's payment to State Farm was justified and, alternatively, that any offset should be governed by AS 09.17.070. As to Adams he claims that he is entitled to "prorata [sic] attorney's fees, costs and interest, associated with the $5,000 payment to State Farm." In response to Falconer, Taylor-Welch takes the position that Adams's insurer, Allstate, "paid off State Farm medical payments of $5,000 . pursuant to the Interinsurance Company Agreement on the handling of these types of subrogation claims." Taylor-Welch thus asserts that "[t]he $5,000 was properly deducted from [Falconer's] verdict to prevent double recovery or, more accurately, double payment." With regard to attorney's fees, Adams takes the position that the trial court properly determined him to be the prevailing party because he was found not negligent and "is therefore liable for none of [Falconer's] damages." 1. Reduction of Falconer's verdict In our view, the issue of Taylor-Welch's right to reduction of the jury verdict is governed by AS 09.17.070, which deals with proof of collateral source payments. It is undisputed that State Farm's payments of Falconer's medical expenses were initially subject to a right of subrogation; hence, under subsection (a) of AS 09.17.070, Taylor-Welch would not have been entitled to introduce evidence of those payments to reduce the jury's damage award. Nevertheless, in arguing that Allstate "paid off State Farm medical payments . pursuant to the Interinsurance Company Agreement on the handling of these types of subrogation claims," Taylor-Welch implicitly asserts that, by extinguishing State Farm's right of subrogation, Allstate's mid-trial payment to State Farm converted the subrogat-ed medical expenses State Farm incurred on Falconer's behalf into unsubrogated benefits that became subject to offset under AS 09.17.070(a). This assertion presents a twofold problem. First, assuming the validity of Taylor-Welch's theory, Taylor-Welch would not have been entitled to a reduction of the net jury damage award. Instead, her right to a deduction would have been governed by subsections (b) and (c) of AS 09.17.070, which would have entitled Falconer to be made whole, before any deduction, for all attorney's fees he had incurred and all amounts he paid or contributed to secure his right to the State Farm medical payment benefit. Second, under subsection (a) of AS 09.17.070, Taylor-Welch bore the burden of proving her right to an offset by "intro-ducting] evidence of amounts received" by Falconer from a collateral source that "[did] not have a right of subrogation by law or contract." Thus, she was entitled to no reduction of the verdict unless she proved that Allstate's payment actually extinguished State Farm's right of subrogation against Falconer. And in light of AS 09.17.070(d), Taylor-Welch was further required to prove that Allstate's payment did not result in "a gratuitous benefitt ] . to [Falconer]." Taylor-Welch did not carry this burden. Although it is undisputed that, during the trial, Allstate paid State Farm $5000 for medical expenses that State Farm had earlier paid on behalf of Falconer, the trial transcript and post-trial pleadings contain only passing references to this payment. On appeal, Taylor-Welch makes only conclusory assertions of an interagency agreement "on the handling of these types of subrogation claims"; she supplies no citations to evidence in the record supporting these assertions, and we have found no evidence of an inter-agency agreement of the kind Taylor-Welch asserts. As far as we can ascertain, no evidence was presented below that would have enabled the court to determine the basis for or the specific terms of any inter-agency agreement, or the legal effect of the Allstate payment to State Farm. The only concrete sign of payment in the record consists of unfiled copies of several documents indicating that Allstate, purportedly acting on behalf of both Taylor-Welch and Adams, tendered last-minute payment of $5000 to State Farm to extinguish "State Farm's Medical Payments Coverage interest in the amount of $5,000 with regard to medical expenses paid on behalf of Charlie Falconer. . ," These documents raise more questions than they answer. Allstate was Adams's insurer, not Taylor-Welch's. Taylor-Welch fails to explain what basis she has for claiming credit for a payment by Adams to Falconer, and the record does not establish a factual foundation for such a credit. Even assuming that Taylor-Welch might be entitled to credit for Allstate's payment, she fails to establish what portion of Allstate's $5000 payment is allocable to her, and what portion to Adams, Allstate's insured. Moreover, she fails to show exactly what medical expenses the payment was meant to reimburse: the jury awarded Falconer less than his total claim for medical expenses; whether All state's check reimbursed State Farm for the same medical expenses awarded by the jury remains entirely unclear. And Taylor-Welch has not explained why she should receive a full $5000 credit against the jury's medical expenses award, as opposed to either a pro rata reduction, or a reduction from the gross amount of Falconer's medical expenses claim. In sum, the record contains documents reflecting a payment by Adams's insurer to Falconer's, they are unauthenticated, then-presence in the record is unexplained, and Taylor-Welch fails even to mention them in her briefing. Given these circumstances, we decline to hold that these documents establish Falconer's receipt of collateral-source payments that Taylor-Welch is entitled to deduct from the jury's award against her. On the record presently before us, we conclude that the trial court lacked a sufficient evidentiary basis to deduct any collateral source payments from the jury's award of damages. 2. Denial of prevailing-party attorney's fees against Adams For much the same reason, we must conclude that Allstate's mid-trial payment to State Farm does not entitle Falconer to an award of attorney's fees against Adams. Alaska Civil Rule 82 allows attorney's fees to be awarded only to "the prevailing party in a civil case." The jury verdict found Adams non-negligent and awarded Falconer no damages against him. Falconer's assertion of prevailing-party status thus depends entirely upon his characterization of Allstate's payment to State Farm as a partial "constructive settlement" of Falconer's claim against Adams. Yet Falconer, like Taylor-Welch, has failed to establish the surrounding circumstances, contractual terms, and legal significance of Allstate's payment to State Farm. We therefore conclude that, on this record, Falconer's claim to attorney's fees against Adams must fail. In sum, the superior court erred in reducing Falconer's verdict to account for payment of his medical expenses but did not abuse its discretion in awarding costs and fees to Adams, instead of Falconer. B. Taylor-Welch's Cross-Appeal — The Trial Court's Award of a JNOV as to Falconer's Comparative Negligence. After the jury found that Falconer was sixty percent comparatively negligent, Falconer moved for a judgment notwithstanding the verdict on this point, arguing that there was no evidence to support a finding that he acted negligently. The trial court granted Falconer's motion. Taylor-Welch appeals the trial court's decision, arguing that Falconer's negligence was an issue of fact that should properly have been left to the jury. Falconer responds that, because none of the witnesses at trial gave testimony indicating that he had driven negligently, and because Taylor-Welch herself candidly admitted that Falconer had done nothing wrong, there was no reasonable basis for a finding of comparative negligence. Falconer alterna tively contends that Taylor-Welch's argument on this point "is scantily contained in her brief' and should be deemed abandoned for lack of adequate briefing. We conclude that Falconer's waiver argument is well taken. Taylor-Welch's discussion of the issue of Falconer's negligence consists of a single, cursory paragraph. After setting out the applicable standard for granting a judgment notwithstanding the verdict, Taylor-Welch simply asserts that the jury, having decided that Adams was not in the wrong lane of traffic, was free to conclude that Falconer's abrupt stop was not adequately explained and therefore amounted to negligence. Taylor-Welch's argument oversimplifies the issue, for it presupposes that a rejection of Falconer's claim of negligence against Adams automatically justifies an assumption of negligence by Falconer. At heart, this argument is a claim of res ipsa loquitur: Taylor-Welch simply assumes that an unexplained stop presumptively establishes negligence. Taylor-Welch cites no authority and provides no meaningful discussion to support this assertion. Our own review of the record reveals no affirmative evidence indicating that Falconer's stop was negligent. Taylor-Welch and Falconer both testified that Falconer stopped because his turn was obstructed by an oncoming vehicle in the wrong lane of traffic; both identified the vehicle as Adams's. Another witness, Mark Norum, confirmed the presence of an oncoming vehicle but did not identify it as Adams's. Adams denied being in the wrong lane of traffic but did not see the accident and apparently did not claim that the far left-hand lane on Seventh Avenue was unobstructed. Officer Bartholomew, who arrived at the scene some time after the collision, testified that neither Falconer nor Taylor-Welch reported Adams's responsibility. Nevertheless, Bartholomew confirmed that Falconer said he had stopped for "an obstacle or a vehicle, something in front of him." And Bartholomew further testified that this was essentially what Taylor-Welch and Adams told him, too. Given this evidence, the jury could certainly have accepted Adams's claim that he was not blocking Falconer and rejected Falconer's and Taylor-Welch's testimony to the contrary. However, we find it far from obvious that acceptance of Adams's version of events could have supported a finding that Falconer's actions were negligent — that is, that his abrupt stop was unnecessary and that he did not reasonably believe it to be necessary.' Considering Taylor-Welch's cursory discussion of the evidence, her conclusory assertion that an unexplained, abrupt stop is in itself sufficient to establish negligence, and her failure to cite any authority to support this assertion, we conclude that Taylor-Welch must be deemed to have waived her claim of error as to the order granting Falconer a judgment notwithstanding the ver-diet on comparative negligence. Clearly, the testimony at trial was conflicting on why Falconer stopped so abruptly in the course of his left turn, in the middle of the intersection. The jury could differ in their assessment of this evidence. After weighing the evidence and viewing the credibility of the participants, the jury decided that Adams was not in the wrong lane, and consequently, not at fault. The jury then determined that Falconer's sudden stop, in the absence of Adams' truck, was negligence on his part and assessed his negligence at 60%. It was up to the jury to decide who it believed and disbelieved and what testimony to discount. Without Adams to blame, Falconer's very abrupt stop was subject to the jury's scrutiny and, as indic[a]ted above, the jury found Falconer had the lion's share of responsibility for the accident (60%). The trial court erred when it overruled that determination. [Citation omitted.] III. CONCLUSION For the foregoing reasons, we AFFIRM the judgment entered by the superior court as to Adams. We also AFFIRM the court's order granting Falconer a judgment notwithstanding the verdict on the issue of his comparative negligence. However, because we conclude that the court erred in reducing the jury's award of damages to Falconer, we VACATE the judgment entered against Taylor-Welch, and REMAND for entry of an amended judgment conforming with the views expressed in this opinion. . In addition, Falconer sought to recover over $130,000 in past and future wage losses and to recover for pain and suffering (his attorney suggested $100,000 would be reasonable). Falconer's wife brought a claim for loss of consortium but the jury did not award her anything. . In the absence of evidentiary dispute, the existence of an offset presents a question of law. Cf. Luth v. Rogers & Babler Constr. Co., 507 P.2d 761, 767-68 (Alaska 1973). This court reviews "questions of law de novo, adopting the rule of law that is most persuasive in light of precedent, reason, and policy." Bauman v. Day, 892 P.2d 817, 824 (Alaska 1995) (citing Langdon v. Champion, 745 P.2d 1371, 1372 n. 2 (Alaska 1987)). . More specifically, Taylor-Welch asserts: (1) that Falconer is not entitled to a set-off against his total medical expense claim of $8038 because this total claim incorporates a mathematical error; (2) that Falconer is not entitled to credit for attorney's fees expended in connection with Allstate's payment because he admitted in his answer to a request for admission that he was not attempting to recover medical payments paid by his insurer; and (3) that he is not entitled to prejudgment interest on the payment because State Farm paid his medical bills and he did not lose the use of the money, and because "under the Interinsurance Company Agreement mentioned above, interest is not charged or collected on reimbursed subrogated 'medpay' payments." These arguments lack merit. First, Taylor-Welch's assertion of a mathematical error in Falconer's claim is itself in error. Second, Taylor-Welch's argument that Falconer's answer to Adams's request for admission waived his right to recovery of medical payments is untenable given the ambiguous nature of the request and answer, given Falconer's subsequent filing of discovery materials establishing his intent to recover his medical expenses, and given the trial court's willingness to allow Falconer to seek recovery of these damages at trial. Last, the factual underpinnings of Taylor-Welch's prejudgment interest argument are unsupported by the record: the record is silent as to whether State Farm charges or collects prejudgment interest when recovering on subrogated medical payments claims. See infra note 5. . AS 09.17.070 provides in relevant part: (a)After the fact finder has rendered an award to a claimant, and after the court has awarded costs and attorney fees, a defendant may introduce evidence of amounts received . by the claimant as compensation for the same injury from collateral sources that do not have a right of subrogation by law or contract. (b) If the defendant elects to introduce evidence under (a) of this section, the claimant may introduce evidence of (1) the amount that the actual attorney fees incurred by the claimant in obtaining the award exceed the amount of attorney fees awarded to the claimant by the court; and (2) the amount that the claimant has paid or contributed to secure the right to an insurance benefit introduced by the defendant as evidence. (c) If the total amount of collateral benefits introduced as evidence under (a) of this section exceeds the total amount that the claimant introduced as evidence under (b) of this section, the court shall deduct from the total award the amount by which the value of the nonsubrogated sum awarded under (a) of this section exceeds the amount of payments under (b) of this section. (d) Notwithstanding (a) of this section, the defendant may not introduce evidence of (1) benefits that under federal law cannot be reduced or offset; (2) a deceased's life insurance policy; or (3) gratuitous benefits provided to the claimant. (e) This section does not apply to a medical malpractice action filed under AS 09.55. . Moreover, since prejudgment interest is a form of consequential damages, see Farnsworth v. Steiner, 638 P.2d 181, 184 (Alaska 1981), an award of prejudgment interest becomes a part of the judgment proper. Cf. Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, 828 P.2d 745, 759 (Alaska 1992); Guin v. Ha, 591 P.2d 1281, 1287 (Alaska 1979); Davis v. Chism, 513 P.2d 475, 481 (Alaska 1973). It follows that any reduction of Falconer's judgment under AS 09.17.070 would have been appropriate only after adding prejudgment interest to the jury award. . See AS 09.17.070(a). Cf. Phillips v. Liberty Mut. Ins. Co., 813 F.2d 1173, 1176 (11th Cir.1987) ("The law has placed the burden on the defendant to show a definite amount of offset."). . The record contains copies of three relevant documents: an Allstate check to State Farm, a "Facsimile Cover Sheet" from State Farm to Allstate, and a letter from State Farm to GEICO. The Allstate check to State Farm is numbered 68757113, appears to be dated January 23 (presumably 1996), and bears the notation "payment of subrogation for claim 02-0186-640 in behalf of Karla Welsh and Don Adams." State Farm's "Facsimile Cover Sheet" indicates on its face that it was transmitted to Allstate at approximately 4:00 p.m. January 24, 1996. The cover sheet lists "Falconer/Welsh" as the "Insured" and refers to claim number 020186640/3321040275. A handwritten remark on the sheet states: "Upon receipt of Allstate check # 68757113 in the amount of $5,000, State Farm's Medical Payments Coverage interest in the amount of $5,000 with regard to medical expenses paid on behalf of Charlie Falconer will be extinguished against Allstate's insured, Taylor Welsh, and GEICO's insd, Don Adams." The State Farm letter to GEICO is dated July 24, 1992, refers to State Farm claim number 02-0186-640, and lists "Carla T. Welch" as GEICO's insured; it expresses State Farm's belief that Taylor-Welch "is responsible for our insured's medical expenses as a result of this [the February 3, 1992] accident," states that it is State Farm's practice "to resolve subrogation issues as amicably and expeditiously as possible," and requests GEICO's "agreement at this time to honor our interest by issuing a separate check to us directly at the time of settlement." The presence of these documents in the record is unexplained: the record discloses no information as to the circumstances under which they were submitted to the superior court and provides no insight into whether the court considered them before it entered judgment. None of the parties refer to the documents in their briefs. . We recognize that a tort claimant should not be reimbursed twice for the same injury. See Luth v. Rogers & Babler Constr. Co., 507 P.2d 761, 766 (Alaska 1973). In providing that an unsuccessful defendant "may " introduce evidence of amounts received by the plaintiff from collateral sources, however, AS 09.17.070(a) permits, but does not require, defendants to assert collateral source claims as offsets to plaintiff's verdicts. Accordingly, when, as here, a defendant fails to prove unsubrogated collateral source payments, the appropriate recourse for the trial court is to deny reduction of the verdict; on appeal of an unsupported reduction, the correct remedy is reversal, not a remand for a second opportunity to prove up the claim. We note that Falconer has consistently acknowledged that the medical payments he received from State Farm were subject to a right of subrogation. We find no reason to presume that the parties and their insurers will be unable to protect against the possibility of double recovery through negotiations or separate proceedings. . "It is well established that the proper role of this court, on review of motions for directed verdict or for judgment notwithstanding the verdict, is not to weigh conflicting evidence or judge the credibility of witnesses, but is rather to determine whether the evidence, when viewed in the light most favorable to' the nonmoving party, is such that reasonable men could not differ in their judgment." Hahn v. Russ, 611 P.2d 66, 67 (Alaska 1980) (citations omitted). . Although Falconer argues that Taylor-Welch's negligence was firmly established as a matter of law under Green v. Plutt, 790 P.2d 1347, 1349 (Alaska 1990), Grimes v. Haslett, 641 P.2d 813, 819 (Alaska 1982), Hahn, 611 P.2d at 67, and Clabaugh v. Bottcher, 545 P.2d 172, 176 (Alaska 1976), he does not argue that these cases categorically preclude a finding of negligence by both drivers who are involved in a rear-end collision; rather, he argues only that there is insufficient evidence in this case to support a finding that he did in fact act negligently. . The entire argument consists of the following conclusoiy discussion: . The doctrine of res ipsa loquitur "is a bridge, dispensing with the requirement that a plaintiff specifically prove breach of duty, once that duty and proximate cause have been established," and applies only when an accident ordinarily does not occur in the absence of negligence. State Farm Fire & Cas. Co. v. Municipality of Anchorage, 788 P.2d 726, 730 (Alaska 1990) (quoting Widmyer v. Southeast Skyways, Inc., 584 P.2d 1, 10 (Alaska 1978)). . Taylor-Welch did not submit a full trial transcript. Our review of the record is thus necessarily confined to the limited portion of Adams's testimony included in the transcript. . See Kristich v. State, 550 P.2d 796, 804 (Alaska 1976).

10373856

John MEYERS, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Meyers v. Municipality of Anchorage

1992-09-25

No. A-4131

817

819

838 P.2d 817

838

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

John MEYERS, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

John MEYERS, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. A-4131. Court of Appeals of Alaska. Sept. 25, 1992. S. Joseph Montague, Gorton & Oberly, Anchorage, for appellant. Tracy Gellert, Asst. Mun. Prosecutor, and Richard L. McVeigh, Mun. Atty., Anchorage, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1262

8019

OPINION MANNHEIMER, Judge. John Meyers was convicted, following a jury trial in the Anchorage district court, of driving while intoxicated under Anchorage Municipal Code 9.28.020(A). He appeals the district court's denial of his motion to suppress evidence of his blood alcohol level. We affirm. On the evening of March 9, 1990, Anchorage Police Officer Dan R. Seely responded to a three-vehicle accident at the corner of 15th Avenue and Gambell Street. According to witnesses, Meyers had driven his car through a red light, causing the accident. A passenger in Meyers's vehicle told Officer Seely that Meyers had been drinking. Meyers was injured in the accident, and he was taken to Humana Hospital for treatment. After completing his investigation at the scene of the accident, Seely went to the hospital. At the hospital, both paramedics and the physician who first saw Meyers told Seely that Meyers was visibly intoxicated. When Seely interviewed Meyers, his observations corroborated those of the medical personnel: Seely found Meyers to have bloodshot eyes, slurred speech, and a strong odor of alcoholic beverages. Meyers in fact admitted to Seely that he had consumed four drinks before he began driving. Seely obtained Meyers's consent to police inspection of his hospital treatment records. These records included the results of a blood test that had been conducted by hospital personnel for medical purposes. The test showed that Meyers's blood alcohol level was .212 percent. After Meyers was charged with driving while intoxicated, he moved to suppress the blood test results, claiming that he had been too disoriented to give a meaningful consent to the police inspection of his hospital records. District Court Judge William H. Fuld agreed that Meyers's consent had been invalid and he therefore suppressed the test results. However, Judge Fuld further ruled that, because the blood test had been conducted for medical reasons (not at the behest of the police), the test results remained available to the police by search warrant — if the police could obtain the warrant through an application that made no reference to the illegally obtained test results. Pursuant to Judge Fuld's decision, the Municipality of Anchorage applied to Magistrate Brian Johnson for a search warrant to obtain the blood test results from the hospital file. The search warrant application was based on Officer Seely's investigation of the case up to the time he obtained Meyers's consent to inspect the hospital records. Magistrate Johnson issued the warrant. Meyers then filed a second motion to suppress the blood test results. Meyers conceded that the search warrant application established probable cause for the search, but he argued that the police applied for the warrant only because they already knew the test results. Judge Fuld rejected Meyers's argument. Based upon the testimony of Officer Seely and of Assistant Municipal Attorney James Wolf, Judge Fuld concluded that the authorities' knowledge of the blood test results had not altered or augmented their motivation to seek a search warrant for Meyers's hospital records. Judge Fuld found that, under the facts of Meyers's case, the officer investigating the accident had every reason to believe that the blood test results would be over .10 percent, even before the officer obtained Meyers's consent to view the test results. Judge Fuld also found that, under the Municipality's standard operating procedure in DWI cases, the police normally would apply for a search warrant to obtain the driver's hospital blood test results without seeking the driver's consent. On appeal, Meyers cites decisions from other states in which courts, facing similar fact situations (an initial invalid search or seizure followed by a subsequent valid one), have suppressed evidence despite the fact that the police's subsequent, legal efforts to obtain the same evidence were not tainted by the initial illegality. These courts have reasoned that the policy of deterring police misconduct calls for application of the exclusionary rule even when the initial illegality cannot be shown to taint the police's subsequent acquisition of the evidence. However, Alaska law on this issue is defined by Cruse v. State, 584 P.2d 1141 (Alaska 1978). In Cruse, the police had conducted an arguably illegal search of the trunk of the defendant's vehicle. Recognizing that there might be a problem with this initial search, the authorities obtained a search warrant authorizing them to conduct the same search. The search warrant application did not contain any information obtained as a result of the original search of the trunk. 584 P.2d at 1143. The Alaska Supreme Court decided that it did not need to resolve the legality of the initial search. Rather, the court held that the evidence ultimately seized from the trunk was not tainted by any initial illegality, since the police had seized the evidence pursuant to a subsequently issued search warrant that did not rest in any way on the results of the first search. Id. at 1145. Meyers contends that the Cruse test needs to be supplemented. He argues that it is not sufficient for the government to show that a warrant could be obtained without reference to the illegally seized evidence. Rather, Meyers asserts, even if the search warrant application makes no mention of the illegally obtained evidence, the initial illegality nevertheless taints the subsequent warrant if the illegally obtained evidence increased the police's motivation to seek that warrant. We agree with Meyers that this is the test. However, the Cruse decision incorporates this very rule. After stating that "the controverted evidence here was obtained through information wholly independent of the initial trunk search", the court then clarified what it meant by "wholly independent": The evidence presented to the district court in support of the search warrant was procured without resort to any clue or knowledge gained from the trunk search. The investigation leading to the lawful search was not intensified or significantly focused by reason of any tainted information. Moreover, there was no exploitation of the alleged misconduct to discover new evidence.... Cruse, 584 P.2d at 1145 (emphasis added). Thus, the Alaska Supreme Court's decision in Cruse already incorporates Meyer's "tainted motivation" theory. Judge Fuld found that the authorities' motivation to seek the search warrant for Meyers's hospital records would have existed, undiminished, if the police had never seen the blood test results. This finding of fact is not clearly erroneous. Wilburn v. State, 816 P.2d 907, 911 (Alaska App.1991). Our conclusion disposes of Meyers's argument that Alaska Evidence Rule 412 prohibits use of the blood test results. Rule 412 states that illegally obtained evidence shall not be used for any purpose if the defendant in a criminal prosecution makes a proper objection. However, the blood test results seized pursuant to the search warrant were legally obtained. The judgement of the district court is AFFIRMED. . Cruse requires the police, when seeking a search warrant, to inform the court that an illegal or arguably illegal search has already occurred. 584 P.2d at 1146. (But see Justice Matthews's concurring opinion, 584 P.2d at 1147.) In the present case, the police did not tell Magistrate Johnson that they had already obtained the blood test results illegally. However, when the police withheld this information from Magistrate Johnson, they were following the directive given them by Judge Fuld. All the relevant facts are contained in the court record. There was no attempt to mislead the judiciary.

10423616

STATE of Alaska, Petitioner, v. 4.62 ACRES, MORE OR LESS; Allen Vezey, Mrs. A.G. Blake, aka Lisette Eva Blake; the Estate of Lisette Eva Blake, all of her heirs, devisees, legatees, or assigns; Albert Ramsey; the Estate of Albert Ramsey, all of his heirs, devisees, legatees, or assigns; and also all other persons or parties unknown claiming a right, title, estate, lien, or interest in the real estate described in the complaint in this action, Respondents; STATE of Alaska, Petitioner, v. 17.727 ACRES, MORE OR LESS; Sitnasuak Native Corporation; Bering Straits Native Corporation; and also all other persons or parties unknown claiming a right, title, estate, lien, or interest in the real estate described in the complaint in this action, Respondents

State v. 4.62 Acres, More or Less

1985-08-23

No. S-476

1340

1340

704 P.2d 1340

704

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:21:28.159013+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

STATE of Alaska, Petitioner, v. 4.62 ACRES, MORE OR LESS; Allen Vezey, Mrs. A.G. Blake, aka Lisette Eva Blake; the Estate of Lisette Eva Blake, all of her heirs, devisees, legatees, or assigns; Albert Ramsey; the Estate of Albert Ramsey, all of his heirs, devisees, legatees, or assigns; and also all other persons or parties unknown claiming a right, title, estate, lien, or interest in the real estate described in the complaint in this action, Respondents. STATE of Alaska, Petitioner, v. 17.727 ACRES, MORE OR LESS; Sitnasuak Native Corporation; Bering Straits Native Corporation; and also all other persons or parties unknown claiming a right, title, estate, lien, or interest in the real estate described in the complaint in this action, Respondents.

STATE of Alaska, Petitioner, v. 4.62 ACRES, MORE OR LESS; Allen Vezey, Mrs. A.G. Blake, aka Lisette Eva Blake; the Estate of Lisette Eva Blake, all of her heirs, devisees, legatees, or assigns; Albert Ramsey; the Estate of Albert Ramsey, all of his heirs, devisees, legatees, or assigns; and also all other persons or parties unknown claiming a right, title, estate, lien, or interest in the real estate described in the complaint in this action, Respondents. STATE of Alaska, Petitioner, v. 17.727 ACRES, MORE OR LESS; Sitnasuak Native Corporation; Bering Straits Native Corporation; and also all other persons or parties unknown claiming a right, title, estate, lien, or interest in the real estate described in the complaint in this action, Respondents. No. S-476. Supreme Court of Alaska. Aug. 23, 1985. Linda L. Walton, Asst. Atty. Gen., Fairbanks, and Norman C. Gorsueh, Atty. Gen., Juneau, for petitioner. William R. Satterberg, Jr., Fairbanks, for respondents. Donald C. Mitchell, Anchorage, for ami-cus curiae Alaska Federation of Natives. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

354

2157

OPINION PER CURIAM. Following the filing of a Declaration of Taking by the state, the superior court ordered the state to conduct exploratory drilling on the property in question to determine whether it contained gold deposits. We granted review from this order and now reverse it. A Declaration of Taking must "contain a statement of the amount of money estimated by the plaintiff to be just compensation for the property or the interest in it." AS 09.55.430(6). The Declaration must be accompanied by a deposit of money in the amount of the estimate of just compensation. AS 09.55.440(a). The responsibility for estimating just compensation lies with the acquiring authority and the estimate is reviewable, if at all, only for bad faith. In re United States, 257 F.2d 844 (5th Cir.) cert. den. 358 U.S. 908, 79 S.Ct. 234, 3 L.Ed.2d 228 (1958); 5 Nichols, The Law of Eminent Domain § 18.7, at 18-391-94 (rev. 3d ed. 1981). Here there is no credible evidence that the state acted in bad faith. The order of the superior court is REVERSED.

10408386

H.P.A., Appellant and Cross-Appellee, v. S.C.A., Appellee and Cross-Appellant

H.P.A. v. S.C.A.

1985-08-09

Nos. S-197, S-227

205

213

704 P.2d 205

704

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:21:28.159013+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

H.P.A., Appellant and Cross-Appellee, v. S.C.A., Appellee and Cross-Appellant.

H.P.A., Appellant and Cross-Appellee, v. S.C.A., Appellee and Cross-Appellant. Nos. S-197, S-227. Supreme Court of Alaska. Aug. 9, 1985. Rehearing Denied Sept. 16, 1985. H. Clay Keene, Keene & Currall, Ketchi-kan, for appellant and cross-appellee. A. Fred Miller, A. Fred Miller, a Professional Corporation, Ketchikan, for appellee and cross-appellant. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3914

24257

OPINION COMPTON, Justice. ' FACTUAL AND PROCEDURAL BACKGROUND H.P.A. (Husband) and S.C.A. (Wife) married in 1974. Two years later, Husband had a vasectomy. The parties were still married when H.P.A., Jr., (Child) was born to Wife in 1978. Despite the arrival of Child under these circumstances, Husband apparently made no special efforts to determine whether he could have fathered Child. Wife filed for divorce in 1981. In his answer, Husband impliedly admitted he was Child's father and sought custody of Child. A guardian ad litem was appointed to represent Child's interests; the court reserved its determination of how the guardian's fees should be allocated between the parties. In April 1982, Husband moved to amend his answer to the complaint. By this amendment, he sought to deny paternity and, therefore, to deny any legal responsibility for Child. He alleges that he learned he was not the father only after Wife made public declarations that another man had in fact sired Child. Husband's affidavit alleges that the declarations were made before January 15, 1982 and (implicitly) after the Wife filed for divorce. An affidavit of the doctor who performed the vasectomy accompanied the motion. The affidavit stated that "to a reasonable medical certainty . [H.P.A.] . could not be the father to a child born to [S.C.A.] . during October, 1978." The trial court granted the motion to amend in May 1982. Husband then moved the court to compel blood grouping tests. Argument on the motion was set for August 13, 1982. On that date, however, the trial court focused its attention instead on the May order permitting Husband to amend his answer. The court ruled that the previous order has been improvidently granted, set aside the May 1982 decision and ordered Husband "estopped from raising any issue as to the paternity of the child." This decision was designed to prevent a party to the litigation from assuming a position or asserting a right to another's disadvantage inconsistent with a position previously taken, and the party to the action [who would be disadvantaged] is the youngster. The court emphasized Husband's conduct treating Child as his own, which conduct occurred prior to the lawsuit and at the initial stages of the action when Husband, in his opening pleadings, sought custody of Child. The parties held a settlement conference in September 1982, at which time issues concerning property distribution, alimony, child support pendente lite, and attorney's fees up to that point were resolved. In November 1983, the trial court issued its final judgment, embraced in an "Amended Decree of Divorce and Amended Findings of Fact and Conclusions of Law." Husband appeals the order applying equitable estoppel to prevent him from denying paternity, and three provisions of the November 1983 judgment: 1. Husband's obligation to pay one-third (⅛) of Child's college education; 2. Husband's obligation to pay one-half (½) the cost of a $100,000 life insurance policy with Child as beneficiary; and 3. Husband's obligation to increase biennially the monthly child support payments according to the rise in the cost of living reflected in the United States Bureau of Labor Statistics Cost of Living Index. Wife cross-appeals challenging the portion of the judgment requiring her to pay one-third (½) of the guardian ad litem's fees, and the portion requiring her to bear her own attorney's fees incurred after the September 1982 settlement. DISCUSSION I.DID THE TRIAL COURT ERR IN APPLYING EQUITABLE ESTOP-PEL TO PREVENT HUSBAND FROM DENYING PATERNITY OF CHILD? Under normal circumstances it is the biological parents who shoulder the legal responsibility for the welfare of their offspring. See Division of Family Services v. Clark, 554 P.2d 1310, 1311 (Utah 1976). There are situations, however, where a person's conduct towards an infant can give rise to a constructive parental relationship such that one can be adjudged a legal parent even if not biologically the same. E.g., Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 472 A.2d 1128 (1984); Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 369 A.2d 416 (1976). Courts have reached this result by invoking equitable estoppel to prevent denial of fatherhood. Gonzalez, 369 A.2d 416. Equitable estoppel is usually employed in a commercial context. Jamison v. Consolidated Utilities, 576 P.2d 97 (Alaska 1978). The standard elements required to apply the doctrine "are the assertion of a position by conduct or word, reasonable reliance thereon by another party, and resulting prejudice." Id. at 102. Courts have adapted these principles to the domestic affairs/paternity setting and have fashioned a set of criteria to meet before employing an estoppel in cases of this type. E.g., Clevenger v. Clevenger, 189 Cal.App.2d 658, 11 Cal.Rptr. 707 (1961). Clevenger defined the elements as follows: 1. Representation (direct or implied) of husband to child that he is the father; 2. husband intended his representation to be accepted and acted on by the child; 3. child relied on the representation and treated husband as father and gave his love and affection to husband; and 4. child was ignorant of the true facts. Id. 189 Cal.App.2d 658, 11 Cal.Rptr. at 714. The trial court in the instant case did not explicitly apply the Clevenger standards. Essentially, it found a constructive parental relationship created by Husband's fatherly conduct toward Child. Such conduct was the "dispositive" factor leading to imposition of the estoppel. The problem with the court's use of estoppel in this case lies in the absence of factual findings regarding Husband's claims of misrepresentation by Wife. An estoppel should not have been applied as a matter of law based solely on the undisputed fact that Husband treated Child as his own for approximately three and one half years between Child's birth and Wife's filing for divorce. Although the law has a strong interest in protecting infants from parents who abdicate their responsibilities, we must acknowledge the law's equally strong interest in protecting one spouse against the fraud of another. As one court has succinctly expressed the competing values: Absent any overriding equities in favor of the putative father, such as fraud, the law cannot permit a party to renounce even an assumed duty of parentage when by doing so, the innocent child would be victimized. Gonzalez, 369 A.2d at 419 (emphasis added). The possibility that fraud against the husband may be involved here distinguishes this case from those cited by Wife as examples of a spouse being properly estopped to deny paternity. Morrell v. Giesick, 188 Mont. 89, 610 P.2d 1189 (1980); In Re Marriage of Johnson, 88 Cal.App.3d 848, 152 Cal.Rptr. 121 (1979); In Re Marriage of Valle, 53 Cal.App.3d 837, 126 Cal.Rptr. 38 (1975); Commonwealth ex rel. Hall v. Hall, 215 Pa.Super. 24, 257 A.2d 269 (1969); Gonzalez, 245 Pa.Super. 307, 369 A.2d 416 (1976); Time v. Time, 59 Misc.2d 912, 300 N.Y.S.2d 924 (N.Y.Fam.Ct.1969). Without expressing any opinion as to the merits of Husband's allegations of fraud, we reverse the trial court's application of estoppel and remand with instruc tions to make the appropriate findings of fact. II. DID THE TRIAL COURT ERR IN ORDERING HUSBAND TO PAY ONE-THIRD (½) OF CHILD'S COLLEGE EDUCATION COSTS? AS 25.24.160 provides that in a divorce action, a court may require the parties to make payments "toward the nurture and education of their children." This section does not confer on a court the power to require a party to make payments towards post-majority education, typically college education. Dowling v. Dowling, 679 P.2d 480 (Alaska 1984). The trial court included in its Amended Decree of Divorce an order that both parties and the minor child share equally in the costs of college education for the minor child. Said costs will include tuition, room, board, books and transportation two (2) times per year to and from the minor's place of residence and the college, which will be one which is selected by agreement between the parties, provided, however, that if the parties cannot agree, then the Court upon application of either or both of the parties, shall determine the college that the minor shall attend. The language of this provision is ambiguous. Does it simply order Husband to pay one-third of Child's expenses for the period, if any, that Child attends college during his minority? Or does it assume Child will go to college after he reaches his majority? Wife's argument assumes that the order covers college costs that might be incurred during Child's minority. In contrast, Husband's argument assumes that the order refers only to post-majority college education. Reference to another portion of the decree requiring insurance for Child's benefit suggests that the trial court envisioned college after majority: [In] the event the total costs of support to the child's majority and defendant's estimated share of costs of college are less than One Hundred Thousand Dollars ($100,000) upon the defendant's death, then in that event, the balance shall be paid over to defendant's estate.... (emphasis supplied). This passage, however, is inconclusive. Further reference to the trial judge's explanatory remarks upon rendering his decision does not clarify the point: I would note that I expect that [Child] would attend college; he's an exceptionally bright child; his parents attended college; his parents planned for him to go.... Because college begins for the vast majority of undergraduates around the age of majority (18), we think it appropriate to interpret the order as Husband does, despite the uncertainty. In reaching its decision, the trial court emphasized the parties' contributions to a fund designed partially to pay future college expenses. The court felt empowered by the existence of the fund to make this order, as if it were merely giving effect to the manifested intentions of the parties. The court has overestimated the extent of its own powers. If Husband and Wife had contracted to share the costs of Child's college education the court could certainly enforce that voluntarily assumed obligation. No such contract is involved here. The rule of Dowling is clear and cannot be ignored: when a husband and wife with children divorce, the court cannot require either parent to pay for post-majority college education. III. DID THE TRIAL COURT ERR WHEN IT ORDERED HUSBAND TO PAY ONE-HALF (V2) THE COST OF A $100,000 LIFE INSURANCE POLICY TO SECURE HIS SUPPORT OBLIGATIONS OWED TO CHILD? The relevant portion of the divorce decree provides: IT IS FURTHER ORDERED that until the minor child has graduated from college or has reached the age of twenty-five (25) years, defendant shall be responsible for maintaining upon his life a term life insurance policy in the face amount of One Hundred Thousand Dollars ($100,000.00), payable upon his death to plaintiff in trust for the minor child; provided, however, that the premiums for said insurance shall be shared equally by the parties. The costs of plaintiffs share of the premium shall be deducted from alimony payments so long as such payments are due; thereafter, plaintiff shall pay to defendant, upon request by defendant, her portion of the premium prior to its payment by defendant and provided further, that in the event the total costs of support to the child's majority and the defendant's estimated share of costs of college are less than One Hundred Thousand Dollars ($100,-000.00) upon defendant's death, then in that event, the balance shall be paid over to defendant's estate.... Husband attacks this award by arguing that married parents have no legal obligation to secure the future support of their children, so it should follow that divorced parents do not have that obligation either. This reasoning is based on the principle that the duty to support one's children ceases upon a parent's death. Hutchings v. Bates, 406 S.W.2d 419, 420 (Tex.1966); see Jacobs v. Gerecht, 6 Cal.App.3d 808, 86 Cal.Rptr. 217 (1970). Wife counters that life insurance which functions as security for child support, rather than a property disposition in addition to support, is permissible. Other courts have approached the issue as Wife suggests. E.g., Riser v. Riser, 7 Wash.App. 647, 501 P.2d 1069, 1071 (1972) ("A father may not be required to take out or maintain life insurance for the benefit of his children in addition to support and maintenance.... This rule does not mean that the support and maintenance obligation may not be secured by a life insurance policy on the life of the fa-ther_"). Because a divorce can raise special concerns about the financial support of children, we approve the use of insurance as security for a support obligation where appropriate. Having said this much, we must modify the trial court's order in light of the preceding discussion of Dowling. The provision requiring maintenance of the insurance policy until Child graduates from college or reaches twenty-five (25) years apparently is designed to insure payments for post-majority college costs. To this extent the order is disapproved; what cannot be done directly cannot be done indirectly. Therefore, we modify the order to require maintenance of the insurance until Child reaches eighteen (18) years of age. IV. DID THE TRIAL COURT ERR IN ORDERING HUSBAND TO ADJUST BIENNIALLY HIS SUPPORT PAYMENTS ACCORDING TO THE RISE OR FALL IN THE COST OF LIVING INDEX? The Amended Decree of Divorce provides in pertinent part: IT IS FURTHER ORDERED that the reasonable costs attributable to the child as determined in the Transcript of Decision attached as Exhibit "C" and by reference made a part hereof, totals Fifteen Thousand Fifty-four Dollars ($15,054.00), and the defendant shall be responsible for one-half (V2) of these projected costs, with the defendant making such a payment on the first day of each and every month following the entry of the final decree in the amount of Six Hundred Twenty-seven and 25/100ths Dollars ($627.25), subject, however, to biennial adjustment in the amount to be paid equal to the increase or decrease, as the case may be, in the average cost-of-living for the two (2) years immediately preceding the period for which the adjustment is made, as computed by the UNITED STATES BUREAU OF LABOR STATISTICS for the region which included Ketchikan, or the closest region to Ketchikan for which such information is compiled. (emphasis added). This court has held that a support order can be modified only where there has been a material and substantial change in circumstances occurring subsequent to the original order. Curley v. Curley, 588 P.2d 289 (Alaska 1979). If the automatic adjustment constitutes a modification without a judicial determination of changed circumstances it runs afoul of Curley. This is the heart of Husband's challenge. We disagree with Husband on this issue. Linking the adjustment of support obligations to an accepted and reliable indicator such as the Cost of Living Index simply maintains the buying power of support payments at the same level as the original award. We are not persuaded by the argument that the built-in adjustment impermissibly shifts the burden of proving changed circumstances to the non-custodial parent, i.e., he will be required to demonstrate to the court that his earnings have not kept pace with the changes reflected in the Cost of Living Index, instead of Wife being required to show that inflation has eaten away at the value of the support received. Approving an adjustment to keep pace with inflation enables the court to put the interests of the child first. The child's interests will be best protected if the custodial parent can depend on a steady income of unchanging buying power. Where the non-custodial parent has suffered a serious loss because his (or her) earnings have not risen along with inflation, he can make that showing and get relief from the court. We affirm the trial court's biennial adjustment provision. V. DID THE TRIAL COURT ABUSE ITS DISCRETION IN ORDERING WIFE TO PAY ONE-THIRD (Vs) OF THE GUARDIAN AD LITEM'S FEES, AND TO BEAR ALL HER ATTORNEY'S FEES INCURRED AFTER THE SEPTEMBER 1982 SETTLEMENT? A. Guardian Ad Litem's Fees. AS 25.24.310(b) governs the payment of a guardian ad litem. That section provides in pertinent part: If custody, support, or visitation is an issue, the order for costs, fees and disbursements shall be made against either or both parents.... The court shall, if possible, avoid assigning costs to only one party by ordering that costs of the child's legal representation or other services be paid from proceeds derived from a sale of property belonging to both parties, before a division of property is made. (emphasis added). This court recently interpreted the section to prevent "the superior court from taxing only one parent with the costs of a guardian ad litem where both parents can afford the cost." Siggelkow v. Siggelkow, 643 P.2d 985, 990 (Alaska 1982). The superior court has discretion whether to appoint a guardian ad litem and how to arrange for payment of costs. Id. at 989-90. The question reduces to whether the trial judge abused his discretion in requiring Wife to pay one-third of the costs. We do not think there was an abuse of discretion. Wife received real property valued at approximately $250,000 and $48,400 in alimony payable at $400.00 per month over ten (10) years. Husband did receive stock with a value, apparently, exceeding $3,000,000. The guardian ad litem spent fifty-five hours on the case and the court fixed compensation at $75.00 per hour. The fee comes to $4,125.00. Wife's one-third share comes to $1,375.00. Wife can reasonably afford to pay this amount. The trial court gave effect to the statutory command, and Siggelkow, by allocating the guardian ad litem fees in this manner. We affirm the trial court's order. B. Attorney's Fees and Costs Incurred After the September 1982 Settlement Conference. AS 25.24.140(a) empowers a court to require one spouse to pay another spouse's attorney's fees and costs. The section provides in pertinent part: "During the pendency of the action, the court may provide by order (1) that one spouse pay an amount of money as may be necessary to enable the other spouse to prosecute or defend the action...." Whether to make such an award rests with the discretion of the court. Siggelkow, 643 P.2d at 988-89. Furthermore, in a divorce action, the "prevailing party" standard of Civil Rule 82 does not apply. Id. The court should consider the "parties' relative economic situations and earning powers_" Burrell v. Burrell, 537 P.2d 1, 7 (Alaska 1975). The trial court here determined that both parties enjoyed "substantial resources." The crux of Wife's argument is that Husband has a lot more money and greater earning power, and he can much more easily afford to pay her attorney's fees. He points out that she anticipates being able to contribute to the insurance policy on his life, and being able to pay one-third of Child's college education costs. She has training in landscape architecture and has experience doing drafting work. A witness at trial estimated that these skills could earn her $18,000-$20,000.00 a year. Assuming that Husband possesses greater financial resources and greater earning capabilities, Wife's resources and capabilities are sufficient enough that a court could reasonably expect her to pay her own fees. We affirm the trial court's order. To conclude, we reiterate that the order estopping Husband to deny paternity is reversed, and the case remanded to the superior court to hold a trial and make findings of fact regarding the disputed events. AFFIRMED in part, REVERSED in part and REMANDED. . Wife argues that Husband's "gross negligence" caused his unawareness that another fathered child; paternity was not questioned in a timely manner; therefore, due to the inexcusable delay he should not be permitted to raise the challenge. This laches argument must fail if the trial court finds Husband was defrauded. The time to raise an objection starts when one knows or should know of a wrong. Sharrow v. Archer, 658 P.2d 1331, 1334 n. 6 (Alaska 1983). Had Husband been defrauded by Wife, in the manner he urges, he would not have known that someone else fathered Child until late 1981 or early 1982. He attempted to deny paternity with a motion to amend in April 1982. Under those circumstances, Wife could be estopped to raise the issue of Husband's delay. Cf. Chiei v. Stern, 561 P.2d 1216, 1217 (Alaska 1977) ("[A] party who fraudulently conceals from a plaintiff the existence of a cause of action, may be es-topped to plead the statute of limitation if the plaintiff's delay in bringing suit was occasioned by reliance on the false or fraudulent representations."). . The court stated: I believe that it is appropriate that if [Child] goes on to college, the expenses should be shared as plaintiff suggests. That is equally by the plaintiff, the defendant, and [Child].... I would not, under Alaska law in the cases I've read, but for the fact that the parents have already made substantial contributions to [Child's] present estate, at least partially to cover the necessity for college expenses (emphasis supplied). . Wife attempts to circumvent the rule of Dowl-ing by invoking the "inherent equity powers" of a court to provide post-majority educational support. We do not agree that a court is invested with such inherent authority; moreover, if Wife were correct, we would have to reconsider Dowling, which we are not prepared to do. We further note that this issue was raised in a timely fashion on appeal; our holding should in no way be construed as requiring or permitting that all decrees providing for post-majority educational support are subject to modification because of Dowling. Finally, our comments are not intended to question Judge Carpeneti's observance of controlling precedent. When he rendered his decision, Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), stated the controlling precedent. Dowl-ing subsequently overruled Hinchey and we now adhere to its mandate. . Regarding the amount and type of insurance to be procured, we leave to the ingenuity of lawyers, judges, insurance brokers and actuaries the determination of these particulars, depending on individual cases. Practicality sug gests the appropriateness of such flexibility. In the instant case, review of the amount and type of insurance by the trial court may disclose the advisability of further modifications. For example, the trial court may consider discounting $100,000 to present value to reach the needed amount of coverage. Additionally, the comparative advantages of term as opposed to whole life insurance deserve contemplation. These are only two factors to consider and by no means limit the parties or the court in arriving at the most suitable and cost-efficient plan. Our approval of this means of securing a child support obligation is not intended to prevent resourceful and creative lawyers and judges from employing other means to achieve the same result. For example, a court could choose, in its exercise of sound discretion, to divide property at the time of divorce to achieve the same purpose. Such a distribution should, of course, be explained by clearly articulated reasons.

11632750

The Honorable Donna Lee H. WILLIAMS, Insurance Commissioner of the State of Delaware, in her capacity as the Receiver of the Great Atlantic Insurance Company in Liquidation, Appellant and Cross-Appellee, v. Joyce WAINSCOTT, in her capacity as the Receiver and/or Deputy Receiver of the Pacific Marine Insurance Company of Alaska in Liquidation, and the Pacific Marine Insurance Company of Alaska in Liquidation, Appellees and Cross-Appellants

Williams v. Wainscott

1999-02-12

Nos. S-7807, S-7867

975

983

974 P.2d 975

974

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:22:12.382875+00:00

CAP

Before MATTHEWS, Chief Justice, and COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

The Honorable Donna Lee H. WILLIAMS, Insurance Commissioner of the State of Delaware, in her capacity as the Receiver of the Great Atlantic Insurance Company in Liquidation, Appellant and Cross-Appellee, v. Joyce WAINSCOTT, in her capacity as the Receiver and/or Deputy Receiver of the Pacific Marine Insurance Company of Alaska in Liquidation, and the Pacific Marine Insurance Company of Alaska in Liquidation, Appellees and Cross-Appellants.

The Honorable Donna Lee H. WILLIAMS, Insurance Commissioner of the State of Delaware, in her capacity as the Receiver of the Great Atlantic Insurance Company in Liquidation, Appellant and Cross-Appellee, v. Joyce WAINSCOTT, in her capacity as the Receiver and/or Deputy Receiver of the Pacific Marine Insurance Company of Alaska in Liquidation, and the Pacific Marine Insurance Company of Alaska in Liquidation, Appellees and Cross-Appellants. Nos. S-7807, S-7867. Supreme Court of Alaska. Feb. 12, 1999. Gary A. Zipkin, Susan M. West, Guess & Rudd, Anchorage, and Diane J. Bartels, Bar-tels & Bartels, Wilmington, Delaware, for Appellant and Cross-Appellee. Mark A. Sandberg, William M. Wuesten-feld, Sandberg, Wuestenfeld & Corey, Anchorage, for Appellees and Cross-Appellants. Ronald L. Baird, Office of Ronald L. Baird, Anchorage, and Victoria L. Vreeland, Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, P.L.L.C., Seattle, for Amicus Curiae Deborah Senn. Before MATTHEWS, Chief Justice, and COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

5312

33099

OPINION MATTHEWS, Chief Justice. I. INTRODUCTION This case concerns the attempts of Great Atlantic Insurance Company (GAIC) to recover nearly $1.4 million in reinsurance claims from Pacific Marine Insurance Company of Alaska (PacAk). In 1989 both companies were declared insolvent and placed into liquidation. The deadline to file claims in the PacAk estate was March 1, 1990. In 1994 GAIC submitted four claims to PacAk which the PacAk Receiver denied. The superior court upheld the Receiver's decision, concluding that it was supported by substantial evidence. Because we hold that the superior court erred in applying a deferential standard of review, we reverse and remand. II. FACTS AND PROCEEDINGS A. Facts PacAk was incorporated in Alaska in 1979 as United Marine Insurance Company and later renamed Pacific Marine Insurance Company. In late 1981 or early 1982 Pacific Marine Insurance Company (PacWa) was incorporated in Washington. The Alaska corporation was renamed Pacific Marine Insurance Company of Alaska. PacWa became the parent corporation of PacAk. PacAk and PacWa shared officers and employees, as well as offices in Seattle, from 1982 to 1985. Donald Marinkovich was the president of both corporations. The present conflict centers around a Quota Share Reinsurance Agreement (treaty) executed on December 15, 1982. The preamble to the treaty stated that it was entered into between GAIC and "PACIFIC MARINE INSURANCE COMPANY OF ALASKA, Anchorage, Alaska, its parent and/or affiliated Companies [Reinsurer]." The treaty was signed by GAIC and Donald Marinkovich, as president of PacAk. The treaty required PacAk to reinsure 100% of all policies issued by GAIC that were produced by general agent Thompson Insurance Enterprises, Inc. (THOMCO) in Louisiana. These policies included policies covering claims under the federal Longshoremen's and Harborworkers' Compensation Act. One day earlier, on December 14, PacAk and PacWa had entered into a contract for quota share treaty reinsurance. Under this contract, PacAk transferred to PacWa its entire interest and liability in all present and future policies including all "reinsurances." On December 16 GAIC, PacAk, and THOMCO entered into a Managing General Agency Agreement. This agreement authorized THOMCO to issue policies in Louisiana and to collect premiums for both GAIC and PacAk. The treaty covered only policies generated under this Managing General Agency Agreement. In January 1983 PacAk entered into an adjustment agreement with P.A. Richard & Associates, Inc. This agreement authorized F.A. Richard to adjust claims arising under the THOMCO policies. In 1985 PacWa sold PacAk and the December 14, 1982 quota share treaty agreement between those entities was terminated. During the life of the treaty, 267 policies were ceded and $4,712,850 in premiums was paid. The four claims at issue arose from Longshoremen's Act policies generated by THOMCO in Louisiana. B. Proceedings All three companies were declared insolvent and ordered liquidated in 1989: PacWa on June 7 in Washington; PacAk on July 12 in Alaska; and GAIC on August 11 in Delaware. The July 1989 Order of Liquidation for PacAk set a deadline, or "bar date," of March 1, 1990, for submission of all claims against the PacAk estate. The order required Pa-cAk to provide notice of the liquidation order to several classes of claimants, including those "who might reasonably be expected to have a claim against PACAK." The order further required PacAk to provide notice of the deadline for filing claims and the procedure for filing claims to policyholders and those who might have claims against policyholders. Claims were generally to be submitted on a "proof of claim" form to the Receiver. On August 1, 1989, PacAk mailed a claim file regarding injured worker Alex Bourg (the Bourg file) to GAIC because GAIC was the "insuring company." This file in turn had just been received from PacWa which represented it to be a claim against the PacAk estate. Included with the Bourg file was a letter from PacAk Deputy Receiver Emerson Adams advising GAIC of PacAk's Order of Liquidation and that PacAk was no longer paying claims. PacAk mailed the Bourg file to GAIC's then-current Delaware address. GAIC received the Bourg file and Adams's letter. On August 11 PacAk conducted a mass mailing of proofs of claims and notices of the deadline to file claims. PacAk included GAIC in the mailing because it was listed as a "producer" in PacAk's records. The notice was mailed to GAIC's previous New York address and was returned to Pa-cAk as undeliverable. GAIC failed to file a claim with PacAk for any of the four claims by the March 1, 1990 bar date. GAIC apparently first learned of the bar date in a telephone call to the PacAk Receiver on August 31, 1992. On March 14, 1994, GAIC submitted a claim to PacAk for $368,706.46 in losses resulting from the Bourg claim. PacAk denied GAIC's claim. PacAk asserted that PacWa reinsured the claim, rather than PacAk, and that the claim was untimely because it was submitted after the bar date. GAIC subsequently amended its claim to add three additional claims, for a total of $1,397,525.32. GAIC objected to the denial of its claim and a hearing was held in the superior court. The superior court considered documentary evidence submitted by both parties, the testimony of an expert witness on behalf of each party, and heard oral argument. The court concluded that it would not disturb the Receiver's decision to deny GAIC's claim as untimely because it was supported by substantial evidence. GAIC moved for clarification and reconsideration. The superior court denied GAIC's motion and entered a Partial Final Judgment in favor of PacAk. In this order, the court summarized the evidence presented and again concluded that the PacAk Receiver had substantial evidence to deny GAIC's claims. PacAk moved for Civil Rule 82(b)(2) attorney's fees. The superior court granted the motion. GAIC moved for reconsideration. The court granted GAIC's motion and vacated its earlier order awarding attorney's fees to PacAk. GAIC appeals. PacAk cross-appeals the denial of attorney's fees. III. ISSUES GAIC's contentions on appeal are as follows: A. The trial court erred in reviewing the denial of its claim under the substantial evidence test rather than conducting a de novo fact-finding hearing. B. The trial court erred in determining that GAIC was not entitled to notice of the deadline to file claims against PacAk. C. The PacAk Receiver did not comply with the statutory notice requirements with respect to GAIC. D. Even if the statutory notice requirements were satisfied, GAIC should be excused from compliance with the bar date because of an agreement between the PacAk and PacWa Receivers that claims timely filed in the Washington proceeding would be considered timely in the Alaska proceeding. E. PacAk is the initial reinsurer under the treaty. We agree with the first two contentions. The others must be determined by the superior court on remand. Our disposition on GAIC's appeal moots PacAk's cross-appeal regarding attorney's fees. IV. DISCUSSION A. The Superior Court Erred in Applying the Substantial Evidence Test. The parties dispute the standard that the superior court should have used to review the Receiver's decision to deny GAIC's claims. The superior court deferentially reviewed the Receiver's conclusions to determine whether they were supported by "substantial evidence," citing case law involving administrative agencies. GAIC asserts that Alaska's insurer liquidation statutes require the superior court to conduct an independent review of its claim. GAIC relies on AS 21.78.010, which provides that the superior court has "exclusive original jurisdiction" over insurance insolvency proceedings, and AS 21.78.170, which provides that the superior court may allow, allow in part or disallow a disputed claim after reviewing the Receiver's recommendation. Further, GAIC 'argues that the Receiver lacks the authority to conduct a fact-finding hearing, thus thwarting the development of a reviewable record. PacAk views the actions of the Receiver as "closely analogous" to those of a master because the Receiver has "broad discretion to operate within the area of its expertise." Thus, PacAk encourages us to find that the substantial evidence test was appropriate. We agree with GAIC's interpretation. The substantial evidence test is employed when courts review an administrative determination. Our statutes do not require a receiver to conduct a hearing on claims. Instead, the receiver is authorized to review, investigate, and compromise claims and ultimately either deny them or recommend to the court that they be paid. See AS 21.78.293(a). When a claim is denied, the claimant has sixty days to file an objection with the receiver. See AS 21.78.170(c). If the receiver does not change the denial after the objection is filed, the receiver must "ask the court for a hearing as soon as practicable." AS 21.78.170(d). The nature of this hearing is not specified. However, since no hearing is required on the claim before the receiver, due process requires a de novo evidentiary hearing before the court. See Wright v. Black, 856 P.2d 477, 480 (Alaska 1993); Aguchak v. Montgomery Ward Co., 520 P.2d 1352,1356 (Alaska 1974). This interpretation is consistent with the evident legislative intent. Rehabilitation and liquidation proceedings are creatures of statute. See AS 21.78.010-.330. The superi- or court's jurisdiction is limited to that expressly provided in chapter 78. See AS 21.78.020(c). Alaska Statute 21.78.010(a) provides that the court "is vested with exclusive original jurisdiction of delinquency proceedings under this chapter, and is authorized to make all necessary and proper orders to carry out the purposes of this chapter." Original jurisdiction is "independent jurisdiction, one not based on or limited to review of another court's judgment or proceeding." 20 Am.Jur.2d Courts § 66 (1995). By contrast, appellate jurisdiction is "the jurisdiction of a superior court to review the final judgment, order, or decree of an inferior court on the record made in the inferior tribunal." Id. The grant of original jurisdiction in AS 21.78.010(a) evidences the legislature's intent for the superior court to act as the initial tribunal regarding a contested claim. Moreover, we view the Receiver's role as closer to that of a personal representative in probate proceedings than to that of a master. A personal representative, like the Receiver, marshals the assets of the estate and distributes them to the proper claimants. See A. James Casner & Jeffery N. Pennell, Estate Planning § 2.7.5 (6th ed.1997). Similarity is also evident in the procedures governing disputed claims. The probate statutes require the personal representative to allow or disallow a properly presented claim. See AS 13.16.475. If a claimant objects to the personal representative's disallowance of the claim, it may petition the superior court for allowance, or sue the personal representative. See id. In either ease, the superior court must conduct a de novo hearing including, if requested, a jury trial. See AS 13.06.085; Cavanah v. Martin, 590 P.2d 41, 41-42 (Alaska 1979) (preponderance of evidence standard applies to hearings on claim). PacAk argues that, even if the superi- or court erred by applying the substantial evidence standard, it entered independent findings of fact that can be reviewed for clear error. We disagree. The trial court never receded from its position that it was reviewing the record only to determine whether substantial evidence existed to support the Receiver's decision. Further, the facts recited by the court do not resolve the disputed issues in this case. In its initial order affirming the denial of GAIC's claim, the superior court simply concluded that substantial evidence supported the Receiver's conclusion that (1) GAIC had received proper notice and (2) its claim was untimely. In the order on reconsideration the court, in ten numbered paragraphs, recited facts which it found that the record estab lished. The facts set out do not resolve such important issues as timeliness; whether GAIC received notice of the bar date; whether the notice of August 11, 1989, was sent to GAIC's last known address; and whether the late filing was excused by the agreement between the Receivers that claims timely presented in one receivership would be considered timely in the other. Further, the court concluded the order on reconsideration, as the court did the initial order, by stating that the Receiver had substantial evidence to determine that GAIC's claim was untimely. B. GAIC Was Entitled to Notice of the Deadline to File Claims against Pa-cAk. The superior court determined that, as a matter of law, GAIC was not entitled to notice of the deadline for filing claims because GAIC "was not a policyholder nor did it have any claims against one." The Order of Liquidation for PacAk provided: 12. The Receiver shall give or cause to be given notice of the entry of this order as follows: A. By first class mail to all policyholders as of the entry of this order and to all persons known, or reasonably expected to have claims against the policyholders of PACAK.... E. By first class mail to all other persons who might reasonably be expected to have a claim against PACAK. The order specified that only the persons listed in paragraph 12(A) were entitled to notice of the filing procedures for claims, including the March 1,1990 deadline. The Order of Liquidation did not conform to the controlling statute. At the time of the order, AS 21.78.290(b) provided: After the entry of the order of insolvency, regardless of prior notice that may have been given to creditors, the director shall notify all persons who may have claims against the insurer to file the claims with the director, at a place and within the time specified in the notice, or that the claims shall be forever barred. The time specified in the notice shall be as fixed by the court for filing claims and may not be less than six months after the entry of the order of insolvency. The notice shall be given in the manner and for the reasonable period of time that may be ordered by the court. (Emphasis added.) The liquidation order too narrowly limited persons entitled to notice of the bar date. GAIC was entitled to notice of both the liquidation order and of the time within which to file claims if it "may have had a claim" against PacAk. The evidence unquestionably demonstrates that PacAk should reasonably have known that GAIC "may have had" a claim against it. The Receiver admits that PacWa forwarded the Bourg file to PakAk August 1,1989, with a representation that PakAk was liable on the claim. She states that "the computer showed this claim to be a PacAk liability." PakAk forwarded this file to GAIC. GAIC was therefore entitled to notice of the bar date under AS 21.78.290(b). C. The Superior CouH Should Determine Whether PacAk Complied with the Notice Requirements in AS 21.78.290(b). Since AS 21.78.290(b) required PacAk to send notice of the bar date to GAIC, the superior court must determine whether Pa-cAk complied with the statutory notice requirements. PacAk presented evidence to the superior court that it mailed notice of the bar date and a proof of claim to GAIC twice: first on August 1, 1989, along with the Bourg claim file, and again on August 11 in a mass mailing of claim forms. 1. The August 1,1989 mailing GAIC concedes receiving the August 1 mailing, along with notice of the order of PacAk's liquidation, but asserts that notice of the deadline was not included with the file. The superior court did not address whether GAIC received notice of the bar date with the Bourg claim file; its only conclusion with respect to this issue was that the Receiver had substantial evidence to determine that GAIC received "the notices required either by law or by express legal relationship of PacAk and GAIC." On remand, the superior court should determine whether PacAk's August 1, 1989 mailing fulfilled the requirements of AS 21.78.290(b). 2. The August 11,1989 mailing On August 11 PacAk mailed notices of the Order of Liquidation and instructions for filing claims to all companies listed as "producers" in its records, including GAIC. PacAk mailed the notice to GAIC's New York address; it was returned as undeliverable since GAIC had relocated to Delaware. Both parties agree that GAIC did not actually receive the August 11 mailing. GAIC argues that PacAk failed to send the August 11 notice to its "last known address" and that therefore this mailing failed to satisfy AS 21.78.290. We agree. Bunner v. Imperial Insurance Co., 181 Cal.App.3d 14, 225 Cal.Rptr. 912 (Cal.App.1986), is instructive. There, interpreting the California liquidation statutes, the court addressed the requirement that notice of an insurer's insolvency and the deadline for filing claims be mailed to a claimant's "last known address." Id. at 915. The Commissioner of Insurance mailed the required notice to the claimant; the mailing was not returned. Id. at 914. The claimant, however, had previously moved and did not receive the notice. Id. Bunner held that the mailing failed to satisfy the last known address requirement since the claimant's current address was "readily ascertainable" from county telephone listings and professional listings. Id. at 914, 917. Thus, a late claim could be asserted. Id. at 917. GAIC points out that the Receiver had previously mailed the Bourg claim file on August 1 and a second letter on August 7 requesting a copy of the Bourg file to its current Delaware address. The Receiver's secretary, Sarah Baskurt, mailed the August 1 and 7 letters to GAIC using an address from recent correspondence. Baskurt obtained GAIC's New York address for the August 11 mailing from a computer-generated list of agents dating from September 1988. With minimal effort, PacAk could have obtained GAIC's current address by cross-referencing GAIC's recent correspondence in its possession; a resort to external sources was unnecessary. In view of the fact that PacAk could have "readily ascertained" GAIC's address had it simply examined its own files after the notice was returned, and the fact that AS 21.78.290 places the responsibility on the Receiver to prepare and send the notice, we hold that PacAk failed to send the August 11, 1989 notice to GAIC's last known address. Cf. In re Estate of Evans, 901 P.2d 1138, 1143 (Alaska 1995) (rejecting inquiry notice as substitute for statutory notice requirement in probate proceedings); Bunner, 225 Cal.Rptr. at 914. D. If the Superior Court Finds That Pa-cAk Complied with AS 21.78.290(b), It Should Determine Whether GAIC's Late Filing Is Excused Because It Was Timely Submitted in the PacWa Estate. Even if GAIC received proper statutory notice of the bar date, the superior court should determine whether GAIC's accepted filing of' the same claim with the PacWa estate excuses any late filing with the PacAk estate. GAIC argues that its claims fall within an established "protocol" between Pa-cAk and PacWa to accept claims timely filed with the wrong receivership without penalty. GAIC explains that such an agreement arose from the confusion surrounding the previous interrelationship of the two companies. GAIC points to an affidavit executed by former PaeWa Receiver Virgil McQueen in which McQueen states that "Wainscott . and I . agreed that claims which were filed on time but which were filed with the wrong receivership would be accepted as timely filed by the correct receivership without penalty." PacAk does not dispute that such an agreement existed but argues that GAIC needed to at least have submitted a timely proof of claim in the PaeWa estate. On December 9, 1991, GAIC filed a claim for reinsurance with PaeWa for the same four disputed claims. Although GAIC submitted the claims after the PaeWa bar date, PaeWa accepted GAIC's claims as timely because GAIC was secured by a letter of credit. In September 1992 GAIC's Deputy Receiver, Frank MacArtor, wrote the PacAk Receiver, requesting that she accept GAIC's claims as timely because GAIC had "established a Proof of Claim # 1-000001 with PACMAR of Washington as of November 17, 1988, based on a secured Letter of Credit." The PacAk Receiver replied in October that she would accept GAIC's claim as timely if GAIC had filed a proof of claim form with the PaeWa estate prior to March 1, 1990. PacWa's accounting manager, Charles Glass, wrote back that PaeWa had not required GAIC to file a proof of claim because GAIC was secured by a letter of credit. Since GAIC was excused from submitting a timely claim in the PaeWa estate, the superior court should determine whether this excuses a late filing with PacAk. In making this determination, the court should determine the meaning of the agreement between the Receivers in light of its purposes. E. If GAIC Was Not Notified of the Ban-Date or If Timely Filing Was Excused, the Trial Court Should Determine Whether PacAk Is Liable as a Reinsurer. GAIC argues that we should direct the superior court to conclude that PacAk is liable as a matter of law on the policies in question. GAIC's argument is essentially that PacAk, not PaeWa, was the contracting party with respect to the policies produced by THOMCO. Further, GAIC contends that the affairs of PacAk and PaeWa were so intermingled that it is just and proper to hold both companies responsible. PacAk argues that the trial court has already determined as a matter of fact that PacAk was not the reinsurer. It relies on a footnote in the court's opinion on reconsideration which states as follows: On December 15, 1982, Great Atlantic Insurance Company (GAIC) entered into the Quota Share Treaty. The treaty called for GAIC to cede 100% of the business covered by the treaty to "the Reinsurer." The Preamble defined the Reinsurer as "Pacific Marine Insurance Company of Alaska, Anchorage, Alaska, its parent and/or its affiliated companies." According to the expert hired by the Receiver to assist in evaluating the GAIC claim, that definition of the Reinsurer is broad enough to allow either PacAk or PaeWa to assume reinsurance under the treaty. The treaty had an inception date of 10/1/82 and was cancelled on 6/1/84. GAIC ceded 267 policies under the treaty with a total premium of $4,712,850. Every GAIC policy and all premium were ceded to PaeWa under this treaty. PaeWa received the entire $4,712,-850 in premiums paid. PacAk received no premium whatsoever. The Annual Statements of GAIC show PaeWa as assuming the reinsurance obligations under this treaty. The Annual Statements of PaeWa show PaeWa as assuming the reinsurance obligations under this treaty. The Annual Statements of PacAk do not mention this treaty. All of this is consistent with the manner in which the reinsurance premium was accounted, with PacAk receiving nothing. We do not believe that this footnote was meant to be a finding that PacAk was not a reinsurer of the claims in question. The court also stated that "given the untimeliness of GAIC's claim, the court does not reach the other issues raised by GAIC." Further, GAIC's claim appears to be strong. Premium allocation and preparation of annual statements were matters internal to PacWa and PacAk over which GAIC had no control. They do not necessarily determine whether PacAk was a reinsurer. The footnote taken alone and without discussion of the evidentia-ry basis for GAIC's claim fails to establish that PacAk was not the initial reinsurer. On the other hand, we think that it would be inappropriate for this court to rule that PacAk was the reinsurer at this juncture. That is the trial court's responsibility as fact finder. As we view the record, that responsibility has yet to be exercised. V. CONCLUSION We REVERSE the judgment of the superior court and REMAND for de novo consideration of this case. . The disputed agreement called for "treaty" reinsurance because it covered multiple policies. More precisely, the agreement was a "quota share" treaty, meaning that it covered a proportion of the reinsured's losses. . PakAk "its parent and/or affiliated Companies" also "retroceded" to GAIC a 50% quota share of the policies ceded under the treaty in a separate agreement between PacAk and GAIC. The retro-cession agreement was also made on December 15. . As of the date of the agreement PacAk, but not PacWa, was an authorized reinsurer under the Longshoremen's Act. On January 1, 1983, PacWa became an authorized issuer under the Act. . In 1988 PacWa apparently reacquired PacAk, again becoming its parent company. . PacWa has denied. GAIC's claims on the grounds that PacAk was the reinsurer under the treaty. . Whether the superior court applied the proper standard of review to the Receiver's decision presents a question of law to which we apply our independent judgment. See Butler v. Dunlap, 931 P.2d 1036, 1038 (Alaska 1997); McCoy v. McCoy, 926 P.2d 460, 463 (Alaska 1996). . In a dispute between PacAk and PacWa involving similar issues, the superior court conducted a de novo determination of the claims presented, giving no deference to the Receiver's decision and applying the preponderance of the evidence standard. The dispute occurred within the ongoing receivership proceedings under consideration in this appeal. The court stated: 1. The Superior Court is the trier of fact and exercises original jurisdiction over the disputed claims of PacWa against the PacAk receivership estate. 2. PacWa, the claimant, must establish its claim by a preponderance of the evidence. 3.The Superior Court will enter findings of fact, conclusions of law, and judgment and decree following the trial/evidentiaiy hearings on PacWa's disputed claims against the PacAk receivership estate. The superior court also allowed PacWa and Pa-cAk to conduct discovery and present testimony and evidence "in accordance with the civil rules." . See, e.g., Nyberg v. University of Alaska, 954 P.2d 1376, 1378 (Alaska 1998); Jager v. State, 537 P.2d 1100, 1107 (Alaska 1975). . The parties recognize that case law addressing this issue is sparse. GAIC and PacAk point to only one unpublished decision to elucidate the standard of review, State ex rel. McReynolds v. Petroleum Marketers Mutual Insurance Co., No. 01-A-01-9405-CH00211, 1994 WL 581465 (Tenn.App. Oct.21, 1994). In Petroleum Marketers, the trial court upheld the Receiver's decision to deny a late claim because the court concluded that it could not "substitute its judgment for that of the Receiver." Id. at *1. Reversing, the Tennessee Court of Appeals observed that the statutory scheme granted the trial court general supervision over the receivership administration as well as the authority to "approve, disapprove, or modify the liquidator's report of claims." Id. at *2. The court then addressed the merits of the claimant's excusable neglect argument after "conceding" that the trial court had the power to substitute its judgment. See id. We note that the same court subsequently held that the receivership statutes did not abridge the traditional powers of the superior court because they were devoid of any limitations on the standard of review. See State ex rel. Sizemore v. United Physician Ins. Risk Retention Group, No. 01-A-01-9610-CH00449, 1997 WL 181526, at *1-3 (Tenn.App. Apr. 16, 1997). PacAk also cites two cases to emphasize that the Receiver has "broad discretion" to act; however, these cases are inapposite because they do not address the Receiver's authority to resolve disputed claims. See Kentucky Central Life Ins. Co. v. Stephens, 898 S.W.2d 83, 85-86 (Ky.1995) (applying abuse of discretion standard to receiver's judgment to sell real estate assets); Minor v. Stephens, 898 S.W.2d 71, 83 (Ky.1995) (applying abuse of discretion standard to Insurance Commissioner's decision to liquidate insurance company). . Cf. Coit Independence Joint Venture v. Federal Sav. & Loan Ins. Corp., 489 U.S. 561, 572-79, 109 S.Ct. 1361, 103 L.Ed.2d 602 (1989) (holding that court should review Receiver's decision de novo since statute did not provide for judicial review under Administrative Procedure Act); Academy Life Ins. Co. v. Odiorne, 165 Ariz. 188, 797 P.2d 727, 734 (Ariz.App.1990) (remanding to trial court for additional evidence of reinsurance agreement coverage where two receivers disputed illegality of agreement); In re Liquidation of Union Indem. Ins. Co., 234 A.D.2d 120, 651 N.Y.S.2d 436, 437-38 (1996) (holding that where unresolved questions of fact remained over proper substantiation of the claim and liability, the issues "must be determined at trial"). . The statute was amended in 1990 to require notice by first class mail to the insurance director, guaranty associations, insurance agents and "all persons known or reasonably expected to have claims against the insurer, including all policyholders...." AS 21.78.290(a). . GAIC claims in its opening brief that the move took place on November 17, 1988. . At the time of the entry of the Order of Liquidation for PacAk, AS 21.78.290(b) provided that notice "shall be given in the manner and for the reasonable period of time that may be ordered by the court." The order prescribed that notice should be sent by first class mail to the "last known address, where available" for policyholders and those with claims against policyholders (those claimants in paragraph 12(A)). .In 1990, the legislature amended AS 21.78.290 to require that notice be sent by first class mail to "the [claimant's] last known address as indicated by the records of the insurer." AS 21.78.290(a)(4). In addition, the claimant now "has a duty to keep the receiver informed of a change of address." AS 21.78.290(b). . This claim reflects the confusion of entities which gave rise to this case for it is addressed to "Pacific Marine Insurance Company of Alaska in Liquidation" but the address is PacWa's. In the body of the claim the reinsurer is referred to simply as PACMAR, a designation which could be applicable either to PacAk or PaeWa. . GAIC supports its claim, in part, as follows: [T]he signature line on the PacAk-GAIC Treaty indicates that PacAk is the reinsurer. In addition, PacAk, but not PacWa, is a party to the Managing General Agency Agreement and the claims adjusting agreement. In addition, the GAIC Receiver requested that various former parties involved in the negotiation, drafting, or implementation of the PacAk-GAIC Treaty review the treaty and provide their recollections on the identity of the reinsurer. Mr. Jack Sullivan, the reinsurance interme-diaty who drafted the treaty, confirmed in a June 22, 1995, affidavit that PacAk is the rein-surer under the PacAk-GAIC Treaty. Mr. Ben C. Roark, the former Controller and Treasurer for PacAk and PacWa, the PacAk officer responsible for implementing the accounting functions of the company, states in a January 4, 1995 affidavit that PacAk is the reinsurer under the PacAk-GAIC treaty. Finally, Mr. Alan Bottomley, a reinsurance consultant who prepared an endorsement to the PacAk-GAIC Treaty, has stated in a June 22, 1995 affidavit that PacAk is the reinsurer under the treaty. On the effective date of the termination of the PacAk-GAIC Treaty, PacAk procured Certificates of Guaranty on two of the underlying policies at issue. Although the certificates were only to provide coverage for losses which took place on or after June 1, 1984 (and, therefore, do not apply to the losses for which GAIC is seeking reinsurance), the certificates provided coverage to "PakAk" for two of the same policies which PacAk now claims are not its liability as a reinsurer. . Witnesses Bottomley and Marinkovich ascribe the premium allocation to the December 14, 1982 agreement in which PacWa automatically assumed all reinsurance assumed by PacAk. Under this view, PacAk would be the initial reinsurer whose reinsurance in turn was assumed by PacWa.

10415153

D.E.D., Appellant, v. STATE of Alaska, Appellee

D.E.D. v. State

1985-08-23

No. S-553

774

784

704 P.2d 774

704

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:21:28.159013+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

D.E.D., Appellant, v. STATE of Alaska, Appellee.

D.E.D., Appellant, v. STATE of Alaska, Appellee. No. S-553. Supreme Court of Alaska. Aug. 23, 1985. James M. Hackett, Fairbanks, for appellant. James H. Cannon, Asst. Public Defender, Fairbanks, Dana Fabe, Public Defender, Anchorage, guardian ad litem. Myra M. Munson, Asst. Atty. Gen., Fairbanks, Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

5075

30379

OPINION RABINOWITZ, Chief Justice. R.S. seeks the return of her infant child, alleging that the various proceedings leading to the superior court's termination of her parental rights violated the Indian Child Welfare Act and state law in that she was deprived of her right to counsel. We hold that the superior court's judgment should be affirmed on the grounds that the evidence demonstrates beyond a reasonable doubt that the child was abandoned by its mother and that there were no jurisdictional or procedural defects in the proceedings leading to the parental rights termination. D.E.D. is an Indian child within the meaning of the Indian Child Welfare Act (ICWA). 25 U.S.C. § 1901 et. seq. (1983). He was born on September 27, 1983. R.S., an Inupiat Eskimo, is D.E.D.'s mother. When D.E.D. was one month old, R.S. sought assistance from the Division of Family and Youth Services (DFYS). She met with DFYS social worker Dorothy Haf-ler and told Hafler that she was unable to care for D.E.D. because she had no place to live and no money. R.S. executed a voluntary placement agreement which allowed the state to provide temporary foster care for D.E.D. In addition to specifically stating the beginning and ending dates of the placement period (October 27 to November 27, 1983), the agreement provided that R.S. could resume custody at any time. Hafler explained the agreement to R.S. and specifically indicated to R.S. that she could resume custody on demand. Hafler also suggested a variety of services to R.S. R.S. told Hafler that she intended to use the agreement for a few days or a week. R.S. was given the phone number of the foster home, and she was encouraged to visit. Two visits were arranged, but R.S. never came to see her son. R.S. did, however, call the foster home at 3:00 and 4:00 in the morning, while intoxicated, and so frequently that the foster parents asked that D.E.D. be removed. R.S. did not resume custody at the expiration of the 30 day voluntary placement and Hafler was unable to locate her. Haf-ler assumed emergency custody pursuant to AS 47.10.142 on November 27, 1983, the date the placement expired. Hafler testified that she did so because she didn't know how to reach R.S. Hafler petitioned the superior court for temporary custody of D.E.D. on November 29, 1983. Her petition explained that R.S. had neither called for nor picked up D.E.D. and that DFYS had been unable to locate D.E.D.'s parents. The superior court granted DFYS temporary custody until December 28. On December 5, 1983, Hafler sent a note telling R.S. that Hafler would have to take custody of D.E.D. because she had not heard from R.S. The note stated in part: I will need to help you make good plans for yourself before you can have him back.... But you cannot take him home until after we make a plan. On December 27,1983, the superior court extended the State's temporary custody to March 9, 1984, to allow time for the parents to be served with notice before trial. R.S. did not file an objection to the extension. On January 5, 1984, a petition for adjudication as a child in need of aid was filed. R.S. was served with a summons on January 24, 1984. The face of the summons stated that she had the right to be represented by an attorney and if she could not afford one, she could ask the court to appoint one for her at state expense. When R.S. appeared in court on March 9, 1984, the court appointed counsel from the bench. Temporary custody was extended on March 16, 1984 and a stipulation for adjudication of child in need of aid, signed by all parties, their counsel and the guardian ad litem, was filed on May 11, 1984. The stipulation specifically stated that R.S. and D.D. were aware that the court could terminate their parental rights at the hearing. A pretrial conference was held on June 21, 1983 in which no procedural or substantive issues were raised by R.S.'s attorney. However, on the morning of the trial, R.S.'s counsel served the parties with a petition requesting return of D.E.D. under ICWA. The State called numerous witnesses, three of whom qualified as experts. The three experts agreed that the parent-child bond between R.S. and D.E.D. was effectively destroyed by her failure to visit her son, that given her history and lack of response to the extensive services offered her, R.S.'s behavior was likely to continue, and that D.E.D. was likely to suffer serious physical or emotional damage if returned to R.S.'s custody. R.S. called no witnesses. The superior court found that it would be in D.E.D.'s best interests if parental rights were terminated: ' There is evidence beyond a reasonable doubt that [D.E.D.] is a child in need of aid as a result of his parents' conduct under AS 47.10.010(a)(2)(A) based on the abandonment by his mother and father in that they have consciously disregarded their obligation to maintain or establish a parent/child relationship with him and that conduct has resulted in the destruction of the parent/child relationship, and their inability to provide for his physical, social, emotional, and mental needs. There is evidence beyond a reasonable doubt that this conduct is likely to continue if the parents' parental rights are not terminated. There is evidence beyond a reasonable doubt that [D.E.D.] is likely to suffer serious physical or emotional damage if he were returned to the custody of his parents or if parental rights were not terminated. There is evidence beyond a reasonable doubt that active efforts have been made to provide remedial services to prevent the breakup of this family and that these services have proved unsuccessful or have been rejected by the parents. D.D. did not contest termination and both his and R.S.'s parental rights were terminated. R.S.'s motion for a stay was denied. R.S. now appeals. I. WAS R.S. DENIED THE RIGHT TO COUNSEL UNDER THE INDIAN CHILD WELFARE ACT (ICWA)? ICWA states that an Indian parent "shall have the right to court-appointed counsel in any removal, placement, or termination proceeding" where the court has determined that the parent is indigent. 25 U.S.C. § 1912(b) (1978). There is no dispute that the provisions of this section apply to D.E.D. and R.S. Nor is there any dispute that R.S. was represented by counsel at the trial in which her parental rights were terminated. R.S.'s primary contention is that she was deprived of her right to counsel under ICWA because the State failed to fulfill the notice requirements of § 1912(a). Under § 1912(a), no foster placement proceeding can be held unless the parent has been given 10 days notice by registered mail or, if the parent cannot be found, the Secretary of Interior has been notified. R.S. contends that the State did not attempt to give notice to her or the Secretary of either the November 29th hearing or the December 27th hearing. R.S. claims that the State's failure to fulfill the notice requirements of § 1912(a) effectively deprived her of her right to counsel, since the issuance and receipt of statutory notice includes notification of the right to counsel. The State argues that R.S.'s reliance on the notice requirements of § 1912(a) is misplaced because the November 29 and December 27 hearings were emergency custody proceedings and thus fell under 25 U.S.C. § 1922 and not § 1912. Section 1922 states in part: Nothing in this subchapter [§§ 1911-1923] shall be construed to prevent the emergency removal of an Indian child . from his parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prevent imminent physical damage or harm to the child. Section 1922 goes on to state that the court is to "expeditiously initiate a child custody proceeding." Section 1922 is not explicitly limited to situations in which the child is. in the parents' custody. The State is correct in its characterization of the November 27 hearing as an emergency custody proceeding falling under § 1922. As of November 27, the voluntary placement agreement had expired, R.S. had failed to retrieve her son, and she was nowhere to be found. The foster parents with whom D.E.D. had been placed under the voluntary agreement were no longer obligated to care for him. At that point, D.E.D. became an abandoned child and thus a child in need of aid under AS 47.10.010(a)(2)(A). In this situation, emergency intervention is required under § 1922 and for obvious reasons the 10 day notice R.S. demands is not applicable. By the same token, the December 27 hearing was also emergency in nature. Since the November 29 and December 27 proceedings were emergency hearings, the notice requirements of § 1912(a) were not applicable to R.S., and she was not deprived of her right to counsel under ICWA by the State's failure to notify her. II. SHOULD THE SUPERIOR COURT HAVE DECLINED JURISDICTION? R.S. asserts that the superior court committed reversible error in not declining jurisdiction as requested in her Petition for Return filed on the morning of trial. Neither the Petition for Return nor its supporting memo stated the basis for the request to decline jurisdiction. The supporting memo merely cites A.B.M. v. M.H., 651 P.2d 1170 (Alaska 1982) which arose not under § 1913 or 1920 but under 25 U.S.C. § 1916(a) (1983). Thus, as the State notes, there was nothing in R.S.'s petition which demonstrated that there was any basis for declining jurisdiction under either § 1913 or § 1920. The only other times R.S. challenged the superi- or court's jurisdiction were at the close of cross-examination, where R.S.'s counsel stated that he was willing to make a legal argument as to jurisdiction under § 1920, and in closing argument where opaque references were made to the jurisdictional question. Thus, R.S. never requested the superior court to rule on the jurisdictional issues she now specifies as error. Since the issue was never properly raised below, we do not consider it here. Alternatively, assuming the jurisdictional point was properly raised below, we find it without merit. R.S. claims that since D.E.D. was "improperly removed" within the meaning of § 1920 by the October agreement, and by the November and December temporary custody proceedings, the superior court should have declined jurisdiction and returned D.E.D. to R.S. R.S. asserts that custody taken pursuant to the October 27 voluntary agreement was improper because the agreement was neither executed nor certified according to § 1913(a) of ICWA. We agree with the State that the voluntary foster care placement agreement R.S. signed is not subject to ICWA. AS 47.10.230(c) authorizes DHSS to place minors under "individual voluntary written agreements" for up to 6 months. The statute specifically states that these agreements "shall not operate to prohibit a minor's parent . from regaining care of the minor at any time." DHSS provided a form agreement, which R.S. signed. The agreement specifically stated, immediately above the signature line: I have read the above statements or have had them read to me and I understand them. I also understand that this agreement is voluntary and that I have the right to regain custody of the child at any time. 25 U.S.C. § 1903(1) defines the types of proceedings covered by ICWA: (1) "child custody proceeding" shall mean and include— (i)"foster care placement" which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon ' demand, but where parental rights have not been terminated; (ii) "termination of parental rights" which shall mean any action resulting in the termination of the parent-child relationship; (iii) "preadoptive placement" which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and (iv) "adoptive placement" which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. (Emphasis added.) The voluntary care agreement entered into by R.S. does not fall into ICWA's definition of "foster care placement" since R.S. could have D.E.D. returned to her "at any time." Nor does it come within any of the other categories listed in § 1903(1). Thus, the agreement R.S. signed did not fall under ICWA. The guidelines support this conclusion. Guideline B.3(c) states that "[vjoluntary placements which do not operate to prohibit the child's parent . from regaining custody of the child at any time are not covered by the Act." 44 Fed.Reg. 67587. Commentary to guideline B.3, which explains the reasons for creating this exception, specifically refers to the type of agreement signed by R.S. and stresses how such agreements are to be structured so that ICWA will not apply to them: Some private groups and some states enter into formal written agreements with parents for temporary custody (See e.g. Alaska Statutes § 47.10.230). The guidelines recommend that the parties to such agreements explicitly provide for return of the child upon demand if they do not wish the Act to apply to such placements. Inclusion of such a provision is advisable because courts frequently assume that when an agreement is reduced to writing, the parties have only those rights specifically written into the agreement. (Emphasis added.) 44 Fed.Reg. 67588. The agreement fulfilled the guidelines' suggestions for voluntary placement agreements. It was explained to R.S. and it is apparent that she understood its terms from her statement to Hafler that she intended to use it only for a few days or a week. Since the agreement signed by R.S. is not subject to the provisions of ICWA, it did not have to satisfy the requirements of § 1913 and, therefore, it could not furnish a basis for the court to decline jurisdiction under § 1920 and return D.E.D. to R.S. It is also clear that § 1920 is not the proper remedy for the alleged violations of which R.S. complains. The legislative history of § 1920 states as follows: Section 110 [25 U.S.C. § 1920] establishes a "clean hands" doctrine with respect to petitions in State court for the custody of an Indian child by a person who improperly has such child in physical custody. It is aimed at those persons who improperly secure or improperly retain custody of the child without the consent of the parent or Indian custodian and without the sanction of law. It is intended to bar such persons from taking advantage of their wrongful conduct in a subsequent petition for custody. The child is to be returned to the parent or Indian custodian by the court unless such return would result in substantial and immediate physical danger or threat of physical danger to the child. It is not intended that any such showing be by or on behalf of the wrongful petitioner. (Emphasis added.) H.R.Rep. No. 1386, 95th Cong., 2nd Sess. 25 (1978), reprinted in 1978 U.S.Code Cong. & Ad.News 7530, 7548. DFYS took the case to the superior court promptly at the expiration of the October agreement and again at the end of the 30 day temporary custody period. In addition, the superior court had an adequate basis for its December 27 order extending temporary custody, because it had the State's supporting memorandum regarding R.S.'s knowledge that D.E.D. was in custody and her failure to either visit the child or contact DFYS. Thus, no removal or retention of D.E.D. occurred "without the sanction of law." III. WERE ANY PROCEDURAL OR JURISDICTIONAL ERRORS RENDERED HARMLESS BY A SUBSEQUENT, PROCEDURALLY CORRECT HEARING? The State argues that even if ICWA's provisions were violated in relation to the two temporary custody proceedings, this court is not required to set aside the superior court's subsequent decree terminating parental rights which was reached after compliance with ICWA. We conclude that even if the procedural and jurisdictional defects asserted by R.S. existed in the earlier temporary custody hearings, they were cured by the subsequent procedurally correct final dispositional hearing which occurred five months after R.S. was appointed counsel and three months after her counsel stipulated that D.E.D. was a child in need of aid. IV. WAS THERE SUFFICIENT EVIDENCE TO FIND THAT R.S. HAD ABANDONED D.E.D.? The superior court has the authority to terminate parental rights pursuant to AS 47.10.080(c)(3), upon a showing in the adjudication by clear and convincing evidence that there is a child in need of aid under AS 47.10.-010(a)(2) as a result of parental conduct and upon a showing in the disposition by clear and convincing evidence that the parental conduct is likely to continue to exist if there is no termination of parental rights.... In proceedings which fall under ICWA, the court's determination must also be "supported by evidence beyond a reasonable doubt, . that the continued custody of the child by the parent . is likely to result in serious emotional or physical damage to the child." 25 U.S.C. § 1912(f). A minor is a child in need of aid under AS 47.10.010(a)(2)(A) if he has been physically abandoned by his parents, or by one parent if the other parent's rights have been voluntarily relinquished. The superior court found that there was evidence beyond a reasonable doubt establishing that R.S. had abandoned D.E.D., that her conduct was likely to continue and that D.E.D. would suffer serious damage if he were left in R.S.'s custody. R.S. asserts that the superior court lacked sufficient evidence to determine that she had abandoned D.E.D. We disagree. The test for abandonment has two prongs: (1) has the parent's conduct evidenced a disregard for her parental obligation, and (2) has that disregard led to the destruction of the parent-child relationship. Nada A. v. State, 660 P.2d 436 (Alaska 1983). Abandonment is not determined by the parent's subjective intent, but by "objective evidence of parental conduct." Matter of E.J.(T.), 557 P.2d 1128, 1130-31 (Alaska 1976) (quoting In re Adoption of V.M.C., 528 P.2d 788, 793 (Alaska 1974)); see also Matter of D.M. v. State, 515 P.2d 1234, 1237 (Alaska 1973). A superior court's finding of abandonment will not be overturned on review unless it is clearly erroneous. Matter of E.J.(T.), 557 P.2d at 1132. There is ample evidence in the record that R.S.'s conduct "implie[d] a conscious disregard of the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship." Matter of D.M., 515 P.2d at 1237. Despite the fact that R.S. was continually encouraged by her social workers to visit D.E.D., she saw him only once prior to her court appearance on March 9, 1984. Subsequent to that hearing, she saw D.E.D. twice, and then missed or cancelled visits on several other occasions. The total amount of time R.S. spent visiting D.E.D. between October 27, 1983 and the June 25, 1984 hearing was a little over two hours. She was unable to provide the superior court with an explanation of why she failed to visit her son: "I don't know. Don't ask. I don't have an answer for that." The expert witnesses unanimously concluded that, because of D.E.D.'s age, lack of contact between R.S. and D.E.D. had destroyed the parent-child bond. The experts also agreed that based on R.S.'s past conduct and her lack of response to the services offered her, there was little likelihood that her behavior would change, and that serious physical or emotional damage would occur to D.E.D. if he were returned to R.S.'s custody. In light of the foregoing, we conclude that the superior court's decision to terminate R.S.'s parental rights on the basis of her abandonment of D.E.D. is supported by substantial evidence. AFFIRMED. . D.E.D.'s father, D.D., initially denied paternity and later testified that he was willing to relinquish his paternal rights. . The foster mother was also Native American, although not Inupiat. . Despite repeated requests, R.S. never gave Hafler a good address or telephone number. She reported 16 addresses to her probation officer between 1982 and 1984. . AS 47.10.142(a) provides: The Department of Health and Social Services may take emergency custody of a minor upon discovering . (1) the minor has been abandoned; . . On December 7, 1983, the State moved ex parte for the appointment of a guardian ad litem. An attorney was appointed for D.E.D. on December 8, 1983. D.E.D.'s case was assigned to DFYS social worker Ernie Collins about December 12, 1983. Collins testified that he spoke to R.S. on December 27 and that she made several appointments to see him which she did not keep. R.S. succeeded in meeting with Collins on January 10, 1984. He referred her to pretrial services for appointment of counsel. .On February 10, 1984, Debra McKelvie, a Fairbanks Native Association (FNA) counselor, told R.S. that it was important she obtain an attorney. On February 17, 1984, McKelvie actually took R.S. from FNA to the court building and reiterated the importance of getting an attorney, but R.S. said she could do so herself. On March 7, 1984, McKelvie repeated that it was impor tant that R.S. receive representation and R.S. responded that she chose not to be represented. . Denise Smart suggested to R.S. that she seek assistance from a variety of service agencies: Fairbanks Native Association (FNA), the Fairbanks Health Center, the Women, Infants and Children (WIC) program (a nutritional supplement program), and Aid to Families with Dependent Children (AFDC). Smart explained each program and offered R.S. transportation to FNA. Smart drove R.S. to and from FNA the following day. Smart attempted additional follow-up supervision, but R.S. had moved without leaving a forwarding address or telephone number. When R.S. was taken to FNA by Smart, she applied for an Indian Child Welfare grant, was referred to the WIC program, was given an AFDC application and use of the phone to make an appointment with AFDC, was told about parenting classes and was offered transportation. A food basket, diapers and clothes were delivered to R.S. that day. Although she picked up her Indian Child Welfare grant check, she failed to keep her appointment with AFDC. She testified that she thought the application form was "too hard" to fill out. She also complained that she couldn't get transportation to AFDC, but had no explanation for why she failed to accept FNA's offer of transportation. . R.S. notes that the federal guidelines to § 1912 indicate that the State should have provided the court with a "detailed explanation of what efforts have been made to locate [the parents]," B.7(b)(ii), and a "statement of the specific actions that have been taken to assist the parents . so the child may safely be returned to their custody." B.7(b)(vii). Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67589. While the Guidelines are not binding on state courts they are considered instructive. See 44 Fed.Reg. 67584. R.S. contends that these guidelines were not fulfilled since the State never provided the court with an explanation of what efforts were made to find R.S. or with a statement of what steps the State had taken to assist R.S. in having D.E.D. returned to her. R.S. also cites Rule 15(a)(3) and (4) of the Alaska Children's Rules to show that the court should have appointed her counsel at the November 29 and December 27 hearings. Rule 15 provides as follows: (a) When the Court Shall Appoint Counsel. The court shall appoint counsel to represent the child, his parents, guardian, or custodian, when the assistance of counsel is desired, as follows: (3) For his parents, guardian, or custodian when they are financially unable to employ counsel to represent themselves and the issues are complex or have serious consequences. (4) For the child, his parents, guardian, or custodian in any situation where, in the opinion of the court, the interests of justice and the nature of the case warrant providing the assistance of counsel at the taxpayer's expense. . The State also argues that R.S. chose not to be represented in the earlier hearings. The State observes that R.S. could not be found as of November 29, since she had not contacted DFYS and had given DFYS no way of contacting her and therefore, she could not have been notified of that hearing. Moreover, after the November 29 hearing, R.S. received several communications giving her notice of the December 27 hearing which she ignored. She received a letter from Hafler enclosing court paperwork; Hafler spoke to R.S. by phone on December 8; the Motion to Extend Temporary Custody was mailed to R.S. on December 21; Collins wrote to R.S. regarding the proceedings and she received his letter on December 14. Since R.S. failed to follow through after learning about the November 29 hearing and after she was repeatedly told to get counsel, the State contends that "even if R.S. had been served with a formal notice of her right to counsel on November 27th she would not have exercised it." We are unconvinced by this assertion. If, indeed, the State was required to notify R.S., the Secretary of Interior should have been given notice if R.S. could not be found. Even the irresponsible are entitled to due process. . R.S. stated in her brief that the request was made pursuant to 25 U.S.C. § 1913(b) and 1920 (1978). Section 1913(b) provides; Any parent or Indian custodian may withdraw consent to a foster care placement under State law at any time and, upon withdrawal, the child shall be returned to the parent or custodian. 25 U.S.C. § 1920 states: Where any petitioner in an Indian child custody proceeding before a State court has improperly removed the child from custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over such petition and shall forthwith return the child to his parent or Indian custodian unless returning the child to his parent or custodian would subject the child to a substantial and immediate danger or threat of such danger. (Emphasis added.) Guideline B.8 to 25 U.S.C. § 1920 states as follows: (a) If, in the course of any Indian child custody proceeding, the court has reason to believe that the child who is the subject of the proceeding may have been improperly removed from the custody of his or her parent or Indian .custodian or that the child has been improperly retained after a visit or other temporary relinquishment of custody, and that the petitioner is responsible for such removal or retention, the court shall immediately stay the proceedings until a determination can be made on the question of improper removal or retention. (b) If the court finds that the petitioner is responsible for an improper removal or retention, the child shall be immediately returned to his or her parents or Indian custodian. (Emphasis added.) 44 Fed.Reg. 67590. . Section 1916(a) provides: Notwithstanding State law to the contrary, whenever a final decree of adoption of an Indian child has been vacated or set aside or the adoptive parents voluntarily consent to the termination of their parental rights to the child, a biological parent or prior Indian custodian may petition for return of custody and the court shall grant such petition unless there is a showing, in a proceeding subject to the provisions of section 1912 of this title, that such return of custody is not in the best interests of the child. . Section 1913(a) provides in pertinent part: Where any parent or Indian custodian voluntarily consents to a foster care placement or to termination of parental rights, such consent shall not be valid unless executed in writing and recorded before a judge of a court of competent jurisdiction and accompanied by the presiding judge's certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian. The court shall also certify that either the parent or Indian custodian fully understood the explanation in English or that it was interpreted into a language that the parent or Indian custodian understood.... . While the October 27 agreement fulfilled the literal requirements of the ICWA guidelines, it did not explicitly state, nor was it ever explained to R.S. what the harsh consequences might be of failing to demand return of D.E.D. prior to the agreement's expiration date. In fact, without such a warning, the agreement's language ("at any time") seems to be somewhat deceptive. However, R.S. failed to raise this issue either here or below and since it is not properly before us, we will not consider it. . R.S. also contends that the November and December temporary custody proceedings were improper because she lacked statutory notice and was thereby deprived of her right to counsel. As discussed above, these claims are merit-less. . The Supreme Court of Montana addressed a similar question in Matter of M.E.M., 679 P.2d 1241 (Mont.1984). There it was held that ICWA "does not provide for invalidation of a valid separate action because of an invalid prior one." Id. at 1243. The court noted the following: The temporary and permanent custody proceedings . were separate actions resulting in court orders granting different forms of relief.... In terminating [the mother's] parental rights, the [trial court] did not rely upon the prior temporary custody proceedings. The court noted the temporary custody proceedings in its findings of fact, but emphasized separate testimony from the permanent custody hearing regarding the condition of the child and the parents' ability to care for the child.... [T]he temporary custody proceedings were not a legal prerequisite to termination of parental rights. Id. at 1243-44.

10361812

STATE of Alaska, Appellant, v. Karl Albin BENOLKEN, Appellee

State v. Benolken

1992-10-09

No. A-4145

280

283

838 P.2d 280

838

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

STATE of Alaska, Appellant, v. Karl Albin BENOLKEN, Appellee.

STATE of Alaska, Appellant, v. Karl Albin BENOLKEN, Appellee. No. A-4145. Court of Appeals of Alaska. Oct. 9, 1992. Stephen R. West, Asst. Dist. Atty., Ket-chikan, and Charles E. Cole, Atty. Gen., Juneau, for appellant. Theresa R. Chenhall, Asst. Public Defender, Ketchikan, and John B. Salemi, Public Defender, Anchorage, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1724

10724

OPINION COATS, Judge. Fifteen-year old Carl Albin Benolken was charged with driving without a valid operator's license after he drove his all terrain three-wheeler on a public roadway in Craig, Alaska, on December 29, 1990. AS 28.15.-011(b). District Court Judge George L. Gucker dismissed the charge, concluding that the driver of a three-wheeler is not required to have a driver's license. The state appeals from this order of dismissal. Alaska Statute 28.15.011(b) reads: (b) Every person exercising the person's privilege to drive, or exercising any degree of physical control of a motor vehicle upon a highway, vehicular way or area, or other public property in this state, is required to have in the possession of the person a valid Alaska driver's license issued under the provisions of this chapter for the type or class of vehicle driven, unless expressly exempted by law from this requirement. Alaska Statute 28.15.041(a) authorizes the commissioner of public safety to provide by regulation for the type or class of vehicle for which a driver must be licensed. Former 13 AAC 08.150, in effect at the time Benolken was cited, specified which vehicles were subject to driver's license requirements: (a) An applicant for a classified license, or for an endorsement to a classified license must submit to an examination appropriate to the class of license or endorsement for which the person is applying. (b) The classifications of driver licenses, and the vehicles which a holder of each class or subclass of license may operate, are as follows: (1) Class A license — motor-driven cycles, cars, buses, trucks and towed vehicles.... (2) Class B license — Motorized cycles. A person holding a Class "B" driver's license may operate the vehicles designated in one of the following subclassifi-cations as indicated upon the person's license: (A) B-l: motorcycles, motor-driven cycles, and motorized bicycles, singly or in combination with trailers or sidecars designed to be used with these vehicles; (B) B-2: motor-driven cycles and motorized bicycles. (Emphasis added). The state contends Benolken was required to have a driver's license because three-wheelers fall under the definition of "motorcycle" and "motor-driven cycle" as used in 13 AAC 08.150(b) and the definition of "vehicle" as used in AS 28.15.011(b). Benolken contends a three-wheeler does not qualify as a motorcycle, motor-driven cycle, or vehicle because three-wheelers are designed and constructed for off-road usage and are therefore not subject to registration laws. See AS 28.10.011; 13 AAC 40.010(30). Benolken further notes that the Chief of Driver Services for the Division of Motor Vehicles (DMV) testified that the DMV will not license three-wheelers. Finally, Benolken points out that in State v. Straetz, 758 P.2d 133 (Alaska App.1988), we stated that "under AS 28.15.011 the driver of a three-wheeler is not required to have a driver's license." Id. at 134. We agree with the state's contention that a three-wheeler falls under the definition of motorcycle in 13 AAC 08.150. The DMV's failure to specifically license three-wheelers does not exempt drivers of three-wheelers from the requirement of AS 28.15.011(b), that before driving on a highway or vehicular way they procure a license for the type or class of vehicle that encompasses three-wheelers. Under 13 AAC 08.150(b)(2), that type or class is "motorcycle." The underlying purpose of AS 28.15.011 is to ensure that all drivers are capable of safely driving on the highways and vehicular ways and areas across the state. Requiring the drivers of three-wheelers to be licensed when traveling on a highway comports with this purpose. We likewise reject Benolken's argument that we should look to the registration laws for guidance in resolving this issue. The registration laws are designed to ensure that a vehicle is safe to drive, whereas, driver's license laws are designed to ensure that the driver is capable of driving in public. In our view, unlicensed three-wheeler operators should not be permitted to drive with impunity on the Alaska highways merely because the législature does not require them to be licensed to drive the vehicles off road. Benolken's reliance on State v. Straetz is not persuasive. In Straetz, the defendant was charged with driving while license was in suspended status (DWLS) [for failure to obtain SR-22 insurance] after he drove his three-wheeler on a public street. The trial court dismissed the case and the state appealed. Id. at 134. On appeal, Straetz argued that he did not need a license to drive the three-wheeler. State v. Stagno, 739 P.2d 198, 201 (Alaska App.1987). According to Straetz, because it was legal to drive an off-road vehicle such as a three-wheeler without a license, the legislature could not have intended to penalize him for having done so. Id. This court vacated the order of dismissal, stating: While it is true that under AS 28.15.-011 the driver of a three-wheeler is not required to have a driver's license, the express and unambiguous terms of AS 28.15.291(a) prohibited Straetz from driving any motor vehicle on a highway once his operator's license was suspended. The prohibition did not hinge on the nature of the motor vehicle, but rather on Straetz's demonstrated danger as a driver, as evidenced by his license suspension. Alaska Statute 28.15.291(a) creates no exception that would allow a driver whose license has been suspended to drive on a highway in a motor vehicle that does not require a licensed driver. The statute, on its face, applies to all motor vehicles_ We see nothing irrational in the legislature s apparent conclusion that a person whose license has been suspended should be prohibited from driving any motor vehicle on a highway, even one for which an operator's license would not otherwise he required. Id. at 134-35 (emphasis added). In Straetz, we accepted as correct the defendant's contention: that "the driver of a three-wheeler is not required to have a driver's license" because it did not affect the result in that case. We concluded that, even if a three-wheeler was not required to be licensed, its driver could nonetheless be charged with DWLS if the driver's license for his automobile was suspended and he drove his three-wheeler on the highway. The statement that "the driver of a three-wheeler is not required to have a driver's license" was unnecessary to the decision in that case and we disavow that language to the extent it is inconsistent with our present decision. Accordingly, the order of dismissal is VACATED. . Alaska Statute 28.15.041(a) reads, in relevant part: Classification of drivers' licenses, (a) The commissioner shall provide by regulation for the classification of drivers' licenses. The regulations must specify license classifications that are reasonably necessary for the safe operation of the various types, sizes and combinations of motor vehicles. The regulations must also establish medical standards, standards of driving conduct and proficiency, and other standards governing the issuance, renewal, or denial of these licenses. The department may examine each applicant to determine the applicant's qualifications according to the class of license applied for, and upon issuing a driver's license the department shall indicate on the license the classification for which an applicant for a license has qualified by examination. The regulations and any subsequent modifications under this section become effective only if approved by a concurrent resolution adopted by a majority vote of each house of the legislature. (Emphasis added). . AS 28.40.100(a)(8) provides: "motorcycle" means a vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground; the term does not include a tractor[.] AS 28.40.100(a)(9) states: "motor-driven cycle" means a motorcycle, motor scooter, motorized bicycle or similar conveyance with a motor attached and having an engine with 50 or less cubic centimeters of displacement[.] . AS 28.40.100(a)(7) states: "motor vehicle" means a vehicle which is self-propelled except a vehicle moved by human or animal power[.] AS 28.40.100(a)(17) provides: "vehicle" means a device in, upon, or by which a person or property may be transported or drawn upon or immediately over a highway or vehicular way or area except devices used exclusively upon stationary rails or tracks[.] . 13 AAC 40.010(30) states: (30) "off-highway vehicle" means a vehicle designed or adapted for cross-country operation over unimproved terrain, ice or snow, and which has been declared by its owner at the time of registration and determined by the department to be unsuitable for general highway use, although the vehicle may make incidental use of a highway as provided in this title; it does not include implements of husbandry and special mobile equipment!.] (Emphasis added). AS 28.10.011 provides: Vehicles subject to registration. Every vehicle driven, moved, or parked upon a highway or other public parking place in the state shall be registered under this chapter except when the vehicle is (1)driven or moved on a highway only for the purpose of crossing the highway from one private property to another, including an implement of husbandry as defined by regulation; (2) driven or moved on a highway under a dealer's plate or temporary permit as provided for in AS 28.10.031 and 28.10.1810); (3) special mobile equipment as defined by regulation; (4) owned by the United States; (5) moved by human or animal power; (6) exempt under 50 U.S.C.App. 501-591 (Soldiers' and Sailors' Civil Relief Act); (7) driven or parked only on private property; (8) the vehicle of a nonresident as provided under AS 18.10.121; (9) a commercial interstate vehicle under AS 28.10.141; (10) transported under a special permit under AS 28.10.151; (11) being driven or moved on a highway, vehicular way, or a public parking place in the state that is not connected by a land highway or vehicular way to (A) the land-connected state highway system, or (B) a highway or vehicular way with an average daily traffic volume greater than 499; (12) a mobile home as defined by regulation; (13) an implement of husbandry operated in accordance with the provisions of AS 19.-10.065. (Emphasis added.)

10361419

DICK FISCHER DEVELOPMENT NO. 2, INC., Appellant, v. DEPARTMENT OF ADMINISTRATION, State of Alaska, Appellee

Dick Fischer Development No. 2, Inc. v. Department of Administration

1992-09-04

No. S-4349

263

268

838 P.2d 263

838

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

DICK FISCHER DEVELOPMENT NO. 2, INC., Appellant, v. DEPARTMENT OF ADMINISTRATION, State of Alaska, Appellee.

DICK FISCHER DEVELOPMENT NO. 2, INC., Appellant, v. DEPARTMENT OF ADMINISTRATION, State of Alaska, Appellee. No. S-4349. Supreme Court of Alaska. Sept. 4, 1992. Erin B. Marston, John Spencer Stewart, Stafford Frey Cooper & Stewart, Anchorage, for appellant. Ross A. Kopperud, Asst. Atty. Gen., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2813

17672

OPINION BURKE, Justice. Dick Fischer Development No. 2, Inc. (Fischer) sued the State of Alaska to recover full bid preparation costs and other damages when the State cancelled a large of fice construction project. The State cross-claimed seeking reimbursement for partial bid preparation costs paid to Fischer. In granting the State's summary judgment motion, the superior court held that the State's cancellation of the project did not entitle Fischer to bid preparation costs or other damages. It also ordered Fischer to repay the State. Fischer appeals this decision. We affirm. I. FACTS AND PROCEEDINGS The State planned to construct a large office building, the Anchorage Office Complex (AOC), in downtown Anchorage. The State solicited bids for the project and identified Fischer as the low bidder. The State awarded the project to Fischer; however, the unsuccessful bidders filed bid protests pursuant to 2 AAC 15.100. Before the bid protests could be resolved, the State can-celled the AOC project. Fischer claimed that he had incurred over $850,000 in bid preparation costs and post-award expenses by the time the State cancelled the project. In an effort to settle adverse claims and retain good will in the construction industry, the State agreed to pay Fischer and other claimants reasonable bid preparation costs. In her decision, Eleanor Andrews, Commissioner of the Department of Administration, cited the project's "long and unfortunate history" and noted that this was the State's third unsuccessful solicitation of bids for the AOC project. Since the bidders spent considerable time and money preparing their bids, Commissioner Andrews felt that it was "fundamentally unfair" to ask them to bear the full cost of the State's indecisiveness. According to a letter from the Commissioner to Fischer, the decision to pay bid preparation costs was not based on legal liability but on "independent policy considerations." Fischer and two other bidders submitted claims for bid preparation costs. The State formed an audit committee to review the bidders' claims and determine accurate payments. In light of the substantially different computation methods used by the bidders to calculate their claims, the committee suggested two payment options. The first option was to provide the companies with specific guidelines as to what would be considered a compensable expense. This would require the companies to recalculate their claims. The second option was to make equal payments to each claimant regardless of the actual bid preparation costs. Commissioner Andrews chose the second option and paid each bidder $238,-222. The amount was determined by dividing the funds appropriated to the AOC project by the number of bidders submitting claims. Acceptance of the payment did not require the recipient to release any further claims. However, the State expressly reserved the right to modify the decision to pay partial bid preparation costs if a claim was filed later. In July 1985 Fischer filed a claim with the Department of Administration seeking damages for breach of contract, lost profits, and bid preparation costs. The State rejected Fischer's claim without providing an administrative hearing. In response, Fischer filed a claim in the superior court. After the breach of contract claim was decided by this court, Fischer amended its complaint to include damages for denial of due process based on the State's cancellation of its administrative hearing. The State counterclaimed for reimbursement of the $238,222 paid to Fischer and filed a motion for summary judgment. The superior court granted the State's motion and ordered Fischer to repay the money. Fischer appeals the decision. II. DISCUSSION A. Fischer is not entitled to bid preparation costs. Fischer argues that it is entitled to a refund of its bid preparation costs because the State's decision to cancel the office project was arbitrary and unreasonable. When a State agency solicits bids, it impliedly contracts to give those bids fair and honest consideration. King v. Alaska State Housing Authority, 633 P.2d 256, 263 (Alaska 1981). In King, the plaintiffs sued the Alaska State Housing Authority (ASHA) for damages resulting from the rejection of their bid to develop the East-chester area of Anchorage. Id. at 258. In 1964, ASHA developed an urban renewal plan for the Eastchester area and, pursuant to the plan, condemned the land on which the project was to be built. Id. The plaintiffs owned part of the condemned land. Id. The renewal plan required ASHA to give preferential consideration to bids submitted by former owners. Id. The plaintiffs submitted a bid, but ASHA awarded the project to a competing developer. Id. The plaintiffs sued for bid preparation costs, arguing that ASHA did not give their bid fair and honest consideration. Id. at 261. The superior court granted ASHA's motion for summary judgment. Id. at 259. We reversed, holding that a solicitation of bids creates an implied contract to give all bids fair and honest consideration. Id. at 263. We stated that if the government's rejection was arbitrary and capricious, the bidder was entitled to bid preparation costs. Id. To aid in identifying a wrongful rejection, we adopted the arbitrary and capricious standard outlined in Keco Industries, Inc. v. United States, 203 Ct.Cl. 566, 492 F.2d 1200 (1974). King, 633 P.2d at 263 n. 7. In Keco, the court stated that in evaluating the governmental action, the following factors should be considered: 1) subjective bad faith on the part of the officials, depriving the bidder of fair and honest consideration of the proposal; 2) proof that there was no reasonable basis for the administrative decision; 3) the amount of discretion entrusted to procurement officials; and 4) violation of a pertinent statute. Keco, 492 F.2d at 1203-04. The issue in this case is whether there was a reasonable basis for the State's decision to cancel the AOC project. The State gives three reasons for cancelling the project: lack of legislative support, problems with financing, and impropriety surrounding the bidding process. We consider any of these reasons to be enough to justify the State's cancellation of the project. Fischer argues that, according to the Department of Law, legislative resistance to the project was legally irrelevant; therefore, lack of legislative support is not a valid reason for cancelling the AOC project. Although legislative approval was not required for the procurement of lease space, there were valid reasons for seeking legislative approval. First, construction of the AOC would have had a significant impact on the State's fiscal affairs over a period of 40 years. The project involved substantial costs and a complex long term financing arrangement. In addition, the legislature would have had to appropriate funds annually to ensure the success of the project. If the legislature did not appropriate funds for the lease every year, the lease would have terminated. Although current legislative support for the project would not have guaranteed future funding, lack of support in the initial stages indicated the possibility of future funding problems. For these reasons, cancellation of the project for lack of legislative support was neither arbitrary nor capricious. The State's second reason for can-celling the project involved financing. The State's ability to meet the obligations set out under the lease agreement was questionable considering the legislature's lack of support, and state officials were otherwise unsure how the project would be financed. We agree that the lack of a viable funding arrangement was a legitimate reason for the State to cancel the project. See Weber v. City of Philadelphia, 437 Pa. 179, 262 A.2d 297 (1970) (court held that city's rejection of all bids for sports stadium because of city's inability to finance project was not arbitrary and capricious). The State's third reason for cancellation was a problem surrounding ex parte communication between former Commissioner Rudd and A1 Parrish, a one time agent of Fischer. Assistant Attorney General Rubini determined that the communication between Rudd and Parrish was enough to fatally taint the bidding process and require cancellation of the project. Fischer argues implicitly that the company did not gain a competitive advantage from the communication; therefore, it was not a valid reason for the State to cancel the project. Fischer states that at the time of the conversation, Parrish was neither an agent nor an employee of the company. Assuming that Fischer did not gain a competitive advantage from the communication between Parrish and Rudd, the issue becomes whether the mere appearance of impropriety is enough to taint the entire bidding process. We discussed this issue in McBirney & Assoc. v. State, 753 P.2d 1132 (Alaska 1988). In McBirney, we held that a demonstrated impropriety justified cancellation of a contract between the State and McBirney & Associates. Id. at 1137. In reaching our conclusion, we cited NKF Engineering, Inc. v. United States, 805 F.2d 372 (D.C.Cir.1986). In NKF, the court noted that the appearance of impropriety was reason enough to disqualify a bidder. Id. at 376. The goal of the competitive bidding process is "to prevent fraud, collusion, favoritism and improvidence in the administration of public business." McBirney, 753 P.2d at 1135-36 (quoting Gostovich v. City of West Richland, 75 Wash.2d 583, 452 P.2d 737, 740 (1969)). Even the appearance of impropriety threatens the goals of the process and Fischer cannot legitimately claim that the ex parte communication did not create the appearance of impropriety. We hold, therefore, that the concern over impropriety in the bidding process was sufficient to support the State's decision to cancel the project. B. Fischer must repay the $238,222 tendered for bid preparation costs. When Fischer filed his claim for bid preparation costs, the State counterclaimed for reimbursement of the $238,222 paid to Fischer. The superior court ordered Fischer to reimburse the State. Fischer argues that it should not have to repay the money because the State promised to pay undisputed claims for bid preparation costs. Essentially, Fischer's argument assumes a contract between Fischer and the State based on the State's promise. In order to have a valid contract, consideration is required. See Hall v. Add-Ventures, Ltd., 695 P.2d 1081, 1087 n. 9 (Alaska 1985). Fischer did not give any consideration for the State's promise to pay undisputed claims for bid preparation costs. Neither the State nor Fischer claim that the payment was made to settle existing claims for costs. In fact, Fischer was not required to relinquish any future claims against the State and is now litigating those claims before this court. There is also no detrimental reliance argument. The Restatement (Second) of Contracts § 90(1) (1979) states: A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. Detrimental reliance is required to make the State's promise binding. Fischer alleges no such reliance, therefore, the State's promise to pay undisputed claims is not enforceable. C. Fischer is not entitled to damages for denial of due process of law. Finally, Fischer asserts a denial of its due process rights arising from the State's unilateral cancellation of its administrative hearing. Fischer relies on Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), to support its claim for damages. See also Davis v. Passman, 442 U.S. 228, 98 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (allowing claim for damages for violation of Fifth Amendment due process clause). In Bivens, the Supreme Court allowed a claim for damages resulting from a violation of the Fourth Amendment of the United States Constitution. Bivens, 403 U.S. at 397, 91 S.Ct. at 2005. In King, we noted that the federal courts have been reluctant to extend the Bivens decision where alternative remedies are available. King, 633 P.2d at 261 n. 5 (citing Hearth, Inc. v. Department of Public Welfare, 612 F.2d 981, 982 (5th Cir.1980)). We are also hesitant to extend the Bivens decision, and will not allow a claim for damages except in cases of flagrant constitutional violations where little or no alternative remedies are available. In this case, Fischer had other remedies available. When the State cancelled its administrative hearing, Fischer appealed to this court for relief. Therefore, Fischer has received a full opportunity to present his claims for bid preparation costs and has not been denied due process. We affirm the superior court's award of summary judgment to the State. We also affirm the superior court's order for Fischer to reimburse the State. AFFIRMED. . This case is before us for the second time. In Dick Fischer Dev. v. Department of Admin., 778 P.2d 1153 (Alaska 1989) (Fischer I), we held that the State's acceptance of Fischer's bid for the Anchorage Office Complex (AOC) did not create a binding contract. Id. at 1155. Fischer was the successful bidder in the State's solicitation for bids on the AOC project. When the State cancelled the project, Fischer sued the State for lost profits, breach of contract, and bid preparation costs. Id. at 1154 & n. 1. The State was awarded partial summary judgment. Id. However, the claim for bid preparation costs was not resolved in Fischer I, and it is now before this court. In addition, Fischer filed an amended complaint seeking damages for the State's alleged violation of Fischer's due process rights. . 2 AAC 15.100(a) (repealed 1988) provided that "[a]n aggrieved bidder may, within five days after award of a contract, appeal to the department for hearing." . In her letter to Fischer informing it of the State's decision to pay partial bid preparation costs, Commissioner Andrews stated that Fischer would be required to sign an acknowledgment form to receive the funds. The form apparently stated that if a claim were filed, the State could dispute the bidders entitlement to any bid preparation costs and, if successful, require the bidder to remit all or part of the payment to the State. There is nothing in the record, however, indicating that Fischer ever signed the acknowledgment form. . In reviewing an award of summary judgment, this court must determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. Drake v. Hosley, 713 P.2d 1203, 1205 (Alaska 1986). All reasonable inferences of fact must be drawn in favor of the nonmoving party. Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). . King dealt with an improperly rejected bid, not a project cancellation as in this case. The rationale for creating an implied promise to not reject bids arbitrarily (loss of time and resources involved in bid preparation) applies equally to the circumstances presented here. King, 633 P.2d at 263. . The AOC lease agreement contained a standard termination for non-appropriation provision. The provision provided that "[i]n the event of non-appropriation by the legislature, the agreement shall terminate with no further obligation to make payments." . Fischer also argues that the State cancelled the project to avoid the cost of resolving bid protests and to escape scrutiny for possible improprieties surrounding the AOC project. As evidence to support its argument, Fischer submitted a letter expressing the State's concern about the high cost of resolving the bid protests. However, in the same letter, Anselm Staack, Deputy Commissioner of the Department of Administration, discussed the difficulties of proceeding with the project given the lack of legislative support. So long as the State had some valid reasons for cancelling the project, it makes no difference that other, possibly invalid, reasons played a part in the State's decision. Given the existence of valid reasons to cancel the project, the decision was not arbitrary or unreasonable. Fischer has offered no evidence to support the theory that the State cancelled the project to avoid scrutiny. Fischer likens this case to the McBirney case, and argues that the State was afraid the AOC project would be similarly challenged. While both cases involve similar pro jects, the facts in McBirney are significantly different from this case. Therefore, it is not reasonable to assume that the State feared the same legal and political consequences involved in the McBirney case. . There is a clear alternative basis for affirming the superior court's order requiring Fischer to repay the State. As previously noted, the ac-knowledgement form that Fischer was required to sign to receive the partial bid preparation costs expressly provided for remittance of the money to the State if a court determined that no costs were owed by the State. We do not decide the issue on these grounds, however, because the record contains nothing to show that Fischer actually signed the form.

10553009

Henry LEE, Appellant, v. STATE of Alaska, Appellee

Lee v. State

1973-05-18

No. 1716

1088

1094

509 P.2d 1088

509

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:20:37.984128+00:00

CAP

Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ-

Henry LEE, Appellant, v. STATE of Alaska, Appellee.

Henry LEE, Appellant, v. STATE of Alaska, Appellee. No. 1716. Supreme Court of Alaska. May 18, 1973. Herbert D. Soil, Public Defender, Lawrence J. Kulik, Asst. Public Defender, Anchorage for appellant. John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Jr., Dist. Atty., Stephen G. Dunning, Asst. Dist. Atty., Anchorage, for appellee.

3892

22785

OPINION Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ- BOOCHEVER, Justice. The principal issue in this case pertains to the right of Lee to be present when the jury returned its verdict. Lee was indicted for the sale of two slips of heroin to an addict informer who had numerous convictions for various crimes. There were no other witnesses to the sale, and the defense endeavored to show that the informer's testimony was unreliable. The case was tried by a jury with, Judge James M. Fitzgerald presiding. The jury was given the case for decision at 5:00 p. m., and at 5:30 p. m. sent the court a written request to hear again the testimony of the informer and a police officer. This request, which involved approximately two hours of testimony was granted. Unable to reach a verdict that evening, the jury was "put to bed" and instructed to continue their deliberations the next morning, April 22, 1972. At about 9:30 that morning, Judge Fitzgerald, who had other business, asked Judge Edward V. Davis to stand in for him. Mr. William Fuld, defendant's attorney; Mr. Justin Ripley, counsel for the State; Judge Fitzgerald; and Judge Davis then entered into a stipulation that if the jury had not reached a verdict by 2:00 that afternoon, the jury would be discharged. Almost immediately after this stipulation, another note arrived from the jury stating: "Your Honor, the vote is still 10-2 and we have come no closer to a unanimous vote." The judge wrote on the bottom of the note, "Keep trying. Judge Davis, 4 — 22-72" and had the bailiff return it to the jury. Defendant was not there at the time and there is a dispute as to whether Mr. Fuld, his attorney, was present. Shortly thereafter Judge Davis received word that the jury had reached a verdict. Court was reconvened at 11:00 a. m., but since the defendant was absent, the jury was not called in for about an hour. The jury had been kept waiting because counsel for the State had specifically pointed out to the judge that the defendant had a right to be present when the verdict was read. The judge then asked if counsel for the defendant would waive this right. At this point the attorney, who had been asked by Mr. Fuld to take his place in the proceedings, replied: Yes, Your Honor. I will gladly waive Mr. Lee's right to be present at the taking of the jury — at the verdict; I feel that I have that power from him. Mr. Fuld asked me and gave me full authority to appear here just as fully as Mr. Fuld might do. I do think I ought to say this about Mr. Lee. I don't believe that he himsef has a 'phone; that it's a question of calling somebody else and they getting a message to him; and I think. . . . (Emphasis added.) While two phone calls had been made to a number given to the bailiff by Mr. Lee, he was never contacted directly. There was testimony that at the second call, the bailiff was assured that the message had been delivered to Mr. Lee and that he was on his way. After further remarks from the counsel for the State cautioning the judge that the defendant's absence might be grounds for reversal on appeal, the jury was called and the verdict of guilty returned. Although the jury was asked generally if that was the correct verdict: THE COURT: . . . Foreman of the Jury. Ladies and gentlemen, is this your verdict? UNIDENTIFIED FEMININE VOICE: Yes, it is. the substituted attorney waived the right to poll the jury individually. The defendant then arrived as everyone was leaving the building. The right of a defendant to be present at all stages of the proceedings existed at common law. The sixth amendment to the United States Constitution and article I, section 11, of the Constitution of the State of Alaska confers on the accused the right "to be confronted with the witnesses against him." This constitutional right has been implemented by Alaska Criminal Rule 38 (essentially similar to Federal Rule of Criminal Procedure 43), which provides in relevant part: . The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules . In prosecutions for any offense, the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. (Emphasis added.) Since Lee was not present at the return of the verdict, we first must ascertain whether his absence could be regarded as voluntary. It is clear that a voluntary absence would constitute a waiver of the right to be present. While there is authority that the right to be present cannot be so waived in capital cases (see Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500, 505 (1912)), the general view is that if a defendant "absconds" or "willfully makes himself unavailable" after the trial has begun, he cannot defeat the proceedings, and an implied waiver is established, at least in noncapital cases. Courts have been most reluctant to find that a defendant's absence is "voluntary" in the absence of clear evidence on the record that he knew of the proceedings and exercised a decision to stay away. The extent of this judicial concern for a clear finding of an intent to frustrate the proceedings is reflected by the holding in Cureton v. United States, 130 U.S.App.D.C. 22, 396 F.2d 671, 676 (1968) where the defendant did not appear for the second day of trial and was not seen again until apprehended two months later. In remanding to the trial court for an explicit finding that the departure was for the purpose of absconding (the trial had continued in the defendant's absence), the court stated: [W]e conclude that if a defendant at liberty remains away during his trial the court may proceed provided it is clearly established that his absence is voluntary. He must be aware of the processes taking place, of his right and of his obligation to be present, and he must have no sound reason for remaining away. Cf. Parker v. United States, 184 F.2d 488 (4th Cir.) Our language in Cross [v. United States, 117 U.S.App.D.C. 56, 325 F.2d 629 (1963)] to the effect that he cannot frustrate a trial in progress by absconding indicates the sort of situation which enables the court to continue the trial. We cannot be certain upon the present record that appellant's absence was of the character above indicated. (Emphasis added, citations omitted.) Since in the instant case it is doubtful if Henry Lee even knew the proceedings (the reading of the verdict) were taking place and his appearance at the courthouse just as they were ending showed a lack of any intent to frustrate them or to "abscond", there is no basis for a finding that his absence was "voluntary" so as to constitute a waiver of his right to be present under Rule 38. The State argues that in any event Lee's right to be present was waived by both his attorney's failure to object to Lee's absence and the attorney's express waiver, which the State contends was binding on Lee, even if his right to be present is a constitutional one. Any argument that the failure of Lee's counsel to object to the verdict being received in his absence precludes review of that issue on appeal is necessarily included in the larger issue of whether the attorney had the power to expressly waive Lee's right to be present. Otherwise, an attorney could accomplish by silence what he had no authority to do by words. The State maintains that the court's holding in Lanier v. State, 486 P.2d 981, 988 (Alaska 1971), validates the waiver by the attorney even if the right to be present is a constitutional one. In Lanier, where defendant's attorney waived the right to confront by cross-examination certain witnesses, this court held: We hold that an attorney's waiver of his client's constitutional rights will be binding on the client — subject to established limitations — when it occurs during the trial and results from decisions made during the trial. (Footnotes omitted.) The court distinguished decisions made before and after the trial from those made during the trial and held that where "[t]he attorney . is the expert — -not the client", 486 P.2d at 986, such waivers during trial would be binding even in the absence of permission by the client. This holding was based on the dual consideration that the attorney may in some situations know that ". . . the nonexercise of a right would be more beneficial to one's case than its exercise" and that there is a "strong interest in promoting the efficient administration of justice", Id. There is persuasive authority, however, that the defendant's right to be present is a personal one which cannot be waived by counsel at least in the absence of the defendant's presence at the time of the waiver or an express authorization by the defendant. The cases cited by the State for the proposition that the right to be present may be waived all include either an express waiver by the defendant or a knowing and intelligent acquiescence in the proceedings after counsel had waived the right. In Parker v. United States, 184 F.2d 488, 490 (4th Cir. 1950), a waiver was upheld where the defendant had been absent due to injuries suffered in an automobile accident. The defendant later proceeded ". . . with the trial, with full knowledge of the facts and without objection, and taking his chance before the jury that had been empaneled to try him". In Echert v. United States, 188 F.2d 336 (8th Cir. 1951), there was an express waiver by defendants after the trial judge had explained their rights to them (the jury had been impaneled in their absence). And in the case of Evans v. United States, 284 F.2d 393 (6th Cir. 1960), the court held that even where counsel for the defendant stated in the presence of defendant that he waived the defendant's objections to instructions which were given to the jury in his absence, the waiver was not effective. Thus, it seems clear that while an attorney may waive his client's right to be present in a noncapital case, the waiver is effective only if either: (1) the defendant has given counsel express authority in a knowing and intelligent manner, (2) the defendant is present at the time of the waiver, has clearly been informed of his rights, and remains silent, or (3) the defendant subsequently acquiesces in the proceedings in a knowing and intelligent manner. In this light, the Lanier v. State decision is not controlling. Lanier was a modification of the general principle whereby courts "indulge every reasonable presumption against waiver" of fundamental constitutional rights. The Lanier holding states that a client's constitutional rights may be waived by his counsel without his consent where: (1) the decision is clearly a part of trial strategy, (2) there is no constitutional mandate that the right be personally exercised by the client or with his express consent, and (3) it is in the interest of efficient administration of justice to permit such waiver. Moreover, the court in Lanier carefully distinguished between waivers during the heat of a trial and those occurring at other stages of the proceedings, stating: Courts can most conveniently and carefully scrutinze waivers of constitutional rights which occur during the pre- and post-trial periods. During these periods, the arguments considered above which would allow a nonpersonal waiver (i. e., waiver by counsel) of fundamental rights do not apply with the force with which they apply during the trial. There is no jury present. Delay is less of a factor because of the less formal atmosphere of pretrial procedures, and because participation by the accused in pretrial decisions will not require that overall strategy be reformulated and steps already taken be retraced. The attorney is not hamstrung "during the heat of battle". Further, the attorney's role at trial changes, subtly yet undeniably, from what it was during pretrial. At trial he must be in active control of the defense. Before trial, and after, he may more properly serve as an advisor and counsellor. Consultation with the client is appropriate then. During the latter periods, too, there is more time for informing the client of choices open to him. And, if irreconcilable differences of opinion regarding strategy surface at such times, it is possible for the attorney to withdraw and for the client to seek new counsel without causing great waste of judicial resources. Such would not be the case at trial. The attorney's purported waiver of Henry Lee's right to be present was thus ineffective. As measured by the traditional test for an effective waiver by counsel of a client's right to be present, there was lacking: (1) evidence of an express authorization to the attorney from Lee, (2) evidence of any subsequent acquiescence to the waiver by Lee, and (3) indication that Lee knew that his rights were being waived by his counsel. Moreover, none of the essential elements of Lanier are shown. Unlike the Lanier situation, there is authority that the right to he present at the rendition of the verdict must be waived by the defendant, personally, or with his consent. There is no reasonable basis to-characterize this situation as one where "the nonexercise of a right would be more beneficial to one's case than its exercise", and thus the "trial strategy" doctrine is not applicable. Unlike the Lanier situation, the possible detriment to the efficient administration of justice is miniscule since the record reflects that the court had reason to believe that Lee would appear at any time, and in fact he did appear immediately after the return of the verdict. To allow a substitute counsel to waive Lee's right to be present at the return of the verdict was clearly erroneous, since there was no evidence of express authorization or acquiescence by Lee, no evidence of "voluntary absence", no evidence of a great detriment to the administration of justice, and no reasonable basis for a "trial strategy" argument. Having determined that Lee was deprived of his right to be present at the return of the verdict, we still must ascertain whether the violation constitutes reversible error. In Noffke v. State, 422 P.2d 102, 105 (Alaska 1967), this court said: We hold that nonadherence by the trial court to the provisions of Crim.R. 38 does not automatically constitute reversible error, A violation of the mandate of Crim.R. 38 is not prejudicial error unless such nonadherence has affected a substantial right of the defendant. This language was cited with approval in Kugzruk v. State, 436 P.2d 962, 964 (Alaska 1968). In the Noffke case, the court found that the giving of an additional instruction on a vital issue in the case where the defendant was not present and neither the defendant nor his counsel knew of the instruction until after the verdict and sentence, did affect a substantial right and constituted prejudicial error. Contrastingly, in the Kugzruk case, the court held that exclusion of defendant from conferences between the judge and both defense and prosecution counsel was not prejudicial where there was no showing of "plain error resulting from anything which occurred during the four anteroom conferences now questioned in this appeal." 436 P.2d at 966. The court went on to note that such conferences "held between court and counsel during a trial for the purpose of hearing arguments of law on evidentiary ruling and related matters are not 'stages of a trial' within the intendment of the rule", id. However, in Brown v. State, 372 P.2d 785 (Alaska 1972), we held that it was reversible error not to have the defendant present at a hearing conducted for the purpose of determining whether his wife should be detained as a material witness for the defendant. At the hearing the wife had exercised her privilege not to testify in a case in which her husband was a defendant. The court stated: We believe that under the circumstances of this case, appellant's presence was required by rule 38 and that his right to be present was as vital to his defense as his specific constitutional right to be confronted with the witnesses against him. Brown v. State, 372 P.2d 785, 789 (Alaska 1972). Similarly, in Speidel v. State, 460 P.2d 77, 84 (Alaska 1969), Justice Dimond speaking for the majority held that the denial of a defendant's right to be present at a "presentence conference" between the trial judge, the district attorney, a probation officer, and defendant's counsel was reversible error since the conference was within the meaning of "imposition of sentence" in Rule 38 and a denial of his right to be present must be assumed to have been prejudicial, since we cannot say with any degree of certainty that the judge may not have been influenced to impose a lesser sentence had appellant been given the opportunity to be heard and participate in the discussion relating to sentencing. (Footnote omitted.) A substantial right was affected by Lee's being absent when the jury returned its verdict. Had he been present he could have insisted on a poll of the jury being taken. While the judge did ask the jury generally if this was their verdict, the members were not polled individually. Lee was deprived of the right personally to confront the jury. Particularly in light of the jury's difficulty in reaching a decision, Lee's absence at the return of the verdict was significant. The psychological distinction between a general poll in his absence, and an individual poll requiring each juror to assume the burden of his decision and affirm it in the defendant's presence is not a minor one. Under these circumstances we hold that substantial rights were affected, and that the error cannot be regarded as harmless. In view of this holding we do not reach the issue pertaining to the absence of the defendant when the court communicated with the jury advising it to "Keep trying." The case is reversed and remanded for a new trial. FITZGERALD, J., not participating. . It is not clear from the record why the defendant was absent. At a hail hearing held the next day, his attorney, Fuld, testified that as per the stipulation, he had told Mr. Lee that he did not have to he present until 2:00 p. m. Judge Fitzgerald, however, felt that he had informed the defendant to be present at 9:00 a. m. There was also testimony that the defendant did not have a telephone and had experienced car trouble. He did arrive as everyone was leaving the building after the verdict had been read. . 8A J. Moore, Moore's Federal Practice ¶ 43.02 [1], at 43-3 (2d ed. 1972). . 8A J. Moore, Moore's Federal Practice ¶ 43.02 [2], at 43-6 (2d ed. 1972). See also 3 Wright, Federal Practice and Procedure § 723, at 201 (1969) where reference is made to " . . . defendants efforts to defeat the proceedings by his departure or flight". . While it might be argued that the "vol-untariness" test should be less strict in this case since the jury here could not have been prejudiced by the implication that the defendant had fled, this distinction is more applicable to analysis of whether there has been a "substantial right" effected by his "unwaived absence" and not to the basic question of whether waiver was voluntary. . Moreover, in the instant case it is clear that the purpose of the rules requiring an objection at the trial level, that is to bring the alleged error to the attention of the trial judge to give him a chance to cure the defect or make a record on appeal, were sufficiently met by the concerns voiced by the counsel for the State. All of the parties present at the receipt of the verdict were clearly aware that the defendant's presence might be a material issue on review. . 8A Moore, supra, note 2, at 43-4 states with reference to Federal Criminal Rule 43, analogous to Alaska's Criminal Rule 38: [T]lie issue is whether the personal presence of defendant is required. In other words, where Rule 43 is applicable, its requirements cannot be satisfied vicariously by the presence of defense counsel. See also Annot., 23 A.L.R.2d 456, 494 (1952) which states: Counsel for the defendant cannot waive the right of the defendant to be present at the return of the verdict in a felony case, at least, as indicated in a few cases, in the absence of express authority or consent or acquiescence by the defendant. (Citations omitted.) . Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177, 1180 (1937) [right to jury trial]; see also Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct. 457, 465, 86 L.Ed. 2d 680, 699 (1942) [right to counsel]. . The Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965) case relied upon in Lanier involved the waiver of the right to object to evidence, arguably not a personal one. Rhay v. Browder, 342 E.2d 345 (9th Cir. 1965) cited by the State as an example of the Lanier concept involved the right to object to an instruction. All of these cases involved trial strategy. . Lanier v. State, 486 P.2d 981, 987 (Alaska 1971). . In fact, there was no indication that Lee even knew that the attorney had been asked to stand in for Mr. Fuld. Tiras, there is a serious question as to the validity of any actions taken by the attorney on the behalf of Lee. . Alaska Criminal Rule 31(d) provides: When the verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court's own motion. If, upon the poll, there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged. . AVe do not reach the issue of whether a federal constitutional error was involved, in which event before it could be regarded as harmless "the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 711 (1967). Alaska's harmless error rule, Criminal Rule 47, provides in pertinent part: (a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. In Love v. State, 457 P.2d 622 (Alaska 1969), we discussed the test to be applied in determining whether a substantial right lias been affected. Since we find that a substantial right was affected, the error obviously would be reversible under the more rigid federal constitutional standard.

10393727

Perry GOSSETT, Appellant, v. ERA MEYERES REAL ESTATE and Fireman's Fund Insurance, Appellees

Gossett v. Era Meyeres Real Estate

1990-02-23

No. S-3308

1025

1027

787 P.2d 1025

787

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:20:32.898824+00:00

CAP

Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

Perry GOSSETT, Appellant, v. ERA MEYERES REAL ESTATE and Fireman’s Fund Insurance, Appellees.

Perry GOSSETT, Appellant, v. ERA MEYERES REAL ESTATE and Fireman’s Fund Insurance, Appellees. No. S-3308. Supreme Court of Alaska. Feb. 23, 1990. Albert G. Parrish, Parrish Law Firm, APC, Fairbanks, for appellant. Frank S. Koziol, Jr., Anchorage, for ap-pellees. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ. . The Employer also states: "Mr. Gossett conceded he did not 'split’ the money with his wife, Marilyn.” Review of the complete transcript where Mr. Gossett was questioned on this point reveals that there was not much of a concession. He was asked by the Employer's counsel: "Q: Have you split the money, yourself, between you and your wife in any event? A: No." “Q: ... (by Gossett's counsel) You were asked whether or not you and Marilyn split the money that you received in the third-party action. Do you split your paycheck when you get it? A: She gets all of it. We have one checking account, and that’s where it goes."

1340

8310

OPINION MATTHEWS, Chief Justice. Perry Gossett was injured-in a work-related auto accident. He filed a worker's compensation claim against his employer, ERA Meyeres Real Estate, and its insurance carrier, Fireman's Fund Insurance (collectively referred to as the Employer). He also filed a tort action against various defendants, including Herbert Holmes. Gossett's wife, Marilyn, joined as a plaintiff in the tort action, asserting a loss of consortium claim. The Employer paid medical bills and disability benefits on a periodic basis. In the^tort suit, Holmes made an offer of judgment of $100,000 to Perry Gossett "conditional on plaintiff Marilyn M. Gossett voluntarily dismissing with prejudice her claims against defendant Holmes." This offer was accepted by both Gossetts in a document using the following language: "Plaintiffs Perry Gossett and Marilyn M. Gossett hereby accept Herbert L. Holmes' offer of judgment_" The offer and acceptance were filed and a final judgment was entered as follows: "judgment is hereby entered in favor of plaintiffs Perry Gossett and Marilyn M. Gossett in the amount of $100,000.... " The form of this judgment was approved by counsel for Holmes. $74,734.63 has been paid by Holmes toward satisfaction of this settlement. Of this, the Gossetts' attorneys retained $25,346.54, disbursed $25,-624.10 without apportionment to the Gos-setts, and paid the Employer $23,763.99. The Employer's obligation to make disability payments continued after receipt of the payment from the Gossetts' attorneys. AS 23.30.015(g) provides that an employer is entitled to a credit against future com pensation payments for any "excess recovery by the employee" received in a tort action based on the same accident as that giving rise to the obligation to pay worker's compensation. The dispute in this case is whether the balance of the settlement proceeds paid to the Gossetts should all be apportioned to Perry Gossett's claim and thus be considered as "excess recovery by the employee" for which the Employer is entitled to a credit against future payments, or whether some portion of the balance should be apportioned to Marilyn's loss of consortium claim. The board held that the Employer was entitled to a credit for the entire balance. On appeal, the superior court affirmed. Gossett contends on appeal that the settlement proceeds as between he and Marilyn have never been apportioned, that only those proceeds attributable to his claim may be considered excess recovery available for credit against future compensation under AS 23.30.015, that, on remand, the superior court rather than the board should decide the question of apportionment, or, alternatively, that this court should decide that 50 percent of the balance of the proceeds should be apportionable to Marilyn's loss of consortium claim. The Employer counters that the Gossetts have already apportioned the claim among themselves by accepting the offer of judgment which was conditioned on Mrs. Gos-sett's claim being dismissed, and that they are bound by this apportionment. Alternatively, the Employer argues that the board is the proper forum for deciding the apportionment issue and that the 50/50 division suggested by Gossett is inappropriate. The Employer argues that "a judgment was entered in Mr. Gossett's favor, with Mrs. Gossett's claim being dismissed. As a result, the board ruled that it had no authority to disallow any part of Employer's lien rights by apportioning some of the money received by Mr. Gossett to his wife." This statement is inaccurate because, as noted above, the judgment actually entered ran jointly in favor of Perry and Marilyn. It is apparent that no apportionment of proceeds has been made as between the claims of Perry and Marilyn. Had judgment been entered solely in favor of Perry and had Marilyn's claim been dismissed there would be a basis for concluding that the Gossetts apportioned 100 percent of the proceeds to Perry. It is evident from the form of judgment actually entered that the Gossetts took considered action to avoid this result. An apportionment is necessary since any recovery by Marilyn is not a recovery by "the employee," and thus may not be an "excess recovery by the employee" which is subject to a credit against amounts payable by the employer. In the present case, it is our view that the apportionment should be made on remand by the board. At the hearing before the board, Gossett requested that the board perform the apportionment. In reaching this conclusion, we do not suggest that a court apportionment would be inappropriate in other circumstances, so long as the employer has notice and an opportunity to be heard. Under the facts of this case, however, since Gossett chose the board as the appropriate forum, the board should decide the question. We reject Gossett's argument that we rule that a 50/50 apportionment is appropriate under the facts of this case as this is a factual determination which cannot be decided in the first instance on appeal. See Parker v. Northern Mixing Co., 756 P.2d 881 (Alaska 1988). The judgment of the superior court is reversed and this case is remanded to the superior court with instructions to remand it to the Workers' Compensation Board to apportion the settlement proceeds received in the third-party action from the defendant Holmes between the claim of Perry Gossett and that of Marilyn Gossett. REVERSED AND REMANDED. . The content of the judgment, however, was not approved as Holmes claimed that previously paid medical bills of some $25,000 were meant to be offset. Holmes appealed the judgment unsuccessfully. Holmes v. Gossett, Mem.Op. & J. No. 1998 (Alaska, November 25, 1987). . AS 23.30.015(g) provides: If the employee or the employee's representative recovers damages from the third person, the employee or representative shall promptly pay to the employer the total amounts paid by the employer under (e)(1)(A), (B) and (C) of this section, insofar as the recovery is sufficient after deducting all litigation costs and expenses. Any excess recovery by the employee or the representative shall be credited against any amount payable by the employer thereafter. .The board does not appear to have understood this point. It stated the question presented as follows: Employee argues that his wife, Marilyn Gos-sett, should get one half the excess recovery from the settlement for her claim for loss of consortium. [W]e believe any excess recovery must first be used to credit employer for benefits it pays employee from the initial disbursement of the settlement proceeds until employee is no longer in need of worker's compensation-benefits. There is no indication in subsection .015(g) that we have authority to allow a party to the third-party settlement to squeeze in ahead of the employer to claim some of the settlement proceeds. On the contrary, we conclude that the statute gives the employer a lien priority for the excess recovery from the third-party claim. Employee's request that we give Marilyn Gossett some of the excess recovery is denied and dismissed. Marilyn, of course, is not claiming any portion of the excess recovery. The purpose of the apportionment she sought was to separate her recovery from the recovery by the employee. Only a portion of the latter can be considered excess recovery by the employee.

10373648

William E. ADRIAN, Appellant, v. Catherine M. ADRIAN, Appellee

Adrian v. Adrian

1992-10-16

No. S-4334

808

812

838 P.2d 808

838

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

William E. ADRIAN, Appellant, v. Catherine M. ADRIAN, Appellee.

William E. ADRIAN, Appellant, v. Catherine M. ADRIAN, Appellee. No. S-4334. Supreme Court of Alaska. Oct. 16, 1992. William T. Ford, Anchorage, for appellant. Catherine M. Adrian, pro. per. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2221

13971

OPINION BURKE, Justice. I. FACTS & PROCEEDINGS William Adrian and Catherine Adrian were divorced in April 1990. Catherine was awarded custody of the children, Billy and Ronette. Superior Court Judge J. Justin Ripley did not calculate child support because the parties had not yet submitted their child support affidavits. Accordingly, Judge Ripley's findings of fact contain no concrete information regarding child support. The only factual finding of any relevance to the support calculation states merely that Catherine's income is "less" than William's income. A short time after entry of the divorce decree, Catherine accepted Ronette's decision to live with her father. This left each parent with custody of one child. Despite repeated requests from Catherine's attorney, William did not complete his support affidavit so that an award could be calculated by the parties' attorneys and submitted for court approval. Catherine eventually filed a motion with the court to compel William to submit his child support affidavit. At the same time, she filed her own child support affidavit. Ten days after Catherine filed her motion to compel, William submitted his child support affidavit. The affidavit listed his gross monthly income at $1,600, his adjusted annual income at $16,868.16, and calculated his support obligation to be $281.13. Like Catherine, William failed to include with his affidavit tax returns or any other independent proof of income. In later motions, Catherine and William each disputed the income that the other had reported in their affidavits. William claimed that Catherine failed to report rental income of "over $1,500 per month" that she allegedly received from hairdressers who had rented space in her shop. Catherine, relying on bank statements and a loan application in which William claimed a monthly income of $2,800, submitted a proposed "child support affidavit" on William's behalf which estimated his gross annual income to be $27,450 and set his monthly child support obligation at $458.75. William worked primarily as a manager for Chefs Inn during the time of this proceeding, but also did part-time construction work. In response to Catherine's charges that he had underreported his income, William submitted an affidavit from an accountant for Chefs Inn, who averred that a "true and accurate statement of William E. Adrian's wages" had been attached. The attached payroll sheet, covering a two-week period in October 1990, listed William's weekly salary at $400. William also submitted two W-2 statements for 1989. The W-2 from Chef's Inn listed his total compensation for the year at $14,850.00. The other W-2 listed his 1989 income from a construction company he worked for at $4,530.54. William filed no tax returns with the court. In November 1990 Superior Court Judge John Reese signed the child support order prepared by Catherine's attorney without making further findings of fact. The order states that Catherine's monthly child support obligation for Ronette is $211.00, and William's support obligation for Billy is $458.75. William is ordered to pay Catherine the difference, $247.75, until July 1, 1991, Ronette's expected date of graduation from high school. See Alaska R.Civ.P. 90.3(b) (authorizing this procedure when parents awarded "shared physical custody"). After July 1991, William must pay Catherine $458.75 per month until Billy turns eighteen or graduates from high school. The order does not indicate the income figures used to compute child support, but the support figures correspond to those which Catherine calculated in the affidavits she filed for herself and her ex-husband. This appeal followed. II. DISCUSSION William claims that the trial court erred in using Catherine's unsubstantiated income affidavits to calculate child support. William also claims that the trial court failed to consider the income documentation he submitted to the court. In making his arguments, he points out two deficiencies in the support award: the lack of clear factual findings allowing for reasoned review and the lack of substantial evidence supporting the "implicit" findings of the parties' incomes. 1. Evidence Supporting the Income Determination Under Civil Rule 90.3, the foundation of any child support award is an accurate determination of each parent's "adjusted annual income." Alaska R.Civ.P. 90.3(a)(1). To this end, the rule requires that each parent file a pleading under oath which states the parent's adjusted annual income and the components of this income as provided in subparagraph (a)(1). This statement must be accompanied by documentation verifying the income. Id. at (e) (emphasis added). Although neither the rule itself nor the Commentary to the rule require any particular type of supporting documentation, the Commentary suggests that "paystubs, employer state ments, or copies of federal tax returns" are appropriate. See Commentary VIII. In our view, Civil Rule 90.3 does not authorize child support trials by affidavit. The child support affidavit and documentation requirement of 90.3(e) is a pleading requirement not an evidentiary requirement. Of course, affidavits and supporting documents may be used as evidence by stipulation of the parties or if they are admissible under our Rules of Evidence or if they are offered in evidence and no objection is made to their admission. In Ogard v. Ogard, 808 P.2d 815, 818-19 (Alaska 1991), we discussed the sometimes difficult process of determining adjusted annual income. The underlying premise of our discussion in Ogard is that the goal is to arrive at an income figure reflective of economic reality. Id. at 818-19. As a necessary corollary, trial courts must take all evidence necessary to accurately accomplish this task. Catherine does not claim to have supplied documentation to support her affidavits and her financial declaration. Instead, she relies on the consistency of her sworn statements and her testimony at the divorce trial held before Judge Ripley. William's failure to designate the trial transcript as part of the record makes it impossible for us to review this issue as there is no way to know the quality or quantity of the testimonial evidence presented at trial. In signing the support award, Judge Reese obviously accepted Catherine's version of events. This decision is subject to the "clearly erroneous" standard of review. See Civil Rule 52(a) (A trial court's factual findings "shall not be set aside unless elearly erroneous."). We must be left with "a definite and firm conviction on the whole record that the judge made a mistake." Smith v. Smith, 673 P.2d 282, 283 (Alaska 1983) (emphasis added). Without a complete record of the proceedings, we are unable to make this determination. 2. Sufficiency of Factual Findings Civil Rule 52(a) requires the trial court to "find the facts specially and state separately its conclusions of law." We have held that: A trial court's findings must be sufficiently detailed and explicit to give an appellate court a clear understanding of the ground on which the trial court reached its decision. If the trial court fails to provide such findings, this court will remand the case to the trial court for more specific findings. Sloan v. Jefferson, 758 P.2d 81, 86 (Alaska 1988) (citations omitted). The only finding of fact relevant to the child support award states: The testimony of the parties demonstrates a significant but not overriding economic disparity in the income [William] makes as opposed to the income [Catherine] makes. The only income [Catherine] makes is from hair styling and her income is less than that of [William]. The evidence demonstrated that [William] is the more qualified and able person in the business world. In aid of making this finding, the court has considered and relied in some degree upon the cross-examination of [William] and his answers in connection with exhibit number 12. Judge Reese must have adopted this finding as he made no new findings of fact. Once again without the trial transcript, it is impossible to fully interpret this finding. Nonetheless, we conclude that the finding, on its face, provides an insufficient basis for the support award. The mere references to the parties' relative financial positions fail to provide the raw numbers necessary for a Civil Rule 90.3 calculation. Also, not only was Judge Reese in a poor position to adopt Judge Ripley's credibility determinations, these determinations alone are unhelpful without a statement of what the factfinder believed the facts to be. Although the child support award itself indicates that Judge Reese accepted Catherine's assessment of each parties' income, the record indicates that the dispute over income escalated after the April 1990 trial and, more importantly, after the findings of fact were filed. Despite the apparent dispute over each parties's income, Judge Reese did not order a new evidentiary hearing or make specific findings to provide us with "a clear understanding of the ground on which the court reached its decision." Sloan, 758 P.2d at 86. We therefore remand this case for further findings and a recalculation of child support. Given the passage of time and the apparently unresolved factual issues regarding income, an evidentiary hearing on the matter is also appropriate. The child support award is VACATED, and the case is REMANDED for further proceedings consistent with this opinion. . William "Billy" Adrian III, the couple's only child, was born in December 1974. William and Catherine also raised Ronette Adrian, William's daughter from a prior relationship. Although Catherine never adopted Ronette, born in October 1972, the parties agreed that Ronette is a child of the marriage under AS 25.24.150. . Catherine works as a hairdresser and, at the time of these proceedings, was a partner in the Main Event beauty salon. Catherine's affidavit listed her gross monthly income at $2,000, her annual adjusted income at $12,660, and her Rule 90.3 monthly support obligation for Ro-nette at $211. Although the pre-printed affidavit form which she filled out states "I have attached a copy of my most recent federal tax return and pay stubs to verify this information," Catherine did not submit documentation of her income other than the bare affidavit and a similarly undocumented "financial declaration." . One of the many odd features of this case is that the evidence relevant to the child support determination was presented at the divorce trial conducted before Judge Ripley but the child support order was actually signed by Judge Reese. Civil Rule 63(c) makes provision for the substitution of a disabled judge after a verdict has been rendered. However, the record does not indicate that Judge Ripley was actually disabled or explain why Judge Reese took over the case and signed the support order. Nonetheless, neither party remarks on this point, and more importantly, William fails to claim error or challenge Judge Reese's authority to issue the support order. See Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988) ("If a party acquiesces to the authority of a successor judge by failing to make a timely objection to that judge's authority, the party has waived any objection he or she may have to challenge that authority."). Therefore, for purposes of this appeal, we will assume that Judge Reese properly referred to the trial transcript and Judge Ripley's findings of fact before signing the child support order. . Catherine was also awarded $250 in attorney's fees. William challenges this award in his points on appeal but does not raise the issue in his brief. Therefore he has waived this point. See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 411 (Alaska 1990) (point will not be considered on appeal if given only cursory statement in party's brief). . William, as the appellant, is responsible for designating the record and including all materials necessary to decide the issues presented on appeal. See Appellate Rule 210(d). . The record suggests that William was very uncooperative during these proceedings and hindered the trial court in making an accurate determination of his income. Therefore it may have been appropriate for the court to resolve all factual issues regarding income against him. See Hartland v. Hartland, 111 P.2d 636, 640 (Alaska 1989) ("Alaska law clearly permits a trial court to resolve a finding of fact against a party whose vexatious, contemptuous, or obstructive behavior causes the trial court to have insufficient evidence."). We are also unwilling to entertain on appeal a challenge to the adequacy of evidence by "a party who fails to present sufficient evidence at trial." Id. Nevertheless, if the trial court intends to rely on a party's obstructive or vexatious conduct in resolving the factual dispute, it must explicitly state the facts which support its decision. We will not infer such conduct from the record or create a rationale to support the trial court's action based on the suggestion of uncoopera-tiveness in the record. . This appears to be a case of over-reliance on attorney prepared findings of facts and conclusions of law. See Civil Rule 78(a); Industrial Indem. Co. v. Wick Const. Co., 680 P.2d 1100, 1108 (Alaska 1984) ("Rule 78(a) was not intended to delegate to counsel the court's duty of finding the facts.'') (citation omitted). . During the course of these proceedings, Ro-nette will probably have graduated from high school. On December 3, 1992, Billy will turn eighteen. Therefore, it appears likely that the passing of time will change the nature of this case from one to determine on-going support to an accounting for child support arrears.

10380094

In the Matter of T.P., A Minor Under the Age of Eighteen (18) Years. L.P., Appellant, v. STATE of Alaska, Appellee

L.P. v. State

1992-09-25

No. S-4488

1236

1242

838 P.2d 1236

838

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

In the Matter of T.P., A Minor Under the Age of Eighteen (18) Years. L.P., Appellant, v. STATE of Alaska, Appellee.

In the Matter of T.P., A Minor Under the Age of Eighteen (18) Years. L.P., Appellant, v. STATE of Alaska, Appellee. No. S-4488. Supreme Court of Alaska. Sept. 25, 1992. Mary C. Geddes and Susan Orlansky, Asst. Public Defenders, and John B. Sale-mi, Public Defender, Anchorage, for appellant. Richard P. Sullivan, Jr., Asst. Atty. Gen., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Barbara Malchick, Office of Public Advocacy, Anchorage, Guardian ad litem. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

4383

26120

OPINION MOORE, Justice. In this CINA appeal, L.P. challenges the trial court's ruling that his daughter, T.P., is a "child in need of aid." He maintains that the trial court erred in admitting his daughter's hearsay statements under Alaska Rule of Evidence 804(b)(5), arguing that T.P. was not "unavailable" and that her statements lacked the necessary guarantees of trustworthiness. He also claims that the trial court improperly relied on a psychologist's testimony and report in making its CINA ruling. Finally, L.P. argues that the court's finding is not supported by a preponderance of the evidence. We affirm the trial court on all issues. I. Facts and Proceedings In November 1989, the Alaska Department of Health and Human Services (the Department) assumed emergency jurisdiction over T.P., a six-year-old child. The Department also initiated Child In Need of Aid (CINA) proceedings under AS 47.10.-010(a)(2)(D). The Department's petition alleged that T.P. had told a social worker that her father had touched her between her legs and hurt her. An adjudication hearing was held in October 1990. At the commencement of the hearing, Judge Katz addressed two preliminary issues. First, L.P. challenged T.P.'s competency. After an examination of T.P., the court found that T.P. was "minimally competent." Second, the Department and the guardian ad litem sought to exclude L.P. from the courtroom during T.P.'s testimony pursuant to CINA Rule 3(c) which provides that a parent may be excluded during the testimony of a child witness "to protect the child from material psychological harm." The Department offered the testimony of Dr. Karen Senzig to show that T.P. would suffer "material psychological harm" if she testified in her father's presence. L.P. objected in advance to any testimony by Dr. Senzig which would indicate that she considered T.P. to exhibit symptoms typical of sexually abused children. The court agreed that Dr. Senzig should not state her opinion as to whether T.P. had been sexually abused. The Department qualified Dr. Senzig as an expert witness in "general psychological evaluation." Dr. Senzig testified that she had observed T.P. during a two and one-half hour evaluation in July 1990. At that time, she did not have any background information concerning T.P. and she did not know why the Department had sent T.P. to be evaluated. During the evaluation, she administered several psychological tests and conducted a clinical interview. Dr. Senzig testified that T.P. suffered from serious delays in intellectual, visual/motor and self-concept development. She also testified, in general terms, that a child at T.P.'s stage of development could easily be confused by complex questions and that if T.P. had been threatened and abused, testifying before her father would probably cause her considerable anxiety. On cross-examination, Dr. Senzig stated that T.P.'s emotional problems could have been caused by marital discord, relocation, or possibly be neurological in origin. The trial judge then ruled that L.P. could not remain in the courtroom during T.P.'s trial testimony. T.P. was called to testify the next day. Initially, T.P. responded to the Department's questions. She remembered seeing a movie in her kindergarten class and subsequently talking to her teacher. However, she became unresponsive when asked what she had told her teacher. She similarly failed to respond to questions concerning her father and the alleged abuse. Judge Katz concluded that further examination would not be productive. The Department next attempted to present testimony from Sandra Knight-Richardson, T.P.'s kindergarten teacher, concerning T.P.'s statements to her. L.P. objected to the admission of T.P.'s out-of-court statements as hearsay. In the ensuing discussion, Judge Katz observed that T.P. was "unavailable" under Alaska Evidence Rule 804(a)(2) or (3). The judge then stated that she would admit the statements if the Department could establish that they were sufficiently reliable. As a preliminary showing of reliability, Ms. Knight-Richardson testified that, sometime around Halloween 1989, she had shown a film entitled "Touching" to her kindergarten class. The animated film was used to educate children about inappropriate touching and sexual abuse. Ms. Knight-Richardson noticed that T.P. started to cry during a discussion about "good and bad touching." At the conclusion of the film, T.P. continued to cry and Ms. Knight-Richardson asked T.P. what was wrong. Based on Ms. Knight-Richardson's testimony, the court ruled that T.P.'s out-of-court statements were sufficiently reliable to be admitted under Evidence Rule 804(b)(5). Ms. Knight-Richardson then testified as follows: When [T.P.] started to cry, I did ask her what's wrong and she told me nothing, and I said are you sure and she said yes. I didn't want to press' it, so this is when I continued to follow through with the film and then as I explained to the class what they were to do with the follow-up activities, she came to me this time because I just left her alone and she came up to me and put her arms around me and started to cry again and I asked her again what's wrong and she said well, nothing, and I said well, why are you crying, you don't cry for no reason, and then she said well, I'll get in trouble if I tell you, and I said no, you won't get in trouble, you can trust me, and she said well, I'll get my butt whipped if I tell you, and I said well, you can trust me, and at this — the—the other children were doing their follow-up and I had the opportunity to go over and just talk to her one on one and at that time, that's when she told me. She said well, my dad touched me and it was — and I didn't like it or it was uncomfortable. I don't remember her exact words, but she said my dad touched me and it wasn't — I didn't like it I think is what she said, and I said what do you mean, and she said well, he touched me and it was painful, and I said where did he touch you, and she said between my legs, and I just — I said — I said it's going to be okay and I hugged her and I said it'll be all right, don't worry about anything, and at that time, I went to the counselor and I shared with the counselor what had happened and they took it — they took it from that point. When asked if she could recall any other comments by T.P. about the incident, Ms. Knight-Richardson testified: Well, I did ask her where did it take place. She told me on the — on a porch, and I said are you sure. She said yes. I can say if I remember correctly that she felt very comfortable talking to me. The Department then called T.P.'s mother, P.P., who testified that after she and L.P. separated in August 1989, she came to Alaska and moved in with her parents. P.P.'s parents live in a two bedroom mobile home with an exterior porch in an Anchorage trailer park. According to P.P., T.P.'s behavior changed around this time. When L.P. arrived in Alaska in the middle of October 1989, he and his family shared a single bedroom in the mobile home for several weeks. P.P. testified that she at first did not believe T.P.'s statements to her teacher concerning her father's alleged abuse, but over time, she came to believe that her daughter had been abused by her husband. On cross-examination, P.P. testified that T.P. was a frequent bed wetter and that both she and L.P. regularly checked her daughter's diaper several times a night. She also testified that she did not wake up T.P. when she checked her diaper and that there would be no reason to take T.P. outside to the porch. L.P. only called one witness, the physician who had examined T.P. He testified that although he had found no indication of physical trauma, his exam could not rule out either penile or digital penetration. In its closing argument, the Department referred to Dr. Senzig's testimony and report in arguing that T.P. had been sexually abused. The court noted that Dr. Senzig's report had not been entered into evidence. L.P. then withdrew his previous objection and the report was admitted. In L.P.'s closing statement, L.P. argued that Dr. Senzig's testimony was neither relevant nor probative on the issue of abuse. L.P. maintained that T.P. had confused his innocent diaper check for abuse after viewing the movie in her kindergarten class. Following the hearing, the court ruled that T.P. was a "child in need of aid" due to the threat of sexual abuse and placed her in the custody of the Department until January 14, 1993. The Department placed T.P. in the care of her mother. L.P. was granted supervised visitation to be arranged by the Department. This appeal followed. II. Unavailability A finding of unavailability is a prerequisite to the admission of hearsay testimony under the catch-all provision of Alaska Evidence Rule 804(b)(5). Rule 804(a) provides, in pertinent part: (a) Definition of unavailability. Unavailability as a witness includes situations in which the declarant (2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or (3) establishes a lack of memory of the subject matter of his statement. Alaska R.Evid. 804(a). L.P. argues that the record fails to support a finding of unavailability under either subsection (2) or (3). We disagree. A witness must "persist[] in refusing to testify . despite an order of the court to do so" before the trial court may declare the witness "unavailable" under Rule 804(a)(2). See, e.g., Rychart v. State, 778 P.2d 229, 231 (Alaska App.1989) (holding that a criminal defendant was unavailable under Rule 804(a)(2) when he refused to testify despite an explicit order from the trial judge). Although Judge Katz did not "order" T.P. to respond, she made repeated attempts to prompt T.P. to speak about the alleged abuse. It is our opinion that the trial judge should have considerable discretion in setting the tone of its "order" since the judge is in the best position to observe the child's demeanor and to determine how best to impress on the child the importance of answering questions. Given the nature of these proceedings and T.P.'s age, a direct order from the court would have been inappropriate and probably counterproductive. We conclude that T.P.'s persistent refusal to testify despite the prodding of Judge Katz, counsel and her mother is sufficient to support the trial court's Rule 804(a)(2) finding of unavailability. The trial court also ruled that T.P. was unavailable under Alaska Rule of Evidence 804(a)(3). Generally, lack of memory under this subsection must be established by testimony. See Alaska R.Evid. 804(a); Alaska R.Evid. 804(a), Commentary; see also State v. Just, 138 Ariz. 534, 544, 675 P.2d 1353, 1363 (App.1983) (holding that a nine-year-old child was unavailable where she specifically testified that she did not remember what she had told the investigating officer shortly after her mother was murdered). L.P. maintains that the trial court erred in finding T.P. unavailable under this subsection because T.P. did not "testify" that she had no current recollection of the alleged abuse. We believe that the trial court must have the discretion to rule that a child's testimony indirectly reveals the child's lack of memory when the child's age and relative maturity makes it difficult for the child to clearly articulate a lack of memory of the relevant events. See, e.g., State v. Slider, 38 Wash.App. 689, 688 P.2d 538, 541 (1984) (holding that a two-year-old child was unavailable where her testimony at the pretrial hearing showed that she lacked any memory of the alleged incident of abuse, although she did remember that the defendant had baby-sat her). Given T.P.'s age and cognitive development, such a ruling is appropriate here. Cases involving the sexual abuse of children present very difficult evidentiary issues for the courts. Despite the adoption of procedures making the process of testifying less intimidating for a young child, the fact remains that many children are not able to discuss incidents of abuse even in a modified courtroom setting. See, generally, Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L.Rev. 1745, 1749-50 (1983). Generally speaking, the rules of evidence were not developed to handle the problems presented by the child witness. Therefore our courts must be free to adapt these rules, where appropriate, to accommodate these unique cases. However, this increased flexibility places a proportionately greater burden on the trial judge to articulate clearly the reasons for her or his unavailability ruling. See, cf., People v. Thomas, 770 P.2d 1324, 1328 (Colo.1989) (under statute permitting the use of videotaped deposition when child victim of sexual assault is unavailable, trial court must make particularized findings concerning the unavailability of the child witness). Although we conclude that a finding of unavailability under either subsection (2) or (3) is sustainable on the record presented in this case, for the future, we strongly recommend that trial judges make specific findings explaining their controlling eviden-tiary rulings which involve children. III. Reliability L.P. contends that the superior court erred in admitting T.P.'s out-of-court statements, arguing that they lack the circumstantial guarantees of trustworthiness required under Rule 804(b)(5). We have recently addressed what guarantees of trustworthiness are required in CINA proceedings under Rule 804(b)(5). See In re A.S.W. and E.W., 834 P.2d at 803-06. In In re A.S. W, we noted a number of factors relevant to this determination: (1) the spontaneity of the child's statements; (2) the age of the child; (3) the use of "childish" terminology; (4) the consistency of the statements; (5) the mental state of the declarant; and (6) the lack of motive to fabricate. Id. at 804-05. L.P. argues that T.P.'s statements do not exhibit sufficient indicia of reliability because they do not reveal a sexual awareness incompatible with those in T.P.'s age group. However, we emphasized in In re A.S. W. that the listed factors were not all inclusive and that they should not be applied mechanically. Id. at 804-05. " '[T]he unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.' " Id. at 804 n. 7 (quoting Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)). The absence of any single factor is not dispositive. L.P. also argues that the circumstances prompting T.P.'s statement were not sufficiently explored at trial since the film which provoked T.P.'s statements was neither entered into evidence nor adequately described. Without more information about the film's narrative, he maintains that the court could not find that the circumstances surrounding the statement were sufficiently reliable. He concludes that the spontaneity of T.P.'s statements is uncertain since the film may have led her to interpret innocent parental conduct (i.e., a diaper check) as "bad touching." Judge Katz considered and rejected this position, noting that T.P. hadn't cried to the teacher's recollection all year, she cries noticeably for the first time when she's been shown a film on this very subject and then she spontaneously after initially refusing to talk about it goes and tells the teacher that yeah, this is what's happened to her and the part that I found of particular note was that she said it happened on the porch. This wasn't suggested I don't— there's no reason to think it was suggested in the film about a cat. If it were just the touching to check the diaper, you know, I guess the question is why would she have come up with that? Doesn't that have a ring of truthfulness to it and doesn't that suggest that something was going on beyond checking the diaper? Judge Katz's observations are reasonable and support her decision to admit the hearsay testimony. Furthermore, L.P.'s objec tions at this stage are untimely. L.P.'s counsel did not seek to enter the film into evidence nor did he question Ms. Knight-Richardson about the possible suggestiveness of the film's content and narrative during cross-examination. See In re A.S. W., 834 P.2d at 803 n. 3 (holding that defendant could not argue on appeal that alleged child abuse victim's videotaped statement was coached where he had failed to cross-examine the trooper who had conducted the interview on this issue at trial). Given T.P.'s age, the apparent lack of motive to fabricate, the spontaneity and timing of her statements, and the fact that she located the abuse as occurring on the porch, we conclude that Judge Katz did not abuse her discretion in admitting these statements. IV. Sufficiency of the Evidence Under AS 47.10.010, we will only overturn a trial court's finding that a child is in need of aid if we are "left with the definite and firm conviction that a mistake has been made." A.H. v. State, 779 P.2d 1229 (Alaska 1989). The trial court found T.P. to be a "child in need of aid" due to the threat of sexual abuse. It based its finding primarily on T.P.'s statements to her teacher. The court also stated that Dr. Senzig's and P.P.'s testimony concerning T.P.'s emotional state corroborated Ms. Knight-Richardson's testimony. L.P. correctly points out that both Dr. Senzig's and P.P.'s testimony is not particularly probative on the issue of abuse because T.P.'s emotional state could have resulted from a number of factors unrelated to child abuse. Although some of this testimony indicated that T.P.'s emotional problems were linked to her father, the nature of this link is unclear. Our review of the record indicates that this testimony neither supports nor weakens the trial court's finding that T.P. is a child in need of aid. The only telling evidence in this case is T.P.'s statement to her teacher that her father had touched her between her legs and hurt her. Although this does not constitute a clear accusation of sexual abuse, T.P.'s statement that the incident occurred on the porch cannot be easily reconciled with L.P.'s theory that T.P. misinterpreted an innocent diaper check for abuse. T.P. made these unsolicited statements to her teacher after watching a film designed to educate young children about "bad touching." This film provoked a strong emotional response in T.P., who had never cried in class before. T.P. was also clearly frightened of the consequences of telling her teacher that her father had touched her. The Department has the burden of proving by a preponderance of the evidence that a child is in need of aid. CINA Rule 15. Under this standard, the court only needed to find that it was moré likely than not that T.P. had been abused. "Something is more likely than not true if you believe that the chance that it is true is even the slightest bit greater than the chance that it is false." Alaska Pattern Civil Jury Instructions 2.22. On the record before us, we cannot say that the trial court's decision was "clearly erroneous." AFFIRMED. . AS 47.10.010(a)(2)(D) provides, in pertinent part: Jurisdiction, (a) Proceedings relating to a minor under 18 years of age residing or found in the state are governed by this chapter, when the court finds the minor (2) to be a child in need of aid as a result of (D) the child having been, or being in imminent and substantial danger of being, sexually abused either by the child's parent, guardian, or custodian, or as a result of conditions created by the child's parent, guardian, or custodian, or by the failure of the parent, guardian, or custodian adequately to supervise the child.... . Specifically, the court observed: I think in terms of her ability to perceive events now, to relate them and to know the difference between truth and a lie in terms of present matters I think that she is competent and I think at this point that's probably as far as we have to go. If she doesn't remember things in the past, she doesn't remember them and the record will stand, but she does appear to be at least minimally competent as the court opinions require. . The trial transcript reveals that T.P. failed to respond to a number of questions put to her by counsel and the court. Counsel: [T.P.], after talking with your teacher and talking with this other lady, you talked to Miss Newell . from the police department and she asked you some questions. Do you remember talking with her? [T.P.]? Counsel: She asked you some questions about what happened with your dad. Do you remember talking with her? Let the record reflect that [T.P.] is shrugging her shoulders in response to that question. Counsel: Can you tell me about what you said to her [T.P.]? Can you say yes or no, [T.P.]? Let the record reflect that [T.P.] indicates no, she can't tell me about what she said and she's unwilling to respond in the negative.... Counsel: [T.P.], you also talked with your mom about stuff that happened with your dad. Do you remember talking with her about that stuff? Hum? Can you say yes or no, [T.P.]? Let the record reflect that [T.P.] is shrugging her shoulders.... Can you tell the judge what you said to your mom about it? Hum? What does that mean when you shrug your shoulders like that? Does that mean yes, no, or you don't know? . The court had delayed ruling on the admissibility of the report when L.P. objected to its admission during Dr. Senzig's testimony. . Rule 804(b)(5) provides, in pertinent part, that an out-of-court statement is admissible if it is: A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant. Alaska R.Evid. 804(b)(5). The admission of evidence is committed to the trial court's discretion and its rulings will not be overturned on appeal except for an abuse of discretion. Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980); In re A.S.W, 834 P.2d 801, 803 n. 3 (Alaska 1992). . We emphasize that a child's lack of memory should not be confused with the child's competency to testify. In State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984), the Washington supreme court observed that: incompetency and unavailability serve separate purposes and mean different things.... Unavailability means that the proponent is not presently able to obtain a confrontable witness' testimony. It is usually based on the physical absence of the witness, but may also arise when the witness has asserted a privilege, refused to testify, or claims a lack of memory.... Competency, on the other hand, means that the witness 'has sufficient mental capacity to understand the nature and obligation of an oath and [is] possessed of sufficient mind and memory to observe, recollect, and narrate the things she has seen or heard.' Id. 691 P.2d at 202-03 (quoting State v. Moorison, 43 Wash.2d 23, 259 P.2d 1105 (1953)). On the record presented in this case, we see no reason to question the trial court's determination that T.P. was minimally competent. . L.P. further argues that the trial court erred in relying on T.P.'s limited testimony (i.e., that she remembered seeing the movie in her kindergarten class) after finding T.P. to be unavailable. We disagree. A witness may be "partially unavailable" if a witness has partial recollection of the relevant events. See E. Cleary, McCormick on Evidence, § 253 754-55 (3rd Ed. 1984) ("if the forgetfulness is only partial, the appropriate solution would appear to be to resort to present testimony to the extent of recollection, supplementing with the hearsay testimony to the extent required.'') (footnote omitted). . We have recently held that an alleged abuser's due process right to cross-examine a child witness in CINA proceedings is adequately protected by the unavailability and reliability requirements of Rule 804. See In re A.S.W. and E.W., 834 P.2d at 805-07. We therefore reject L.P.'s argument that the admission of T.P.'s out-of-court statements violated his state and federal right to confront the witnesses against him. . In making its oral ruling, the trial court also referred to Dr. Senzig's conclusion in her written report that "[s]exual matters are occupying most of [T.P.'s] energy right now." The court's reliance on Dr. Senzig's report is troubling, since the report was written with the underlying assumption that T.P. had been abused. However, the court explicitly noted the underlying flaw of the report. Since we conclude that Ms. Knight-Richardson's testimony is sufficient, standing alone, to support the trial court's ruling, we do not feel that the report improperly influenced the court's decision. See Love v. State, 457 P.2d 622, 631 (Alaska 1969) (holding that an error is harmful if there is reasonable probability that the error affected the outcome).

10379967

Joseph E. HANDLEY, Appellant, v. STATE of Alaska, DEPARTMENT OF REVENUE, Appellee

Handley v. State, Department of Revenue

1992-09-18

No. 3885

1231

1235

838 P.2d 1231

838

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

Joseph E. HANDLEY, Appellant, v. STATE of Alaska, DEPARTMENT OF REVENUE, Appellee.

Joseph E. HANDLEY, Appellant, v. STATE of Alaska, DEPARTMENT OF REVENUE, Appellee. No. 3885. Supreme Court of Alaska. Sept. 18, 1992. Joseph E. Handley, pro se. Teresa Williams, Asst. Atty. Gen., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2526

16158

OPINION COMPTON, Justice. I. FACTUAL AND PROCEDURAL BACKGROUND Joseph Handley is currently at the Spring Creek Correctional Center in Se ward, serving a 45 year sentence imposed in 1978. Pursuant to 22 Alaska Administrative Code (AAC) 05.251 (1991), he was transferred to the Federal Bureau of Prisons (FBP) and was "housed" at the Fort Leavenworth Federal Prison (1978-1984), El Reno Federal Prison (1984-1986), and the Oxford Federal Prison (1986-1988), until he was transferred to Spring Creek Correctional Center in Alaska in October 1988. The Department of Revenue, Permanent Fund Division, (DOR) sent Handley's permanent fund dividend application to his correctional facility starting in 1982. Each year Handley completed the form in the same manner and mailed it to DOR. From 1982 to 1986 DOR approved the application. In 1987 DOR rejected Handley's application. DOR cited Handley's failure to include the signatures of the residency verifiers on his application. On his original 1987 application, Handley printed the name "Harry Davis D.A." and signed in cursive the name "Judge Warren Taylor" in the boxes requesting the signature of "Spouse, Relative or Friend." Under each of these, in boxes requesting the printed name of the person "Who Signed Above," Handley wrote "Fbx." He did not fill in the boxes requesting date, mailing address, city, state and zip code, and daytime telephone number. DOR wrote Handley and requested additional information about his absences between October 1986 and March 1987. Handley replied that he was absent from April 13, 1978 until 1988 when the new prison opened in Alaska. Handley's 1987 permanent fund dividend was denied. Handley filed a request for an informal appeal. His dividend denial was then amended to include the basis that he did not have the required intent to return to Alaska. DOR based this finding on the records from Handley's hearings before the Alaska Department of Corrections Classification Review Board. At these hearings, Handley had stated that he did not wish to return to Alaska and wanted to be paroled elsewhere. Replying to another DOR request for additional information, Handley submitted an amended application, back dated to the day after he signed his original application. This application was verified by two correctional counselors from the Federal Correc tional Institution in Oxford, Wisconsin. At an informal conference, DOR affirmed the denial on the alternative ground. Handley then requested a formal hearing. When the hearing was conducted, Handley, who had since been transferred to the Seward facility, participated by phone. During the hearing Handley was assisted by a corrections counselor. At the hearing the Revenue Hearing Examiner reinstated improper verification as a ground for rejection of the application. He held that Hand-ley's revised application should not have been accepted because the first application was submitted with false residency verifications designed to deceive DOR. The hearing examiner based his determination that the proffered verifiers' signatures were intended to be deceptive partly because they were in different handwriting, one having been printed and one written in cursive. The evidence was uncontradicted that both signatures were false and unauthorized. He construed AS 43.23.015 to mean that "the Applicant's signing of a PFD application constitutes a claim of eligibility predicated on the facts contained in the application." Again, Handley's appeal was denied on both grounds. Handley appealed to the superior court. AS 22.10.020(d); Alaska R.App.P. 602(a)(2) (1991-92). The superior court affirmed DOR's decision. II. DISCUSSION A. STANDARD OF REVIEW. We will independently review the merits of an administrative determination. No deference is given to the superior court's decision when that court acts as an intermediate court of appeal. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). We have recognized four principal standards of review of administrative decisions. The "substantial evidence" test is used for questions of fact. The "reasonable basis" test is used for questions of law involving agency expertise. The "substitution of judgment test is used for questions of law where no expertise is involved. The "reasonable and not arbitrary" test is used for review of administrative regulations. Jager v. State, 537 P.2d 1100, 1107 n. 23 (Alaska 1975). In this case, the substantial evidence test applies. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Keiner v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963). We need only determine whether such evidence exists, and do not choose between competing inferences. Interior Paint Co. v. Rodgers, 522 P.2d 164, 170 (Alaska 1974). We do not evaluate the strength of the evidence, but merely note its presence. Matanuska-Susitna Borough v. Hammond, 726 P.2d 166, 179 n. 26 (Alaska 1986). Also applicable is the reasonable and not arbitrary test. This standard is not demanding: "[Wjhere an agency interprets its own regulation . a deferential standard of review properly recognizes that the agency is best able to discern its intent in promulgating the regulation at issue." Rose v. Commercial Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska 1982). B. HANDLEY WAS PROPERLY DENIED HIS 1987 PERMANENT FUND DIVIDEND. DOR denied Handley's 1987 permanent fund dividend on two grounds: 1) Handley did not have valid signatures of two residency verifiers; and 2) Handley did not prove that at all times during his absence he maintained the intent to permanently reside in Alaska. The permanent fund dividend regulations require that "[a]n applicant must indicate on the prescribed form information required by the department which will support the claim of residency." 15 AAC 23.-675(a) (1988). The application required the signatures of two residency verifiers. Handley did not supply authentic signatures or even the names of authentic residency verifiers. The regulations allow for the submission of additional information if the application is "insufficient." 15 AAC 23.625(c) (1988). The applicant then has 60 days from being notified of its insufficiency to supply corrected information. 15 AAC 23.625(f)(1988). However, DOR held that an extension was not available whenever the information submitted in the original application was deceptive. DOR found that Handley's application was intentionally deceptive and thus rejected it without considering his corrected submission. We conclude that this ruling is reasonable and not arbitrary. Under these circumstances, the information "included on or provided with the application" was not merely "insufficient"; it was false information provided with the intention that DOR be deceived. The determination that Hand-ley was trying to deceive DOR is supported by the record. Relevant evidence as a reasonable mind might accept, namely the presence of the signatures, one printed and one written in cursive, exists to support the Revenue Hearing Examiner's and DOR's conclusions. Because we conclude that the first basis for rejection of Handley's application is supported in fact and in law, we need not analyze whether the alleged absence of intent to reside permanently in Alaska is also supportable. Further, a holding on the second ground would have no precedential value, because incarcerated felons are no longer eligible for the permanent fund dividend. AS 43.23.005(d) (amended in 1988). C. DOR DID NOT BREACH ITS DUTY TO ASSIST AND INFORM HANDLEY. Handley argues that DOR breached its duty to assist residents of the state who need help establishing eligibility. Handley claims that DOR breached this duty by not advising him of regulation amendments which affected his status. Handley does not point to any evidence that "language, disability, or inaccessibility to public transportation" affected his ability to establish his eligibility for a permanent fund dividend, or to submit an application for a permanent fund dividend. He does not point to any evidence that he ever requested and was denied the assistance of the DOR in establishing his eligibility or submitting his application for a permanent fund dividend. We conclude that this claim of error has no merit. D. CONSTITUTIONAL OBJECTIONS. Handley states two constitutional objections to the permanent fund dividend scheme. First, Handley contends that 15 AAC 23.190(a)(1991), which requires submission of "other information," is so vague that it violates due process. Second, he contends that the definition of "state resident" in AS 43.23.095(8) is overbroad and violates equal protection. In view of our affirmance on the ground that the forged signatures on false verifications of Hand-ley's original 1987 application were made with the intent to deceive DOR, we need not address Handley's constitutional arguments. Handley's first objection is not relevant because "other information" need not be requested when intentional decep tion is found. Handley's second objection need not be addressed because it pertains only to intent to reside in Alaska, the DOR's alternative ground for rejection. III. CONCLUSION The denial of Handley's 1987 permanent fund dividend was based on a determination that he submitted false residency verifications containing forged signatures intended to deceive DOR. DOR's determination that Handley was trying to deceive DOR is supported by substantial evidence. DOR acted legally and permissibly in denying Handley an opportunity to correct his application. The superior court's decision is AFFIRMED. . The 1987 Permanent Fund Dividend Application reads: RESIDENCY VERIFICATION IS REQUIRED BY TWO ADULTS WHO KNOW YOU The statement below must be read and signed by two adults who know you, and who can confirm that you are eligible for a permanent fund dividend.... Persons you may wish to ask to verify your residency include your spouse, other relatives, close friends or neighbors. It is preferable that these persons be Alaska residents who are also applying for their permanent fund dividends. (Emphasis in original). The application then requests the signature, address and telephone number of the verifiers. . Harry Davis was the Fairbanks district attorney who prosecuted Handley. Judge Warren Taylor was the judge who presided over Hand-ley's criminal case and sentenced him. Handley claimed he included the names of Davis and Taylor because they could attest that he was in the Alaska Prison System, a matter not in issue. He used their names as "references," but did not indicate that on his application. . Handley is not even eligible for parole until 1997. Incarcerated in 1977, he has a full term projected release date of October 13, 2007. A letter from Robert P. Spinde, Chief Classification Officer, Department of Corrections, to Tracy Buchheim, PFD Specialist 1, Permanent Fund Dividend Division, discloses the following information taken from log notes of hearings: August 1979 Wants to complete his time in the federal prison. June 1980 Does not want to return to Alaska. Desires parole to state of Wyoming. 1981 No classification hearing was held for Mr. Handley this year, he was back in Alaska for legal proceedings. March 1982 No desire to return to Alaska. Complete his time FBP. May 1983 Does not want to return to Alaska while serving his sentence. April 1984 Wishes to remain in FBP until after the max unit is in operation for a few years. 1985 Does not want to return to Alaska. 1986 The written record regarding this hearing cannot be located. May 1987 Mr. Handley waived this hearing. May 1988 Wishes to return to Alaska. Will be requesting return to Alaska when bedspace is available. (Mr. Handley was returned to Alaska on 10/18/88, and remains to the present time.) . Handley was housed at Oxford when he submitted his original 1987 application, but did not originally seek to use local officers as his residency verifiers. . See supra note 1. . This court will not reweigh conflicting evidence or substitute its judgment for that of the individual charged with reviewing the applications. See Childs v. Kalgin Island Lodge, 779 P.2d 310, 315 (Alaska 1989). The evidence should be viewed from the perspective of that individual. . "The department shall . assist residents of the state, particularly in rural areas, who because of language, disability, or inaccessibility to public transportation need assistance to establish eligibility and to apply for permanent fund dividends." AS 43.23.055(4). .Handley contends that he is "disabled" for purposes of AS 43.23.055(4) because as an inmate he does not have the "capacity for the full enjoyment of ordinary legal rights." We reject the idea that all inmates are "disabled" for the purposes of section 55. Rather, an applicant must have a physical or mental disability which hinders the application process in order to qualify for assistance.

10361711

Sergio O. COLGAN, Appellant, v. STATE of Alaska, Appellee

Colgan v. State

1992-10-09

No. A-4351

276

280

838 P.2d 276

838

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

Before BRYNER, C.J., COATS and MANNHEIMER, JJ.

Sergio O. COLGAN, Appellant, v. STATE of Alaska, Appellee.

Sergio O. COLGAN, Appellant, v. STATE of Alaska, Appellee. No. A-4351. Court of Appeals of Alaska. Oct. 9, 1992. James M. Hackett, James M. Hackett, Inc., Fairbanks, for appellant. Harry L. Davis, Dist. Atty., Fairbanks, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS and MANNHEIMER, JJ.

2155

13142

OPINION COATS, Judge. Sergio Colgan was convicted, based upon his plea of guilty, of murder in the first degree, an unclassified felony with a maximum term of imprisonment of ninety-nine years. AS 11.41.100. Superior Court Judge Richard D. Saveli sentenced Colgan to the maximum sentence of ninety-nine years of imprisonment. In addition, Judge Saveli ordered that Colgan would be ineligible for parole. AS 12.55.115. Colgan appeals, arguing that the sentence is excessive. We affirm. Colgan and his friend, Eric Hughes, had for some time planned to select a young female victim to kidnap, rape, and murder. On October 13, 1990, Hughes and Colgan packed two pistols and some duct tape in a briefcase and went hunting for a victim. They parked at the Bentley Mall in Fairbanks for a few minutes before noticing C.Z., a sixteen-year-old woman who had gone to school with Hughes and Colgan. Hughes and Colgan devised a plan to get C.Z. to an isolated area. Hughes approached C.Z., telling her that he needed a ride to work because Colgan was going to give him a ride but Colgan's car had broken down. C.Z. agreed to give Hughes a ride. Hughes directed C.Z. to a remote area outside of Fairbanks. Colgan followed at a distance with his car. At the remote area, Hughes and Colgan taped C.Z.'s mouth and hands. According to Col-gan, at this point Hughes told Colgan that he "couldn't handle it anymore." Hughes got in Colgan's car. Colgan then struck C.Z. in the back of the head with a handgun, knocking her unconscious. They placed her in the back of Colgan's car. Colgan then drove to a remote spot on the Richardson Highway. As Colgan drove to this location Hughes got in the back seat of the car and ripped off C.Z.'s clothes. When they arrived at their destination Hughes and Colgan took turns raping C.Z. After they finished raping C.Z., they taped her feet together, taped her hands behind her back, and placed tape over her hands and eyes. As they drove from the scene of the rape, Colgan and Hughes discussed how to carry out the final part of the plan: killing C.Z. They decided that the easiest way to carry out C.Z.'s murder was to suffocate her by placing duct tape over her mouth and nose. Hughes placed duct tape around C.Z.'s nose and face. However, according to Colgan, the tape did not kill C.Z. Hughes completed the murder of C.Z. by pressing a tire iron against her throat, suffocating her. Hughes and Colgan then placed the nude body of C.Z. in the trunk of their car. They buried C.Z. and her clothes in a remote area off Chena Hot Springs Road. Shortly after committing this crime, Hughes joined the Marine Corps and left the State of Alaska. Colgan stayed in Fairbanks where he worked at the Jack Randolph Insurance Agency. In January of 1991, Colgan entered counseling with a psychologist. During this counseling, despite being warned by the psychologist that the psychologist was required to report child sexual abuse which he learned of during counseling, Colgan told the psychologist that he and a friend had raped and murdered a sixteen-year-old girl. The psychologist talked to an attorney about his duty to disclose this information and concluded the law required him to report it. The psychologist told this to Colgan and arranged for Colgan to talk with an attorney. At this point Colgan told the psychologist that he had made up the story about the murder because he wanted attention. The psychologist told Colgan and his counsel that he had to report the incident, and called the State Division of Family Services. The police contacted the psychologist, who told the police about Colgan's statement. Colgan attempted to reach Eric Hughes to warn him that he might be contacted by the police. However, Hughes was in basic training in California and Colgan was unable to contact him. Meanwhile, Sergeant Jim McCann of the Alaska State Troopers found out that Eric Hughes and Sergio Colgan were close friends. Sergeant McCann traveled to California to meet with Hughes. Hughes confessed to McCann and returned to Fairbanks with him. McCann set up a meeting between Hughes and Colgan. The troopers listened in on the conversation with a recording device. During the meeting Hughes persuaded Col-gan to allow him to call Sergeant McCann. When McCann interviewed Hughes and Colgan, Colgan confessed to the crime. The state initially charged Colgan and Hughes with kidnapping, murder in the first degree, and sexual assault in the first degree. Hughes entered a plea of guilty to murder in the first degree with the understanding that he would testify against Col-gan. Colgan's case went to trial. During jury selection, Colgan entered a plea of guilty to a charge of murder in the first degree with the understanding that the state would dismiss the other charges. In arguing that his sentence is excessive, Colgan points out that at the time of the offense he was nineteen years old and had no prior criminal record. He suggests that he reported the offense to the psychologist in spite of being warned of the lack of confidentiality. He contends that the record shows that he is extremely remorseful, that he has a good employment history, and that he has good prospects for rehabilitation. In sentencing Colgan, Judge Saveli recognized that Colgan was a young offender with no prior record. However, Judge Sa-veli started out his analysis pointing out the extreme facts of the offense. Judge Saveli found that Colgan had planned the crime for a long period of time and that Colgan had possibly planned the murder for months or even years. Colgan had chosen C.Z. for abduction, rape and murder simply for the pleasure of committing the crime. Judge Saveli pointed out that Col-gan had been in close contact with C.Z. for several hours, had many opportunities to withdraw from his plan without taking her life, but had calmly, dispassionately, and brutally carried out the murder. Judge Saveli examined Colgan's claim of remorse. He found that Colgan had only feigned remorse when he discovered that his absence of remorse would be used against him at sentencing. He examined Colgan's history of psychological treatment. Judge Saveli noted that Colgan had first undergone treatment when, at the age of twelve, Colgan had attempted to kill himself with a firearm. Judge Saveli concluded that in spite of the treatment which Colgan had received it was obvious that the treatment had failed. Judge Saveli concluded that Colgan's crime was a worst offense and that Colgan was a worst offender. He found that the record showed that Colgan was an extremely dangerous person and that there was every reason to believe that Colgan would continue to be a dangerous person. He expressed concern that if Col-gan were ever released from jail, he would again attempt to commit a perfect murder for the thrill of it. Judge Saveli concluded that in order to protect the public it was necessary for him to sentence Colgan to ninety-nine years of imprisonment and to order that he could not be released on parole. Colgan first contends that his sentence of ninety-nine years of imprisonment is excessive. In Riley v. State, 720 P.2d 951, 952 (Alaska App.1986) we pointed out that, "Alaska cases have consistently approved the imposition of maximum sentences for [murder in the first degree]. Indeed, we are aware of no decision of this court or of the Alaska Supreme Court holding a maximum sentence for first degree to be excessive." (Footnote omitted.) See also Ridgely v. State, 789 P.2d 1299, 1303 (Alaska App.1987) (finding not clearly mistaken sentences of ninety-nine years of imprisonment for murder in the first degree for two defendants, age nineteen and age sixteen at the time of their offense). Given the extremely aggravated nature of Col-gan's offense we do not find that the sentence of ninety-nine years of imprisonment was clearly mistaken. Colgan next contends that Judge Saveli erred in restricting his eligibility for parole. In Stern v. State, 827 P.2d 442, 450 (Alaska App.1992) we stated: When a sentencing judge restricts parole eligibility, the judge must specifically address the issue of parole restriction, setting forth with particularity his or her reasons for concluding that the parole eligibility prescribed by AS 33.16.090 and AS 33.16.100(c)-(d) is insufficient to protect the public and insure the defendant's reformation. When the defendant's sentence is lengthy, as in Stern's case, Alaska law presumes that questions of discretionary release are better left to the Parole Board, since the Board evaluates the advisability of parole release in light of the defendant's tested response to Department of Corrections rehabilitative measures. However, because the Alaska legislature has affirmatively given sentencing judges the power to restrict or deny parole eligibility, this presumption (that parole release of long-term prisoners should normally be evaluated after the defendant has established an institutional history) must remain rebuttable. See also Lawrence v. State, 764 P.2d 318, 321 (Alaska App.1988). Judge Saveli's findings comply with the requirements of Stem. The Alaska Supreme Court and this court have previously found not clearly mistaken sentences which required the defendant to spend the rest of his life in prison without any possibility of parole. See Nukapigak v. State, 663 P.2d 943, 946 (Alaska 1983); Alexander v. State, 838 P.2d 269 (Alaska App.1992); Washington v. State, 828 P.2d 172, 175 (Alaska App.1992); Stern v. State, 827 P.2d 442, 450 (Alaska App.1992); Weitz v. State, 794 P.2d 952, 958 (Alaska App.1990); Hastings v. State, 736 P.2d 1157, 1160 (Alaska App.1987); Krukoff v. State, 702 P.2d 664, 666 (Alaska App.1985). Colgan points out that the offenders in these cases were not youthful offenders with no prior record who committed a single offense. However, we conclude that Judge Saveli's findings are supported by the record and support the parole restriction. The facts of this case are particularly chilling. Colgan was a troubled young man who shot himself in the stomach with a twenty-two caliber rifle in 1985. Colgan originally claimed that the shooting was an accident, but in 1987 the defendant confided in his mother that this was an attempt to get attention by attempting suicide. Colgan told his mother in March of 1987 that he was again feeling suicidal. Colgan entered treatment at Charter North for approximately two months. It was during this time that he confided to his roommate at Charter North his interest in committing a murder without getting caught. Several times Colgan talked to his roommate about murdering a female victim. In 1990, Col-gan discussed this obsession with his friend, Eric Hughes. They planned to commit the crime for several days and looked for victims. They mercilessly carried out their plan. Based upon his observations of the defendants, Judge Saveli concluded that they had no remorse for their crimes. He found that the remorse which they expressed was simply an attempt to obtain a more lenient sentence. Colgan exercised his fifth amendment right to refuse to undergo a psychiatric examination. As Colgan points out, Judge Saveli could not aggravate Colgan's sentence because he exercised his fifth amendment rights. Spencer v. State, 642 P.2d 1371, 1377 n. 5 (Alaska App.1982). However, Judge Saveli could certainly sentence Colgan based upon the information he had before him in the record. This is what the record reflects that Judge Saveli did. During the sentencing hearing, the state presented testimony from Dr. David Sperbeek, who is a forensic and clinical psychologist. Dr. Sperbeek had examined Eric Hughes but did not examine Colgan. However, Dr. Sperbeek made some general observations concerning the nature of the crime. Dr. Sperbeek testified that he had conducted psychological examinations of approximately one hundred and twenty to one hundred and fifty people who had committed murders. In describing the murder in this case Dr. Sperbeek stated that, "The acts are among the most serious that I have ever seen." He stated that he would predict "very little rehabilitative potential in a person who methodically plans and meticulously carries out a . complicated series of acts which resulted in the . murder of a victim, as . in this case." Dr. Sperbeck's conclusions give support to Judge Saveli's findings. We conclude that Judge Saveli did not err in imposing the maximum sentence of ninety-nine years of imprisonment and in restricting Colgan's parole for that entire term. The sentence is AFFIRMED. . We note that the author of the presentence report also recommended that Colgan be sentenced "for the maximum allowable period of incarceration" and that "the court should order discretionary parole restricted to the fullest extent allowed by law."

10426399

Christine M. CASPERSON, Appellant, v. ALASKA TEACHERS' RETIREMENT BOARD, Appellee

Casperson v. Alaska Teachers' Retirement Board

1983-05-20

No. 6198

583

588

664 P.2d 583

664

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:23:18.837236+00:00

CAP

Before RABINOWITZ, CONNOR, MATTHEWS, COMPTON and DIMOND, JJ.

Christine M. CASPERSON, Appellant, v. ALASKA TEACHERS’ RETIREMENT BOARD, Appellee.

Christine M. CASPERSON, Appellant, v. ALASKA TEACHERS’ RETIREMENT BOARD, Appellee. No. 6198. Supreme Court of Alaska. May 20, 1983. Shirley F. Kohls, Steve U’Ren, Juneau, for appellant. Thomas M. Jahnke, Asst. Atty. Gen., and Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, CONNOR, MATTHEWS, COMPTON and DIMOND, JJ. Dimond, Senior Justice, sitting by assignment made pursuant to article IV, section 11 of the Constitution of Alaska.

3309

20821

OPINION CONNOR, Justice. This case concerns the interpretation of certain Alaska statutes which govern the retirement system of school teachers. The ultimate question in this case is whether Casperson had five or more "membership years" so as to qualify her for involuntary retirement. Appellant suffers from multiple sclerosis. On advice of her physician, she terminated employment with the Alaska Department of Education on June 30, 1978. At that time appellant had taught in Alaska as a classroom teacher in the school years of 1963-64, 1973-74, 1974-75, and as a correspondence study teacher in 1975-76, 1976-77 and 1977-78. In these last three years her contract called for four hour days, five days a week, 12 months a year. At times she worked for more than the hours called for in the contract and was paid overtime for those hours. The Division of Retirement and Benefits ["Division"] determined that appellant's "membership years" amounted to 4.6 instead of 6.0. The Division reasoned that appellant was only entitled to half credit for the last three years she worked. That decision was appealed to the Alaska Teachers' Retirement Board ["Board"], and was affirmed. The superior court affirmed that decision, and this appeal was taken. Appellant has raised six issues on appeal, but we find one issue to be disposi-tive: did the Board err when it interpreted the term "membership years" in AS 14.25.-130(a) as being the equivalent of "years of service" as defined in AS 14.25.220(16)? The statutes which pertain to this case should be read as a whole in order to comprehend the overall nature of the teachers' retirement system. See AS 14.25.050(a) (am. § 1 ch. 138 SLA 1970); AS 14.25.110(a) (am. § 1-3 ch. 17-3 SLA 1975); AS 14.25.-115(a) (am. § 13 ch. 136 SLA 1978); AS 14.25.120(c) (am. § 4-6, 14 ch. 173 SLA 1975); AS 14.25.130 (am. § 7 ch. 173 SLA 1975); AS 14.25.135(a) (am. § 8 ch. 173 SLA 1975); AS 14.25.137(a) (am. § 9 ch. 173 SLA (1975); AS 14.25.140 (am. § 10 ch. 173 SLA 1975); AS 14.25.220 (am. § 12, 13 ch. 173 SLA 1975). In the body of this opinion it will only be necessary to quote certain key provisions of these statutes. Appellant contends that AS 14.25.130 uses five "membership years" as the test of eligibility for involuntary retirement. This is correct, as the statute, at the relevant time, stated: "Eligibility for disability retirement. (a) A teacher in membership service who has become permanently disabled, as defined in § 220 of this chapter, before age 55 and who has had five or more membership years may be retired by the administrator as of the first day of the month following the permanent disability." It appears that "membership year" is not defined elsewhere in the relevant statutes, although AS 14.25.220(5), at the relevant time, defined "membership service" as follows: " '[Membership service' means service as a teacher in a public school within the Territory or State of Alaska, or both, under the supervision and control of the Territorial Board of Education or the Department of Education, the school board of any city or borough school district, or the Board of Regents of the University of Alaska, or any period during which the teacher is on an approved sabbatical leave granted in accordance with AS 14.20.310 or is receiving a disability retirement salary." However, the Division interpreted "membership year" as meaning "year of service" as defined by AS 14.25.220(16). The pertinent provision of this latter statute, the last clause thereof, states: "... [I]f service is performed on a part-time basis, one-half credit shall be given for each day of service." As appellant points out, the Division's interpretation means that appellant is credited with 4.6 "membership years" instead of 6. She argues that "membership year" simply means (a) membership, and (b) teaching in Alaska's public schools for a school year. She supports this argument by asserting that if the legislature had intended "year of service" to be equated with "membership year," it would have chosen different language from that which it used. Under a literal reading of the statutes, the eligibility for voluntary retirement is determined by "years of membership service." AS 14.25.110. But for involuntary retirement the term "years of membership service" is not used, and the statutes mention only "membership years." Next, appellant points out that benefits are calculated differently under the schemes for voluntary and involuntary retirement. For voluntary retirement the amount is computed at 2% of the average base salary, multiplied by total years of service. AS 14.25.120(c)(1). But for involuntary retirement the benefits are simply 50% of the teacher's base salary immediately before disability. AS 14.25.140(c). And base salary is defined as any remuneration for services rendered during any school year. AS 14.25.220(2). Thus, argues appellant, the legislature had quite different things in mind when it acted in regard to involuntary and voluntary retirement. Lastly, appellant resorts to case law of other jurisdictions. Those cases are distinguishable in various respects and do not require extended discussion. In response to appellant's arguments, the state concedes that "membership years" is not elsewhere defined, but argues that a textual analysis of the statutes militates in favor of equating "membership year" with "year of service." However, we are unpersuaded by the state's argument. It must be assumed that the legislature consciously used different terms for a reason, and that those terms have different referents. Otherwise, the legislature simply would have used one term, e.g., "membership year" throughout these statutes. The state next argues that the history of teachers' retirement legislation in Alaska supports the interpretation which it seeks. From the establishment of the teachers' retirement system in 1945 until 1970, all retirement, whether voluntary or involuntary, was based upon "years of service" and required employment on a full-time basis. In 1970, the legislature amended the statutes so that part-time teachers could qualify for retirement benefits. Ch. 138, § 16, SLA 1970. However, by leaving AS 14.25.-130 unchanged, the test for eligibility for disability retirement remained the same. That is, a teacher who had "five or more membership years," could be retired for disability. We are unpersuaded that the legislative history of these statutes supports the state's argument. As we have said above, we must assume that the legislature was conscious of what it was doing when it amended the statute in 1970, but left AS 14.25.130 unchanged. We hold that appellant has more than five membership years, and that she is entitled to disability retirement. Therefore, we must reverse and remand for further proceedings consistent with this opinion. REVERSED and REMANDED. BURKE, C.J., not participating. . The other issues, briefly stated, are: (a) Did the Board err in concluding that appellant was a part-time, and not a full-time, teacher? (b) Did the Board misapply AS 14.25.220(16) to appellant, who taught shorter days but more months than a normal classroom teacher? (c) Did the Board err in concluding that appellant could not get service credit for overtime hours that she worked, beyond her contract time? (d) Did the Board err in concluding that appellant could not get service credit for the time she was on maternity leave and sick leave? (e) Did the superior court err in affirming the decision of the Board? . The cases are State ex rel. Murphy v. Board of Trustees, 168 Wis. 238, 169 N.W. 562 (Wis.1918); Moore v. Board of Trustees, 170 Wash. 175, 16 P.2d 195 (Wash.1932); and Charters v. Board of Trustees, 192 Wash. 261, 73 P.2d 508 (Wash.1937). . In 1955 a provision for disability retirement was enacted for teachers who had five or more "membership years," but because only full-time teachers were covered the distinction between that term and "year of service" was not important. See Ch. 145, § 2(c), 14, SLA 1955.

10356500

BORG-WARNER CORPORATION and its Division Marvel-Schebler/Tillotson; Facet Aerospace Products Company; and Facet Enterprises, Inc., Appellants/Cross-Appellees, v. AVCO CORPORATION (LYCOMING DIVISION), Appellee/Cross-Appellant

Borg-Warner Corp. v. Avco Corp.

1993-03-19

Nos. S-4381, S-4418

628

636

850 P.2d 628

850

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:23:50.545071+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

BORG-WARNER CORPORATION and its Division Marvel-Schebler/Tillotson; Facet Aerospace Products Company; and Facet Enterprises, Inc., Appellants/Cross-Appellees, v. AVCO CORPORATION (LYCOMING DIVISION), Appellee/Cross-Appellant.

BORG-WARNER CORPORATION and its Division Marvel-Schebler/Tillotson; Facet Aerospace Products Company; and Facet Enterprises, Inc., Appellants/Cross-Appellees, v. AVCO CORPORATION (LYCOMING DIVISION), Appellee/Cross-Appellant. Nos. S-4381, S-4418. Supreme Court of Alaska. March 19, 1993. Rehearing Denied April 15, 1993. David T. Hunter and Michael K. Nave, Lane Powell Spears Lubersky, Anchorage, for appellants/cross-appellees. Stephen DeLisio, Allan J. Olson and John T. Robertson, Staley, DeLisio, Cook & Sherry, Inc., Anchorage, for appel-lee/cross-appellant Avco Corp. (Lycoming Div.). Michael N. White, Preston, Thorgrimson, Shidler, Gates & Ellis, Anchorage, and James L. Ackerman, Day, Berry & Howard, Boston, MA, amicus curiae for Rogers Corp.

4439

28461

ORDER IT IS ORDERED: 1. Opinion No. 3912, published on December 81, 1992, is WITHDRAWN. 2. Opinion No. 3938 is issued on this date in its place. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ. OPINION MOORE, Justice. After Kenneth Swanson was killed in an airplane crash, Swanson's estate filed a wrongful death action against the manufacturer of the airplane's carburetor (Borg-Warner Corporation, Marvel-Sche-bler/Tillotson, Facet Aerospace Products and Facet Enterprises; hereinafter "Borg-Warner"). Borg-Warner filed contribution claims against several third-party defendants, including Avco Corporation, the engine manufacturer (hereinafter "Avco"). In this appeal, Borg-Warner challenges the trial court's grant of summary judgment in favor of Avco. I. FACTUAL AND PROCEDURAL BACKGROUND In September 1986 Kenneth Swanson and his passenger were killed when Swanson's airplane crashed near Umiat on the North Slope. Two years after the accident, Swanson's estate filed a wrongful death action against the carburetor manufacturer, Borg-Warner, and an aircraft mechanic, Edward DePriest. None of these parties sought a jury trial. In March 1989 the trial court held a pretrial conference and scheduled trial to begin the week of November 20, 1989. In July Borg-Warner moved to join third-party claims for contribution against Avco, Piper, Petersen and Rogers. Swanson opposed joinder of the third-party defendants, claiming that it would significantly delay trial and prejudice his case. After a hearing, the court granted Borg-Warner's motion to join the third-party defendants, but ordered a separate trial for the contribution claims. After Borg-Warner served Piper, Avco, Petersen and Rogers, two of the third-party defendants, Avco and Piper, requested a jury trial. In September 1989 Borg-Warner moved the court to rejoin the contribution claims to the first trial on the grounds that the Tort Reform Act, AS 09.-17.010-900, mandates a single jury trial of the first-party and third-party claims. Swanson, Piper, Rogers and Avco opposed the motion, arguing, inter alia, that the complex nature of the issues and the imminence of the Swanson trial made a single trial impracticable. The court denied Borg-Warner's motion. In November 1989 Swanson's claims were tried before Judge Jay Hodges. Swanson argued that a defective condition of the aircraft carburetor had caused a sudden loss of power which resulted in the crash. Borg-Warner's primary defense was that the crash was caused by pilot error and adverse weather conditions. Alternatively, Borg-Warner claimed that if the carburetor float did, in fact, absorb fuel, this resulted from Swanson's use of auto-gas, contrary to Avco's and Piper's specific warnings. Although Borg-Warner presented some evidence of the alleged fault of the third-party defendants, the trial was conducted under the assumption that contribution issues would be addressed in a second trial. In February 1990 the trial court issued its "Memorandum Decision and Findings of Fact, Conclusions of Law." The court found that the legal cause of the accident was the defective carburetor. The court also found that the use of auto-gas was not a factor which contributed to the absorption of fuel by the float. The court concluded that Borg-Warner's concealment of the manufacturing defect constituted "outrageous conduct and a reckless disregard of the rights of others." The court found Borg-Warner jointly and severally liable for $1,669,460 in compensatory damages, and also awarded Swanson $5,008,380 in punitive damages. Following issuance of the court's memorandum decision, but before entry of judgment, Borg-Warner and Swanson settled for approximately $4.5 million. Borg-Warner and Swanson then stipulated to dismiss Swanson's claims with prejudice. After the court ordered Swanson's claims dismissed pursuant to the parties' stipulation, Borg-Warner unsuccessfully moved for the withdrawal of the court's Memorandum Decision. Avco, Piper and Rogers all moved for summary judgment on Borg-Warner's third-party claims, arguing, inter alia, that Borg-Warner had no right to contribution under AS 09.16.010(c). The court granted Avco's and Piper's motions, finding that Borg-Warner, as a "wilful and wanton" tortfeasor, had no right to contribution from Avco and Piper and that Borg-Warner was collaterally estopped from relit-igating this issue. However, the court denied Rogers' motion because it concluded that Rogers' conduct may have been as culpable as Borg-Warner's. This appeal followed. II. DISCUSSION On appeal, Borg-Warner contends that the trial court erred in applying collateral estoppel in the absence of a final judgment. It further argues that the trial court erred in ordering separate trials in the first place and that Borg-Warner did not have a "full and fair opportunity" to litigate its third-party claims. Finally, Borg-Warner asserts that the trial court erroneously interpreted "intentional" (as used in AS 09.16.-010(c)) to include "wilful and wanton" conduct. Avco cross-appeals on the issue of Borg-Warner's status as an "intentional" or "wilful" tortfeasor. A. Propriety of Separate Trials Borg-Warner claims that AS 09.-17.080 (1986) requires a single trier of fact to make a single allocation of comparative fault among all parties. We disagree. At the time of the accident, AS 09.17.080 provided: (a) In all actions involving fault of more than one party to the action, including third-party defendants and persons who have been released under AS 09.17.090, the court, unless otherwise agreed by all parties, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating (1) the amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and (2) the percentage of the total fault of all of the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under AS 09.17.090. (b) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault, and the extent of the causal relation between the conduct and the damages claimed. The trier of fact may determine that two or more persons are to be treated as a single party if their conduct was a cause of the damages claimed and the separate act or omission of each person cannot be distinguished. (c) The court shall determine the award of damages to each claimant in accordance with the findings, subject to a reduction under AS 09.17.090, and enter judgment against each party liable. The court also shall determine and state in the judgment each party's equitable share of the obligation to each claimant in accordance with the respective percentages of fault. (d) The court shall enter judgment against each party liable on the basis of joint and several liability, except that a party who is allocated less than 50 percent of the total fault allocated to all the parties may not be jointly liable for more than twice the percentage of fault allocated to that party. Although a single trial allocating fault among all potentially liable parties may promote judicial economy, nothing in the legislative history of AS 09.17.080 indicates that the legislature intended to require a single trial for first- and third-party claims. In our opinion, the traditional two-step sys-tern of first establishing liability and then seeking contribution is not inconsistent with the comparative negligence principles underlying the Tort Reform Act. Although one complete and comprehensive hearing is preferable where complex issues are intertwined, see Shanley v. Callahan Indus., Inc., 54 N.Y.2d 52, 444 N.Y.S.2d 585, 588, 429 N.E.2d 104, 107 (1981), in certain circumstances a separate trial allocating fault among first- and third-party defendants is appropriate. Alaska Civil Rule 42(b) provides that a trial judge may order a separate trial of third-party claims "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy." In this case, Borg-Warner did not seek to join the third-party defendants until approximately three months before the scheduled trial date. Given the need for additional discovery, there is a strong probability that ordering a single trial in this case would have significantly delayed the Swanson trial. We therefore conclude that Judge Hodges did not abuse his discretion in ordering separate trials. B. Construction of AS 09.16.010(c) The Alaska legislature adopted the Uniform Contribution Among Tortfea-sors Act in 1970. Ch. 80, § 1, SLA 1970 (codified as amended at AS 09.16.010-.060). Alaska Statute 09.16.010(c) (1983) provides: There is no right of contribution in favor of any tortfeasor who has intentionally caused or contributed to the injury or wrongful death. We hold that this statutory bar applies only to tortfeasors who act with the specific intent to cause the resultant harm. We adopt this interpretation of "intentional" for two reasons. First, the legislature deleted the "wilfully or wantonly" language contained in the uniform act from which AS 09.16.010(c) was drawn. In the absence of any legislative history indicating otherwise, we believe that this omission indicates that the legislature rejected a broader application of the statutory bar. See 2A Norman J. Singer, Sutherland's Statutes and Statutory Construction § 48.04, at 22 (1992) (where specific language is omitted by the legislature, this is an indication that the legislature rejected this language). Second, we conclude that an expansive interpretation of "intentional" is incompatible with the comparative negligence principles introduced into the law of contribution by the enactment of the Tort Reform Act in 1986. Alaska Statute 09.17.-900 defines "fault" to include "acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability." (Emphasis added). In allocating a percentage of the total fault to each potentially liable party, AS 09.17.080(b) directs the trier of fact to consider "the nature of the conduct of each party at fault" as well as the degree of the causal tie between the conduct and the damages claimed. (Emphasis added). The Tort Reform Act clearly contemplates a relative allocation of fault between all unintentional tortfeasors, whether negligent, grossly negligent or wilful and wanton. When two statutes deal with the same or related subject matter, we strive to construe them as harmoniously as possible. See State, Dep't of Highways v. Green, 586 P.2d 595, 602-03 & n. 24 (Alaska 1978) (interpretation of one statutory provision is properly influenced by content of another provision addressing similar purposes or objects); Watt v. Alaska, 451 U.S. 259, 266-67, 101 S.Ct. 1673, 1677-78, 68 L.Ed.2d 80 (1981) (although the more recent of two inconsistent statutes may govern, statutes are not to be read as being inconsistent unless the sense and purpose of each statute cannot be preserved otherwise). By construing AS 09.16.010(c) to bar only "intentional" tortfeasors from seeking contribution, we preserve the sense and purpose of both acts. We conclude that the trial court erred in ruling that Borg-Warner, as a "wilful and wanton" tortfeasor, was barred from seeking contribution under AS 09.16.010(c). C. Collateral Estoppel Although Borg-Warner is not barred from seeking contribution under AS 09.16.010(c), we hold that Borg-Warner is bound by Judge Hodges' findings concerning the nature of its conduct toward Swanson because this issue was fully litigated in the Swanson trial. Under Alaska law, the following circumstances must exist before collateral estoppel may apply: 1. The plea of collateral estoppel must be asserted against a party or one in privity with a party to the first action; 2. The issue to be precluded from re-litigation by operation of the doctrine must be identical to that decided in the first action; 3. The issue in the first action must have been resolved by a final judgment on the merits. Murray v. Feight, 741 P.2d 1148, 1153 (Alaska 1987). There is no question that the "party identity" and "identity of issue" requirements are satisfied here. Thus we must decide whether the court's memorandum decision is sufficiently "final" for the purposes of collateral estoppel. In Briggs v. State, Dep't of Pub. Safety, 732 P.2d 1078 (Alaska 1987), this court observed: For the purposes of issue preclusion, "final judgment" includes "any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect." Restatement (Second) of Judgments § 13 (1982). Factors supporting a conclusion that a decision is final for this purpose are "that the parties were fully heard, that the court supported its decision with a reasoned opinion, that the decision was subject to appeal or was in fact reviewed on appeal." Restatement (Second) of Judgments § 13 comment g (1982). Id. at 1082 (citations omitted); see, e.g., Rapoport v. Tesoro Alaska Petroleum Co., 794 P.2d 949, 951-52 (Alaska 1990) (a judgment which has been appealed is still "final or firm" for the purposes of issue preclusion). Borg-Warner argues that collateral estoppel should not apply here because the case was settled before final judgment was entered. Borg-Warner emphasizes the fact that the court specifically dismissed Swanson's claims "without entry of judgment." Relying on Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027 (Alaska 1972), overruled on other grounds by City & Borough of Juneau v. Thibodeau, 595 P.2d 626, 628-29 (Alaska 1979), Borg-Warner concludes that the court's "decretal" language should control. In Greater Anchorage Area Borough, we decided that when determining whether a judgment is "final" for the purposes of appeal, the trial court should look to the substance and effect, rather than form, of the rendering court's judgment and focus primarily on the operational or "decretal" language therein. 504 P.2d at 1030-31. A "final" judgment is one that disposes of the entire ease and ends the litigation on the merits. Id. Since the court's memorandum decision is not appeal- able without entry of judgment, Borg-Warner concludes that the memorandum decision is not sufficiently "final" for collateral estoppel to apply. In our opinion, the finality requirement does not necessarily require the entry of a final judgment. The Fifth Circuit has discussed in great detail the "finality" requirement for collateral estoppel under the federal rules. Chemetron Corp. v. Business Funds, Inc., 682 F.2d 1149, 1190—92 (5th Cir.1982), vacated on other grounds, 460 U.S. 1007, 103 S.Ct. 1245, 75 L.Ed.2d 476 (1983), cert. denied sub nom. Binliff v. Chemetron Corp., 460 U.S. 1013, 103 S.Ct. 1254, 75 L.Ed.2d 483 (1983). Chemetron discusses the effect of earlier securities fraud litigation on a current action involving the same defendant, Bignall, but a different plaintiff. At the close of the earlier trial, the judge filed a lengthy memorandum decision detailing his findings of fact and conclusions of law, and awarded substantial money damages to plaintiff Cosmos Bank. Before final judgment was entered, the parties settled the case. Although the judge refused to approve a proposed order preventing the use of the memorandum decision for collateral estoppel purposes, it withdrew the memorandum decision when it dismissed the case with prejudice. Id. at 1187-88. In the later, related action, Chemetron sued Big-nall and sought to collaterally estop him from relitigating certain factual issues adjudicated adversely to him in the Cosmos Bank litigation. Id. at 1188. The trial court denied Chemetron's proposal, but the Fifth Circuit reversed, observing that the finality requirement does not necessarily demand the ministerial act of executing a judgment. It does not elevate form over substance in that fashion — the accurate definition of "finality" in the offensive collateral estoppel context is "fully litigated." Id. at 1191. The Fifth Circuit also noted that finality in the collateral estoppel context "may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again." Id. (quoting Zdanok v. Glidden Co., Durkee Famous Food Div., 327 F.2d 944, 955 (2d. Cir.1964)). The Fifth Circuit concluded that the decision to apply collateral estoppel is within the discretion of the trial court, although this discretion must be tempered by principles of fairness in light of the circumstances in each particular case. Id. We adopt the Fifth Circuit's reasoning in Chemetron and conclude that appealability is not a necessary prerequisite to "finality" for the purpose of collateral estoppel. In the absence of an ap-pealable decision, the test is whether the issue has been "fully litigated." In this case, the Swanson claims were tried before Judge Hodges between November 21 and December 5, 1989. Judge Hodges filed a 74-page memorandum decision and his findings concerning the nature of Borg-Warner's conduct were necessary and essential to that decision. While the parties were disputing the wording of the final judgment order, they agreed to settle the case. Judge Hodges specifically declined to withdraw the memorandum decision af ter settlement. It is hard to imagine any case more "fully litigated" in the absence of a final judgment. Thus Borg-Warner is precluded from re-litigating the nature of its conduct (i.e., that its conduct was "outrageous" and in "reckless disregard of the rights of others"). However, Borg-Warner is not bound by the trial court's finding that it was more than 50% at fault. The issue of relative fault between Borg-Warner and the third-party defendants was not properly before the trial court in the Swanson trial. See Bignell v. Wise Mechanical Contractors, 720 P.2d 490, 494 (Alaska 1986) (to warrant collateral estoppel, an issue must have been actually litigated and determined, and the determination must have been essential to the court's decision); Shanley v. Callanan Indus., Inc., 54 N.Y.2d 52, 444 N.Y.S.2d 585, 587, 429 N.E.2d 104, 106 (1981) (for collateral estop-pel to apply, it must be clear that a previous determination squarely addressed and specifically decided the issue; where nature of the decision makes it not clear whether litigant was afforded his day in court, then collateral estoppel is inappropriate). III. CONCLUSION For the above reasons, we hold that the trial court erred in construing AS 09.16.-010(c) to bar "wilful and wanton" tortfea-sors as well as "intentional" tortfeasors from seeking contribution. Such a broad reading is inconsistent with the principles of comparative negligence underlying the 1986 Tort Reform Act (AS 09.17). We therefore remand this case to the trial court for trial on Borg-Warner's contribution claims. In this trial, Borg-Warner is not bound by the trial court's calculation of its relative share of fault since this issue was not properly before the court in the Swanson trial. However Borg-Warner is bound by the trial court's findings concerning its conduct toward Swanson because Borg-Warner had a full and fair opportunity to litigate this issue. AFFIRMED in part, and REMANDED in part for proceedings consistent with this opinion. . Swanson's airplane was manufactured by Piper Aircraft Corporation ("Piper"). The engine was manufactured by Avco Corporation ("Avco"). The engine was equipped with a carburetor manufactured by Marvel-Schebler, a division of Borg-Warner ("Borg-Warner"). The carburetor float was manufactured by Rogers Corporation ("Rogers"). At the time of the accident, the plane was operating on auto-gas, pursuant to a Supplemental Type Certificate issued by Petersen Aircraft ("Petersen"). . Swanson presented evidence showing (1) that Borg-Warner had become aware of problems with the Rogers composite float as early as 1966; (2) that Borg-Warner had determined in the 1970s that these problems resulted from a manufacturing defect which caused the carburetor float to absorb fuel, become heavy and sink; (3) that Borg-Warner concealed this information from the FAA, Avco, Piper and the general public, and continued to assert that the carburetor problems were caused by the use of auto-gas in aircraft. .The trial court determined that the pilot and airplane mechanic were not negligent. . Under the version of AS 09.17.080(d) in effect at the time of the accident, a tortfeasor was jointly and severally liable unless the tortfeasor was less than 50% at fault. The trial court found that Borg-Warner was at least 50% at fault, but did not allocate a specific percentage of fault to any of the third-party defendants. . Apparently Petersen also moved for summary judgment. However, neither his motion nor the court's subsequent ruling is included in the record on appeal. . In 1986, AS 09.16.010(c) provided that "[tjhere is no right of contribution in favor of any tort-feasor who has intentionally caused or contributed to the injury or wrongful death." . Piper is not a party to this appeal because in July 1991 the United States Bankruptcy Court entered an automatic stay order pursuant to 11 U.S.C. § 362. . The interpretation of a statute is a question of law, subject to this court's independent judgment on review. Norton v. Alcoholic Beverage Control Bd., 695 P.2d 1090, 1092 (Alaska 1985). . Subsection (d) was changed effective March 5, 1989 to provide: The court shall enter judgment against each party liable on the basis of several liability in accordance with the party's percentage of fault. Because this cause of action arose in September 1986, this amendment does not apply to this case. . Borg-Warner's reliance on our decision in Lake v. Constr. Mach., Inc., 787 P.2d 1027 (Alaska 1990), is misplaced. In Lake, an employee was injured when he fell from a manlift in the course of his employment. The worker subsequently brought a products liability action against the manufacturer, the distributor and several intermediate vendors of the manlift. The distributor joined the employer as a third-party defendant under an express indemnity agreement. Before the trial court, the distributor asserted that the finder of fact was required to attribute negligence among all the parties allegedly responsible for the worker's injury, including the employer, pursuant to the rule of modified joint and several liability found in AS 09.17.080(d). The worker sought to strike this defense on the grounds that the exclusive liability provision of the Workers' Compensation Act precluded the trier of fact from considering the negligence of the employer. Id. at 1028. We held that the distributor could not reduce its total liability to the worker in proportion to the percentage of any negligence attributable to the third-party employer under the exclusive liability provision, but that the distributor was entitled to bring in evidence of the employer's negligence to prove either that the employer was entirely at fault or that the employer's fault was a superseding cause of the injury. Id. at 1029, 1031. We did not hold, as Borg-Warner suggests, that third-party claims must be joined to the underlying suit to allow the trier of fact to make a single allocation of fault. .AS 09.16 was repealed effective March 5, 1989. Because this cause of action arose in September 1986, the circumstances of the act's repeal is of no consequence here. Although the parties do not argue this point, it seems evident that much of the contribution áct was superseded by the enactment of the Tort Reform Act in 1986. Since the Tort Reform Act became effective before the accident underlying this case, it applies to this case. Whereas the contribution act allocated damages among tort-feasors on a per capita basis, the Tort Reform Act does so "in accordance with the respective percentages of fault." AS 09.17.080(c). Since AS 09.17.080(c) governs this case, it would seem to follow that it is the definition of fault under the Tort Reform Act which presents the critical question in this case rather than the meaning of "intentionally caused" under the contribution act. However, as explained below, the result is the same in either case. . Statutory construction begins with an analysis of the language of the statute construed in view of its purpose. Peninsula Marketing Ass'n v. State, 817 P.2d 917, 920 (Alaska 1991). The plainer the language of the statute, the more convincing any contrary evidence must be. Id. at 922. . The equivalent provision to AS 09.16.010(c) in the Uniform Act reads: There is no right of contribution in favor of any tortfeasor who has intentionally [wilfully or wantonly] caused or contributed to the injury or wrongful death. Uniform Contribution Among Tortfeasors Act, § 1(c), 12 U.L.A. 65 (1955). .The Supreme Court of California discussed the issue whether comparative negligence should be applied where a defendant was found to have acted in a wilful and wanton manner in Li v. Yellow Cab Co. of Cal., 13 Cal.3d 804, 119 Cal.Rptr. 858, 873, 532 P.2d 1226, 1241 (1975). The Li court stated: Finally there is the problem of the treatment of willful misconduct under a system of comparative negligence.... The thought is that the difference between willful and wanton misconduct and ordinary negligence is one of kind rather than degree in that the former involves conduct of an entirely different order, and under this conception it might well be urged that comparative negligence concepts should have no application when one of the parties has been guilty of willful and wanton misconduct. It has been persuasively argued, however, that the loss of deterrent effect that would occur upon application of comparative fault concepts to willful and wanton misconduct as well as ordinary negligence would be slight, and that a comprehensive system of comparative negligence should allow for the apportionment of damages in all cases involving misconduct which falls short of being intentional. Id. (footnote omitted). We find the latter logic more persuasive. . The applicability of the doctrine of collateral estoppel is a question of law subject to independent review. Rapoport v. Tesoro Alaska Petroleum Co., 794 P.2d 949, 951 (Alaska 1990). . In so holding, this court adopts the position of the Restatement (Second) of Judgments § 13. . The United States Supreme Court vacated and remanded the original panel action in Chemetron. The panel opinion on remand was in turn ordered reheard en banc and thus vacated. After the case was taken en banc, the parties settled and the litigation was terminated. For this reason, the Fifth Circuit does not regard Chemetron as binding precedent. Avondale Shipyards, Inc. v. Insured Lloyd's, 786 F.2d 1265, 1273 n. 11 (5th Cir.1986). The Fifth Circuit has also been reluctant to extend Cheme-tron beyond its facts. Id. We find the Cheme-tron analysis compelling and its application to this case proper. .Borg-Warner argues that applying collateral estoppel in cases such as this will undermine Alaska's policy favoring settlements. We disagree. Preventing duplicative litigation by the application of collateral estoppel also serves the interests of judicial economy. See Chemetron, 682 F.2d at 1190 (observing that the reason for policy favoring settlements is that they avoid litigation; this policy does not apply when the entire trial had run its course and only the entry of adverse judgment remains).

10356738

Don NOFFSINGER, Appellant, v. STATE of Alaska, Appellee

Noffsinger v. State

1993-04-23

No. A-4409

647

651

850 P.2d 647

850

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:23:50.545071+00:00

CAP

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

Don NOFFSINGER, Appellant, v. STATE of Alaska, Appellee.

Don NOFFSINGER, Appellant, v. STATE of Alaska, Appellee. No. A-4409. Court of Appeals of Alaska. April 23, 1993. Susan M. Carney, Asst. Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellant. Daniel R. Cooper, Jr., Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1912

12268

OPINION BRYNER, Chief Judge. Don P. Noffsinger pled no contest to and was convicted of a single count of second-degree theft, in violation of AS 11.46.-130(a)(1). Superior Court Judge Mary E. Greene suspended the imposition of Noff-singer's sentence on condition that he serve ninety days in jail, pay $8,300 restitution, and complete five years of probation. On appeal, Noffsinger challenges the restitution order on several grounds. We affirm. Noffsinger's conviction stemmed from his theft of gold from several of the sluice boxes at a gold mine in the Deadwood Creek area, near Central. During the theft, Noffsinger was accompanied by another man, Jeffrey R. Hunt. When the Alaska State Troopers arrested Noffsinger and Hunt several days after the theft, they recovered approximately four ounces of stolen gold. In interviews with the troopers and, subsequently, with the probation officer who wrote the presentence report, Noffsinger alleged that the gold recovered upon his arrest constituted approximately half of the total gold stolen. Relying on an apparently undisputed value of $267.50 per ounce, Noffsinger estimated that all of the stolen gold was worth approximately $2,000. The owners of the mine disputed Noff-singer's estimate. In testimony at the sentencing hearing, George W. Seuffert, Jr., estimated that a total of about thirty-five ounces of gold had been taken by Noffsinger and Hunt. Seuffert, a geological engineer and part owner of the mine where the theft occurred, had five years' experience working the mine's sluice boxes and described himself as "fairly good at reading" them. Seuffert testified that Noffsinger and Hunt took the gold that had accumulated on "the top carpets on the side [sluice] boxes, and those are by far the richest, particularly one on the right side facing down the sluice." According to Seuffert, on the evening before the theft, he had observed a substantial amount of gold accumulating in the sluice boxes, which had been operating for about a week without being cleaned out. On the day after the theft, the owners of the mine cleaned the remaining gold out of all of the mine's sluice boxes; their efforts yielded a total of approximately sixty-five ounces of gold. Based on his experience with the mine's operations, his pre-theft observations, and the quantity of gold remaining after the theft, Seuffert estimated that the thieves had stolen thirty-five ounces of gold. Noffsinger did not testify at the sentencing hearing, relying instead on his claims to the troopers and to the author of the pre-sentence report that the four ounces of gold seized by the troopers represented about half of the total amount stolen. Noffsinger argued at the sentencing hearing that these claims were more credible than Seuffert's speculative extrapolation. Judge Greene, however, found Seuffert's estimate credible and concluded that "it's more likely true than not true that right around 35 ounces of gold were taken." Deducting the four ounces of gold recovered by the troopers, and multiplying the remainder by $267.50, Judge Greene calculated the value of the unrecovered gold to be approximately $8,300. The judge ordered Noffsinger to pay the full amount of restitution, noting that he would be jointly and severally liable with his accomplice, Hunt (who had absconded and whose whereabouts were unknown). On appeal, Noffsinger first claims that Judge Greene did not properly determine the amount of restitution. He alleges, initially, that the judge failed to make an adequate inquiry into his ability to pay. See Ratliff v. State, 798 P.2d 1288, 1293 (Alaska App.1990). However, the presen-tence report contained a full account of Noffsinger's employment history and summarized his financial condition at the time of the offense. Although Noffsinger actively disputed the correct amount of restitution, at no point did he raise any question concerning his ability to pay; in fact, Noff-singer affirmatively urged the court to impose restitution in the amount he estimated to be correct. There is nothing in the record indicating that Noffsinger cannot realistically be expected to pay the $8,300 in restitution over the course of his five-year probationary term. Given the totality of the circumstances, we conclude that further inquiry into Noffsinger's ability to pay was unnecessary. Noffsinger further alleges that there was insufficient evidence to support the court's finding that thirty-five ounces of gold were taken in the theft. An award of restitution must be supported by substantial evidence. Harris v. State, 678 P.2d 397, 408 (Alaska App.1984), rev'd on other grounds, Stephan v. State, 711 P.2d 1156 (Alaska 1985). If uncertainty exists, the appropriate amount for restitution must be proved by a preponderance of the evidence. See Brakes v. State, 796 P.2d 1368, 1372 n. 5 (Alaska App.1990). When the accused, on appeal, challenges the sufficiency of the evidence as to restitution, this court does not pass on issues of credibility, which remain within the sole province of the sentencing court. See Anthony v. State, 521 P.2d 486, 492 (Alaska 1974). Instead, as in other situations involving claims of insufficient evidence, we construe the record in the light most favorable to the state and determine whether a reasonable fact-finder could conclude that the disputed amount of restitution was established by a preponderance of the evidence. Noffsinger argues that Seuffert's extrapolation of the amount of gold stolen was too speculative to rely on. Noffsinger points out that Seuffert never established precisely how he arrived at his estimate. Yet Noffsinger failed to object to Seuf-fert's testimony on the ground that it was speculative — or, for that matter, on any other ground. Noffsinger also failed to request that Seuffert's expertise be established with greater particularity. Despite the opportunity for cross-examination, Noffsinger failed to question Seuffert about the precise manner in which he calculated that thirty-five ounces of gold had been taken. From the current record, it appears that Seuffert's testimony was based not on speculation but rather on a combination of his extensive experience at the mine and his personal observations, both pre- and post-theft. Judge Greene was not clearly erroneous in relying on this testimony as a basis for the restitution award. Noffsinger next challenges the sentencing court's decision to hold him jointly and severally liable for the full amount of restitution. He relies on AS 09.17.080(d), a recently enacted provision of Alaska's Code of Civil Procedure that precludes joint and several liability in civil tort actions and requires, instead, that judgment in such cases be entered "against each party liable on the basis of several liability in accordance with that party's percentage of fault." This provision, however, has no direct bearing in the criminal context, where the court's authority to'require payment of restitution exists independently of its authority to order payment of damages in civil matters. See AS 12.55.-045(b). Noffsinger nevertheless proposes that this court should, as a matter of sound policy, extend to the criminal context the statutory prohibition against joint and several liability for civil cases. As the sole basis for this proposal, Noffsinger cites a recent law review article on restitution in criminal cases that comments, in passing: "It would seem . certain that criminal defendants are entitled to the benefits of the 'tort reform' package enacted as a result of Alaska's 1988 election, including the end of routine joint and several liability orders in cases involving codefendants." C.R. Pengilly, Restitution, Retribution, and the Constitution, 7 Alaska L.Rev. 333, 345 (1990) (footnote omitted). In advancing this proposition, however, the article Noffsinger relies on is as conclusory as Noffsinger's own argument. The legislature presumably enacted AS 09.17.080(d) to counter what it saw as the potential inequity of applying joint and several liability in the tort context; this inequity consists in large measure of the fact that, among several independently negligent parties whose conduct combines to cause an injury, the party who is capable of paying — although only partially responsible — will end up paying the full award. The scope of such inequity diminishes considerably in the criminal context. Restitution awards in criminal cases are expressly limited by statute to actual damages. See AS 12.55.045. Furthermore, unlike the civil context, restitution in criminal cases serves multiple purposes: in addition to compensating the victim, it can further the rehabilitation of the defendant, deter the defendant and others, and express the community's condemnation of the defendant's crime. Finally, and perhaps most significantly, a restitution award in a criminal case does not represent compensation for harm resulting from an act of ordinary negligence; rather, it must be predicated on an act committed with a culpable mental state falling so far beyond the pale of ordinary negligence as to merit criminal sanction. We need not decide whether joint and several liability for restitution should be permitted in all criminal cases or when such liability might be impermissible. Here, Noffsinger intentionally stole the property of another. Although Noffsinger was accompanied by a confederate, in no realistic sense did Noffsinger's acts cause only a limited portion of the loss, and in no realistic sense was he only partially at fault. Any attempt to divine Noffsinger's "percentage of fault" in these circumstances would be a feckless exercise that would only serve to reward Noffsinger for electing to commit his crime in the company of an accomplice. Hunt, Noffsinger's accomplice, has apparently absconded and may remain unavailable as a source of restitution. The resulting policy question, as we see it, is this: as between Noffsinger and his victim, who should bear the risk of Hunt's continued unavailability to make restitution? In context, we believe the answer self-evident, and we find no abuse of discretion in the trial court's decision to hold Noffsinger jointly and severally liable for the full amount of restitution. Noffsinger lastly argues that Judge Greene erred in the course of her sentencing remarks by warning that if Noffsinger did not make restitution as ordered, "I'll guarantee that . I won't set your [suspended imposition of sentence] aside — it won't set the conviction aside." Noffsinger takes issue with this comment, noting that only willful failure to pay restitution can justify revoking probation and imposing sentence on a defendant who is required to pay restitution as a condition of a suspended imposition of sentence. See Lominac v. Anchorage, 658 P.2d 792, 794 (Alaska App.1983). We do not, as does Noffsinger, interpret Judge Greene's remarks as threatening action regardless of Noffsinger's ability to pay. Moreover, the action threatened by Judge Greene appears at most to be. denial of a set-aside order under AS 12.55.085(e), not revocation of probation and imposition of sentence, as was the case in Lominac. This court has never had occasion to consider whether non-willful failure to pay restitution might constitute good cause for denial of a set-aside. Apart from citing Lominac, which is inapposite, Noffsinger has provided us with no meaningful briefing on this subject. If Noffsinger successfully completes his probation but is unable to make restitution despite good faith efforts, and if, as a consequence, Judge Greene declines to set aside his conviction, Noffsinger will have the right to an appeal, and the issue will be fully ripe. As the cases stands now, however, we find Noff-singer's claim premature and far too speculative to warrant a decision. The sentence is AFFIRMED.

10408783

Michael E. ALLEY, Appellant, v. STATE of Alaska, Appellee

Alley v. State

1985-08-09

No. A-368

233

237

704 P.2d 233

704

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:21:28.159013+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Michael E. ALLEY, Appellant, v. STATE of Alaska, Appellee.

Michael E. ALLEY, Appellant, v. STATE of Alaska, Appellee. No. A-368. Court of Appeals of Alaska. Aug. 9, 1985. Charles R. Pengilly, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellant. Cynthia M. Hora, Assistant Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1843

11962

OPINION SINGLETON, Judge. Michael E. Alley pled nolo contendere and was(i convicted of forgery in the third degree, a class A misdemeanor. AS 11.46.-510(a)(3). He was subsequently convicted after a bench trial of misconduct involving a controlled substance in the fourth degree, AS 11.71.040(a)(9), based on an allegation that he obtained oxycodone, a controlled substance, by uttering a forged prescription. Misconduct involving a controlled substance in the fourth degree is a class C felony. Both offenses involve the same transaction. Judge Van Hoomissen sentenced Alley to ninety days' imprisonment for forgery in the third degree and four years with all but ninety days suspended for misconduct involving a controlled substance in the fourth degree. The two sentences were made concurrent. Alley sought dismissal of the felony charge arguing that under the circumstances the misdemeanor forgery was a lesser-included offense of the felony obtaining a controlled substance by false pretenses. Therefore, he argued, entry of judgment on his plea of nolo contendere to the misdemeanor barred further prosecution for the felony. See Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187, 196 (1977). Alternatively, he argued if separate convictions were permissible, separate punishments were not. Tuckfield v. State, 621 P.2d 1350, 1352 (Alaska 1981). Judge Van Hoomissen denied Alley's motion to dismiss the felony charges and he appeals. We affirm Alley's felony conviction. Alley concedes that under current federal constitutional law his plea of nolo contendere to misdemeanor forgery would not preclude a subsequent conviction for misconduct involving a controlled substance in the fourth degree based upon the same conduct even if the former was a lesser-included offense of the latter. See Ohio v. Johnson, — U.S.—, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). He nevertheless argues that we should interpret our Alaska Constitution's protections against double jeopardy more broadly than the federal provision. We are satisfied that Alaska constitutional law does not preclude trial on a greater offense after conviction of a lesser offense where the two offenses are charged together and an intervening plea to the lesser offense or mistrial on the greater offense precludes the state from having a jury pass on the greater offense. See, e.g., Staael v. State, 697 P.2d 1050 (Alaska App.1985), petition for hearing granted (Alaska, July 15, 1985); Hughes v. State, 668 P.2d 842 (Alaska App.1983); see also Dresnek v. State, 697 P.2d 1059 (Alaska App.1985), petition for hearing granted (Alaska, July 15, 1985). A defendant's protection against double jeopardy is best served by having the state include all offenses of which it is aware in a single charging document. The state would be discouraged from doing this if a defendant, by exercising his right to plead nolo contendere to lesser-included misdemeanor charges, could thereby bar conviction on felony charges contained in the same indictment. We therefore reject Alley's double jeopardy argument. Nevertheless, even though prosecution for the greater offense would not be barred by the double jeopardy clause, multiple punishment for a greater offense and a lesser-included offense do violate Alaska constitutional law. See Tuckfield v. State, 621 P.2d at 1352. While Alley received concurrent sentences, this fact does not overcome the double jeopardy bar. Whitton v. State, 479 P.2d 302, 314 (Alaska 1970) (where two sentences are imposed for the same offense, even though they are for the same period of time and run concurrently, the constitutional prohibition against double jeopardy has been violated). Having reviewed the record and the party's arguments, we are satisfied that Judge Van Hoomissen erred in concluding that misdemeanor forgery and obtaining a controlled substance by forgery are separate offenses which in an appropriate case permit separate sentences. AS 11.46.510(a)(3) provides: A person commits the crime of forgery in the third degree if, with intent to defraud, the person (3) knowingly utters a forged instrument. AS 11.46.580(b)(2) defines "utter" as "to issue, deliver, publish, circulate, disseminate, transfer or tender a written instrument or other object to another." AS 11.71.040(a)(9) provides: [A] person commits the crime of misconduct involving a controlled substance in the fourth degree if the person (9) obtains possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge. In Whitton, the supreme court established a flexible test for determining when separate statutory violations constitute the same offense for double jeopardy purposes such that only one sentence may be imposed. The court required that trial courts considering the issue focus upon the quality of the differences, if any exist, between the separate statutory offenses, as such differences relate to the basic interests sought to be vindicated or protected by the statutes. The trial judge first would compare the different statutes in question, as they apply to the facts of the case, to determine whether there were involved differences in intent or conduct. He would then judge any such differences he found in light of the basic interests of society to be vindicated or protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments. The social interests to be considered would include the nature of personal property or other rights sought to be protected, and the broad objectives of criminal law such as punishment of the criminal for his crime, reha bilitation of the criminal, and the prevention of future crimes. 479 P.2d at 312. On these facts misdemeanor forgery and obtaining a controlled substance by deception involve only slightly different conduct. The first is satisfied by the presentment of the forged prescription. The latter involves the additional act of receiving the drugs. Nevertheless, the two statutes address the same societal interests. It is true that the forgery statute serves the societal interest of preserving the integrity of negotiable instruments. Harris v. State, 678 P.2d 397, 408 (Alaska App.1984), rev'd, on other grounds 705 P.2d 410 (Alaska Supreme Court Order, February 1, 1985) (opinion to follow), while the controlled substance statute protects the community's interest in regulating the availability and distribution of dangerous drugs in the community. Closer examination, however, reveals that the forgery statute, to the extent that it includes forgery of prescriptions, is intended to protect the same societal interest, namely regulation of the availability of harmful drugs. Since the two statutory violations constituted a single offense, separate punishments were inappropriate. The foregoing analysis is supported by consideration of our recent decisions dealing with the cognate approach to lesser-included offenses. See, e.g., Marker v. State, 692 P.2d 977 (Alaska App.1984), and Minano v. State, 690 P.2d 28, 30-31 (Alaska App.1984), petition for hearing granted (Alaska, January 22, 1985). Under the cognate approach the court must still examine the statutory elements of the offenses as a means of determining lesser-included offenses. Here felony statute AS 11.71.040(a)(9) specifically refers to obtaining drugs by forgery as a means of committing the offense of misconduct involving a controlled substance in the fourth degree. Under these circumstances the misdemean- or forgery, AS 11.46.510(a)(3), is a lesser-included offense of the felony obtaining drugs by forgery. See Tuckfield, 621 P.2d at 1352 (distinguishing Whitton on similar reasoning). Further, in Marker, we noted cases from other jurisdictions dealing with the cognate approach to Iesser-included offenses. Cases decided in other jurisdictions strongly suggest that the cognate approach should be applied realistically, not restrictively, and that, even if the jury could theoretically convict of the charged offense without also convicting of the lesser, a Iesser-included offense instruction may be appropriate when: (1) the evidence relied on by the state would support conviction of a lesser offense, (2) the lesser offense is inherently related to the offense charged, so that proof of the greater would ordinarily — but not invariably — entail proof of the lesser, and (3) the accused's theory of defense is not inconsistent with conviction of the lesser and acquittal of the greater. 692 P.2d at 983 (citations omitted). Close examination of the Marker/Minano rule establishes that it is quite consistent with Whitton. For as the Supreme Court of California pointed out in discussing the second prong of the test, [Tjhere must also be an "inherent" relationship between the greater and lesser offenses, i.e., they must relate to the protection of the same interests, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the' lesser offense is necessarily presented as part of the showing of the commission of the greater offense. This latter stipulation is prudently required to foreclose a tendency which might otherwise develop towards misuse by the defense of such rule. In the absence of such restraint defense counsel might be tempted to press the jury for leniency by requesting lesser included offense instructions on every lesser crime that could arguably be made out from any evidence that happened to be introduced at trial. People v. Geiger, 674 P.2d 1303, 1308-09 (Cal.1984), quoting United States v. Whitaker, 447 F.2d 314, 319 (D.C.Cir.1971). The requirement that lesser-included offenses have an inherent relationship such that they relate to the protection of the same interests reflects the same concern voiced in Whitton that separate statutory offenses to be considered the same offense must protect the same societal interest. The two offenses here violate the same societal interest. Consequently, we remand with instructions to vacate Alley's conviction and sentence on the lesser charged forgery in the third degree. The case is REMANDED with instructions to vacate the conviction and sentence for forgery, but the judgment is otherwise AFFIRMED. . We recognize that the situation presented by the two offenses charged against Alley bears a superficial resemblance to the situation which exists when a person is separately charged with forging an instrument and uttering the instrument as a means of obtaining property by false pretenses. At common law separate convictions and punishments were allowed for these two crimes. W. LaFave & A. Scott, Criminal Law at 671-72 (1972) ("much as one who breaks and enters a dwelling house with intent to steal, and then does steal, is guilty of both burglary and larceny"). The commentary to the Model Penal Code suggests that the same rule would apply under the revised code. Model Penal Code § 224 commentary at 283-84 (1980). While forgery and obtaining property by false pretenses are separate crimes, we are satisfied that forgery and obtaining drugs by forgery are not. Forgery jeopardizes the community's interest in the integrity of negotiable instruments which would be jeopardized even if the defendant failed to obtain any property while a theft offense would in addition violate society's interest in protecting property. In contrast, Alley has violated but one societal interest by his two offenses: regulation of the availability of dangerous drugs. Consequently, but one conviction and punishment are authorized.

10415577

Richard CLARK, Appellant, v. STATE of Alaska, Appellee; Lucy CLARK, Appellant, v. STATE of Alaska, Appellee

Clark v. State

1985-08-09

Nos. 7773, 7815

799

806

704 P.2d 799

704

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:21:28.159013+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Richard CLARK, Appellant, v. STATE of Alaska, Appellee. Lucy CLARK, Appellant, v. STATE of Alaska, Appellee.

Richard CLARK, Appellant, v. STATE of Alaska, Appellee. Lucy CLARK, Appellant, v. STATE of Alaska, Appellee. Nos. 7773, 7815. Court of Appeals of Alaska. Aug. 9, 1985. John Marston Richard, Anchorage, for appellant Richard Clark. Kathleen Strasbaugh, Asst. Public Defender, Barrow, and Dana Fabe, Public Defender, Anchorage, for appellant Lucy Clark. Michael S. McLaughlin, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3753

22911

OPINION COATS, Judge. This is the consolidated appeal of Lucy and Richard Clark who were convicted, following a joint trial, of possession of marijuana for purpose of sale in violation of former AS 17.12.010. Evidence introduced against them at trial included marijuana, baggies, cash, and a set of weighing scales seized at their residence in Barrow in execution of a search warrant on February 27, 1982. The warrant was issued by a magistrate based on the sworn statement of Public Safety Officer Jeff Deutsch concerning information given him by informant Henry Kignak. We hold that the sworn statement was insufficient to allow the magistrate to make an independent probable cause determination, and reverse the Clarks' conviction. We address several other points the Clarks raise on appeal since these are likely to arise again in the event this case again comes to trial. Jeff Deutsch was employed as a Public Safety Officer beginning July 1981. In the course of his employment, Deutsch occasionally brought injured people to the hospital in Barrow. In January or February of 1982, Deutsch met Kignak, who worked at the hospital. Kignak visited Deutsch at home on more than one occasion, and on one such occasion on the 21st or 22nd of February 1982, agreed to give Deutsch information concerning drug sales in Barrow. Kignak was from Barrow, but had just recently returned after living in Fairbanks. He was eighteen years old and on probation for theft offenses. Five days after Kignak agreed to provide Deutsch with information, Deutsch applied to Magistrate Jeanne Cross for a search warrant giving the following sworn testimony: 1. Your affiant, Jeff Deutsch, is a Public Safety Officer with the North Slope Borough and has been so employed since July 13, 1981. 2. Your affiant is investigating the sale of marijuana on the part of Rick Clark. 3. Your affiant has participated in the investigation of approximately half a dozen drug law violation cases during his course of employment. 4. On February 27, 1982 at about 8:40 a.m. your affiant received information from a confidential informant, ID#JDD1. Your affiant has received information from this informant in the past and has found this information to be accurate and reliable. 5. Your affiant was advised by ID#JDD1 on February 27th, 1982 at approximately 8:42 A.M. that: a. At about 7:00 P.M. on Friday the 26th of February 1982, he went to a single story, unpainted residence at Block 13, on Lot 3 owned by Ernest Kignak and rented by Rick Clark. b. He was taken to the residence by a friend for the purpose of purchasing marijuana. c. He purchased marijuana on February 26, 1982 at approximately 7:00 p.m. d. He purchased the marijuana inside the residence rented by Rick Clark. e. He purchased the marijuana for $300.00 with (3) one-hundred dollar bills. f. He purchased the marijuana from an individual who he knows as Rick Clark, who is employed at the Sanitation Department. g. He smoked a portion of the marijuana and experienced a feeling he described as "high". h. He observed Clark go into the bedroom of the residence and take quantity of marijuana from a larger bag containing marijuana. 6. Your affiant personally knows that by smoking marijuana a euphoric feeling is experienced, commonly described as getting "high". 7. Your affiant was advised by Officer Lew Wood that he personally knows Rick Clark to be employed by the North Slope Sanitation Department on February 27, 1982 at 5:20 P.M. 8. Your Affiant was advised by Lew Wood on February 27, 1982 at 5:20 p.m. that he personally knows that Rick Clark has been the subject of drug investigations by the North Slope Department of Public Safety in the past. 9. Your Affiant was advised by Lew Wood on February 27, 1982 at 5:20 p.m. that he personally knows the Ernest Kig-nak residence to be located on the west side of the intersection of Tahak Street and Karluk Street and that it is a single story frame dwelling, unpainted, with the door way facing the beach between the Kenneth Brower, Sr. residence and the Arnold Brower Sr. residence, Block 13, Lot 3. 10. Your affiant prays for the issuance of a daytime search warrant for the residence of Rick Clark as your affiant believes that such a search will result in the recovery of evidence to support a charge of sale of drugs. The warrant was granted and executed on the 27th and incriminating items were seized. During the course of the search Lucy Clark was asked to open a locked footlocker, which she declined to do until the officers indicated they would cut the lock off with bolt cutters. The Clarks were subsequently indicted. The defendants moved to dismiss the indictment because of improper grand jury composition, arguing that because Fairbanks had been designated as a special situs of the grand jury, Inupiat people were systematically excluded. This motion was denied. The Clarks also moved for suppression of all items seized pursuant to execution of the search warrant. This motion was denied, and denied again after the taking of further evidence on reconsideration. At trial, testimony was received that Lucy Clark initially refused to unlock the footlocker. The prosecution commented on this refusal in its opening statement and closing argument. I. The Clarks contend that the grand jury which indicted them systematically excluded Inupiat people, violating their rights to equal protection under the law. They claim such exclusion was the result of convening the grand jury in Fairbanks rather than in Barrow. We rejected an identical argument in Brower v. State, 683 P.2d 290 (Alaska App.1984). Brower is controlling here. II. The Clarks contend that evidence presented against them was obtained by an illegal search and seizure which violated their rights under the fourth amendment of the United States Constitution and article I, section 14 of the Alaska Constitution. Both provisions guarantee protection against unreasonable search and seizure. Specifically, they argue that information presented to the magistrate issuing the search warrant was insufficient to support the magistrate's probable cause finding. We agree. The sufficiency of an informant's tip as the basis for a finding of probable cause supporting the issuance of a search warrant has long been evaluated according to the test formulated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509. 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). See Kralick v. State, 647 P.2d 1120 (Alaska App.1982). This test requires that the magistrate be informed sufficiently concerning both (1) the informant's basis of knowledge and (2) the veracity of the information provided, shown either by indications of the informant's credibility or of the information's credibility. Id. at 1123. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court held that the two prongs of the Aguilar-Spinelli test were factors in the inquiry of whether, under the totality of the circumstances, there is probable cause to believe that contraband or evidence is located in a particular place. 462 U.S. at 230 and n. 6, 103 S.Ct. at 2328 and n.6, 76 L.Ed.2d at 543 and n.6. Under the Gates approach, the two prongs need not be independently satisfied in all cases to comply with the fourth amendment. In this case we find that the requirements of neither the Aguilar-Spinelli test nor of Illinois v. Gates are satisfied. The "basis of knowledge" prong of the Aguilar-Spinelli test is satisfied by an averment that the informant is passing on what is to him first-hand information. 1 W.LaFave, Search and Seizure, section 3.3 at 536 (1978). See Stanley v. State, 19 Md.App. 507, 313 A.2d 847 (1974). In this case, the informant's knowledge was allegedly obtained by first-hand observation. Thus, this prong is satisfied. It is the "veracity" prong which this sworn statement fails to satisfy. The state urges us to apply a relaxed standard for the veracity showing in this case, arguing that Kignak was a "citizen informant." In Erickson v. State, 507 P.2d 508, 517-18 (Alaska 1973), the court delineated the approach to be taken in evaluating the trustworthiness of "citizen informers:" When information is provided by a cooperative citizen, or an informant not from the criminal milieu there is less need for establishing credibility of the informant. The court in State v. Paszek, [50 Wis.2d 619, 184 N.W.2d 836 (1971) ] stated: A different rationale exists for establishing the reliability of named 'citizen-informers' as opposed to the traditional idea of unnamed police contacts or informers who usually themselves are criminals. Information supplied to officers by the traditional police informer is not given in the spirit of a concerned citizen, but often is given in exchange for some concession, payment, or simply out of revenge against the subject. The nature of these persons and the information which they supply convey a certain impression of unreliability, and it is proper to demand that some evidence of their credibility and reliability be shown. One practical way of making such a showing is to point to accurate information which they supplied in the past. An ordinary citizen who reports a crime stands on a much different footing. He acts with an intent to aid the police in law enforcement because of a concern for society or his own safety. Since the citizen informer often provides information only once, there is little opportunity to establish credibility or reliability in the most common manner — comparison with accurate information provided in the past. We hold that a valid arrest may be made on information provided by a "citizen informer" and that the informer's prior reliability need not be established before the arrest. The only caveat placed on such a rule is that some of the details of the information must be verified before arrest occurs. [Footnotes omitted.] This approach was applied in Resek v. State, 644 P.2d 877 (Alaska App.1982), where we found that the informants were a trustworthy and reliable couple providing information based on a sense of civic duty and a concern for the safety of others. Id. at 878-79. The facts of the present case place Kignak in the criminal milieu. He was being cultivated by Officer Deutsch as a police informant. The information provided by him should not be afforded the inherent presumption of credibility attached to reports of citizen informants. Judge Jeffery's conclusion that the affidavit was sufficient to support the warrant was based on his determination that a citizen informant was involved. Since we have concluded that Kignak was not a citizen informant, the warrant may only be found valid if other sufficient indicators of veracity are present. The aver-ments here are insufficient. Officer Deutsch told the magistrate: Your affiant has received information from this informant in the past and has found this information to be accurate and reliable. A general assertion by an officer that his informant is a credible or reliable person is insufficient to support a finding of veracity because it fails to identify the underlying circumstances from which the officer concluded the informant was credible. See Aguilar v. Texas, 378 U.S. at 114-115, 84 S.Ct. at 1514, 12 L.Ed.2d at 729; Spinelli v. United States, 393 U.S. at 416, 89 S.Ct. at 584, 21 L.Ed.2d at 643-44. Similarly, an officer's general conclusion that unspecified past information has proven "accurate and reliable" should not be used as verfication where no information has been presented to the magistrate concerning how this conclusion was drawn. See LaFave, supra, at § 3.3(b), 508-22. The facts of this case, in which the officer's conclusion gives the impression that his previous contact with this informer has been greater than it actually was, illustrate why such conclusions are properly left to the detached magistrate. The "corroboration" of the tip presented to the magistrate was likewise insignificant. That Kignak knew where Clark worked, and that Kignak knew where his own grandfather lived, adds nothing to the veracity of his story. The statement made to the magistrate that Clark was already suspected of involvement in this type of activity might add somewhat to a veracity determination, see Keller v. State, 543 P.2d 1211, 1218 n. 12 (Alaska 1975), but this type of corroboration again presents the shortcoming of being a police conclusion rather than a fact from which the magistrate can draw an independent conclusion. In some circumstances declarations against penal interest contain a degree of inherent credibility sufficient to support a finding of probable cause. State v. Malkin, 678 P.2d 1356, 1359 and n. 4 (Alaska App.1984), petition for hearing granted (Alaska, May 7, 1984). Kignak, a probationer, told Deutsch he purchased marijuana from Clark. Though the state did not argue that this doctrine should apply in this case, we have considered whether it might provide the veracity needed for a probable cause finding. We conclude that it does not for a variety of reasons. First, it is not at all clear that Kignak's conduct was, at the time, against the law. Former A.S. 17.12.110; Ravin v. State, 537 P.2d 494 (Alaska 1975). Absent here is the potential for punishment which gives admissions against penal interest their reliability. Second, the magistrate was not told that the informant was on probation, and the conditions of probation are not included in the record on appeal. The fact of Kig-nak's probation could not have contributed to the magistrate's determination, and does not affect our decision. Third, to whatever extent this is considered an admission against penal interest, the relationship developing between Kignak and Deutsch was that of a "protected police 'stool pigeon,' whom the courts have always treated with a healthy skepticism as inherently suspect." Stanley v. State, 19 Md.App. 507, 313 A.2d 847 (1974). LaFave, defining this type of informant as "a person whose indiscretions are tolerated by the police on a continuing basis in exchange for information and leads given by him from time to time," notes that "[a]n admission against penal interest by such a person carries little weight, for he will perceive little risk in admitting such indiscretions as possession or use of drugs in light of the fact that past admissions of the same type have not led to his arrest or prosecution." LaFave, supra, at 526 (footnote omitted). Finally, unlike the statement in Malkin, this statement was made directly and knowingly to a police officer and is not as reliable as a double hearsay statement against penal interest. We give great deference to the probable cause determination of a magistrate. See, e.g., Linne v. State, 674 P.2d 1345, 1355 (Alaska App.1983). However, where no information is presented to the magistrate from which he can make a detached and independent determination of probable cause, the warrant cannot be deemed valid. See Spinelli v. United States, 393 U.S. at 415, 89 S.Ct. at 588-89, 21 L.Ed.2d at 643; Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). III. At trial, counsel for Clark objected to the introduction into evidence of a set of weighing scales seized during execution of the search warrant. They argued that an insufficient foundation had been laid to show the relevance of the scales to the issue of intent to sell marijuana. The prosecutor argued that the scales were rele vant, in conjunction with the large amount of money and the large amount of marijuana found in close proximity, to show intent to sell. The court found that a sufficient foundation had been laid through the testimony of Officer Lew Wood, and admitted the scales into evidence. Wood's testimony indicated where the scales had been found and that it had been seized, and that in other cases involving marijuana sale in which he had participated, scales had been seized. Alaska Rule of Evidence 104(b) provides: Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. The Clarks argue that Wood's testimony did not adequately support a finding that the condition of fact — i.e. that scales are probative of intent to sell — had been fulfilled. No case law is cited in support of this contention. "The admissibility of evidence is largely within the trial court's discretion and its rulings will not be overturned on appeal in the absence of an abuse of discretion." Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980); Poulin v. Zartman, 542 P.2d 251, 260 (Alaska 1975). A set of scales is not highly prejudicial. Its probative value was to some degree indicated by Officer Wood, albeit weakly. In context, it could have a "tendency to make the existence of" the defendants' intent to sell "more probable . than it would be without the evidence." A.R.E. 401 (definition of relevant evidence). Officer Wood's testimony was sufficient to allow the court to make this determination. Admission of this evidence was not an abuse of discretion. IV. At trial, testimony was received that Lucy Clark initially refused to unlock a footlocker at the Clark residence during execution of the search warrant. The prosecution commented on this refusal in both opening and closing remarks. Evidence of a refusal to consent to a search is inadmissible regardless of the legality of the search. Elson v. State, 659 P.2d 1195, 1197, 1199 (Alaska 1983). See also Padgett v. State, 590 P.2d 432 (Alaska 1979); Bargas v. State, 489 P.2d 130 (Alaska 1971). If the Clarks are retried, evidence of Lucy's initial refusal to unlock the footloeker should not be introduced. The convictions are REVERSED. . Though in affidavit form, the averments were apparently read orally to the magistrate. . The state contends that Richard Clark did not join this motion, and did not preserve this issue for appeal. . The only information Kignak provided Deutsch in the past was a list given Deutsch within the previous week of the names of six individuals Kignak believed were involved in selling drugs or alcohol. Deutsch concluded this information was "accurate and reliable" because all were suspected by another officer of dealing in drugs and alcohol. No evidence was in fact located, and no arrests made, based on this prior information given by Kignak. Cf. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967) (informant's credibility established by officer's testimony that past information from this informant resulted in numerous arrests and convictions); Schmid v. State, 615 P.2d 565, 575 (Alaska 1980) (informant's credibility established by officer's testimony that Customs agent had known informant for four years and had found informant extremely reliable in at least ten previous cases where this informant's tip resulted in seizure of narcotics). . This is not to say innocent corroboration cannot add to the determination of veracity. In many cases it will. See Schmid v. State, 615 P.2d at 576-77 and n. 14. "In making a determination of probable cause the relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of non-criminal acts." Illinois v. Gates, 462 U.S. at 244 n. 13, 103 S.Ct. at 2335 n. 13, 76 L.Ed.2d at 552 n. 13. The corroboration here is not in the least bit "suspicious." . This was discussed in Malkin, 678 P.2d at 1359 n. 4: LaFave has noted the credibility inherent in circumstances such as existed here, where a reliable informant relates statements to an affiant, which were told to him by a secondary source who is unaware of the informant's police connections. In the hearsay-upon-hearsay situation, as where an informant of established reliability tells police what someone else has told him, there is a need to establish veracity with respect to each person in the hearsay chain. This can be done by showing that these other links made admissions against their penal interest. Indeed, as a general proposition there is more reason to rely upon such admissions than admissions made directly to police, for in the latter situation there is always the chance that the informer is a stoolie who perceives he can admit to criminality without significant risk. Thus, in Comi v. State, [26 Md.App. 511, 338 A.2d 918 (1975) ] upholding an affidavit reciting what a reliable police informer said an admitted burglary participant had told him, the court correctly reasoned: The secondary source here was not a paid police informer, nor promised any sort of inducement to speak. In fact, he had no way of knowing his information would eventually arrive at police headquarters. He was merely relating an occurrence to a friend. We conclude that Hustler had no motive to lie and his information was conveyed in circumstances consistent with its reliability. 1 W. LaFave, Search and Seizure, § 3.3(c) at 530 (1978) (footnotes omitted).

10373544

Jane DOE and John Doe, Petitioners, v. HUGHES, THORSNESS, GANTZ, POWELL & BRUNDIN, Respondents

Doe v. Hughes, Thorsness, Gantz, Powell & Brundin

1992-10-09

No. S-4543

804

808

838 P.2d 804

838

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

Before MOORE, C.J., and RABINO WITZ, BURKE, MATTHEWS and COMPTON, JJ.

Jane DOE and John Doe, Petitioners, v. HUGHES, THORSNESS, GANTZ, POWELL & BRUNDIN, Respondents.

Jane DOE and John Doe, Petitioners, v. HUGHES, THORSNESS, GANTZ, POWELL & BRUNDIN, Respondents. No. S-4543. Supreme Court of Alaska. Oct. 9, 1992. Rehearing Denied Dec. 10, 1992. Serna Lederman, Hansen & Lederman, Anchorage, for appellants. Stephen S. DeLisio, Jill E. Mickelsen, Sta-ley, DeLisio, Cook & Sherry, Inc., Anchorage, for appellees. Before MOORE, C.J., and RABINO WITZ, BURKE, MATTHEWS and COMPTON, JJ.

2116

13005

ORDER On consideration of the petition for rehearing filed on July 10, 1992, IT IS ORDERED: 1. Opinion Number 3863, issued by the court on June 30, 1992, is WITHDRAWN. 2. Such opinion is replaced by Opinion Number 3891, issued on the date of this order. 3. Appellee's petition for rehearing is otherwise DENIED. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ. OPINION BURKE, Justice. Jane and John Doe filed this appeal when the superior court ordered their attorney malpractice action dismissed with prejudice. The court concluded, as a matter of law, that the defendant law firm had not been negligent. We reach the opposite conclusion and reverse. I When Jane Doe was unable to conceive, her sister, Mary Roe, agreed to be artificially inseminated, and to allow Jane to adopt the child produced by such means. The father of the child was John Doe, Jane Doe's husband. The Does hired Hughes, Thorsness, Gantz, Powell & Brundin, (hereafter Hughes, Thorsness) an Anchorage law firm, to handle the adoption. In the course of obtaining the biological mother's consent to the adoption, Hughes, Thorsness learned that John Doe is part Chickasaw Indian. Because of the child's Indian heritage, Hughes, Thorsness became concerned about the requirements of the Indian Child Welfare Act. 25 U.S.C. § 1901-1963. Specifically, the firm was concerned about the need to obtain Mary Roe's consent to the adoption in conformity with the following provision: Where any parent [of an "Indian child"] voluntarily consents . to termination of parental rights, such consent shall not be valid unless executed in writing and recorded before a judge of a court of competent jurisdiction and accompanied by the presiding judge's certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent.... 25 U.S.C. § 1913(a) (emphasis added). Hughes, Thorsness secured Roe's consent to the adoption, in writing, as required by the Indian Child Welfare Act. However, despite its concern about the Act's other requirements, and its professed knowledge "that if the Act applied, the [Does] would have to comply with it," Hughes, Thorsness failed to secure completion of the additional steps needed to make the mother's consent "valid" according to § 1913. Instead, Hughes, Thorsness recommended that the superior court be allowed to determine whether the Act applied, and was content to rest on its oars when the court concluded that it did not. Roe's consent to the adoption was accepted by the superior court in the form in which it was presented, and the court entered a final decree of adoption terminating the parental relationship between the child and Roe, its biological mother. A little more than a year later, Roe moved to have the decree vacated. Roe's motion was made upon the ground that her consent to the termination of her parental rights was invalid, because it was not obtained in conformity with the requirements of the Indian Child Welfare Act. Specifically, she complained that her consent was not "recorded before a judge of a court of competent jurisdiction and accompanied by the presiding judge's certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian." 25 U.S.C. § 1913(a). Having lost confidence in Hughes, Thorsness, the Does hired Tugman & Clark, another Anchorage law firm. Tugman & Clark successfully defended the adoption decree in the superior court, and when that court's decision refusing to vacate the decree was appealed to this court, the decision was affirmed. In re Adoption of T.N.F., 781 P.2d 973 (Alaska 1989). Thus, despite the biological mother's challenge to the adoption, the adoption decree remained undisturbed. From the Does' standpoint, however, the challenge was a costly affair. II Subsequent to these events, the Does sued Hughes, Thorsness for malpractice. In their complaint they alleged that Hughes, Thorsness was negligent in failing to observe the requirements of the Indian Child Welfare Act when obtaining the natural mother's consent. Such negligence, according to the complaint, provided the biological mother with the ground that she later used to challenge the adoption. The Does asked the superior court for an award of damages, including the amount of Tug-man & Clark's attorney's'fees, their other costs in defending the adoption decree, and compensation for emotional distress they claim to have suffered as a result of the natural mother's challenge. In the malpractice action, Hughes, Thorsness answered the complaint and moved for summary judgment; the superior court, after concluding that there were no genuine issues of material fact, granted the motion. In the court's view, "[t]he issue [in the case was] whether [Hughes, Thorsness] . was liable to the [Does] for a mere error of judgment, or for a mistake in a point of law which, at the time of the advice given, had not been settled by the Alaska Supreme Court[,] and was a point of law [upon] which reasonable lawyers could differ." Holding that the defendant's conduct was not actionable under these circumstances, the court ruled in Hughes, Thorsness' favor, and ordered the complaint dismissed. This appeal followed. III In past cases involving claims of attorney malpractice, we have observed: Professional malpractice consists of four elements: "(1) the duty of the professional to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence." Belland v. O.K. Lumber Co., 797 P.2d 638, 640 (Alaska 1990) (quoting Linck v. Barokas & Martin, 667 P.2d 171, 173 n. 4 (Alaska 1983)). We need be concerned about only two of these elements in the case at bar: Hughes, Thorsness' duty to its clients, and the firm's alleged breach of that duty. The remaining issues in the case, whatever they may be, are not before us in this appeal. IV When Hughes, Thorsness undertook to represent the Does in the adoption, it,was required to "have and use the knowledge, skill and care ordinarily possessed and employed by members of the [legal] profession in good standing." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 32, at 187 (5th ed. 1984). Hughes, Thorsness knew that the child being adopted by its client, Jane Doe, was part Chickasaw Indian. Arguably then the adoption was subject to the consent requirements of the Indian Child Welfare Act. Under these circumstances, the risk in failing to obtain the biological mother's consent to the adoption in conformity with the Act should have been clear to any attorney possessed of the required level of professional competence. Such failure obviously exposed Hughes, Thorsness' clients to the risk of a later challenge to the adoption decree — in this instance the risk soon became a reality — upon the ground that the biological mother's consent to the adoption was not obtained in conformity with the statutory requirements set forth in 25 U.S.C. § 1913(a). Nevertheless, Hughes, Thorsness failed to obtain the natural mother's consent in the proper form. According to its brief, Hughes, Thorsness chose not to take this important step because of the added cost to its clients: To comply with this requirement, the [Does] would have to either arrange for the [natural mother] to come to Anchorage and appear before the court at the adoption or file an ancillary action in California. Either avenue would require more fees than the [Does] anticipated. Brief of Appellee at 3. (Citation omitted). There is evidence that the Does were concerned about the cost of the adoption. There is also evidence that Hughes, Thorsness informed the Does that "if the [Indian Child Welfare Act] applied it would be necessary to comply with its provisions because the adoption would either not be approved or would be subject to future challenge." Robert L. Manley Aff., R. 12-16. Hughes, Thorsness did not, however, advise its clients to secure the natural mother's consent in conformity with the Act, despite the added cost. Instead, it "recommended" that the Does "file an application with the [superior] court, prior to the adoption, to determine whether or not the [Act] applied." Id. Because the Does believed, at that time, that the natural mother "would never challenge the adoption or revoke her consent," they "agreed to proceed consistent with whatever ruling the court made on the issue." Id. An important part of an attorney's duty to a client is the duty to advise the client of action the client should take in a given set of circumstances. Given the circumstances present in this case, we believe there was only one prudent course of action open to the Does — namely, to obtain the natural mother's consent to the adoption in full conformity with the more onerous and costly consent requirements of the Indian Child Welfare Act. By failing to advise its clients to take this added step, despite the cost, Hughes, Thorsness also failed in its duty to use the skill, prudence, and diligence required of an attorney practicing within this jurisdiction. By doing so, Hughes, Thorsness breached the duty of care owed to its clients, rendering the firm guilty of negligence, or professional malpractice, as a matter of law. CONCLUSION For the reasons stated in this opinion, we hold that Hughes, Thorsness is liable, as a matter of law, for its failure to obtain the biological mother's consent to the adoption of her child in conformity with the requirements of the Indian Child Welfare Act. The judgment of the superior court is reversed and remanded, with instructions that the court enter judgment in the Does' favor on the issue of Hughes, Thorsness' negligence. All remaining issues in the case are left for determination by the superior court after further proceedings. REVERSED and REMANDED, with INSTRUCTIONS. . In the interest of privacy, fictitious names are used in this opinion. . 25 U.S.C. § 1903 provides in part: For purposes of this chapter . the term— (4) "Indian child" means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe; (9) "parent" means any biological parent . of an Indian child.... .Brief of Appellee at 3. . Tugman & Clark tendered the cost of defending the adoption decree to Hughes, Thorsness, but the tender was refused. Hughes, Thorsness did, however, provide Tugman & Clark with the results of its research on the applicability of the Indian Child Welfare Act, and offered various suggestions on how the adoption decree might be defended. . The ruling below dealt only with Hughes, Thorsness' duty to the Does, and the alleged breach of that duty. The remaining elements of the Does' malpractice claim have not been reached by the superior court, and we do not address them here. . Hughes, Thorsness claims that its actions were influenced by "the [Does'] preoccupation with incurring legal expenses." Brief of Appellee at 3. The avoidance of unnecessary fees and costs is part of every attorney's ethical responsibility to the attorney's client. Alaska Code of Prof. Resp. DR 2-106 (lawyers shall not enter agreements for, charge or collect excessive fees). An attorney, however, is not free to neglect a measure that will protect a client from a clearly foreseeable risk of harm, merely because there will be some additional cost to the client if the measure is taken. W. Page Keeton et al., Pros-ser and Keeton on the Law of Torts § 43, at 280 (5th ed. 1984) (negligence requires a foreseeable risk and unreasonable conduct). . Unlike the superior court, we are not impressed with Hughes, Thorsness' argument that it cannot be found liable because it was guilty of only an "error in judgment" concerning a matter about which the law remained unsettled. Any uncertainty there might have been about the applicability of the Indian Child Welfare Act made Hughes, Thorsness' failure to obtain compliance with the Act more, rather than less, blameworthy. The cost of compliance with the act would be by all measures slight when compared to the potential cost of not complying with the Act. The decision to ignore the additional steps required for a "valid" consent was anything but the act of a reasonably prudent lawyer.

10408444

Rex FISHER, Appellant, v. FAIRBANKS NORTH STAR BOROUGH SCHOOL DISTRICT, Appellee

Fisher v. Fairbanks North Star Borough School District

1985-08-09

No. 7446

213

219

704 P.2d 213

704

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:21:28.159013+00:00

CAP

Before BURKE, C.J., and MATTHEWS, COMPTON and MOORE, JJ.

Rex FISHER, Appellant, v. FAIRBANKS NORTH STAR BOROUGH SCHOOL DISTRICT, Appellee.

Rex FISHER, Appellant, v. FAIRBANKS NORTH STAR BOROUGH SCHOOL DISTRICT, Appellee. No. 7446. Supreme Court of Alaska. Aug. 9, 1985. Rehearing Denied Sept. 30, 1985. Michelle V. Minor, Anchorage, and Rita Allee, Fairbanks, for appellant. Michael B. Markham, Asst. Borough Atty., Fairbanks, for appellee. Before BURKE, C.J., and MATTHEWS, COMPTON and MOORE, JJ.

3423

21322

OPINION MATTHEWS, Justice. Rex Fisher, a tenured teacher at Lathrop High School in Fairbanks, was not rehired for the 1978-79 school year. Three reasons were given by the School Board for his non-retention: (1) violation of sick leave regulations by claiming he was sick on two days when he was actually on a trip to San Francisco; (2) violation of the District's policy against using books in class that had not been approved; and (3) violation of the School District's requirement that lesson plans be submitted after having been requested in writing numerous times to do so. Fisher sought and received a trial de novo before the superior court, which con-eluded that his non-retention was justified on each of the stated grounds. Under AS 14.20.175(b)(3) a tenured teacher may be non-retained for "substantial noncompliance with the . regulations or bylaws of the department, the bylaws of the district, or the written rules of the superintendent...." The superior court found that Fisher was in substantial noncompliance with the regulations and bylaws of the district in each respect charged. These findings will not be disturbed on appeal unless they are clearly erroneous. Civil Rule 52(a). The evidence amply supports each of the court's findings and they therefore must stand. Fisher's challenge to the superior court's finding concerning his unauthorized use of the book The Front Runner raises a number of additional issues. Fisher used The Front Runner in the homosexual rights unit of his American Minorities class. Fisher acknowledges that he did not have approval for use of the book, but argues that there was no applicable school district regulation or by-law requiring advance approval. A school district rule, denominated Policy 6160.1a, provided as follows: For all courses in which textbooks are to be used, the textbooks shall meet in style, organization, and content the basic requirements of the course for which they are intended. The term "textbook" shall refer to books which are used as the basic source of information in any class, and may include literary works, collections of literary works and literary selections, collections of musical selections designed for instructional purposes, and laboratory manuals. The Superintendent of Schools is responsible for presenting a list of recommended textbooks to the Board of Education for formal adoption. Supplementary printed materials are used to enrich the curriculum in the classroom. The term "supplementary printed materials" shall refer to those books not intended for use as textbooks which cover part or all of the course affected, drill and exercise books, pamphlets, newspapers, periodicals, etc. The Superintendent of Schools is responsible for approving selection of supplementary printed materials for enrichment purposes, subject to budget limitations. Fisher argues that The Front Runner was "supplementary printed materials" rather than a "text book" under the terms of the rule. Although both types of materials require prior approval, there is evidence that the rule had not been enforced with respect to supplementary materials, suggesting that if the book fell within the supplementary materials category, the school district may have waived its right to enforce the rule against Fisher. Fisher, however, was given clear prior written notice that the rule would be enforced with respect to any materials that he proposed to use in teaching the homosexual rights unit. The school principal, William Brannian, wrote, a memorandum to Fisher dated October 14, 1977, stating in relevant part: At our meeting of October 6, 1977, you mentioned that you planned or had already ordered classroom sets of books on "gay civil rights" or about "gays." May I point out, that according to School Board Policy 6160.1a, the Superintendent of Schools is responsible for presenting a list of recommended textbooks to the Board of Education for formal adoption. I would also like to point out that according to this same policy the Superintendent of Schools is responsible for approving selections of supplementary printed material for enrichment purposes, subject to budget limitations. Since the books that you have ordered have not been approved, I am instructing you not to use them in your class until they have been authorized. And, on January 13, 1978, Brannian wrote another memo to Fisher: I have been advised that you are using a classroom set of books, in your American Minorities class, that have not been approved as per School Board Policy # 6160.1a. I am instructing you not to use these books until they are approved and to submit a copy of the book to me for approval. Failure to do so as requested would be in violation of School Board Policy # 6160.-la and my memorandum to you dated October 14, 1977. I would consider your failure to do so insubordination and report same to the superintendent. On January 16th, Fisher responded in a memo to Brannian stating in part: "What is the name of the book you are talking about? Certainly the book has a title and an author. How am I to respond unless you communicate with me more clearly?" On January 18th, Brannian entered Fisher's class and observed the class using The Front Runner. Despite the posture taken by Fisher in his memo of January 16th, it is clear that no approval of The Front Runner had been conveyed to Fisher. Where the requirement of a rule or condition has been waived, the requirement may be reinstated by giving notice to the other party. The notice reflected by Brannian's memos of October 14th and January 13th suffices to render enforceable the rule requiring prior approval of supplementary materials. Fisher also contends that the prior approval rule violates the principle of freedom of speech under the First Amendment to the United States Constitution. He argues that The Front Runner was appropriate to the subject taught as it illustrates how society discriminates against homosexuals, and that he therefore had the right to use the book. We have no occasion to doubt the truth of his assertion that the book was appropriate, nor did the trial court. The question, however, is not whether the use of a particular book in a course is appropriate but whether the teacher or the administrator is to decide appropriateness in cases of conflict. State law resolves this question against the teacher. Kenai Peninsula Borough School District v. Kenai Peninsula Education Association, 572 P.2d 416, 422-23 (Alaska 1977). In Kenai Peninsula, we held that school boards have the sole authority to determine matters of educational policy and may not negotiate with teacher's unions concerning them. The selection of instructional materials was held to be a non-bargainable element of educational policy, committed to the discretion of school boards. This holding did not, however, consider the constitutional question raised by Fisher. There are cases suggesting that in the event of conflict, secondary school teachers rather than their supervisors or school boards have a right protected by the First Amendment to determine what instructional materials to use. Keefe v. Geanakos, 418 F.2d 359, 362 (1st Cir.1969); Parducci v. Rutland, 316 F.Supp. 352 (M.D.Ala.1970); Dean v. Timpson Independent School District, 486 F.Supp. 302 (E.D.Tex.1979). There are also cases, however, vesting control of the selection of educational materials in the school administration and school board, rather than the teacher. Pratt v. Independent School District, 670 F.2d 771, 775 (8th Cir.1982); Zykan v. Warsaw Community School Corp., 631 F.2d 1300, 1305 (7th Cir.1980); Cary v. Board of Education, 598 F.2d 535 (10th Cir.1979); Palmer v. Board of Education, 603 F.2d 1271, 1274 (7th Cir.1979), cert. denied, 444 U.S. 1206, 100 S.Ct. 689, 62 L.Ed.2d 659 (1980); Brubaker v. Board of Education, 502 F.2d 973, 984-85 (7th Cir.1974), cert. denied, 421 U.S. 965, 95 S.Ct. 1953, 44 L.Ed.2d 451 (1975); Parker v. Board of Education, 237 F.Supp. 222, 229 (D.Md. 1965). The issue has received much scholarly attention. Dicta in Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982), suggests that the constitutional issue should be decided in favor of the school boards. The principal question in Pico was whether a school board had violated the First Amendment by removing certain books from school libraries. The district court had granted summary judgment in favor of the board, but the court of appeals reversed, finding an issue of fact as to the board's motivation for removing the books. The Supreme Court upheld the court of appeals' decision, finding that the First Amendment imposes limits on the discretion of school boards to remove library books. The Court held that issues of fact existed as to whether the board's motive in ordering the books removed was to deny students access to ideas with which the board disagreed, and thus was constitutionally impermissible or, whether the books were removed because they were "pervasively vulgar" or educationally unsuitable, permissible motives under the constitution. 457 U.S. at 871, 102 S.Ct. at 2810, 73 L.Ed.2d at 449-50. In so holding, the Court distinguished library control from curriculum control, suggesting that school boards have great authority as to the latter: Petitioners [the board] might well defend their claim of absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values. But we think that petitioners' reliance upon that duty is misplaced where, as here, they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom, into the school library and the regime of voluntary inquiry that there holds sway. 457 U.S. at 869, 102 S.Ct. at 2809, 73 L.Ed.2d at 448. The Court also stated: We are . in full agreement with petitioners that local school boards must be permitted to "establish and apply their curriculum in such a way as to transmit community values," and that "there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political." 457 U.S. at 864, 102 S.Ct. at 2806, 73 L.Ed.2d at 445. The Court's emphasis on the school board's right to control curriculum in order to inculcate community values seems distinctly inconsistent with those decisions which suggest that teachers have the final say with respect to instructional materials. We therefore decline to follow those cases and instead regard those cases which place control over instructional material in school boards as more accurately reflective of federal constitutional law. We add that while those authorities which we accept hold that the school board's authority over the classroom materials is very broad, it is not entirely unfettered by the constitution. A board may not design a curriculum to favor a particular religion. Cary v. Board of Education, 598 F.2d at 544; Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). Similarly, any effort by a board to force racial bias or partisan political preference into the classroom would be constitutionally suspect, Board of Education v. Pico, 457 U.S. at 870-71, 102 S.Ct. at 2810, 73 L.Ed.2d at 449, as would an attempt to exclude discussions of "an entire system of respected human thought." Epperson v. Arkansas, 393 U.S. at 116, 89 S.Ct. at 276, 21 L.Ed.2d at 241 (Stewart, J. concurring); Cary v. Board of Education, 598 F.2d at 543. Further, in cases of doubt as to what may and what may not be distributed or taught to students, advance notice may be required before punishment can be imposed. Epperson v. Arkansas, 393 U.S. at 112, 89 S.Ct. at 274, 21 L.Ed.2d at 239 (Black, J. concurring); Cary v. Board of Education, 598 F.2d at 541. This case, however, involves none of the above limitations. To sustain Fisher's position we would have to hold that the advance approval rule is unconstitutional on its face. Such a holding would go far to eliminate a school board's right to control curriculum, a result clearly not required by the first amendment. Fisher raises various other contentions which we find to be without merit. The judgment is AFFIRMED. COMPTON, J., dissents. RABINOWITZ, C.J., not participating. . The trial de novo was held pursuant to AS 14.20.205, which provides: If a school board reaches a decision unfavorable to a teacher, the teacher is entitled to a de novo trial in the superior court. However, a teacher who has not attained tenure rights is not entitled to judicial review according to this section. . See Restatement (Second) of Contracts § 84, at 220 (1979); 5 Williston on Contracts § 689, at 309 (3d ed. 1961); Stephens v. State, 501 P.2d 759, 761 (Alaska 1972); Fehl-Haber v. Nordhagen, 59 Wash.2d 7, 365 P.2d 607 (1961); Cottonwood Plaza Associates v. Nordale, 132 Ariz. 228, 644 P.2d 1314, 1319 (Ariz.App.1982); Bell v. Yale Dev. Co., 102 Ill.App.3d 108, 57 Ill.Dec. 777, 429 N.E.2d 894 (1981). . Fisher does not mention, nor does he place any reliance on the free speech provision of the Alaska Constitution, art. I, sec. 5. Accordingly, we do not address his claim under that provision. . See, e.g., Developments in the Law — Academic Freedom, 81 Harv.L.Rev. 1045 (1968); Van Alystyne, The Constitutional Rights of Teachers and Professors, 1970 Duke L.J. 841 (1970); Gold-stein, The Asserted Constitutional Right of Public School Teachers to Determine What They Teach, 124 U.Pa.L.R. 1293 (1976); Hunter, Curriculum, Pedagogy, and the Constitutional Rights of Teachers in Secondary Schools, 25 Wm & Mary L.Rev. 1 (1983); Diamond, The First Amendment and Public Schools: The Case Against Judicial Intervention, 59 Tex.L.Rev. 477 (1981). . The worst that could be said about the school district's refusal to approve The Front Runner was that it was motivated by a desire not to accord what was felt to be undue emphasis to a controversial subject. Fisher's supervisor, to whom the book had been presented, testified that he felt the topic should be covered with current materials, periodicals, and newspapers and only a short time should be spent covering it. Fisher's supervisor, and another teacher, also formally reviewed the book and concluded that it was unsuitable because of its explicit descriptions of homosexual acts, objectionable language, and glorification of homosexuality. However, these formal reviews were only conducted after the principal had discovered on January 18th that Fisher was using the book and thus cannot be regarded as the reasons in fact that the book was not approved. . They are that Fisher proved that he was the victim of discrimination because of his teacher's union activities, and that he was not accorded full discovery. The first point is a factual one whose resolution against Fisher is not clearly erroneous. On the second point we find no abuse of discretion.

11627321

STATE of Alaska, Petitioner, v. George L. COON, Respondent

State v. Coon

1999-03-05

No. S-6893

386

406

974 P.2d 386

974

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:22:12.382875+00:00

CAP

Before MATTHEWS, Chief Justice, and COMPTON, EASTAUGH, and FABE, Justices.

STATE of Alaska, Petitioner, v. George L. COON, Respondent.

STATE of Alaska, Petitioner, v. George L. COON, Respondent. No. S-6893. Supreme Court of Alaska. March 5, 1999. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Petitioner. George Coon, pro se, Anchorage. Mauri Long, Dillon & Findley, P.C., Anchorage, for Amicus Curiae Alaska Academy of Trial Lawyers. G. Blair McCune, Deputy Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Amicus Curiae Alaska Public Defender Agency. Gary A. Zipkin and Nelleene A. Boothby, Guess & Rudd, Anchorage, for Amicus Curiae Defense Counsel of Alaska, Inc. Jonathan Hoffman, Martin, Bischoff, Tem-pleton, Langslet & Hoffman, Anchorage, Hugh F. Young, Jr., Product Liability Advisory Council, Inc., Reston, Virginia, and Mary A. Wells, Suanne M. Dell, Gregory E. Sopkin, Wells, Anderson & Race L.L.C., Denver, Colorado, for Amicus Curiae Product Liability Advisory Council. Rex Lamont Butler and Linda S. Thomas, Rex Lamont Butler and Associates, Anchorage, for Amicus Curiae Rex Lamont Butler and Associates. Before MATTHEWS, Chief Justice, and COMPTON, EASTAUGH, and FABE, Justices.

12463

79933

OPINION EASTAUGH, Justice. I. INTRODUCTION A jury found George Coon guilty of making three terroristic telephone calls. We must decide whether the superior court erred in admitting opinion evidence, based on a voice spectrographic analysis, that Coon made those calls. Applying the Alaska Rules of Evidence and the standard for admitting novel scientific opinion evidence, articulated by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), we hold that it was not error to admit that evidence, and affirm Coon's conviction. II. FACTS AND PROCEEDINGS Three messages threatening David Rudolph's life were left on Deborah Rudolph's telephone answering machine. Deborah, Coon's former daughter-in-law, recognized the recorded voice as Coon's. The State charged Coon under former AS 11.56.810(a)(2) with terroristic threatening. The State retained a voice analysis expert, Steve Cain, who compared the voice on the answering machine with verbatim voice exemplars provided by Coon. At Coon's 1992 trial, the superior court held a hearing outside the jury's presence to determine whether Cain's testimony would be admissible under Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The superior court found that Cain's testimony was relevant and would assist the jury. It therefore held that the evidence was admissible under Alaska Evidence Rule 702. The court also concluded that spectrographic analysis of voices satisfied the Frye test for admitting novel scientific evidence, and that the identification of voices by analyzing spectrograms had been generally accepted by courts and was a reliable technique. The jury then heard Cain express his opinions that Coon made the first telephone call, and that there was a high probability Coon also made the second and third calls. Cain described for the jury the scientific foundation for his opinions. The jury found Coon guilty of terroristic threatening. On appeal, the Alaska Court of Appeals held that the appellate record did not support admitting Cain's testimony at trial. It reasoned that the State had not presented evidence concerning the relevant scientific community and whether that community generally accepted voice spectrographic analysis. It noted that the superior court had made no findings on those topics, contrary to the requirements of Frye. It remanded, reasoning that the State might be able to establish that voice spectrographic analysis met the Frye standard for admissibility. Citing Contreras v. State, 718 P.2d 129 (Alaska 1986), where we adhered to the Frye standard, the court of appeals declined to address the State's argument that the Frye standard was no longer viable in Alaska following adoption of the Alaska Rules of Evidence and announcement of the Daubert opinion. Petitioning for hearing, the State asked us to consider the same arguments. It also argued that the trial court's ruling satisfied Daubert. We granted the State's petition. Following briefing and oral argument, we remanded with directions that the superior court enter findings of fact and conclusions of law about whether Cain's testimony was admissible under Evidence Rule 703. The order also required findings of fact and conclusions of law about the admissibility of the proffered testimony under the Frye and Daubert standards. We retained jurisdiction. Entering separate findings and conclusions for each standard, the superior court ruled on remand that the evidence was admissible under both tests. We then asked the parties and possible amici curiae to file briefs discussing whether to retain Frye or to adopt the test articulated in Daubert to determine the admissibility of scientific evidence. Five amici curiae — the Alaska Academy of Trial Lawyers (AATL), the Alaska Public Defender Agency (APDA), the Defense Counsel of Alaska (DCA), the Product Liability Advisory Counsel (PLAC), and Rex Lamont Butler and Associates (Butler) — submitted briefs thoroughly discussing the issues presented. We thank them for their valuable assistance. III. DISCUSSION A. Frye, Daubert, and the Rules of Evidence The State asks us to abandon the scientific evidence test discussed in Frye and adopt the "more flexible" standard announced in Daubert. Whether to adopt a new standard for admitting evidence involves the interpretation of the Alaska Rules of Evidence and is therefore a legal question to which this court applies its independent judgment, adopting the rule most persuasive "in light of reason, precedent and policy." Before Daubert was issued, Frye was the dominant standard for the admissibility of scientific evidence in federal and many state courts. 'We adopted the Frye standard in Pulakis v. State, 476 P.2d 474, 478-79 (Alaska 1970). The Frye court held the results of a crude lie detector test, based on the examinee's blood pressure, to be inadmissible to show a criminal defendant's innocence. The court's entire analysis consisted of one paragraph and cited no supporting authority: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which itbelongsl[ ] The court concluded that the systolic blood pressure deception test had "not yet gained such standing and scientific recognition among physiological and psychological authorities" as to be admissible into evidence. Seventy years later in Daubert, the United States Supreme Court ruled that the Federal Rules of Evidence, adopted in 1975, had superseded the Frye "general acceptance" test for admitting scientific evidence. The plaintiffs in Daubert were minor children with serious birth defects. They alleged that the birth defects resulted from their mothers' ingestion of Bendectin, a prescription anti-nausea drug, during pregnancy. They sought to introduce expert testimony that Bendectin was a teratogen, a substance capable of causing malformations in fetuses. The trial court refused to admit the testimony and entered a defense judgment. The Ninth Circuit affirmed, but the Supreme Court vacated the judgment and remanded. So ruling, the Court stated that "a rigid 'general acceptance' requirement would be at odds with the 'liberal thrust' of the Federal [Evidence] Rules and their 'general approach of relaxing the traditional barriers to 'opinion' testimony.' " The Court concluded that the "austere" Frye "general acceptance" standard, "absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials." The Court delineated a standard that requires the trial judge to "determine at the outset, pursuant to [Federal Rule of Evidence] 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." This two-step inquiry requires a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." The Court also provided a non-exhaustive list of factors courts may use in making this inquiry. These included (1) whether the proffered scientific theory or technique can be (and has been) empirically tested (i.e., whether the scientific method is falsifiable and refutable); (2) whether the theory or technique has been subject to peer review and publication (although publication "is not a sine qua non of admissibility"); (3) whether the known or potential error rate of the theory or technique is acceptable, and whether the existence and maintenance of standards controls the technique's operation; and, echoing Frye, (4) whether the theory or technique has attained general acceptance. The Court offered "general observations" concerning publication, peer review, and other factors, and how they pertain to scientific validity. The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity — and thus the evidentiary relevance and reliability— of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.[ ] Daubert thus requires trial courts to ensure that scientific evidence is both relevant and reliable. The opinion is widely regarded as imposing a more rigorous "gatekeeper" function on trial courts than Frye did. In 1986, before the Supreme Court announced Daubert, but after we adopted rules of evidence in 1979 modeled after the Federal Rules of Evidence, we rejected an argument by the State in Contreras that the Federal Rules of Evidence had replaced Frye. Recognizing that the federal rules did not mention the Frye test, we said that "[w]e believe it unlikely that this silence was meant to overturn long-established rules of admissibility based on Frye . Although we did not expressly say so, we implicitly held that the Frye standard was not inconsistent with the Alaska Rules of Evidence. We also noted that "we have held other pre-existing rules to survive adoption of the rules of evidence." Noting that we had adopted Frye in Pulakis, we declined to question Frye. We have not revisited the question since deciding Contreras. We noted the existence of Daubert in Mattox v. State, Department of Revenue, 875 P.2d 763, 764 n. 2 (Alaska 1994), but declined to consider the issue. The Alaska Court of Appeals has commented on the conflict between Frye and Daubert, but in conformity with Contreras, it has continued to apply the Frye standard. In its Memorandum Opinion and Judgment in this case, the court of appeals stated that, given our adherence in Contreras to the Frye standard, "we believe that . the proper course of action is for us to follow the existing standard." We now reconsider the standard in light of Daubert's holding that Frye is inconsistent with the Federal Rules of Evidence. Because the trial court found Cain's opinion evidence to be admissible under both tests, and assuming that it applied each test correctly, it can be argued that there is no reason for us to resolve a legal issue that is not dispositive of the outcome of this petition. We nonetheless choose to reach the Frye /Daubert issue because the parties and the amici have thoroughly and skillfully discussed the reasons why we should or should not adopt Daubert in place of Frye. Postponing a decision for another day would be unlikely to give us the benefit of better advocacy. Further, to the extent that this issue relates to our rules of evidence, it implicates our rule-making responsibility. Although we are not bound by the Supreme Court's conclusion, its analysis of the corresponding federal rules is helpful and, moreover, has triggered a wealth of useful critical comment. B. Ex Post Facto Prohibition Before deciding whether Frye remains ascendant, we consider, and reject, Coon's argument that the federal and state constitutional prohibitions on ex post facto legislation apply to judicial decisions thus barring the application of the 1993 Daubert decision to his 1992 trial. We reach this conclusion because there is no support for Coon's proposition in federal or state law. On its face, the federal ex post facto prohibition applies only to legislative acts, not judicial decisions. We construe our state prohibition no differently than the federal prohibition. Unforeseeable judicial enlargements of criminal statutes have been struck down as violative of due process when applied retroactively. But that is not the case here. Even if we were to apply the prohibition on ex post facto laws to judicial decisions, changes to rules governing the admissibility of evidence do not violate it. In Thompson v. Missouri, 171 U.S. 380, 387, 18 S.Ct. 922, 43 L.Ed. 204 (1898), the United States Supreme Court stated that [W]e cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed.[ ] The prohibition on ex post facto laws has been construed as applicable only to penal legislation. Coon also asserts that retrospective application of Daubert to his case would deny him substantive and procedural due process of law and violate his right to equal protection. His cursory discussion of these issues is inadequate to preserve them. We consider them waived. C. The Alaska Rules of Evidence The State argues that we should abandon the Frye standard. It asserts that Frye has become outdated and inadequate for modern litigation, where many cases involve sophisticated scientific data and knowledge. It argues that Frye uses social, rather than scientific, criteria for determining reliability and validity when reviewing a novel scientific technique. This causes trial courts simply to "count hands" to determine whether scientists in the relevant scientific community accept the technique as reliable, and "abdicates" judicial responsibility for determining admissibility to scientists uneducated in the law. The State also argues that a few dissenters within a scientific community may prevent a finding of general acceptance, leading to over-representation of the dissenters' views. In addition, the State contends that Frye ⅛ conservative nature causes a "gross time lag" between the development of a new scientific technique and its judicial admissibility. This can cause certain cutting edge science to become obsolete before it is admissible under Frye. Our new evidence rules became effective in 1979, nine years after we decided Pulakis. We there approvingly quoted the Frye standard in holding that polygraph test results had been properly excluded. Several of our evidence rules bear on the admissibility of scientific evidence. Evi dence Rule 104(a) assigns to the trial court the duty to determine preliminary questions concerning the qualification of a person to be a witness and the admissibility of evidence. Evidence Rule 401 defines what evidence is relevant. Evidence Rule 403 allows exclusion of relevant evidence for such reasons as prejudice, confusion, and waste of time. Evidence Rule 702 allows experts to offer helpful opinion testimony. Evidence Rule 703 allows experts to base opinions on facts or data of a type reasonably relied upon by experts in the field. Thus, expert opinion evidence is admissible if the trial court (exercising its authority under Rule 104(a)) determines that (1) the evidence is relevant (Rule 401); (2) the witness is qualified as an expert (Rule 702(a)); (3) the trier of fact will be assisted (Rule 702(a)); (4) the facts or data on which the opinion is based are of a type reasonably relied upon by experts in the particular field in forming opinions upon the subject (Rule 703); and (5) the probative value of the evidence is not outweighed by its prejudicial effect (Rule 403). Nothing in our evidence rules requires or implies that any single criterion, let alone Frye ⅛ general acceptance standard, controls admission of scientific opinion evidence. The commentary, which predated Daubert, observed that Evidence Rule 703 "attempts to chart a path between the rigid approach of [Frye] and the minimal relevance approach of Rule 401." It also mentioned several Daubert-like factors and noted: Even though Rule 403 might be deemed sufficient protection against the dangers of relatively untested evidence, Rule 703 is drafted so as to remind trial judges that innovative attempts to offer expert evidence may involve evidence that is superficially attractive, but which is problematic for one or more of the following reasons: . 3) while the expert evidence is plainly relevant, the rate of error associated with the technique that produced the evidence is unknown and the trier of fact is therefore unable to properly evaluate the evidence; 4) the expert evidence is the subject of great controversy among the nation's experts and it would be inappropriate for a court or jury to resolve the controversy in any particular ease. See, e.g., People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (1976) (rejecting voiceprint evidence)[ ] Although the United States Supreme Court stated in Daubert that Federal Evidence Rule 702 is the "locus" for determining the admissibility of scientific evidence, the commentary to the Alaska Rules of Evidence provides support for the State's view that Alaska Rule of Evidence 703 is also a source for an approach broader than the Frye standard. Our evidence rules give trial courts both the authority and the responsibility to determine the admissibility of such evidence without being limited to the general acceptance standard. They preclude this inquiry from focusing exclusively on general acceptance or any other single factor. Our evidence rules contemplate a broader inquiry, allowing a proponent to establish admissibility even if general acceptance is absent, and allowing an opponent to challenge admissibility even if general acceptance is present. Frye is potentially capricious because it excludes scientifically reliable evidence which is not yet generally accepted, and admits scientifically unreliable evidence which al though generally accepted, cannot meet rigorous scientific scrutiny. Because the Frye test potentially excludes evidence that should be admitted under our rules, and also potentially admits evidence that should be excluded under our rules, we conclude that it is both unduly restrictive and unduly permissive. Just as the Supreme Court concluded in Daubert that the Frye test is inconsistent with the federal evidence rules, we conclude that it is inconsistent with the Alaska Rules of Evidence. We reach this conclusion despite our prior approval of the Frye standard. "[T]he judicial doctrine of stare decisis accords the prior holdings of the highest courts of this State precedential value while still permitting the reconsideration of legal issues when conditions warrant." We have stated that we will overrule a prior decision only when we are "clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions, and that more good than harm would result from a departure from precedent." It is our view that these requirements are met with respect to our decision in Contreras. First, we are clearly convinced that we erroneously decided Contreras for the following reasons. Contreras assumes that the Federal Rules of Evidence did not change the Frye test. Daubert has subsequently shown that assumption to be incorrect. Further, our decision in Contreras ignored Alaska Evidence Rule 703, which employs a "reasonably relied upon by experts" standard in contrast to Frye ⅛ "general acceptance" standard. This oversight in Contreras is all the more surprising because the commentary to the Rule 703 makes clear an intent to promulgate a rule different from Frye: "The rule attempts to chart a path between the rigid approach of [Frye] and the minimal relevance approach of Rule 401." Second, we conclude that the "more good than harm" requirement is also met. As noted above, Frye may exclude scientifically reliable evidence while admitting unreliable evidence. It is desirable to replace Frye with a rule not suffering from these deficiencies. Any harm as may be done by overruling Contreras is short term and limited. It concerns only cases in which the Frye /Dau-bert controversy has been raised that are pending in the trial courts or on direct review at the time of this decision. In those cases, if reliance on Frye is found to be other than harmless error, a new trial may be required. But a new trial may not be necessary, because on remand the trial court may determine that the questioned evidence meets the standard set out in this opinion. The limitations of the general acceptance standard have been extensively catalogued. Assuming that some of the strictures of Frye were ameliorated in some courts pre-D<m-bert, we nonetheless conclude that it is better to resolve admissibility disputes by referring to our modern evidentiary foundation, the Alaska Rules of Evidence, than by trying to salvage or remold a "rigid" standard that is fundamentally inconsistent with our rules, How should Alaska trial courts assess the reliability and relevance of proffered scientific evidence? The factors identified in Dau-bert provide a useful approach: (1) whether the proffered scientific theory or technique can be (and has been) empirically tested (i.e., whether the scientific method is falsifiable and refutable); (2) whether the theory or technique has been subject to peer review and publication; (3) whether the known or potential error rate of the theory or technique is acceptable, and whether the existence and maintenance of standards controls the technique's operation; and (4) whether the theory or technique has attained general acceptance. Other factors may apply in a given ease. After the Supreme Court issued its decision in Daubert, the Ninth Circuit suggested two ways to satisfy Daubert ⅛ requirement that the testimony be "derived by the scientific method [or] . based on scientifically valid principles." As described by Kesan, "either (a) the expert's proffered testimony must grow out of prelitigation research, or (b) the expert's research must be subjected to peer review." Kesan, giving the example of "independent" research funded by tobacco companies, appropriately notes the danger of a hidden litigation motive. Nonetheless, publication is at least more likely to provoke scrutiny and response, and reveal methodological deficiencies. Alaska Evidence Rule 702 is similar to New Mexico's equivalent rule. In 1993 the New Mexico Supreme Court adopted the Daubert standard in State v. Alberico, 116 N.M. 156, 861 P.2d 192, 203-04 (1993). Other state supreme courts with similar evidence rules have also adopted the Daubert standard. But other states, whose evidence rules also mirror the federal rules, have rejected Dau-bert and retained Frye. California and New York courts have also retained a Frye-type standard; they have no rule similar to Alaska Evidence Rule 702. Those decisions do not convince us that we should retain Frye. In invoking our evidence rules, adopting Daubert, and limiting Frye, we reject arguments and dire predictions supporting the status quo. Burden on trial judges. We first reject concerns that Daubert will make the trial courts' gatekeeping role unduly burdensome. This concern is founded on a perception that Daubert requires judges to determine the reliability of the expert's scientific methods, whereas the general acceptance standard allows courts to defer to the judgment of scientists. The notion that scientists are better suited than judges for assessing scientific reliability may appear initially persuasive, given that trial judges are rarely trained in science and given concerns that they are already overburdened. Closer consideration reveals that the notion is misleading and irrelevant. First, scientific reliability is not necessarily congruent with judicial reliability. This is illustrated by Frye itself. The "general acceptance" standard does not define scientific reliability; it is simply a judicial construction. And for reasons noted above, it is a flawed judicial construction. Second, the rules of evidence must be applied by trial judges, subject to review for abuse of discretion. It is for the trial court to determine whether the expert is qualified to testify and the proffered evidence is admissible. Determining reliability for judicial purposes is unavoidably the responsibility of trial courts, and should not be delegated to an expert's peers. The burden, especially when considering novel scientific evidence, may well be substantial. We nonetheless conclude that it is one the trial courts (and appellate courts on review) must bear. But we are not convinced that the burden will be as onerous as some predict. We suspect that most difficult disputes will be limited to evidence that is rationally disputable; we expect that relatively little effort will be required to determine the admissibility of most scientific evidence, because most will be either patently reliable or unreliable. As for the difficult disputes, the courts may reduce the judicial burden and increase the accuracy of their admissibility decisions by selecting independent expert witnesses. They can also appoint expert advisors. Such advisors can provide valuable guidance to courts determining reliability of proffered scientific evidence. Commentators have identified various concerns about using technical advisors. Their suggestions — how to select an advisor, how to define the expert's duties, and how the expert should act — are worthy of consideration. "Junk science." Several amici argue that juror susceptibility to the persuasive power of scientific evidence mandates a conservative reliability standard, such as Frye ⅛ general acceptance test, to prevent admission of "junk science." In State v. Carter, 246 Neb. 953, 524 N.W.2d 763, 777-78 (1994), the Nebraska Supreme Court stated that the Frye rule was intended to ensure the reliability of scientific evidence because: (1) lay jurors can be overly impressed by science; (2) lay jurors lack the capacity to evaluate scientific evidence critically; and (3) lay jurors are likely to give "junk science" more weight than it deserves. The court, citing New Mexico and Arizona decisions, recognized "the complex nature of DNA evidence and the need to protect against unproven and potentially erroneous and misleading evidence," and declined to adopt the Daubert standard for the admissibility of DNA evidence. The Frye test is arguably a safeguard against evidence based upon specious scientific techniques, especially in criminal trials where the defendant's right to a fair trial is crucial. Nevertheless, the Frye standard has also been criticized for being easily manipulated by courts when deciding whether or not to admit certain evidence. "The lack of a definitional framework for 'field' and 'general acceptance' allowed courts seeking to admit scientific evidence to confine the 'field' of pertinent inquiry narrowly to a specialty within a broader scientific discipline in order to demonstrate 'general acceptance.'" For example, in Commonwealth v. Dykus, 367 Mass. 191, 327 N.E.2d 671, 675-78 (1975), the record contained evidence of a dispute about the acceptance of voice spectrography in the scientific community; the court resolved the dispute by limiting the applicable scientific community to "those who would be expected to be familiar with its use." We are not convinced that "junk science" is more likely to be admitted under Daubert than under Frye. Tost-Daubert reported decisions suggest that courts are acting with restraint, and are giving rigorous consideration to the reliability of scientific evidence. Furthermore, Frye also potentially permits admission of unreliable scientific evidence, because a methodology that has been generally accepted might nonetheless have been discredited during a Daubert inquiry. We also suspect that junk science poses less risk to fair trials than a more common aspect of admitting scientific evidence. Even when they apply identical methodologies that satisfy both Daubert and Frye, dueling experts can reach conflicting, irreconcilable conclusions. Indeed, Daubert has been criticized because it assumes that reliability should be determined by examining the methodology, without regard to the truth of the scientific conclusions. Even when they apply the same methodology, experts for opposing parties may reach different results. Likewise, well-qualified experts may make rational conflicting choices in deciding which reliable methodology to apply. Juries, relatively ill-trained to resolve such conflicts on subtle or complex scientific grounds, may resort to credibility assessments which are unduly simplistic. Opinions of a practiced forensic expert may prevail over those of a true academic who makes a less impressive appearance on the witness stand. Assuming proper execution of the judicial gatekeeping function, we think the risk to fair trials posed by junk science is lower than the risk posed by jurors' difficulty in critically assessing scientific evidence that is based on reliable methodologies. Relitigation of evidence admissible under Frye. Butler's amicus brief asserts that since the Daubert standard applies to all scientific knowledge, and is not limited to "novel" scientific evidence, evidence deemed admissible under Frye may now be found inadmissible under Daubert. Butler argues that this will lead to increased litigation over the admissibility of scientific evidence, and to a case-by-case determination of admissibility, with the possibility of inconsistent or unpredictable decisions. Butler suggests that Daubert may affect forensic sciences, such as fingerprint, handwriting, and hair comparison analyses, that are now admissible under Frye. While Butler frames this as a negative result of adopting Daubert, the New Mexico Supreme Court noted: Contrary to the assertion . that the Frye test places the responsibility of determining scientific validity upon scientists, in practice too many courts reference reported case law to determine what is generally accepted in the scientific community. It is improper to look for scientific acceptance only from reported case law because that amounts to finding a consensus in the legal community based on scientific evidence that is sometimes many years old[ ] Further, as the State notes, when an area of expertise is well-known and has been fully considered by the courts, a trial court may take judicial notice of its admissibility. The Supreme Court advocated this approach. Moreover, general acceptance remains a factor under Daubert. It also seems unlikely that methodologies that were admitted under Frye and that remain generally accepted in the appropriate community will be excluded, absent affirmative evidence of unreliability. D. The Admissibility of Voice Spectrograph Evidence under Daubert On remand, the trial court found that Cain's testimony regarding the applied forensic technique of using spectrography to analyze and identify voices was admissible under both Frye and Daubert. Coon and the APDA contend that the trial court erred in finding Cain's testimony regarding voice spectrography admissible under either test. Given our adoption of Daubert in Part III.C, there is no reason to review admissibility under Frye. 1. Standard of review We review a trial court's ruling on the admissibility of expert testimony for abuse of discretion. Although the parties agree on this standard of review, two amici curiae, Butler and the APDA, argue that we should review de novo a trial court's decision to admit or exclude scientific evidence. So arguing, APDA relies on a passage from Pulakis, where we stated that "[o]n the basis of our study of the judicial authority and academic literature in this area, we conclude that the results of polygraph examinations should not be received in evidence over objection." In addition, both Butler and APDA cite Contreras, in which the court of appeals stated that it was "free to exercise [its] independent judgment" when reviewing the trial court's decision to admit evidence recovered from an eyewitness during hypnosis because the findings regarding memory and the effects of interrogative techniques on eyewitness testimony and hypnosis in general are legislative facts, rather than adjudicative facts. Kesan and the dissenting opinion propose adopting a hybrid standard of review, reviewing de novo a trial court's findings on the scientific knowledge prong of the Daubert test and retaining an abuse of discretion standard for the second prong relating to relevance or "fit" of the facts of the particular case to the scientific technique employed. They assert that implementing de novo review of scientific validity allows for more uniform adjudication at the trial and appellate levels, and for development of distinct validation criteria for expert testimony relating to different scientific or technical disciplines. We see no present reason to adopt a new or hybrid standard for reviewing rulings on the admissibility of scientific evidence. Abuse of discretion is the standard applicable to other evidentiary rulings. Such rulings are best left to the discretion of the trial court. A determination of reliability under Daubert is no different. The dissent reaches a different conclusion because it begins with the premise that the scientific validity of a technique is a legal issue which does not turn on case-sensitive facts. This premise does not adequately take account of the reality of the judicial process and the variable state of science. The New Mexico Supreme Court rejected the same argument advanced here by the dissent. In rejecting the de novo standard of review that court noted: This reasoning assumes, however, that the record on appeal contains all of the relevant, most recent data concerning the scientific method, and that assumes too much. It also assumes that there is always a reservoir of scientific literature that an appellate court might independently reference in a de novo review. The abstract validity of a scientific technique should not vary from court to court, but how the proof of such validity is communicated will often vary from presentation to presentation. Some experts are more skillful and more well-informed than others just as some lawyers are more skillful and more well-prepared than others. In addition, the state of science is not constant; it progresses daily. For example, what might have been true about [post traumatic stress disorder] in the early 1980s when it was first addressed in published opinions might not have been true in 1992.... [ ] We recognize that different trial judges, in exercising their discretion, may reach different conclusions about scientific reliability. But we disagree with the dissent's suggestion that the inconsistency will be of such magnitude as to "compromise the integrity of the judiciary in the eyes of the public." Despite such predictions in the academic litera-tee, the majority of the federal circuits have chosen to apply the abuse of discretion standard when reviewing district court decisions under Daubert. In addition, the Supreme Court recently approved the abuse of discretion standard in General Electric, Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997). The principal reason for adopting the Dau-bert standard is to give the courts greater flexibility in determining the admissibility of expert testimony, so as to keep pace with science as it evolves. We think the abuse of discretion standard of review best comports with these aims, and we choose to apply it here. 2. Admissibility of Cain's voice spectro-graphic analysis under Daubert In making its findings on remand, the trial court discussed each factor the Supreme Court articulated in Daubert. The trial court found that the technique of spectrographic voice identification had been empirically tested "on numerous occasions by many scientists during approximately the past twenty years." The court determined that voice spectrography had been subjected to peer review and publication, but noted that the technique's reliability was debated in the scientific literature. It also found that when properly performed under the "stringent standards" of the International Association for Identification by a qualified, trained scientist or technician, voice spectrography has a known error rate of less than one percent. The trial court found that because voice spectrography has been subjected to empirical testing, it is both falsifiable and refutable, and that testing has not refuted the technique or shown that it is falsified. The court determined that when voice spectrography is properly performed by a qualified person, it has attained widespread acceptance within the relevant scientific community — amongst forensic scientists and scientists in acoustics and speech-related fields with experience using the technique. The trial court also found that the reasoning and methodology underlying Cain's testimony were scientifically valid, and that Cain had properly performed the voice spectro-graphic analysis in this case. The trial court stated that Cain's testimony was relevant in that it assisted the jury in determining a key issue at trial, namely the identification of the person who left the threatening messages on Deborah Rudolph's answering machine. The trial court therefore concluded that Cain's testimony was sufficiently relevant and reliable to be admitted under Daubert. The trial court made these findings on remand after reviewing the record, including Cain's testimony. Because this is our first review of a trial court's application of Daubert, we discuss Cain's evidence at some length. Cain testified at the 1992 hearing about his qualifications as a voice spectrograph expert. He has a bachelor of science degree in engineering and two master's degrees in forensic science; he had completed two years of work toward a doctoral degree in criminology. He had continued his post-graduate education by attending seminars at the state and national levels dealing with tape examination and other aspects of forensic evidence analysis. He had given talks and seminars throughout the United States on voice identification and tape analysis and had published "a number of articles" concerning the legal aspects and results of research studies on the reliability of voice spectrograph analysis. He owned and operated Applied Forensic Technologies International, Inc., a forensic laboratory that analyzes physical evidence. Before opening his private laboratory, Cain worked for ten years as a document and voice print examiner for the Secret Service in its Washington, D.C., crime laboratory, and for three years for the Internal Revenue Service as a supervisor at its Illinois Crime Lab, where he started a voice identification program. He was certified by the International Association for Identification (IAI) as a voice identification specialist and he served on the certification board of that organization. Based on this testimony offered outside the jury's presence, the trial court found that Cain was qualified as an expert under Alaska Evidence Rule 702 in the field of "applied forensic techniques of voice prints." Cain then explained that in performing a voice analysis, he conducts both an aural and a spectrographic analysis of a voice. Cain discussed factors which might affect the results of voice analysis, the potential error rate of voice analysis, and the reliability of the technique. He described the standards adopted by the IAI in 1992, and stated that he adhered to these standards, and that he sends his work to another examiner for an independent review of the accuracy of his findings. Cain estimated that approximately thirty-one to thirty-four states have accepted voice spectrograms, commonly known as voiceprints, as a positive means of forensic identification. Cain testified that voice spec-trographic analysis has been subjected to empirical testing from the time of its inception over twenty years prior. Cain testified about various scientific studies that concluded that voice spectrographic analysis was a valid and reliable forensic identification technique. The scientific literature submitted to us by amicus APDA would also support a finding that spectrographic analysis has been empirically tested. We conclude that the trial court did not err in finding on remand that this technique has been subjected to empirical testing. Cain conceded that several studies question the validity and reliability of the technique. Although many of the studies questioned the reliability of the technique, the trial court did not err in finding on remand that the technique had been subjected to peer review and publication, since a general consensus is not a mandatory requirement under Daubert. Cain also testified that research studies have calculated the known error rate for voice spectrographic analysis to be less than one percent when the technique is performed properly by a scientist skilled in the technique. Cain stated that in order to make the sample as accurate as possible by eliminating "intraspeak variation" (the internal factors that affect a person's voice, such as the time of day, the amount a person has eaten, or the person's mood), the scientist conducting the analysis should take numerous exemplars and attempt to duplicate the conditions of the original recording. The trial court did not err in finding on remand that the known error rate for voice spectro-graphic analysis performed properly by a skilled scientist in the field was sufficiently low to make this evidence reliable. General acceptance remains a factor under Daubert. The trial court on remand found that "[t]he technique of voice identification using spectrography when properly performed by a qualified person has attained widespread acceptance within a relevant scientific community — forensic scientists and scientists in acoustics and speech related fields who had experience using the technique." In determining the admissibility of voice spectrograph evidence under the general acceptance test, several courts have defined the composition of the "relevant scientific community." In State v. Gortarez, 141 Ariz. 254, 686 P.2d 1224, 1233 (1984), the Arizona Supreme Court defined the relevant scientific community as "disinterested and impartial experts in many fields, possibly including acoustical engineering, acoustics, communications electronics, linguistics, phonetics, physics, and speech communications." The Gor-tarez court noted that this list was merely suggestive and not all-inclusive. Neither party questions the trial court's determination of the relevant scientific community in this case. Based upon the findings of other courts as to the relevant scientific community for the technique of forensic voice identification using spectrography, we conclude that the trial court did not abuse its discretion in determining the relevant scientific community. Coon and the APDA argue that voice spectrograph analysis is not generally accepted within the relevant scientific community, and has been ruled inadmissible by numerous courts applying Frye. The APDA has submitted several articles questioning the reliability of voice spectrograph analysis when used as anything other than an investigative tool. The APDA also included a copy of an Alaska superior court decision in State v. Gomez, No. 3AN-S88-5190 Cr. (March 23, 1990), in which Superior Court Judge Joan M. Katz found that voice spectrographic identification evidence was inadmissible because it was not generally accepted within the relevant scientific community. In determining whether evidence is generally accepted within the scientific community, courts have generally looked to three sources for guidance: (a) judicial opinions; (b) scientific literature; and (c) expert testimony presented at an evidentiary hearing. Under Frye many courts have determined that voice spectrographic evidence is not admissible. But other courts have allowed voice spectrographic evidence under standards other than Frye. And several courts purporting to apply Frye have also allowed such evidence. Overall, it is inconclusive whether there is a judicial consensus that voice spectrographic evidence is generally accepted within the relevant scientific community. The scientific literature cited by the APDA permits a conclusion that there is significant disagreement among experts in the field of voice spectrographic analysis regarding the reliability of the technique. As the State notes, no scientific literature was submitted to the trial court for review, but Cain testified about several articles and studies addressing voice spectrographic analysis, and conceded that the reliability of the technique was disputed among members of the relevant scientific community. Cain cited, among others, a study conducted in 1986 by Bruce E. Koenig of the Federal Bureau of Investigation. Koenig there noted that in a survey of 2,000 voice identification comparisons made by FBI examiners under actual forensic conditions, meaningful decisions were made only 34.8% of the time, with a known error rate of 0.31% for false identifications and 0.53% for false eliminations, with an overall error rate of 0.43%. In a 1993 article, Koenig noted that problems still persist in the spectrographic voice identification field, such as "separate sets of certified examiners making high confidence decisions for both identification and elimination in the same case." Koenig also stated that even with the establishment of new standards by the IAI in 1992, the use of spectrographic voice technique is on the decline, and "[t]he most important legal difference is the FBI's policy not to provide testimony on spectro-graphic comparisons due to the inconclusive nature of the examination and the unknown error rate under specific investigative conditions." Although it is not clear that voice spectro-graphic analysis has attained general acceptance within the relevant scientific community, we do not find that the trial court clearly erred in making its general acceptance finding, or abused its discretion in ruling that the evidence satisfied Daubert. Consequently, we conclude that the trial court did not err in finding the voice spectrographic evidence admissible under Daubert. It therefore did not abuse its discretion in admitting this evidence at Coon's trial. IV. CONCLUSION For these reasons, we overrule Contreras, and hold that the Alaska Rules of Evidence supersede the Frye test. We adopt the Daubert standard for determining the admissibility of scientific evidence. We hold that the voice spectrograph analysis evidence was admissible under Dau-bert and the Alaska Rules of Evidence in this case. We therefore AFFIRM Coon's judgment and conviction. BRYNER, Justice, not participating. . See Coon v. State, Mem. Op. & J. No. 3070 (Alaska App., January 25, 1995). . M.R.S. v. State, 897 P.2d 63, 66 (Alaska 1995); see also Hernandez-Robaina v. State, 849 P.2d 783, 785 n. 2 (Alaska 1993); Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . See Jay P. Kesan, An Autopsy of Scientific Evidence in a Post — Daubert World, 84 Geo. L.J. 1985, 1990 (1996) [hereinafter Kesan, Autopsy ]; Joseph R. Meaney, From Frye to Daubert: Is a Pattern Unfolding?, 35 Jurimetrics J. 191, 191, 194-99 (Winter 1995) [hereinafter Meaney, Pattern Unfolding? ]. . See Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). . Id. (emphasis added). . Id. . See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). . See id. at 582, 113 S.Ct. 2786. . See id. at 582-83, 113 S.Ct. 2786. . See id. at 583-84, 113 S.Ct. 2786. . See id. at 584, 598, 113 S.Ct. 2786. . Daubert, 509 U.S. at 588, 113 S.Ct. 2786 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988)). . Id. at 589, 113 S.Ct. 2786. . Id. at 592, 113 S.Ct. 2786 (footnotes omitted). . Id. at 592-93, 113 S.Ct. 2786. . Id. at 593-94, 113 S.Ct. 2786. . Daubert, 509 U.S. at 594-95, 113 S.Ct. 2786. . See generally John M. Conley & David W. Peterson, Essay, The Science of Gatekeeping: The Federal Judicial Center's New Reference Manual on Scientific Evidence, 74 N.C. L.Rev. 1183, 1186 (1996) [hereinafter Conley & Peterson, Science of Gatekeeping ]. . See Contreras v. State, 718 P.2d 129, 136 (Alaska 1986). . Id. . Id. . See id. at 134, 136. . See, e.g., Harmon v. State, 908 P.2d 434, 439 & n. 5 (Alaska App. 1995); Williams v. State, 884 P.2d 167, 172 (Alaska App.1994); McGlauflin v. State, 857 P.2d 366, 371 & n. 3 (Alaska App. 1993). . Coon v. State, Mem. Op. & J. No. 3070 at 7 (Alaska App., January 25, 1995). . See, e.g., Conley & Peterson, Science of Gatek-eeping, supra note 18; Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century Later, 80 Colum. L.Rev. 1197, 1207 (1980) [hereinafter Giannelli, Novel Scientific Evidence]; Kesan, Autopsy, supra note 3; Meaney, Pattern Unfolding?, supra note 3; Adina Schwartz, A "Dogma of Empiricism" Revisited: Daubert v. Merrell Dow Pharmaceuticals, Inc. and the Need to Resurrect the Philosophical Insight of Frye v. United States, 10 Harv. J.L. & Tech. 149, 156 (Winter 1997) [hereinafter Schwartz, Dogma of Empiricism']', Note, Improving Judicial Gatekeeping: Technical Advis-ors and Scientific Evidence, 110 Harv. L.Rev. 941, 953 (Feb.1997) [hereinafter Improving Judicial Gatekeeping]. . See U.S. Const, art. I, § 9 and 10; Alaska Const, art. I, § 15. . See Frank v. Mangum, 237 U.S. 309, 344, 35 S.Ct. 582, 59 L.Ed. 969 (1915); Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798); and Laurence H. Tribe, American Constitutional Law § 10-2, at 632 (2d ed.1988). . See State v. Creekpaum, 753 P.2d 1139, 1143 (Alaska 1988). . See, e.g., Marks v. United States, 430 U.S. 188, 191-97, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); Bouie v. Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); and Tribe, supra note 27. . See also Hopt v. Utah, 110 U.S. 574, 588-90, 4 S.Ct. 202, 28 L.Ed. 262 (1884) (upholding retroactive application of statute making felons competent to testify); Allen v. State, 945 P.2d 1233, 1236 (Alaska App.1997) (holding that because it does not alter the definition of crimes or increase the punishment for criminal acts, the amendment of Evidence Rule 404(a)(2) may be applied "retrospectively" without violating the prohibition on ex post facto laws). . See Landgraf v. USI Film Products, 511 U.S. 244, 266 n. 19 (1994); Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) ("It is settled . that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission; or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto."). . See Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991) (stating that "where a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal"). . See Alaska Supreme Court Order No. 364 f(August 1, 1979). . See Pulakis v. State, 476 P.2d 474, 478 (Alaska 1970). . Alaska Rule of Evidence 702(a) provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion [or] otherwise. . Alaska Rule of Evidence 703 provides: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. Facts or data need not be admissible in evidence, but must be of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. . See also State v. Alberico, 116 N.M. 156, 861 P.2d 192, 202-04 (1993). . Alaska R. Evid. 703, commentary. . Id. . 509 U.S. at 589, 113 S.Ct. 2786. . See id. . State v. United Cook Inlet Drift Ass'n, 895 P.2d 947, 953 (Alaska 1995); see also Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1175-76 (Alaska 1993). . State v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996). . See Yerrington v. Anchorage, 675 P.2d 649 (Alaska App.1983). . See Kesan, Autopsy, supra note 3, at 1191-92; Giannelli, Novel Scientific Evidence, supra note 25, at 1208-31; see also Daubert, 509 U.S. at 586 n. 4, 113 S.Ct. 2786 (listing articles debating the merits of Frye). . For example, in California one must satisfy the Frye/ Kelly test to introduce expert testimony by showing: (1) that the technique or method is sufficiently established to have gained general acceptance in its field; (2) that the expert is properly qualified; and (3) that correct scientific procedures have been used in the particular case. See People v. Leahy, 8 Cal.4th 587, 34 Cal.Rptr.2d 663, 882 P.2d 321, 324-25 (1994) (referring to test announced in People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (1976)). Also, even before the Court announced Dau-bert, some federal appellate courts had rejected the Frye test and adopted multifactor reliability tests. See, e.g., United States v. Downing, 753 F.2d 1224, 1238-39 (3d Cir.1985); United States v. Williams, 583 F.2d 1194, 1198-99 (2d Cir.1978). . See 509 U.S. at 593-94, 113 S.Ct. 2786. . Daubert v. Merrell Dow Pharm., Inc., (Daubert IV), 43 F.3d 1311, 1316 (9th Cir.1995). . Kesan, Autopsy, supra note 3, at 2003 (citing Daubert IV, 43 F.3d at 1318). . See id. at 2002. . See Alaska R. Evid. 702, commentary. . See Cecil v. Commonwealth, 888 S.W.2d 669, 674-75 (Ky.1994); State v. Foret, 628 So.2d 1116, 1121, 1123 (La.1993); Commonwealth v. Lanigan, 419 Mass. 15, 641 N.E.2d 1342, 1348-49 (1994); State v. Brooks, 162 Vt. 26, 643 A.2d 226, 229 (1993); Mayhom v. Logan Med. Found., 193 W.Va. 42, 454 S.E.2d 87, 90-93 (1994). . See Flanagan v. State, 625 So.2d 827, 828-29 & n. 2 (Fla.1993); State v. Carter, 246 Neb. 953, 524 N.W.2d 763, 778-79 (1994), overruled on other grounds by State v. Freeman, 253 Neb. 385, 571 N.W.2d 276, 293 (1997); State v. Riker, 123 Wash.2d 351, 869 P.2d 43, 47-48 & n. 1 (1994). . See People v. Leahy, 8 Cal.4th 587, 34 Cal.Rptr.2d 663, 882 P.2d 321, 325 (1994); People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97, 633 N.E.2d 451, 454 & n. 2 (1994). . See Kesan, Autopsy, supra note 3, at 2000; Daubert IV, 43 F.3d at 1316 ("As we read the Supreme Court's teaching in Daubert, . though we are largely untrained in science and certainly no match for any of the witnesses whose testimony we are reviewing, it is our responsibility to determine whether those experts' proposed testimony amounts to 'scientific knowledge,' constitutes 'good science,' and was 'derived by the scientific method.' "). . See Alaska R. Evid. 104(a). . Alaska Evidence Rule 706 provides in pertinent part: (a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint expert witnesses. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. If the court determines that the interests of justice so require, the party calling an expert appointed under this rule may cross-examine the witness. See also Daubert, 509 U.S. at 595, 113 S.Ct. 2786. . Compare Daubert, 509 U.S. at 595, 113 S.Ct. 2786 (possibly implying that Evidence Rule 706 also governs appointment of non-witness advis-ors), with In re Peterson, 253 U.S. 300, 312, 40 S.Ct. 543, 64 L.Ed. 919 (1920) (recognizing courts' "inherent power" to appoint persons not connected with the court to aid judges in the performance of specific judicial duties). . See Note, Improving Judicial Gatekeeping, supra note 25. . See id. at 954-58. . See generally People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240, 1245 (1976) ("Lay jurors tend to give considerable weight to 'scientific' evidence when presented by 'experts' with impressive credentials. We have acknowledged the existence of a '... misleading aura of certainty which often envelops a new scientific process, obscuring its currently experimental nature.'") (citations omitted); see also Contreras v. State, 718 P.2d 129, 135 (Alaska 1986). . State v. Carter, 246 Neb. 953, 524 N.W.2d 763, 779 (1994). . See Giannelli, Novel Scientific Evidence, supra note 25, at 1207. . Kesan, Autopsy, supra note 3, at 1991. . See also Alberico, 861 P.2d at 201 (noting that the Frye test is easily manipulated because it is so vague). . See, e.g., Duffee v. Murray Ohio Mfg. Co., 879 F.Supp. 1078, 1086-87 (D.Kan.1995) (excluding expert testimony because it was devoid of a meaningful and factual basis for weighing the factors involved in the design of a product in defective design case), aff'd, 91 F.3d 1410 (10th Cir.1996); Richardson v. United States, 835 F.Supp. 1236, 1239-41 & n. 1 (E.D.Wash.1993) (excluding testimony of automobile accident re-constructionists because their computations lacked fixed factors based on on-the-scene measurements and their conclusions were opinion-driven). .See Schwartz, Dogma of Empiricism supra note 25, at 156-57. . Alberico, 861 P.2d at 203. . See Daubert, 509 U.S. at 592 n. 11, 113 S.Ct. 2786; see also Giannelli, Novel Scientific Evidence, supra note 25, at 1202. . See 509 U.S. at 594, 113 S.Ct. 2786. . See Sweet v. Sisters of Providence in Wash., 895 P.2d 484, 494 n. 10 (Alaska 1995); see also Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980) ("The admissibility of evidence is largely within the trial court's discretion and its rulings will not be overturned on appeal in the absence of an abuse of discretion."). . 476 P.2d at 479. . 674 P.2d at 799 & n. 11. See also State v. Copeland, 130 Wash.2d 244, 922 P.2d 1304, 1314-15 (1996) (holding that review of admissibility under the Fiye test is de novo and involves a mixed question of law and fact). But see State v. Alberico, 116 N.M. 156, 861 P.2d 192, 205-06 (1993) (noting that although the abuse of discretion standard "lends itself to the criticism that it will lead to inconsistent results in lower courts throughout the state," abuse of discretion is the proper standard when reviewing a trial court's decision to admit scientific evidence under Dau-bert because appellate courts may not have the same access to the most recent data concerning the scientific method). . See Kesan, Autopsy, supra note 3, at 2038-39; Dissent at 403-404. . See Kesan, Autopsy, supra note 3, at 2038-39; Dissent at 403. . See Harris v. Keys, 948 P.2d 460, 466 (Alaska 1997) ("This court reviews the superior court's decisions on the admissibility of evidence for an abuse of discretion.") (citation omitted); Sever v. Alaska Pulp Corp., 931 P.2d 354, 359 n. 5 (Alaska 1996) ("A trial court's evidentiary rulings are reviewed under the abuse of discretion standard.") (citation omitted). .See Dissent at 403. . Alberico, 116 N.M. at 169-70, 861 P.2d 192. . Dissent at 404. . See generally, United States v. Kayne, 90 F.3d 7, 11 (1st Cir.1996); Raskin v. Wyatt, Co., 125 F.3d 55, 65-66 (2d Cir.1997); Benedi v. McNeil-P.P.C., 66 F.3d 1378, 1384 (4th Cir.1995); Pedraza v. Jones, 71 F.3d 194, 197 (5th Cir.1995); American & Foreign Ins. Co. v. General Elec. Co., 45 F.3d 135, 137 (6th Cir.1995); Hose v. Chicago N.W. Transp. Co., 70 F.3d 968, 972 (8th Cir.1995); United States v. Chischilly, 30 F.3d 1144, 1152 (9th Cir.1994); Duffee, Thornton v. Murray Ohio Mfg. Co., 91 F.3d 1410, 1411 (10th Cir.); Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 567 (D.C.Cir.1993). . See also Bruce E. Koenig, Spectrographic Voice Identification, 13 FBI Crime Lab. Digest 105, 115 (1986). . See State v. Gortarez, 141 Ariz. 254, 686 P.2d 1224, 1233 n. 4 (1984). See also United States v. Smith, 869 F.2d 348, 352 (7th Cir.1989) (defining the relevant scientific community as including "not only those who utilize spectrographic voice identification techniques, but linguists, psychologists and engineers as well" (footnote omitted)); Cornett v. State, 450 N.E.2d 498, 503 (Ind.1983) (defining the relevant scientific community as "linguists, psychologists, and engineers, in addition to the people who use voice spectrography for identification purposes"). . See, e.g., Windmere, Inc. v. International Ins. Co., 105 N.J. 373, 522 A.2d 405, 408 (1987). . See, e.g., Gortarez, 686 P.2d at 1236; People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240, 1251 (1976); Cornett, 450 N.E.2d at 503; People v. Tobey, 401 Mich. 141, 257 N.W.2d 537, 538-40 (1977); Windmere, 522 A.2d at 408-12. . See, e.g., United States v. Williams, 583 F.2d 1194, 1198-1201 (2d Cir.1978); United States v. Baller, 519 F.2d 463, 465-67 (4th Cir.1975); United States v. Franks, 511 F.2d 25, 32-34 (6th Cir.1975). . See, e.g., United States v. Smith, 869 F.2d 348, 353 (7th Cir.1989); United States v. Maivia, 728 F.Supp. 1471, 1473-74 (D.Haw.1990). . See Bruce E. Koenig, Spectrographic Voice Identification, 13 FBI Crime Lab. Digest 105, 115 (1986). . Bruce E. Koenig, Selected Topics in Forensic Voice Identification, 20 FBI Crime Lab. Digest 78, 80 (1993). . Id. at 80, 81.

10415215

In the Matter of the Application of John L. McKAY, Jr., An Applicant for admission to the Practice of Law in Alaska and Membership in the Alaska Bar Association

In re the Application of McKay

1985-08-23

No. S-667

784

786

704 P.2d 784

704

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:21:28.159013+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS and MOORE, JJ.

In the Matter of the Application of John L. McKAY, Jr., An Applicant for admission to the Practice of Law in Alaska and Membership in the Alaska Bar Association.

In the Matter of the Application of John L. McKAY, Jr., An Applicant for admission to the Practice of Law in Alaska and Membership in the Alaska Bar Association. No. S-667. Supreme Court of Alaska. Aug. 23, 1985. John L. McKay, Jr., in pro per. R. Eldridge Hicks, Lane, Powell, Barker & Hicks, Anchorage, for appellant. Stephen J. Van Goor, Discipline Counsel, Anchorage, for Alaska Bar Assn. Before RABINOWITZ, C.J., and BURKE, MATTHEWS and MOORE, JJ.

984

6013

OPINION MOORE, Justice. In February 1984 John L. McKay, Jr. sat for the Alaska Bar Examination. He achieved a score of 138.69; a passing score was 139.50. In July 1984 McKay filed an appeal with the Board of Governors of the Alaska Bar Association, alleging (1) that the Committee of Bar Examiners and the Bar Association's executive director had improperly administered the February 1984 bar exam by allegedly allowing some applicants to exceed the announced time limit; and (2) that the same committee and director had abused their discretion in the grading of certain essay questions on the examinations, i.e., that some model answers were inadequate and some of McKay's own essay answers were given lower scores than they allegedly deserved. The Board denied McKay a hearing on his allegations, stating that "the appeal failed to allege facts which, if true, would establish an abuse of discretion or improper conduct by the Board." In the Board's view, Bar Rule 6(2) allows for a hearing only in response to sufficient allegations of procedural deficiencies. We reject this narrow view and find that a hearing is required in response to sufficiently specific allegations of substantive deficiencies, such as gross errors in grading. We further find that McKay's pleadings to the Board presented sufficient allegations of inadequate model answers and inaccurate scores assigned to his answers. His allegations assert facts that, if true, would indicate an abuse of discretion by the Board. Alaska Bar Rule 6(2) provides in part: An applicant who has been denied an examination permit or who has been denied certification to the Supreme Court for admission to practice shall have the right, within thirty days after receipt of written notice of such denial, to file with the Board a written statement of appeal. An applicant who is denied an examination permit or who is denied certification shall allege facts which, if true, would establish an abuse of discretion or improper conduct on the part of the Board, the Executive Director, the Committee or a master. If the allegations in the verified statement are found to be sufficient by the Board, a hearing shall be granted. (Emphasis added). In Application of Peterson, 499 P.2d 304 (Alaska 1972) (Peterson II), we stressed that the unsuccessful applicant must be accorded a meaningful appellate hearing before the Board to air allegations of improper conduct or abuse of discretion in the grading of the examination. McKay contends that the Board's interpretation of Alaska Bar Rule 6(2) denies him due process because it allows the Board to determine the "sufficiency" of his allegations prior to a hearing. He points out that the Rule itself defines "sufficient" as requiring that an appellant must allege facts which, if true, would constitute an abuse of discretion or improper conduct. We agree. The Board contends that McKay did not make any specific allegations that the calibration, grading, computation or review procedures were not followed. The Board stresses that McKay did not allege that the graders "intentionally" assigned lower scores to his essays or "intentionally" ignored points raised in his answers. The Board's position, in essence, is that an applicant may challenge only procedural improprieties. We disagree with this position. An examiner may commit an abuse of discretion in misgrading an answer even if the examiner acted with good faith and correctly followed the established procedure. In Application of Peterson, 459 P.2d 703 (Alaska 1969) (Peterson I), we listed fraud, mistake, arbitrariness, "or any other ground which warrants review" as possible actions by the Board that would warrant a hearing. Peterson I, 459 P.2d at 711. If a model answer is defective or an applicant's scores are incorrectly computed, then an abuse of discretion may result. McKay's second argument is that the examination committee engaged in improper conduct by failing to stop some applicants from exceeding the time limit for completing the MBE portion of the bar examination. McKay contends that he was harmed by not being allowed additional minutes inasmuch as he was reportedly in the process of correcting transpositional errors on his MBE answer sheet when the end of the allocated time was announced. We agree with the Board that McKay's allegations on this point are insufficient because he did not allege that he was denied the proper amount of time officially allocated to complete the MBE portion of the February 1984 bar examination. McKay received the full amount of time allotted to complete the MBE. A hearing is not warranted simply because he may have made transpositional errors on his answer sheet and several other test-takers may have violated the time limitation. Since McKay's allegations relating to the time limitation were clearly insufficient to warrant a hearing by the Board, we do not reach the issue of his request for discovery of his MBE answer sheet and the MBE key of correct answers. We are remanding this case to the Board for a hearing on McKay's allegations pertaining to the scoring of his essay answers and the adequacy of the model answers. If the Board finds that a scoring mistake was made or that a model answer was defective, the Board should correct any error discovered. If the Board discovers no such error, McKay may again appeal to this court. If such appeal were to fail, he would have to retake the bar examination in order to apply for admittance to the Alaska Bar Association. This matter is REMANDED. COMPTON, J., not participating.

10425039

The FIRST NATIONAL BANK OF ANCHORAGE, Appellant, v. Clifford DENT, d/b/a Peninsula Fence Co., Appellee

First National Bank of Anchorage v. Dent

1984-06-29

No. 7728

722

725

683 P.2d 722

683

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:21:41.023872+00:00

CAP

Before BURKE, C.J., and RABINOW-ITZ, COMPTON and MOORE, JJ.

The FIRST NATIONAL BANK OF ANCHORAGE, Appellant, v. Clifford DENT, d/b/a Peninsula Fence Co., Appellee.

The FIRST NATIONAL BANK OF ANCHORAGE, Appellant, v. Clifford DENT, d/b/a Peninsula Fence Co., Appellee. No. 7728. Supreme Court of Alaska. June 29, 1984. John R. Beard, LeSourd & Patten, Anchorage, for appellant. Helen L. Simpson, Anchorage, for appel-lee. Before BURKE, C.J., and RABINOW-ITZ, COMPTON and MOORE, JJ.

1787

10498

OPINION BURKE, Chief Justice. In this case we hold (1) that a mechanic's lien claimant, in order to protect his lien, does not have to record a notice of lis pendens when he later files suit to foreclose the lien; (2) that the initial recordation of the mechanic's lien claim constitutes inquiry notice of the lien to a subsequent purchaser; and (3) that the lien claimant may amend his complaint to add, as a defendant in the action, the subsequent purchaser of the burdened real property. I On November 27, 1979, Clifford Dent recorded a mechanic's lien claim against a parcel of real property in Kenai, Alaska. The property was owned by Doris Lashley. The lien claim was for money owed to Dent for construction of a fence on the property. On May 21, 1980, Dent recorded a notice of extension of his lien. He filed suit to enforce the lien on November 24, 1980, the date upon which the lien would otherwise have expired. Dent, however, did not file a notice of lis pendens when he filed suit. When Dent filed his action, Lashley's company, Sea Catch, was in bankruptcy. In the bankruptcy proceeding, Lashley gave First National Bank of Anchorage a deed of trust on the same parcel of property against which Dent claimed his mechan ic's lien. The deed of trust was intended to provide security for Sea Catch's debt to First National. When First National received a title report on the property, the report did not mention Dent's lien claim. Consequently, First National did not have actual notice of its existence until March 10,1982, when the bank received service of process from Dent. The question here is whether First National took the property subject to Dent's lien claim. In order to answer this question, it is necessary to determine whether the Alaska mechanic's lien statute requires a claimant to record a notice of lis pendens. The trial court, on motion for summary judgment, ruled that Dent was not required to file a notice of lis pendens, and that First National had constructive notice of Dent's claim by virtue of the initial recordation of the lien. The trial court also permitted Dent to add First National as a defendant in the lawsuit. First National appeals these decisions. II This controversy centers around AS 34.-35.080; which states: (a) A lien provided for in AS 34.35.050 —34.35.120 does not bind a building, structure, or other improvement for more than six months after the lien is filed, unless suit is brought before the proper court to enforce the lien (1) within that time, or (2) within six months after recording of an extension notice in the same recording office within the original six-month period showing the recording date and the book and page or instrument number of the initial claim, and the balance owing. (b) No lien may be continued in force for more than one year from the date of the filing of the original lien notice. Under AS 34.35.068, Dent was required to, and did in fact, record his claim of lien. Dent argues that, by virtue of this recorded lien claim, First National had constructive notice of the lien when it purchased the property and, therefore, is bound by the lien. First National argues that Dent was also required to file a notice of lis pendens. First National reasons as follows: AS 34.35.080 states that a mechanic's lien will lapse six months after it has been filed or extended, unless a lawsuit has been filed to enforce the lien; absent a recorded notice of lis pendens, the bank was entitled to assume that no lawsuit had been filed, and that the lien, therefore, expired on the extension date, November 24, 1980. The plain language of Alaska's lis pendens statute, AS 09.45.790, states that the filing of a lis pendens notice is optional, not mandatory. On the other hand a mortgage holder must record a lis pendens notice in order to give constructive notice to a subsequent purchaser of the land who purchases the property without actual no tice of the mortgage. Because "[t]he proceedings upon foreclosure [of a mechanic's lien] . shall, as nearly as possible, conform to the proceedings of foreclosure of a mortgage," AS 34.35.110(c), we hold that the bank did not have constructive notice of the mechanic's lien. However, apart from the related concept of constructive notice, it is well established that "[e]very man is chargeable with notice of that which the law requires him to know, and of that which, after being put upon inquiry, he might have ascertained by the exercise of reasonable diligence." Burnett, Waldock & Padgett Investments v. C.B.S. Realty, 668 P.2d 819, 822 (Alaska 1983) quoting McClure v. Township of Oxford, 94 U.S. 429, 432, 24 L.Ed. 129, 129 (1877). See also Wollensak v. Reiher, 115 U.S. 96, 99, 5 S.Ct. 1137, 1139, 29 L.Ed. 350, 351 (1885); Wood v. Carpenter, 101 U.S. 135, 141, 25 L.Ed. 807, 809 (1879). The issues to be determined, then, are (1) was the existence of the notice of the mechanic's lien on the land record, in light of AS 34.35.080, sufficient to lead a reasonable person to inquire into whether a lawsuit had been filed? And (2), if so, would the bank have discovered the existence of Dent's lawsuit to enforce the lien if it had exercised reasonable diligence? We conclude that thé existence of the mechanic's lien notice on the land record, in light of AS 34.35.080, was sufficient to put a reasonable person upon inquiry notice. First, the recorded notice informed the bank that the real property had been the subject of a lien claim. Second, the language of AS 34.35.080, stating that the lien expires after six months "unless suit is brought before the proper court to enforce the lien, or within six months after recording of an extension of notice . " necessarily implies that the lien may still be valid, provided a lawsuit has been brought to enforce it. These two factors should have caused the bank to inquire into whether a lawsuit to foreclose the lien was pending. Since the bank had a duty to inquire and would have discovered the existence of Dent's lawsuit if it had done so with reasonable diligence, the bank had inquiry notice of Dent's mechanic's lien. The bank, therefore, was not an innocent purchaser and took the property subject to Dent's lien. It is not unduly burdensome to require a prospective buyer to inquire into whether the mechanic's lien is being enforced by a lawsuit. Also, "[w]e are not inclined to pass judgment on the means selected by the legislature to accomplish legitimate purposes...." DeArmond v. Alaska State Development Corp., 376 P.2d 717, 724-25 (Alaska 1962). The legislature can change the requirements of the mechanic's lien statute if it so chooses. Ill Finally, First National argues that it was improperly added as a party to the litiga tion, since Dent no longer had a lien that could be enforced against the bank. We disagree. Dent filed his amended complaint on March 10, 1982, which added the bank as a party, due to the bank's acquisition of the deed of trust after the original complaint had been filed. The propriety of the addition of the bank as a party is controlled by Alaska R.Civ.P. 25(c): In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to which the interest is transferred to be substituted in the action or joined with the original party. The trial court's action was, therefore, proper. AFFIRMED. MATTHEWS, J., not participating. . Dent was unable to serve First National earlier because the bankruptcy court had issued a stay preventing the enforcement of his lien against the bankrupt's property. When First National Bank acquired Lashley's interest however, Dent pursued his mechanic's lien claim against the bank. . AS 34.35.068(c) provides: A claim of lien is enforceable only if recorded by a claimant within the time specified in (a) or (b) of this section. . AS 09.45.790 reads as follows: In an action affecting the title to or the right of possession of real property, the plaintiff at the time of filing the complaint, or after-wards, and the defendant, when affirmative relief is claimed, at the time of filing the answer, or afterwards, may record in the office of the recorder of the recording district in which the property is situated a notice of the pendency of the action, containing the names of the parties, and the object of the action or defense, and a description of the property affected in that district. From the time of filing the notice for record, a purchaser, holder of a contract or option to purchase, or encumbrancer of the property affected has constructive notice of the pendency of the action and of its pendency against parties designated by their real names. (Emphasis added). . The lis pendens statute is essentially restated and integrated into the recording statutes. AS 34.15.340(a) provides in part: The following instruments may be recorded in the office of the recorder of the recording district in which the land is located in the same manner and with the same effect as a conveyance of land acknowledged, proved, and certified: (2) notice of a pending action affecting title to real estate; (Emphasis added). AS 34.15.260(a) states the effect of a conveyance of land acknowledged, proved, or certified: A conveyance that is acknowledged, proved, or certified in the manner prescribed in § .150-.250 of this chapter . (2) may be recorded in the recording district in which the land is located, and (3) from the time it is filed with the recorder for record, it is constructive notice of the contents of the conveyance to subsequent purchasers and mortgagees of the same property or any part of it. (Emphasis added). Finally, AS 34.15.290 provides for the invalidity of an unrecorded conveyance: A conveyance of real property in the state hereafter made, other than a lease for a term not exceeding one year, is void as against a subsequent innocent purchaser or mortgagee in good faith for a valuable consideration of the property or a portion of it, whose conveyance is first duly recorded. An unrecorded instrument is valid as between the parties to it and as against one who has actual notice of it. (Emphasis added).

10425128

Nicholas FLINK, Appellant, v. STATE of Alaska, Appellee

Flink v. State

1984-05-11

Nos. 6962, 7060

725

742

683 P.2d 725

683

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:21:41.023872+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Nicholas FLINK, Appellant, v. STATE of Alaska, Appellee.

Nicholas FLINK, Appellant, v. STATE of Alaska, Appellee. Nos. 6962, 7060. Court of Appeals of Alaska. May 11, 1984. Christine Schleuss, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant. David Mannheimer, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

10884

67188

OPINION Before BRYNER, C.J., and COATS and SINGLETON, JJ. PER CURIAM. Nicholas Flink was convicted of various sexual offenses involving children, including one count of first-degree sexual assault. He appeals challenging the constitutionality of former AS 11.41.440(a)(2) (sexual abuse of a minor) and former AS 11.51.130(a)(4) (contributing to the delinquency of a minor). Both of these statutes prohibit sexual contact with children. Flink contends that the statutory definition of "sexual contact" includes innocent conduct and therefore renders the statutes unconstitutionally vague and overbroad. Flink received sentences totaling sixteen years' imprisonment, including ten years for first-degree sexual assault. He challenges these sentences as excessive. We reverse the convictions for sexual abuse and contributing to the delinquincy of a minor. The ten-year sentence for first-de gree sexual assault is affirmed. The judgment of the superior court is REVERSED in part, AFFIRMED in part, and this case is REMANDED for further proceedings. . At the time of Flink's offenses, AS 11.41.440 provided in relevant part: Sexual abuse of a minor, (a) A person commits the crime of sexual abuse of a minor if, being 16 years of age or older, he (1) engages in sexual penetration with a person who is under 16 years of age but 13 years of age or older .; (2) engages in sexual contact with a person who is under 13 years of age .; (b) Sexual abuse of a minor is a class C felony. . AS 11.51.130 provided in relevant part: Contributing to the delinquency of a minor. (a) A person commits the crime of contributing to the delinquency of a minor if, being 19 years of age or older, he (4) engages in sexual contact with a child under 16 years of age but 13 years of age or older; (b) Contributing to the delinquency of a minor is a class A misdemeanor. . AS 11.81.900(b)(51)(A) defines "sexual contact" as "the intentional touching, directly or through clothing, by the defendant of the victim's genitals, anus, or female breast." The definition of sexual contact has not been changed, but this section has been renumbered AS 11.81.-900(b)(52). In this opinion the definition of sexual contact will be referred to as AS 11.81.-900(b)(51). . All members of the court agree that the trial court erred in its instructions regarding the mens rea required for sexual abuse of a minor under former AS 11.41.440(a)(2) and contributing to the delinquency of a minor under former AS 11.51.130(a)(4). Judges Singleton and Coats hold that these are specific intent crimes. Judge Coats joins in part I of Judge Singleton's concurring and.dissenting opinion. Judge Sin gleton, however, finds the error harmless, while Judge Coats does not. Chief Judge Bryner agrees that the trial court's instructions on mens rea were improper, but would construe the statutes to require recklessness as the appropriate mens rea. Judge Coats joins in part II of Judge Bryner's concurring and dissenting opinion, which holds that the failure to give an appropriate mens rea instruction was not harmless error under the particular facts of this case. The full court joins in part III of Judge Singleton's opinion, affirming Flink's sentence for sexual assault in the first degree.

10418172

Charles B. WINFREE, JR., Appellant, v. STATE of Alaska, Appellee

Winfree v. State

1984-06-08

No. A-156

284

286

683 P.2d 284

683

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:21:41.023872+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Charles B. WINFREE, JR., Appellant, v. STATE of Alaska, Appellee.

Charles B. WINFREE, JR., Appellant, v. STATE of Alaska, Appellee. No. A-156. Court of Appeals of Alaska. June 8, 1984. Venable Vermont, Jr., Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant. Claire Steffens, Asst. Dist. Atty., Victor C. Krumm, Dist. Atty., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1417

8832

OPINION COATS, Judge. Charles Winfree was convicted, based upon his pleas of no contest, of forgery in the second degree, AS 11.46.505(a)(1); two counts of issuing a bad check, AS 11.46.-280; and theft in the second degree, AS 11.46.130(a)(1). All of these offenses involved cashing checks. Three of the incidents took place in early December of 1982. The theft took place in March of 1983. These offenses are all class C felonies. AS 11.46.505(b), AS 11.46.280(d)(2), AS 11.46.-130(b). On each count Winfree was subject to a two-year presumptive sentence as a second felony offender because he had formerly been convicted of a felony larceny offense in North Carolina. AS 12.55.-125(e)(1). The original sentencing judge in this case was Judge Justin Ripley. Judge Ripley indicated that he thought Winfree should be sentenced to an actual period of incarceration of a year and one-half to two years. He pointed out that in addition to that time to serve, Winfree should be placed on probation subject to a substantial suspended sentence. However, Judge Ripley concluded that he was required by law to impose four consecutive two-year sentences which would result in a presumptive sentence of eight years. Judge Ripley found that an eight-year presumptive sentence would be manifestly unjust, and referred the case to the three-judge panel under the provisions of AS 12.55.165. The three-judge panel, consisting of Judges Victor Carlson, S.J. Buckalew, and Thomas Schulz, then heard argument on Winfree's sentence. The judges on the panel implicitly rejected Judge Ripley's finding of manifest injustice that in they were willing to assume that Winfree's sentences could be imposed concurrently. However, they decided that concurrent sentences were inappropriate and sentenced Winfree to two-year consecutive sentences on each offense, totalling eight years, and suspended two years. Winfree appeals this sentence to this court. We remand the case to the three-judge panel to remand the case back to Judge Ripley. After the sentencing proceedings in this case, we decided Griffith v. State, 675 P.2d 662 (Alaska App.1984), involving the trial court's authority to impose concurrent sentences pursuant to AS 12.55.025(g). That statute provides: If the defendant has been convicted of two or more crimes before the judgment on either has been entered, any sentences of imprisonment may run concurrently if (1) the crimes violate similar societal interests; (2) the crimes are part of a single, continuous criminal episode; (3) there was not a substantial change in the objective of the criminal episode, including a change in the parties to the crime, the property or type of property right offended, or the persons offended; (4) the crimes were not committed while the defendant attempted to escape or avoid detection or apprehension after the commission of another crime; (5) the sentence is not for a violation of AS 11.41.100-11.41.470; or (6) the sentence is not for a violation of AS 11.41.500-11.41.530 that results in physical injury or serious physical injury as those terms are defined in AS 11.81.-900. In Griffith, both parties agreed to an interpretation of AS 12.55.125(g) which this court adopted. We concluded: [I]f a defendant's conduct falls within subparagraphs (4), (5) or (6), the court may not impose a concurrent sentence. However, if the defendant's conduct falls within subparagraphs (1), (2) or (3), the court is authorized to impose concurrent sentences. 675 P.2d at 664. The state conceded and we agreed that Griffith's various check forgery cases violated similar societal interests and that Griffith could therefore receive concurrent sentences. AS 12.55.-025(g)(1). Winfree has not argued to this court the issue of whether Judge Ripley had authority to impose concurrent sentences. We therefore are not inclined to decide this issue at this time. However, it appears to us that Winfree, like Griffith, may be eligible for concurrent sentences. Indeed, the three-judge panel seemed to assume that Winfree was eligible for concurrent sentences. In the event that Winfree is eligible for concurrent sentences under Griffith, it appears to us that Judge Ripley could have imposed a sentence similar to the one which he stated he wished to impose. It therefore may have been unnecessary for him to find manifest injustice and to refer the case to the three-judge panel. If Win-free was eligible for concurrent sentences, as the three-judge panel seemed to assume, the panel should not have decided the case. As we stated in Heathcock v. State, 670 P.2d 1155, 1157 (Alaska App.1983), "the primary control of 'the sentencing process [is] in the hands of the individual sentencing judge, with restrictions placed upon him by the statutory sentencing provisions." The original sentencing judge is to first impose an appropriate sentence within the statutory provisions. It is only when these provisions lead him to a result which he believes is manifestly unjust that the three-judge panel comes into the statutory scheme. Once the original sentencing judge refers the case to the three-judge panel, the panel is to sentence the defendant only if it agrees with the original sentencing judge that application of the statutory provisions would result in a sentence which is manifestly unjust. A.S. 12.55.-175(b) reads in pertinent part: If the panel finds that manifest injustice would result from failure to consider relevant aggravating or mitigating factors not specifically included [in the revised code] or from imposition of the presumptive term, whether or not adjusted for aggravating or mitigating factors, it shall sentence the defendant in accordance with this section. If the panel does not find that manifest injustice would result, it shall remand the case to the sentencing court, with a written statement of its findings and conclusions, for sentencing under [the revised code]. Under the provisions of the revised code and our decision in Heathcock, the three-judge panel did not have authority to sentence Winfree until it agreed with the trial judge that his application of the provisions of the revised code would result in a sentence which was manifestly unjust. The three-judge panel was not free to assume that Winfree could be sentenced to concurrent sentences and then go forward and sentence him. If the three-judge panel concluded that the trial judge had the statutory authority to impose a sentence of eight years with two suspended or less, then, under our reading of the sentencing statutes, it would be the duty of the three-judge panel to conclude that there was no manifest injustice in having the trial judge sentence Win-free under the revised code. The three-judge panel should have then remanded the case back to Judge Ripley with their findings. Since the issue of whether Winfree could receive concurrent sentences has apparently not been briefed at any level in this sentence appeal and since this court has recently issued the Griffith opinion, we believe that the best procedure in these circumstances is to remand the case back to Judge Ripley to reconsider Winfree's sentence. We therefore remand the case to the three-judge panel and direct the panel to remand the case to Judge Ripley for further proceedings. The case is REMANDED. . We are not expressing any opinion on the sentence which Judge Ripley should ultimately impose in this case or deciding that a sentence of eight years with two years suspended was or was not manifestly unjust. We have merely assumed that since the three-judge panel imposed a sentence of eight years with two years suspended, they would not conclude that a similar sentence was manifestly unjust. . In his sentencing remarks, Judge Ripley appeared to be concerned about his ability to impose a consecutive presumptive sentence and then suspend a portion of that sentence. In Griffith v. State, 675 P.2d 662 (Alaska App.1984), we concluded that, to the extent a sentencing judge has the authority to impose a presumptive sentence concurrently to another sentence, he also has the authority to impose that presumptive sentence consecutively or partially consecutively and to suspend all or any portion of that presumptive sentence. However, we noted that "the defendant must be required to serve a term of imprisonment which is at least as long as the greatest single presumptive sentence applicable." Griffith, 675 P.2d at 665.

11632821

Debra A. McGEE, Appellant, v. Kenneth R. McGEE, Appellee; Kenneth R. McGee, Appellant, v. Debra A. McGee, Appellee

McGee v. McGee

1999-03-12

Nos. S-7965, S-7966

983

994

974 P.2d 983

974

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:22:12.382875+00:00

CAP

Before: MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

Debra A. McGEE, Appellant, v. Kenneth R. McGEE, Appellee. Kenneth R. McGee, Appellant, v. Debra A. McGee, Appellee.

Debra A. McGEE, Appellant, v. Kenneth R. McGEE, Appellee. Kenneth R. McGee, Appellant, v. Debra A. McGee, Appellee. Nos. S-7965, S-7966. Supreme Court of Alaska. March 12, 1999. Paul M. Hoffman, Robertson, Monagle & Eastaugh, P.C., Juneau, for Debra A. McGee. Robert S. Spitzfaden, Gruening & Spitzfa-den, APC, Juneau, for Kenneth R. McGee. Before: MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

5891

35631

OPINION EASTAUGH, Justice. I. INTRODUCTION The decree dissolving Debra and Ken McGee's marriage said nothing about possible individual fishing quotas (IFQs) and quota shares. When an IFQ program was implemented soon after the dissolution, Ken applied for and received all the shares. Because marital fishing activity made both parties eligible to receive the shares, Debra successfully moved for relief from the dissolution decree. Concluding that "extraordinary circumstances" justified Alaska Civil Rule 60(b)(6) relief, we affirm in Case No. S-7966. Debra also brought a separate tort suit against Ken, alleging that his IFQ application misrepresented facts that made him eligible to receive all the shares. The superior court dismissed the tort suit on the ground it was barred by the Rule 60(b) proceedings. Because Debra could not have asserted her tort claims in the dissolution and Rule 60(b) proceedings, we hold that res judicata does not apply, and reverse and remand in Case No. S-7965. Since the Rule 60(b) relief collaterally estops Debra from relitigating her quota shares claim, only her punitive damages claim remains for litigation on remand. II. FACTS AND PROCEEDINGS A. Facts Ken and Debra McGee married in 1978. They bought the F/V Tamarack in 1980, and fished for salmon, halibut, and sablefish (black cod) in Southeast Alaska. Both signed the promissory note that financed the vessel's purchase, and the Coast Guard Certificate of Ownership of Vessel listed them both as equal owners. Both participated actively, but differently, in the fishing business. They filed for dissolution in March 1993. Their property settlement divided their marital assets. The petition listed their house (valued at $150,000) as their largest asset, and the F/V Tamarack (valued at $80,000) as their third largest. The boat was listed as joint property to be awarded to Ken. The property settlement did not discuss quota shares or individual fishing quotas. The court dissolved the marriage in April 1993. In December 1993 the National Marine Fisheries Service (NMFS) implemented a system of individual fishing quotas in Alaska's halibut and sablefish fisheries. Previously, anyone with a boat and commercial license could participate in the halibut fishery. But under the IFQ system, only fishers possessing quota shares could fish for halibut and sablefish, making the shares very valuable. A quota shares applicant had to show that he or she had owned or leased a vessel that made legal and verifiable landings of halibut or sablefish in the IFQ regulatory areas during 1988, 1989, or 1990. The base years are 1984 through 1990 and the qualifying years are 1988, 1989, and 1990. During all base and qualifying years, Debra co-owned the F/V Tamarack with Ken. The NMFS mailed Ken a preprinted "Request for Application for Quota Share Form for Individuals" in December 1993. Debra never received this mailing, and Ken never advised Debra that he had received it. Ken signed the form and submitted it with a form identifying himself as the owner of the F/V Tamarack. The NMFS then sent Ken preprinted halibut and sablefish quota share applications that listed his eligible dates as February 3, 1984, to December 31, 1991, and his percent of interest in the F/V Tamarack's activities as 100 percent. This was accurate as of 1994, but not as of the listed eligible dates. Despite this discrepancy, Ken signed the form in June 1994 and returned it to the NMFS. The NMFS issued Ken all the quota shares. Debra did not apply for quota shares and therefore received none. She alleges that she first learned in October 1994, after the application period ended, that the program had been implemented and that Ken was going to receive quota shares. Ken contends that when they agreed to the property divi sion in 1993, Debra was aware of the possibility the IFQ program might be implemented, B. Proceedings 1. Debra's Civil Rule 60(b) application In February 1995, after the application period had closed and Ken had received the quota shares, Debra filed a Rule 60(b) motion in the dissolution proceeding to modify the dissolution decree. She claimed that she was entitled to one-half of the F/V Tamarack's quota shares or their reasonable value. Debra contended that the quota shares were worth "not less than $700,000"; Ken contended that they were worth "no more than $300,000." Superior Court Judge Walter L. Carpeneti granted Rule 60(b)(6) relief on May 29, 1996, and on December 23, 1996, entered final judgment awarding half of the quota shares and related IFQ's to Debra. The court also awarded Debra $24,106 in attorney's fees. Ken appeals these rulings in Case No. S-7966. 2. Debra's tort suit During discovery conducted for her Rule 60(b) motion, Debra learned that Ken had acquired all the quota shares by misrepresenting critical facts to the NMFS-. Ken conceded that he had misrepresented his ownership of the F/V Tamarack to the NMFS, but claimed it was an innocent mistake, not a willful misrepresentation. In June 1996 Debra commenced a new action by filing a complaint against Ken based on Ken's misrepresentation. She sought an order requiring Ken to transfer to Debra one-half of his quota shares and IFQs for the current year and to disgorge profits gained by using Debra's quota shares and IFQs. She also sought punitive damages and attorney's fees. Although the complaint alleged that Ken had "wrongfully converted" fifty percent of the quota shares and IFQs, the parties and the court thereafter referred to Debra's action as one for replevin. We refer to it as her "tort action" or "tort suit." After the parties stipulated to dismissal of Debra's claims for Ken's use of the IFQs and quota shares, Ken moved for summary judgment. Superior Court Judge Thomas M. Jahnke dismissed the tort action holding that Debra had "impermissibly split her causes of action," that the matter was moot, and that the second claim was "merged with the dissolution case, and barred by the decision in the dissolution case." The court awarded Ken attorney's fees and costs. Debra appeals these rulings in Case No. S-7965. III. DISCUSSION A. The Superior Court Did Not Abuse Its Discretion in Granting Rule 60(b)(6) Relief. 1. Standards of review Ken argues that Judge Carpeneti erred when he determined that the quota shares were divisible marital property. "Determining what property is available for distribution may involve both legal and factual questions. Legal questions decided by a subordinate court are reviewed de novo; we 'adopt the rule of law that is most persuasive in light of precedent, reason and policy.'" "Factual determinations made by a trial court may be set aside only if clearly erroneous." Ken claims that the superior court erred by granting Debra's motion under Rule 60(b)(6). 'We will not disturb a trial court's grant of a Rule 60(b) motion except upon a showing of an abuse of discretion." The court will find an abuse of discretion only when "left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling." Ken also argues that the superior court abused its discretion by awarding attorney's fees to Debra. "An award of attorney's fees will only be reversed for an abuse of discre tion, which exists if the award is arbitrary, capricious, manifestly unreasonable, or the result of an improper motive." 2. The quota shares and IFQs are property. A dissolution decree distributes "all jointly owned real and personal property" that was "acquired only during marriage." We held in Ferguson v. Ferguson that quota shares distributed during marriage are divisible marital property. On the theory the quota shares and IFQs were not divisible marital property because they did not exist when the court entered the dissolution decree, Ken argues that the court erred by granting Rule 60(b) relief. He contends that the potential right to quota shares was far too speculative to be considered marital property when the court dissolved the marriage, and that Ferguson is inapposite because the Fergusons were divorced after the quota share program was implemented. We reject these contentions. The quota shares are marital property even though the quota share program did not exist when the decree was entered. The program established a right to receive property (the quota shares and IFQs) based on the vessel's activity in the qualifying years while Debra and Ken were married. The quota shares were based on their joint efforts during the marriage, and are thus analogous to income or assets received for activities during the marriage. Income and assets received after the dissolution for activities performed during the marriage are deemed divisible marital property. Moreover, in Ferguson we held that the husband had a separate property interest in IFQs awarded "based on work he had performed prior to the marriage" long before the IFQ program was implemented. Ken cites cases holding that potential government benefits are speculative and are therefore not divisible property. We think these cases are inapposite. Once the NMFS chose to implement its proposed quota share program, the McGees' right to receive quota shares and IFQs was not at all speculative. The only uncertainty was whether the NMFS would adopt the program; that uncertainty is insufficient to defeat Debra's right to share in property her marital contributions helped produce. Ken also cites Storm v. Storm, where the court held that a husband's inheritance was not divisible marital property. But the rule that property acquired during marriage is presumptively marital does not apply to inheritances. We therefore conclude that the superior court did not err by treating the quota shares as divisible marital property. 3. Civil Rule 60(b) Ken argues that the superior court lacked jurisdiction to grant relief to Debra because she filed her motion more than one year after the court entered the dissolution decree. If Rule 60(b)(1) or (2) applied, as Ken argues, Debra's motion — filed twenty-two months after the decree was entered — would have been untimely, depriving the superior court of jurisdiction to grant relief. Rule 60(b)(1) applies when there has been "mistake, inadvertence, surprise or excusable neglect." Ken contends that Debra's failure to anticipate the IFQ program and to protect her interests was a "mistake" justifying relief under Rule 60(b)(1). We disagree. Rule 60(b)(1) is "traditionally applied . to cover events that occur prior to entry of judgment, . and not to those events which post-date the judgment." The superior court properly found that Rule 60(b)(1) did not apply because the creation of the IFQ program and the award of the IFQs to Ken occurred post-judgment. Ken also contends that Rule 60(b)(1) applies because Debra was well aware when the decree was entered that the quota share system would be implemented, but made a "mistake" by failing to ask the superior court to retain jurisdiction over the dissolution until any uncertainty about the existence of additional marital property was resolved. We decline to consider this argument because Ken raises it for the first time in his appellate reply brief. Ken also argues that Rule 60(b)(1) applies because a change in the law created quota shares and IFQs. Rule 60(b)(1) allows a party to seek relief on the basis of a change in the law. The superior court concluded that Debra's motion did not fall under Rule 60(b)(1) based on a change of law: The reason is that this is not a mere "change in the law," such as a change in the availability of pre-judgment interest (as was at stake in Pearson), but is instead the creation of an entire governmental entitlement program which created in the parties to this dissolution wealth of a comparatively enormous amount. We agree with that reasoning. Ken also asserts that Rule 60(b)(2) applied. It authorizes relief based on "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 69(b)." The superior court concluded that the quota share program was not "newly discovered evidence" because it was created after the dissolution. Ken does not discuss the superior court's treatment of this issue, demonstrate any possible facial error in the court's analysis, or cite any supporting legal authority. Because Ken does not adequately brief this issue, we decline to consider it. Rule 60(b)(6) authorizes relief for "any other reason justifying relief from the operation of the judgment." We have held that the following factors may constitute extraordinary circumstances sufficient to reopen a property settlement agreement under Rule 60(b)(6): "(1) the fundamental, underlying assumption of the dissolution agreement had been destroyed; (2) the parties' property division was poorly thought out; (3) the property division was reached without the benefit of counsel; and (4) the [property in question] was the parties' principal asset." These four factors are not strictly essential conditions; rather, they are "particular instantiations of the equitable factors required to overcome the principle that, at some point, litigation must be brought to an end.'" The superior court considered these factors and found extraordinary circumstances justifying relief under Rule 60(b)(6). The court reasoned: (1) the great relative value of the quota shares destroyed the fundamental underlying assumption of the settlement, a % property distribution; (2) the settlement was not carefully thought out because the parties failed to mention the quota shares in the dissolution papers or in the hearing; (3) the parties had only limited contact with lawyers and had been unrepresented; and (4) the quota shares were more valuable than any single asset or perhaps even the sum of the entire marital estate. We have not previously considered whether creation of a governmental program like this might justify Rule 60(b)(6) relief from a property settlement. But we have held in Van Brocklin v. Van Brocklin, that where a divorce decree does not settle the parties' property rights because all property issues were withdrawn from the court's consideration, a court may later divide the marital property on the motion of one of the former spouses. Van Brocklin is distinguishable because the McGees' decree disposed of all their property other than the quota shares. And we have previously noted that "Van Brocklin does not necessarily authorize an independent action . where the property division approved by the court and incorporated in the final divorce decree omitted a single asset." The instant case requires us to decide whether a party may reopen a divorce decree when only one asset was omitted. We hold that a party may do so under the circumstances presented here. The superior court properly considered the four applicable factors and concluded that extraordinary circumstances justified relief. Given the unusual structure of the quota share program, it was not an error to grant Rule 60(b) relief from the decree which did not address or anticipate this marital property. Debra only sought to reestablish the status quo of an equal division of property through her motion. We reject Ken's argument that the superior court erred by concluding that Debra's motion was filed within a reasonable time. Debra alleged that she did not learn of the implementation of the IFQ program until October 1994. The NMFS issued shares to Ken in December 1994 and January 1995. Debra moved to modify the dissolution decree in February 1995, no more than five months after she became aware of the change in circumstances. Moreover, the twenty-two-month delay between the entry of the dissolution decree and the filing of Debra's Rule 60(b)(6) motion was within the range we have held to be "reasonable." 4. Estoppel Ken argues that Debra was es-topped from seeking Rule 60(b) relief. He first argues that she delayed in raising her claim to the quota shares while he spent substantial sums on the F/V Tamarack in reliance on his expectation that he would receive all the quota shares. He further argues that the parties anticipated the quota share program, and that Debra agreed that Ken would receive all the quota shares. We have described how a party may waive, and therefore be estopped from later litigating, a claim: "A waiver can be accomplished either expressly or implicitly. An implied waiver arises where the course of conduct pursued evidences an intention to waive a right, or is inconsistent with any other intention than a waiver, or where neglect to insist upon the right results in prejudice to another party. To prove an implied waiver of a legal right, there must be direct, unequivocal conduct indicating a purpose to abandon or waive the legal right, or acts amounting to an estoppel by the party whose conduct is to be construed as a waiver." We have also stated that, Implied waiver created by neglect to insist upon a right "is, in reality, a type of equitable estoppel." It follows that "neglect to insist upon a right only results in an estop-pel, or an implied waiver, when the neglect is such that it would convey a message to a reasonable person that the neglectful party would not in the future pursue the legal right in question." We conclude, based on our review of the record, that implied waiver and estoppel do not bar Debra's quota shares claim. The record suggests that the parties intended to divide their assets equally. The vague reference to "permits" in one negotiating document does not persuade us that Debra agreed that Ken would receive all potentially valuable quota shares. Debra's alleged inaction does not amount to "direct, unequivocal conduct" that she meant to waive her legal right to quota shares. And any possible neglect in failing to preserve a claim to quota shares at the time of the dissolution would not convey "a message to a reasonable person" that she "would not in the future pursue the legal right in question." Ken also argues that Debra is quasi-estopped because she asserted inconsistent positions regarding the quota shares. In Smith v. Thompson, we stated that a party may be quasi-estopped if he or she asserts a position inconsistent with one previously taken. Quasi-estoppel did not bar Debra's motion. She did not assert a position inconsistent with one she took previously. The quota shares did not exist as a marital asset at the time of the dissolution, and the record suggests that the parties intended to divide their assets equally. We conclude that it was not error to grant relief under Rule 60(b)(6). 5. Attorney's fees Ken argues that the superior court abused its discretion by awarding Debra $24,106 in attorney's fees under Civil Rule 82(b)(2) and (b)(3). The superior court emphasized that Ken was largely to blame for the litigation because he misrepresented his ownership of the F/V Tamarack. The four-page order awarding fees contains a reasoned and prudent analysis of the potentially relevant circumstances. Ken has not demonstrated that the award was arbitrary, capricious, manifestly unreasonable, or the result of an improper motive. We also reject Ken's argument that the award penalizes him for vigorously litigating a novel issue, chilling future litigation. The superior court observed that the issues were novel and that Ken was entitled to vigorously litigate his claims. But it apparently based the award largely on Ken's "indefensible" misrepresentation that led to the Rule 60(b) dispute. It was not error to do so. Ken also argues that the "relative economic positions" standard rather than Rule 82 should have governed the fees issue, and that because Debra and Ken have relatively similar economic circumstances, no award is justified. Citing O'Link v. O'Link, he argues that Rule 82 applies only when an original property settlement is modified. He contends that this action does not involve a modification of the original decree because it "involves property issues which were never raised or considered in the original decree." We disagree. In Lowe v. Lowe, we approved the use of Rule 82 to award attorney's fees when a party prevailed on a Rule 60(b)(6) motion to modify a divorce decree, stating that "[t]he divorce judgment exception to Rule 82 does not apply to post-judgment modification and enforcement motions." The superior court did not abuse its discretion by awarding attorney's fees under Rule 82 after it granted Rule 60(b)(6) relief to Debra. B. S-7965: The Tort Action Debra argues that it was error for Judge Jahnke to dismiss her tort suit. 1. Standard of review Although the dismissal order did not invoke Civil Rule 56 or refer to summary judgment, it granted the relief Ken's summary judgment motion sought and appears to have been based on the court's review of materials outside the pleadings. We therefore treat it as a summary judgment. " 'When reviewing a grant of summary judgment, the court must determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment on the law applicable to the established facts.'" We review de novo an order granting summary judgment. We may consider any argument ascertainable from the record, even if the superior court did not rule on it, when reviewing the summary judgment order. 2. Res judicata (claim preclusion) The superior court dismissed Debra's tort action in part because she "imper-missibly split her causes of action." The superior court gave res judicata effect to the Rule 60(b) proceeding, because the prohibition against "splitting a cause of action" is based on the principles of res judicata. Citing Nelson v. Jones, Debra contends that she did not have to join the tort action into the dissolution action. She implies that the superior court should never have examined whether her two actions were predicated on the same transaction. We stated in Nelson that the principles of res judicata do not require tort claims between married persons to be litigated in their divorce proceedings, because that requirement would hinder the resolution of divorce actions. But Nelson held only that res judicata did not require that interspousal tort claims be joined in the original divorce action. Debra asks us to extend Nelson, and to hold that res judicata does not require that a tort claim be joined in a Rule 60(b) application that seeks relief from the original divorce or dissolution decree. As a result, tort actions filed after a party moves for Rule 60(b) relief would be exempt from the principles of res judicata. In Nelson we approvingly quoted from a Wisconsin Court of Appeals opinion identifying reasons why divorce and tort actions should be litigated separately: Although joinder is permissible, the administration of justice is better served by keeping tort and divorce actions separate. . Divorce actions will become unduly complicated if tort claims must be litigated in the same action. A divorce action is equitable in nature and involves a trial to the court. On the other hand, a trial of a tort claim is one at law and may involve, as in this case, a request for a jury trial. Resolution of tort claims may necessarily involve numerous witnesses and other parties such as joint tortfeasors and insurance carriers whose interests are at [Res judicata does not apply when t]he plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies, and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief.... stake. Consequently, requiring joinder of tort claims in a divorce action could unduly lengthen the period of time before a spouse could obtain a divorce and result in such adverse consequences as delayed child custody and support determinations. The legislature did not intend such a result in enacting the divorce code. These well-articulated concerns strongly weigh against joint litigation of such claims. We conclude that they apply to a tort action filed after Rule 60(b) relief is sought in a divorce or dissolution matter. We are also persuaded in this case by the difficulty inherent in providing to Debra in the Rule 60(b) proceeding the same rights and remedies she would have been entitled to in her tort action, e.g., a jury trial and an opportunity to seek punitive damages. For these reasons, res judicata does not bar a tort action based on the same claim as a party's prior Rule 60(b) motion. 3. Collateral estoppel (issue preclusion) Although principles of res judicata do not bar Debra's tort action, we conclude that collateral estoppel barred the re-litigation of Debra's entitlement to the quota shares. The superior court dismissed Debra's tort action, stating that Debra "imper-missibly split her causes of action, because the matter is moot, and because the second claim is merged with the dissolution case, and barred by the decision in the dissolution case." The fact that the superior court did not use the term "collateral estoppel" in its order does not prevent us from considering whether that doctrine applies. We apply a three-element test to determine whether collateral estoppel bars an action: (1) collateral estoppel must be asserted against a party or one in privity with a party to the first action; (2) the issue to be precluded must be identical to that decided in the first action; and (3) the issue in the first action must have been resolved by a final judgment on the merits. The first element is undisputably present because the Rule 60(b) motion and the tort action involved the same parties. The third element is also undisputably present. The grant or denial of a Rule 60(b) motion is a final judgment, despite a pending appeal. Therefore, entry of Rule 60(b) relief was a final judgment. The critical question is whether the Rule 60(b) motion and the tort action addressed identical issues. By filing her Rule 60(b) motion, Debra re-opened the property distribution agreement and litigated the question of her right to the quota shares. But the issue of whether Ken intentionally misrepresented his ownership of the boat was not litigated or decided in the Rule 60(b) proceeding. The superior court predicated Rule 60(b) relief solely on the property settlement, rather than on Ken's alleged misconduct. We therefore conclude that Debra is collaterally estopped from re-litigating her right to the quota shares, but that it was error to dismiss her entire tort action. Still outstanding is the issue of whether Ken's conduct was sufficiently outrageous to permit punitive damages; if it was, the amount of any punitive damages award is also in issue. We reverse and remand for further proceedings. 4. Attorney's fees Because we have reversed the dismissal of Debra's tort suit, and because Debra is precluded from relitigating only one issue — her right to the quota shares — in the tort suit, Ken is no longer the prevailing party in the tort suit. It is therefore necessary to vacate Ken's attorney's fees award. IV.- CONCLUSION Because the superior court properly granted Debra's Rule 60(b)(6) motion, we AFFIRM in Case No. S-7966. Because the Rule 60(b) proceeding resolved only one issue — Debra's entitlement to the quota shares — raised in the tort suit, we REVERSE the judgment in Case No. S-7965, VACATE the attorney's fees award, and REMAN'D for further proceedings. . We described the IFQ program in Ferguson v. Ferguson, 928 P.2d 597, 598 (Alaska 1996). . See 50 C.F.R. § 679.40(a)(2)(A) (1999). . Bellanich v. Bellanich, 936 P.2d 141, 143 (Alaska 1997) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)). . Id. (citing Alaska R. Civ. P. 52(a)). . Lowe v. Lowe, 944 P.2d 29, 31 (Alaska 1997) (citing Gravel v. Alaskan Village, Inc., 423 P.2d 273, 277 (Alaska 1967)). . Buster v. Gale, 866 P.2d 837, 841 n. 9 (Alaska 1994) (quotation omitted). . Hughes v. Foster Wheeler Co., 932 P.2d 784, 793 (Alaska 1997) (citation omitted); see. also Lowe, 944 P.2d at 34. . AS 25.24.200(a)(3); AS 25.24.160(a)(4). . See Ferguson v. Ferguson, 928 P.2d 597, 600 (Alaska 1996); see also Johns v. Johns, 945 P.2d 1222, 1226 (Alaska 1997) ("[A] spouse's interest in an IFQ is his or her separate property to the extent that the size of the quota share is attributable to labor performed prior to the marriage, and marital property to the extent that it is attributable to labor performed during the marriage."). . Cf. Lundquist v. Lundquist, 923 P.2d 42, 49-50 (Alaska 1996) (holding that compensatory damages intended to replace lost fishing income for period during which parties were married are divisible marital property); Bandow v. Bandow, 794 P.2d 1346, 1348 (Alaska 1990) (holding that lost earnings component of annuity given to spouse in settlement of medical malpractice claim was marital property to the extent it replaced predivorce lost earnings); Laing v. Laing, 741 P.2d 649, 655-56 (Alaska 1987) (adopting rule that non-vested pension rights, although speculative, are divisible marital assets). . Ferguson, 928 P.2d at 600. . See Malone v. Malone, 563 So.2d 1061, 1062 (Ala.Civ.App.1990) (stating that there is no,divisible property interest in application for broadcast license valued at $100,000 to $300,000 absent guarantee that license would be granted); Heggen v. Heggen, 452 N.W.2d 96, 101 (N.D.1990) (holding that it was not clearly erroneous to exclude potential drought assistance payments from calculation of marital estate, given that receipt of such payments was speculative); Branson v. Branson, 411 N.W.2d 395, 397 (N.D.1987) (holding that failure to include anticipated future government farm support payments in parties' assets prior to equitable division was not abuse of discretion because receipt of future payments was speculative). Cf. Cobb v. Cobb, 107 N.C.App. 382, 420 S.E.2d 212, 214 (1992) (holding that future rights to timber on marital property, projected to earn $174,300 when timber is clear cut in 2007, are not divisible property). . See Storm v. Storm, 470 P.2d 367, 370 (Wyo.1970). . See Lundquist, 923 P.2d at 49. . See Alaska R. Civ. P. 60(b); Lowe v. Lowe, 817 P.2d 453, 457 (Alaska 1991) ("Under Alaska Civil Rule 60(b), the superior court lacks subject matter jurisdiction to set aside judgments unless a motion is made within the Rule 60(b) time limits."). . Alaska R. Civ. P. 60(b)(1). . Olson v. Olson, 856 P.2d 482, 484 (Alaska 1993) (citing 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2858 (1973 & Supp.1993)). . Cf. Johns, 945 P.2d at 1226-27 (holding that superior court did not abuse its discretion by retaining jurisdiction over party's interim permits); Laing, 741 P.2d at 657-59 (endorsing "reserved jurisdiction" method to divide pension rights if and when they become vested). . See Alaska R.App. P. 212(c)(3); Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 411 n. 8 (Alaska 1990) (holding that argument was waived because appellant failed to "advance any legal argument as to why the court erred" in main brief). . See Pearson v. Bachner, 503 P.2d 1401, 1402 (Alaska 1972). . Alaska R. Civ. P. 60(b)(2). . See Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991) ("[W]here a point is given only a cursory statement in the argument portion of a brief, the point will not he considered on appeal."). . Alaska R. Civ. P. 60(b)(6). . Schofield v. Schofield, 111 P.2d 197, 202 (Alaska 1989). . Clauson v. Clauson, 831 P.2d 1257, 1261 (Alaska 1992) (quoting Lowe, 817 P.2d at 459). . See Van Brocklin v. Van Brocklin, 635 P.2d 1186, 1190 (Alaska 1981). . Johnson v. Johnson, 824 P.2d 1381, 1382 n. 2 (Alaska 1992). . See Clauson, 831 P.2d at 1261 (approving of Rule 60(b)(6) modification of divorce decree to restore status quo when ex-husband unilaterally waived retirement benefits one-half of which ex-wife was entitled to). . See Lowe, 944 P.2d at 32-33 (holding delay of four and one-half years may be reasonable); Foster v. Foster, 684 P.2d 869, 871 (Alaska 1984) (affirming grant of Rule 60(b) motion made after twenty-two months). See generally Schofield, 111 P.2d at 202 (considering delay between alleged change of circumstances and motion to modify, and delay between dissolution decree and motion, in determining whether motion was filed within reasonable time). 30. Airoulofski v. State, 922 P.2d 889, 894 (Alaska 1996) (quoting Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978)). 31. State, Dep't of Revenue v. Valdez, 941 P.2d 144, 153 n. 9 (Alaska 1997) (quoting Wausau Ins. Cos. v. Van Biene, 847 P.2d 584, 589 (Alaska 1993)). . See Airoulofski, 922 P.2d at 894. . See Valdez, 941 P.2d at 153 n. 9. . See Smith v. Thompson, 923 P.2d 101, 105 (Alaska 1996); see also Wright v. State, 824 P.2d 718, 721 (Alaska 1992) ("Quasi estoppel appeals to the conscience of the court and applies where 'the existence of facts and circumstances mak[es] the assertion of an inconsistent position unconscionable.' ") (quoting Jamison v. Consolidated Util., Inc., 576 P.2d 97, 102 (Alaska 1978)). . See O'Link v. O'Link, 632 P.2d 225, 226-28 (Alaska 1981). . 817 P.2d at 460 (citing L.L.M. v. P.M., 754 P.2d 262, 264 (Alaska 1988)). . See Andrews v. Wade & De Young, Inc., 875 P.2d 89, 90-91 (Alaska 1994). . Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995) (quoting Wright v. State, 824 P.2d 718, 720 (Alaska 1992)). . See id. . See id. . See Jack H. Friedenthal, et al., Civil Procedure 617-22 (2d ed.1993). . See Nelson v. Jones, 787 P.2d 1031, 1034 (Alaska 1990). . See 787 P.2d at 1034; see also Delahunty v. Massachusetts Mut. Life Ins. Co., 236 Conn. 582, 674 A.2d 1290, 1296 (1996) (stating that doctrine of res judicata does not require all issues between spouses to be litigated in dissolution proceedings). 44. Nelson, 787 P.2d at 1034 (quoting Stuart v. Stuart, 143 Wis.2d 347, 421 N.W.2d 505, 508 (1988)). . See Restatement (Second) of Judgments § 26(1)(c) (1992): . "The applicability of collateral estoppel to a particular set of facts is a legal question over which we exercise independent review." Sever v. Alaska Pulp Corp., 931 P.2d 354, 359 n. 4 (Alaska 1996) (citing State v. United Cook Inlet Drift Assn, 895 P.2d 947, 950 (Alaska 1995)). . See Andrews, 875 P.2d at 92 n. 8 (citing Restatement (Second) of Judgments ch. 3 intr. note (1982)); Jeffries v. Glacier State Tel. Co., 604 P.2d 4, 8 n. 11 (Alaska 1979) (noting that res judicata in broad sense includes doctrines of merger, bar, direct estoppel, and collateral estoppel). 48. Sever, 931 P.2d at 359 (citing United Cook Inlet Drift Ass'n, 895 P.2d at 950-51). . Cf. Calhoun v. Greening, 636 P.2d 69, 72-73 & n. 4 (Alaska 1981) (treating denial of Rule 60(b) motion as final judgment for res judicata purposes because denial is appealable under Appellate Rule 202). . See Restatement (Second) of Judgments § 27 (1992) (determination in first action is conclusive in subsequent action if "the determination is essential to the judgment").

10373312

FIREMAN'S FUND MORTGAGE CORPORATION (as agent for Alaska Housing Finance Corporation), Appellant, v. ALLSTATE INSURANCE COMPANY; First National Bank of Anchorage, and Gary Severance, Personal Representative of the Estate of Marjorie Severance Hoover, Appellees

Fireman's Fund Mortgage Corp. v. Allstate Insurance Co.

1992-09-11

No. S-4298

790

798

838 P.2d 790

838

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

FIREMAN’S FUND MORTGAGE CORPORATION (as agent for Alaska Housing Finance Corporation), Appellant, v. ALLSTATE INSURANCE COMPANY; First National Bank of Anchorage, and Gary Severance, Personal Representative of the Estate of Marjorie Severance Hoover, Appellees.

FIREMAN’S FUND MORTGAGE CORPORATION (as agent for Alaska Housing Finance Corporation), Appellant, v. ALLSTATE INSURANCE COMPANY; First National Bank of Anchorage, and Gary Severance, Personal Representative of the Estate of Marjorie Severance Hoover, Appellees. No. S-4298. Supreme Court of Alaska. Sept. 11, 1992. Richard N. Ullstrom, Routh, Crabtree & Harbour, Anchorage, for appellant. Ronald E. Noel, and Joseph S. Slusser, Hughes, Thorsness, Gantz, Powell & Brun-din, Fairbanks, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

5046

31615

OPINION BURKE, Justice. In this interpleader action, Fireman's Fund Mortgage Corporation (Fireman's Fund) and First National Bank of Anchorage (First National) each claim $28,175 which was interpled by Allstate Insurance Company. The sum represents Allstate's obligation under a fire insurance policy which it issued to cover the Fairbanks property involved in this case. Fireman's Fund held a first deed of trust on the fire-damaged property, and First National held a second deed of trust. On cross-motions for summary judgment, the superior court granted First National's motion and awarded it the amount interpled plus interest. We reverse. I. FACTS & PROCEEDINGS Fireman's Fund administered a deed of trust for Alaska Housing Finance Corporation (AHFC) on property located in Fairbanks. First National held a second deed of trust on the property securing a loan in the amount of $147,000. At all relevant times, the title owner of the property was Marjorie Severance-Hoover. Due to a default on the loan secured by its first deed of trust, Fireman's Fund began non-judicial foreclosure proceedings by recording a Notice of Default in April 1989. A foreclosure sale occurred on August 3, 1989. At the time of the sale, the principal owing on the Fireman's Fund loan was $93,996.56 (not including accrued interest and foreclosure fees). Fireman's Fund bought the property on behalf of AHFC with an offset bid of $75,486.15. Several days later, Fireman's Fund discovered for the first time that the house on the property had been virtually destroyed by fire just a few hours before the start of the sale. The trust deeds required Ms. Severance to maintain fire insurance on the property for its "full insurable value." Two fire insurance policies covered the property at the time of the fire: one issued by Allstate and another issued by American Bankers Insurance (ABI). Both policies named Fireman's Fund as mortgagee. The Allstate policy contained a "standard" or "union" mortgagee clause which provided that the policy would "not be invalidated . by the commencement of foreclosure proceedings . by virtue of any mortgage or deed of trust." It further provided: Should legal title to and beneficial ownership of any of the property covered under this policy become vested in the Lender . insurance under this policy shall continue for the term thereof for the benefit of the Lender.... First National was not named as a loss payee in either policy. However, Allstate has admitted, and Fireman's Fund does not contest, that First National has a lender's interest in the subject property making it a loss payee under the policy. After the fire, the two insurers ordered an appraisal of the property. The appraiser determined that the market value of the property in its undamaged state was $86,-000. The appraiser then estimated that the fire had reduced the property's value by $58,000 and placed its post-fire market value at $28,000 for land and undamaged site improvements. Based on this appraisal, the two insurers pro-rated their liability under the policies. American Bankers Insurance paid its prorated share directly to Fireman's Fund. Allstate initially tendered a check for $28,-175.00 payable jointly to Ms. Severance and Fireman's Fund as full settlement for its pro-rated share. However in December 1989, after the Severance estate and First National made competing claims to the insurance proceeds, Allstate stopped payment on the check and filed this interpleader action. In February 1990, Allstate deposited the $28,175 with the clerk of the court. First National moved for summary judgment seeking not only the amount interpled by Allstate but a sum representing the entire amount of the loss. After a cross-motion for summary judgment by Fireman's Fund, the superior court granted First National's motion and awarded it the interpled funds plus interest. . The trial judge only offered two citations without text or explanation to support his decision: Bohn v. Louisiana Farm Bureau Mutual Ins. Co., 482 So.2d 843, 851 (La.App.1986) and Stormont v. Weatherby, 4FA-86-01771 Civ. (Alaska Super., 4th Dist., Fairbanks, April 20, 1987) (Decision of Superior Court Judge Jay Hodges). This appeal followed. II. DISCUSSION The question presented in this case is one of first impression for this court. First National apparently persuaded the trial judge below that Fireman's Fund's decision to non-judicially foreclose on the Fairbanks property divested it of the right to collect the insurance proceeds. On appeal, Fireman's Fund argues that it is entitled to all of the insurance proceeds because the unpaid debt on its first deed of trust was not fully discharged by fore- closure. Fireman's Fund contends that its offset bid should not be deemed a satisfaction of its debt divesting it of the right to collect the insurance proceeds because the bid reflects the property's value in its undamaged state. It maintains that, as senior lienholder, the company is entitled to fully satisfy its debt out of the insurance proceeds before a junior lienholder may receive anything. It also maintains that the insurance claims adjustment process will guard against a first mortgagee receiving more than its due. We agree with Fireman's Fund's first contention regarding discharge by foreclosure. We will address its second contention concerning the effect of the offset bid in the next section. 1. Alaska Statute 34.20.100 does not operate to extinguish a secured debt upon foreclosure as a matter of law. As a preliminary matter, we note that the authority cited by the trial judge may be distinguished on the facts and therefore fails to support the court's decision. In Stormont, the superior court held that a non-judicial foreclosure sale subsequent to a fire loss extinguishes the underlying mortgage and therefore divests the mortgagee of the right to collect insurance proceeds. Stormont, slip op. at 3. However, this holding was explicitly based on the fact that the mortgagee had bid the full amount due on the mortgage at the foreclosure sale. The trial judge observed: "since [the mortgagee] has been paid in-full, he is not entitled to the insurance proceeds." Id. (emphasis added). In Bohn, a mortgagee, who was named as loss payee under a "standard" mortgagee clause, sought fire insurance proceeds for a fire damaged property which it purchased at its own foreclosure sale subsequent to the fire's occurrence. Bohn, 482 So.2d at 844-46. The mortgagor sought the same proceeds. Id. The Bohn court first noted that Louisiana's antideficiency statute provides that if a mortgagee elects to satisfy its debt through a foreclosure sale without the benefit of an appraisal and the sale proceeds are insufficient to satisfy the debt, "the debt nevertheless shall stand fully satisfied and discharged in so far as it constitutes a personal obligation of the debtor." La.Rev.Stat.Ann. § 13:4106; Id. at 848. The court then reasoned that: the mortgagee has a vested interest in the [insurance] proceeds as of the time of loss. However, when the mortgagee forecloses on the debtor's property without benefit of appraisal, the debt is extinguished insofar as it exists as a personal obligation of the debtor under the Deficiency Judgment Act. Therefore, the mortgagee's interest in the proceeds, which is the balance of the mortgage debt, is likewise reduced to zero. At that point, the entire fund representing the insurance proceeds is the property of the insured. Thus, an action by the mortgagee for recovery of the insurance proceeds subsequent to a foreclosure without benefit of appraisal is an action against property of the mortgage debtor, and is consequently precluded by the Deficiency Judgment Act. Id. at 851 (emphasis added). The holding in Bohn supports the proposition that a mortgagor may, under Louisiana's antideficiency act, recover fire insurance proceeds if a mortgagee forecloses without appraisal subsequent to a fire loss. However, both the language of Louisiana's statute and the rationale of the Bohn opinion indicate that a second mortgagee may not simply step into the mortgagor's shoes and recover the proceeds following a foreclosure by the first mortgagee. In other words, it does not follow that a second mortgagee is afforded the same statutory protections as the mortgagor, nor does it follow that a first mortgagee's interest in the insurance proceeds is extinguished as to all claimants. Furthermore, Fireman's Fund persuasively argues that Alaska's antideficiency statute, AS 34.20.100, is fundamentally different than Louisiana's statute in that it does not operate to extinguish the underlying debt but merely eliminates certain types of remedies against specific classes of debtors. AS 34.20.100 (1990) provides: When a sale is made by a trustee under a deed of trust, as authorized by AS 34.20.-070-34.20.130 [statutes governing non-judicial foreclosure sales], no other or further action or proceeding may be taken nor judgment entered against the maker or the surety or guarantor of the maker, on the obligation secured by the deed of trust for a deficiency. In Hull v. Alaska Federal Sav. & Loan Ass'n, 658 P.2d 122 (Alaska 1983), we held that although the antideficiency statute: limits the creditor's rights to pursue further legal action or process against his debtor for any deficiency in the obligation following a non-judicial foreclosure of the property[, t]he limitation does not bar the retention of additional security pledged on the obligation. Id. at 125. While we recognize that Hull is not precisely on point because fire insurance proceeds are generally considered substitute security rather than additional security, the case supports Fireman's Fund's view that a non-judicial foreclosure sale does not operate to extinguish the underlying debt. It is also significant that the competing claimants in the present case are first and second mortgagees rather than a mortgagor and a mortgagee as in Hull. In Hull, we stated that the "Alaska anti-deficiency statute, like the post-depression enactments of many other states, was aimed at relieving the plight of debtors whose obligations were secured by mortgages or other security interests in land." Id. at 124 n. 3 (emphasis added). The protections of this statute are aimed at the mortgagor and may not be invoked by a junior lienor who knowingly took a lesser security interest. We have stated that "[t]he effect of the trustee's sale was to discharge all [the mortgagor's] obligations under the note." Smith v. Shortall, 732 P.2d 548, 549 (Alaska 1987). However, the fact that the mortgagor's obligation is discharged does not mean that the underlying debt is extinguished for all purposes. Finally, the statute's plain language supports the conclusion that the loan obligation is not completely extinguished as a matter of law at the time of a non-judicial foreclosure sale. The statute contemplates the survival of a loan "obligation" following the sale, but precludes the lender from seeking any "deficiency" on this obligation either from the debtor or from the debtor's guarantor. 2. Fireman's Fund is bound by its offset bid but may seek reformation of the sales contract given the equities of this case. Fireman's Fund was protected by a "standard" mortgagee clause in the two fire insurance policies. A standard mortgagee clause in an insurance contract provides a mortgagee with much greater protection than a "simple" loss payee clause which merely designates the mortgagee as an alternative payee under the policy. Under a standard mortgagee clause, a mortgagor's breach of the insurance contract will not bar recovery by the mortgagee. Bohn, 482 So.2d at 850 (quoting Couch on Insurance Law § 42:694 (2d ed. 1963)). The standard clause constitutes a separate and independent contract between the mortgagee and the insurance company which is "measured by the terms of the mortgage clause itself." Id. Fireman's Fund acknowledges that most courts have held that a subsequent foreclosure by a mortgagee either partially or completely divests the mortgagee of its rights under the insurance contract. See Whitestone Sav. & Loan Ass'n v. Allstate Ins. Co., 28 N.Y.2d 332, 321 N.Y.S.2d 862, 270 N.E.2d 694 (N.Y.App.1971); Moke v. Whitestone Sav. & Loan Ass'n, 82 Misc.2d 396, 370 N.Y.S.2d 377 (N.Y.Sup.1975); see generally 5A John A. Appleman & Jean Appleman, Insurance Law & Practice § 3403-04 at 299 (1990). However, Fireman's Fund points out that the courts that espouse this rule are primarily concerned with unjust enrichment and assume that the mortgagee knowingly and voluntarily elected to seek the property in lieu of the proceeds or made an offset bid on the property aware of its damaged condition. The rule is therefore: intended to prevent a creditor from receiving a double payment. The creditor's interest in the insurance proceeds is recognized as security for the payment of the debt. The insurance is an alternative source of payment and once the debt is paid by some other means any right to the insurance is thereby extinguished. Calvert Fire Ins. Co. v. Environs Development Corp., 601 F.2d 851, 856 (5th Cir.1979). Although not specifically discussing "standard" mortgagee clauses or the effect of subsequent foreclosure, we have made a similar observation in Moran v. Kenai Towing & Salvage, Inc., 523 P.2d 1237, 1239-40 (Alaska 1974): The great weight of authority answers that a mortgagee may satisfy his secured debt from the proceeds [of the fire insurance policy], but if the indebtedness does not exhaust the proceeds, the balance shall be paid to the mortgagor. Were the rule otherwise, the mortgagee would be unjustly enriched at the expense of the mortgagor, who bears the ultimate burden of paying for the insurance. The purpose of requiring insurance coverage . is to protect the integrity of the asset which is hypothecated to the mortgagee to secure repayment of the underlying debt. Moran, 523 P.2d at 1239-40. Clearly, the rationale behind these cases is the desire to prevent a double recovery. Thus Fireman's Fund is prohibited, under the rationale in Moran, from receiving more insurance proceeds than required to satisfy its outstanding debt. The next issue which must be resolved is the amount of Fireman's Fund's outstanding debt following the foreclosure sale. Fireman's Fund argues that we should disregard its offset bid because the bid was made in ignorance of the property's damaged condition. Fireman's Fund points out that the appraised value of the fire-damaged property ($28,000.00), the ABI insurance proceeds ($33,564.10) and Allstate proceeds ($28,175.00) combined come to several thousand dollars less than the mortgage indebtedness of $93,996.56 which remained on the first deed of trust. Therefore, Fireman's Fund argues that, in real terms, it is not getting more than its due. We recognize the validity of Fireman's Fund's economic argument and have some reservations about holding it to an offset bid made in ignorance of the property's condition merely to preserve what is essentially a legal fiction (i.e. that the offset bid represents a mortgagee's actual payment for the property). However, we believe it would be a mistake to simply disregard the offset bid in this situation, as Fireman's Fund urges us to do. If a mortgagee's offset bid is not really an offset of the outstanding debt, how can the remaining indebtedness be determined for purposes of pursuing additional security, as in Hulll See Hull, 658 P.2d at 122. Fireman's Fund had a contractual right to the insurance proceeds which vested at the time of the fire. See Atlas Assurance Co. v. Mistic, 822 P.2d 897, 903 (Alaska 1991); see also Corbin v. Aetna Life & Cas. Co. 447 F.Supp. 646, 650 (N.D.Ga.1978). The subsequent foreclosure did not change this contractual right. However, at the foreclosure sale a few hours later, Fireman's Fund essentially "spent" $75,486.15 of its total indebtedness in making its offset bid. This offset bid left Fireman's Fund with an outstanding indebtedness of approximately $18,500 plus interest and foreclosure costs. Under Moran and the great weight of authority, Fireman's Fund is only entitled to recover an amount of the insurance proceeds sufficient to satisfy this outstanding debt. Any remaining proceeds must be passed on to junior lienholders and/or the mortgagor as their interests appear. Nonetheless, our holding today does not mean that Fireman's Fund is left without legal recourse to avoid this result. Given the facts of this case, it would be plainly unjust to leave Fireman's Fund with a fire-damaged property and yet deprive it of the insurance proceeds "which stands in place of the lost portion of the property." See Tech Land Dev. v. South Carolina Ins., 57 N.C.App. 566, 291 S.E.2d 821, 823-24 (1982) (quoting MaIvaney v. Yager, 101 Mont. 331, 54 P.2d 135, 139 (1936) (citations omitted)). The best solution is to allow Fireman's Fund to seek reformation of the foreclosure sales contract to replace the $75,486.15 purchase price with a price more reflective of the actual market value of the property at the time of sale. Traditionally, reformation is a tool courts use to correct what are essentially errors in the drafting of a contract so as to conform the written agreement to the "clear intention of the parties." See Oaksmith v. Brusich, 774 P.2d 191, 197 (Alaska 1989). We have also held that "[rjeformation is appropriate where, by reason of mutual mistake, the written agreement does not accurately reflect the bargain intended by the parties." Riley v. Northern Commercial Co., Mach. Div., 648 P.2d 961, 969 (Alaska 1982). However, we have also recognized a more expansive use of the tool of reformation to allow our courts to alter the terms of a contract when the interests of justice so require. In Vockner v. Erickson, 712 P.2d 379 (Alaska 1986), we upheld a superior court's reformation of a land sales contract based on the finding of un-conscionability. Id. at 383. We noted that "the aim of reformation in these circumstances is to bring the contract in conformity with minimal standards of conscionability." Id. at 384. The present case falls somewhere between the' traditional use of reformation and its more expansive use based on an examination of the equities involved. On the one hand, all parties to the foreclosure sale were operating under the belief that the subject property was undamaged at the time of sale. Fireman's Fund's bid was therefore based on a mutual mistake as to the condition of the property. Fireman's Fund was bargaining for an undamaged property and did not obtain the benefit of its bargain. Reformation of the sales price is therefore appropriate. Also, from an equity standpoint, it is significant that this was a foreclosure sale in which the mortgagee operating the sale purchased the foreclosed property. Fireman's Fund was, in essence, both the buyer and seller in the transaction. The somewhat unusual features of this case make reformation a sensible remedy. We therefore conclude that Fireman's Fund may seek reformation upon remand of this case to the superior court. Even so, Fireman's Fund has the burden of showing by clear and convincing evidence that reformation is warranted. See Oaksmith, 774 P.2d at 197. At this proceeding, all interested parties should be allowed to present evidence as to Fireman's Fund's knowledge of the condition of the property at the time of sale and any other related matters. III. CONCLUSION On the undisputed facts presented, we hold that Fireman's Fund is not precluded by AS 34.20.100 (1990) from satisfying its outstanding debt from available insurance proceeds even though it purchased the fire-damaged property at its own foreclosure sale. However, Fireman's Fund must be held to its offset bid of $75,486.15 which would entitle it to only so much of the insurance proceeds as required to pay off the remaining debt, approximately $18,500 plus interest and foreclosure costs. The remaining proceeds should go to First National and/or the Severance estate as their interests appear. We further hold that Fireman's Fund is entitled to seek reformation of the purchase price in the sales contract. REVERSED and REMANDED for further proceedings consistent with this opinion. . In this appeal, Fireman's Fund is acting as agent for Alaska Housing Finance Corporation who was beneficiary of a first deed of trust on the property in question. However, for ease of reference, we have adopted the convention of the parties and refer to Fireman's Fund as if it were the real party in interest. . First National concedes Fireman's Fund's lack of knowledge at the time of sale only for the purpose of its summary judgment motion because it believes this fact is irrelevant to the legal question presented. If this turns out not to be the case, First National requests a hearing to determine Fireman's Fund's actual knowledge. The general rule is that: a party moving for summary judgment concedes the absence of a factual issue and the truth of the nonmoving party's allegations only for purposes of his own motion. 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 at 20 (1983). Therefore, as a strictly procedural matter, First National has not waived its right to contest this issue. However, the undisputed facts disclosed in the record appear capable of supporting only one conclusion; that Fireman's Fund made its offset bid with no knowledge of the fire. . Ms. Severance-Hoover died during the pen-dency of this action and her estate is being represented by Gary Severance. However, after initially filing an answer to the interpleader complaint, the estate has taken no further record action in the case and has not appealed the trial court's decision. . Since the parties do not dispute the facts for purposes of their summary judgment motions, a question of law is presented. We review a question of law using our independent judgment and adopt the rule which is most persuasive in light of precedent, reason and policy. Gain v. Ha, 591 P.2d 1281 (Alaska 1979). . Under state law, a mortgagee has limited options when a mortgagor defaults on a loan, and, as First National points out, each option has its own advantages and disadvantages. A mortgagee may 1) sue on the note itself, 2) judicially foreclose on the property and preserve the right to a deficiency judgment subject to a mortgagor's right of redemption, or 3) nonjudicially foreclose on the property and give up any deficiency judgment but also avoid redemption rights and court costs. See Moening v. Alaska Mutual Bank, 751 P.2d 5, 7-8 (Alaska 1988). First National maintains, based on its reading of the relevant statute, that by choosing the last option, Fireman's Fund's debt Was extinguished at the time of the foreclosure sale because it had fully satisfied its debt as a matter of law. Therefore, First National concludes. Fireman's Fund's right to the insurance proceeds was also extinguished. . In addition to factual differences in these cases, we are, of course, free to adopt our own rule even if contrary to the reasoning employed by these persuasive authorities. . All the cases cited by First National involve anti-deficiency statutes more akin to Louisiana's act than to AS 34.20.100. See e.g. Moke Realty v. Whitestone Sav. & Loan Ass'n, 82 Misc.2d 396, 370 N.Y.S.2d 377, 380 (N.Y.Sup.1975) (result similar to Bohn; N.Y. antideficiency statute provides that failure to move for deficiency judgment within 90 days of foreclosure sale and delivery of deed means "the proceeds of the sale regardless of amount shall be deemed to be in full satisfaction of the mortgage debt"). . Fireman's Fund relies on this premise to argue that its reasonable expectations of coverage will be defeated if its foreclosure bid divests it of the right to collect the proceeds. The clause itself specifically states that the policy will not be invalidated as to the lender payee as a result of any foreclosure and also contemplates that legal title may vest in the lender without causing an interruption in coverage. It is well recognized that the right to insurance proceeds vests at the time of loss. See Atlas Assurance Co. v. Mistic, 822 P.2d 897, 903 (Alaska 1991); see also Corbin v. Aetna Life & Cas. Co. 447 F.Supp. 646, 650 (N.D.Ga.1978) (citing and quoting 5a John A. Appleman & Jean Appleman, Insurance Law and Practice, § 3403 at 300 (rev'd ed. 1970)). Therefore some courts have held that a subsequent foreclosure will not affect a mortgagee's rights to the insurance proceeds at least when the controversy involves an insurer and a mortgagee/claimant. See Corbin, 447 F.Supp. at 651-52. However, in the present case, Allstate acknowledges its obligation under the contract and the dispute is between competing claimants to the proceeds. It is the equitable relationship between the parties that is at issue not an interpretation of the contract provisions. See Moran v. Kenai Towing and Salvage, Inc. 523 P.2d 1237, 1240 n. 2 (Alaska 1974) (in a dispute involving a mortgagor and a mortgagee's competing claims to insurance proceeds, we concluded that the statute governing insurance contracts was not directly relevant; instead we focused on the equitable relationship between the parties). Therefore, Fireman's Fund's argument on this point has little merit. . The courts are split on whether a mortgagee's offset bid for less than the amount of its outstanding debt operates to completely extinguish the debt or merely reduces the mortgagee's insurable interest in the property and by extension reduces its entitlement to the insurance proceeds. Some, like the Bohn court, rely on their antideficiency statute to conclude that even a partial bid completely extinguishes the debt. See e.g. Coppotelli v. Insurance Co. of North America, 484 F.Supp. 1327, 1329 (E.D.N.Y.1980). Others follow the rule that "subsequent partial or full extinguishment of the debt giving rise to the insurable interest will reduce the loss-payee's interest in the proceeds to the extent the debt has been satisfied." See Calvert Fire Ins. Co. v. Environs Development Corp. 601 F.2d 851, 856 (5th Cir.1979) (providing extensive list of case citations as support for rule). . The North Carolina Court of Appeals lays out the approach typically taken by courts to resolve this type of dispute: [C]ourts emphasize the sequence of events. They distinguish between foreclosure-after-loss and foreclosure-before-loss. When insured property is damaged prior to foreclosure, courts allow the purchasing mortgagee to retain under the mortgage clause those proceeds amounting to any deficiency after foreclosure. The mortgagor recovers the remainder of the proceeds. The courts conclude that once the deficiency is satisfied, the mortgagee's additional recovery of proceeds representing undamaged property would amount to unjust enrichment since its bid represented the value of damaged property. Where the damage occurs after approval of the foreclosure sale and before expiration of the mortgagor's right to redeem, courts have allowed the purchasing mortgagee to recover all the insurance proceeds should the mortgagor fail to redeem within the time period. The courts point out that the mortgagee's bid represented the property in an undamaged state. The mortgagee is thus "entitled to what remains and to the money which stands in place of the lost portion of the property which he purchased." Tech Land Dev. v. South Carolina Ins., 57 N.C.App. 566, 291 S.E.2d 821, 823-24 (1982) (quoting MaIvaney v. Yager, 101 Mont. 331, 54 P.2d 135, 139 (1936) (citations omitted, emphasis in original). Here, the fire occurred only hours before the sale, and Fireman's Fund had no actual or constructive notice of the damage. These unusual facts make a straightforward application of the traditional rule problematic. . Courts have gone both ways on this question based on their view of the effect of foreclosure and the particular facts presented. The Ninth Circuit took a strictly technical approach in Universal Mortgage Co. v. Prudential Ins. Co., 799 F.2d 458 (9th Cir.1986). Applying California law, the circuit court noted that a "full or partial extinguishment of a mortgage debt, whether prior or subsequent to loss, precludes, to the extent thereof, any recovery on a loss by the loss payable mortgagee." Id. at 460. The circuit court then adopted the district court's explanation that: actual or constructive knowledge [of the property's condition] is irrelevant to the policy or application of the rule. Neither the true value of the subject property nor the conduct of the beneficiary controls the impact of a full credit bid. Once the debt was extinguished at the time of the bid, so was [mortgagee's] insurable interest. Id. (quoting the district court). The Connecticut Supreme Court takes an approach more reflective of economic reality. See Burritt Mut. Sav. Bank v. Transamerica Ins., 180 Conn. 71, 428 A.2d 333 (1980). The court first recognized that "inequitable results may be produced if a court regards the debt as wholly satisfied when the mortgagee has in fact received less than full payment." Id. at 338 (quoting Keeton, Basic Text on Insurance Law 188, n. 4 (1971)). Since the record failed to disclose the actual value of the damaged property at the time the mortgagee acquired the deed through strict foreclosure, the court remanded the case for a determination whether "the appropriation by strict foreclosure of the mortgaged property has equitably satisfied the mortgage debt." Id. 428 A.2d at 339. . The operative facts are that Fireman's Fund initiated non-judicial foreclosure proceedings before the fire occurred and had no actual or constructive knowledge of the property damage at the time it made its offset bid. The very short period of time between the fire and the foreclosure sale goes to the issue of constructive knowledge and obviously weighs in Fireman's Fund's favor. If there were other bidders at the foreclosure who were outbid by Fireman's Fund's use of its offset bid rights, the equities might be balanced differently. . Fireman's Fund has raised an alternative basis for reversal of the trial court's decision. Under Alaska's deed of trust statutes, if a senior lienholder provides notice of a pending nonjudicial foreclosure sale to junior lienholders, the sale extinguishes the junior lienholders' interest. AS 34.20.090(a)-(c); See Nystrom v. Buckhom Homes, Inc., 778 P.2d 1115, 1124-25 (Alaska 1989). One fact, which the record does not reveal, is whether First National had notice of the sale. Assuming it did, First National's failure to protect its interest before the sale would eliminate its insurable interest in the property had the fire taken place after the sale. However, because the fire occurred prior to the sale, First National retains a secondary interest in the fire insurance proceeds. See supra, p. 797 (rights to fire insurance proceeds vest at time of fire).

10344113

Rick L. KITCHENS, Appellant, v. STATE of Alaska, Appellee

Kitchens v. State

1995-06-16

No. A-5165

443

453

898 P.2d 443

898

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:17:46.954789+00:00

CAP

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

Rick L. KITCHENS, Appellant, v. STATE of Alaska, Appellee.

Rick L. KITCHENS, Appellant, v. STATE of Alaska, Appellee. No. A-5165. Court of Appeals of Alaska. June 16, 1995. Hearing Denied Oct. 6, 1995. David D. Reineke, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Richard W. Maki, Asst. Dist. Atty., Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

6022

36123

OPINION BRYNER, Chief Judge. Rick L. Kitchens was convicted by a jury of two counts of sexual assault in the first degree, AS 11.41.410(a)(1) (nonconsensual sexual penetration), one count of sexual assault in the second degree, AS 11.41.420(a)(1) (nonconsensual sexual touching), one count of burglary in the first degree, AS 11.46.300(a)(1), and one count of robbery in the second degree, AS 11.41.510(a)(1). Superior Court Judge Karl S. Johnstone sentenced Kitchens to a total term of sixteen years with four years suspended. Kitchens appeals, contending that the trial court erred in restricting Ms examination of a defense witness. Kitchens also claims that his composite sentence is excessive. We affirm Kitchens' convictions but remand for reconsideration of the sentence. FACTS Kitchens' convictions stem from an incident of sexual assault reported by N.L. N.L.'s version of events differs markedly from Kitchens'; we turn to N.L.'s version first. 1. N.L.'s Version In September of 1992, N.L. lived in an apartment in Anchorage with her fiance, M.W. The couple planned to spend several days in M.W.'s hometown in Texas, where they intended to announce their engagement. M.W. left for Texas on September 14 or 15. N.L. initially made arrangements to depart Anchorage on an early morning flight on September 17. When that flight was can-celled shortly before its scheduled departure, N.L. rebooked herself on a flight leaving early the next morning, September 18. On the evening of September 17, several hours before she was due to leave, N.L. received a telephone call. The call was from a man N.L. had spoken to on the telephone several times during the past summer. The first time the man had called, N.L. got the impression that he was Zane Vaughn, an assistant wrestling coach at N.L.'s former Mgh school whom N.L. had met several years previously when she was in school and whom she had dated once shortly after graduating; N.L. had a casual conversation with the man. The same man had called N.L. three or four more times during the summer, apparently just to talk. During the subsequent telephone conversations, the man said notMng to indicate that he was not Zane Vaughn, and N.L. continued to assume that he was indeed Vaughn. When the same man called N.L. on September 17, she again thought that he was Vaughn. After N.L. told him that she was leaving for Texas later that night to join her fiance, the caller offered her a ride to the airport. N.L. accepted the offer and asked the caller to pick her up shortly after midnight. The caller told N.L. to leave her door unlocked. At about 11:30 p.m., N.L. took a shower. As she walked from the bathroom to her bedroom, she noticed a man seated on the living room couch. N.L. closed her bedroom door and quickly put on a bathrobe. She heard a knock on the bedroom door. When she put her head out to say that she would be out as soon as she finished dressing, N.L. encountered a man wearing wMte gloves and a knit scarf over his face. The man grabbed N.L., covered her mouth with his hand, and told her not to scream. He demanded money, threatening to snap N.L.'s neck if she did not cooperate. N.L. gave him approximately $200, wMch he placed into a brown nylon bag that he had brought with him. The man proceeded to sexually assault N.L., forcing her to engage in fellatio and genital intercourse. N.L.'s assailant then fled the apartment, threatening to kill her if she reported the incident. N.L. did not immediately report the rape to the authorities or to her fiance, M.W. She took a taxi to the airport, caught her scheduled flight, and, upon arrival in Texas, pretended that nothing unusual had happened. Although N.L.'s reluctance to report the rape stemmed to a limited extent from her assailant's death threat, her primary reason for failing to report the incident promptly was her fear of M.W.'s jealous and controlling nature: N.L. was afraid M.W. would not believe that she had been raped and would suspect her of having an affair with another man. Almost three weeks after the alleged rape, on October 5,1992 — after N.L. and M.W. had returned to Anchorage — an anonymous caller telephoned N.L. and M.W.'s apartment. The caller hung up as soon as M.W. answered the telephone. This prompted N.L. to tell M.W. about the rape. Even though M.W. did not believe N.L., he called the police, who came to the apartment and interviewed her. N.L. had not gotten a good look at her assailant. Although the man differed somewhat from her memory of Zane Vaughn, N.L. believed she had been raped by Vaughn, and she reported this to the officer who interviewed her. During the police interview, N.L. received a call from the man she believed to be Vaughn. A portion of the conversation was recorded on N.L.'s answering machine, and the police managed to trace the call to the number from which it originated. At the end of the conversation, N.L. told the caller to call her again two days later, on October 7. Subsequent investigation established that the call had come from a telephone listed in Kitchens' name. The investigation also disclosed that Zane Vaughn had not been in Anchorage on the date of the alleged rape. After obtaining a warrant, the police recorded the October 7 call to N.L. Following a script that the police had given to her, N.L. attempted to elicit incriminating statements from her caller. Although the caller became suspicious in the course of the call, he ultimately acknowledged: "You know I raped you, you know it was force, but you loved it." Acting pursuant to a second warrant, the police searched Kitchens' apartment; they seized a brown nylon bag that N.L. identified as the bag that her assailant had used to carry her stolen cash, as well as a pair of shorts with an emblem on them that N.L. identified as having been worn by her assailant. 2. Kitchens' Version We turn next to Kitchens' version of events. At trial, Kitchens testified in his own defense, admitting that he had engaged in sexual intercourse with N.L. at her apartment, but claiming that the act was consensual. Kitchens' theory of defense was that N.L. had fabricated her charge of rape in order to avoid having M.W. learn of her relationship with Kitchens. According to Kitchens, he had become acquainted with N.L. during the spring of 1992, when she and M.W. had visited an outdoor show where Kitchens worked at a booth for his employer, an automobile parts supplier. Kitchens claimed that, at the show, N.L. had asked him about a problem she was having with her car. He could not give her an answer without referring to information in his company's parts computer, so he took N.L.'s number and told her he would call her later. Kitchens claimed that, when he called N.L. back, he struck up a conversation with her. This led to further calls, and eventually he and N.L. became good friends over the telephone. Kitchens estimated that he had spoken to N.L. hundreds of times over the telephone during the summer of 1992. During these conversations, N.L. would frequently discuss her personal life with Kitchens, would confide in him about problems she was having with M.W., and would seek his advice. Kitchens testified that when N.L. told him of her impending trip to Texas, he offered her a ride to the airport and arranged to meet her at her apartment. According to Kitchens he had visited the apartment once before, in August. Kitchens claimed that, after arriving on the evening of N.L.'s scheduled departure, he and N.L. sat on the couch, talking about M.W. N.L. told Kitchens that M.W. had been abusive toward her. Kitchens urged her not to go on the trip. He and N.L. then began hugging and kissing; N.L. made the first move. The two ultimately engaged in sexual intercourse in the bedroom. After that, N.L. became upset, saying that they should not have engaged in sexual intercourse and blaming herself for what happened. N.L. insisted that Kitchens leave, declining to ride with him to the airport. Kitchens complied with her request. 3. Trial Court Rulings Restricting M.W.'s Testimony In support of his defense, Kitchens called M.W. as a witness at trial. Through M.W.'s testimony, Kitchens apparently sought to emphasize N.L.'s delay in reporting the alleged rape and generally to show that N.L.'s conduct and appearance in the aftermath of the September 17 incident were inconsistent with her claim of rape. Kitchens also evidently hoped to emphasize that M.W. himself had been consistently skeptical of N.L.'s version of events. Kitchens' efforts to obtain favorable testimony from M.W. met only limited success. The trial court restricted Kitchens' questioning of M.W. in three instances. a. N.L.'s Demeanor Upon Arrival in Texas The first instance involved the topic of N.L.'s conduct and appearance upon her arrival in Texas the day after the alleged sexual assault. Kitchens' counsel asked M.W.: "Did [N.L.] appear like she had been raped and she was in fear that somebody was out there trying to kill her?" The prosecution objected, contending that the question was speculative and irrelevant. Defense counsel replied that M.W. was "entitled to speak as to how [N.L.] appeared when she got down there[.]" Judge Johnstone sustained the objection. b. N.L.'s Grand Jury Rehearsal The second instance of restriction centered on the issue of N.L.'s grand jury testimony. During her cross-examination at trial, N.L. testified about a quarrel with M.W. that was precipitated by her grand jury testimony in April of 1993. N.L. described the following events. Soon after reporting that she had been raped, N.L. enrolled in college in Texas and moved there with M.W. In April of 1993, while she and M.W. were in Texas, N.L. was required to appear by telephone before an Anchorage grand jury. Shortly before the grand jury hearing, N.L. spoke on the telephone with an assistant district attorney from Anchorage in order to "rehearse" her proposed grand jury testimony. M.W. was suspicious of N.L.'s account and wanted to hear what had actually happened. He tried to convince N.L. to allow him to listen to her grand jury testimony. N.L. resisted, and she and M.W. quarrelled. M.W. became physically abusive toward N.L.; this quarrel, in turn, ultimately led to the breakup of N.L. and M.W.'s relationship. As part of the defense case at trial, Kitchens' counsel attempted to question M.W. about the "big fight in April" with N.L. The prosecution objected on the ground of relevance. Kitchens' counsel responded: Well, she indicated on — several times on cross-examination that he hadn't been abusive [before] and she did say, however, that he was abusive after the incident.... I want to tie it in with the grand jury portion of it that he had suspicions about, you know, the — her veracity when she was testifying at the grand jury and that's why he wanted to sit in. Judge Johnstone allowed defense counsel to make a formal offer of proof by examining M.W. out of the presence of the jury. In relevant part, the questioning went as follows: Q Okay. Now, the rehearsal, who was that with? A I'm thinking Suzanne. I don't know. It was one of the assistant DAs. Q And that was a rehearsal over the phone as to how A It was a rehearsal over the phone and I called her Q Just — please, we're just trying to make a quick record. The rehearsal was with respect to what? A Grand jury for the next day. Q Okay. In other words, she was rehearsing her testimony over the phone with the district attorney for grand jury testimony for the following day. A Correct. Q Okay. Did you want to listen in to that — not to the rehearsal, but to her grand jury testimony? A I — I'd made the statement that yeah, I was going to, that I would do that, but Q Why's that? A Because I wanted to hear whatever was going to be said. I wanted to know what the truth was. Q Okay. Is that because you didn't believe her? A Well, yeah, I had doubts, yes. Q Okay. Judge Johnstone precluded the defense from pursuing this line of inquiry. Upon concluding his offer of proof, however, Kitchens' attorney further asked: "[C]ould I at least, Judge, get from this witness that there was the rehearsal, a telephone conversation?" The prosecution objected on the ground that defense counsel was inappropriately attempting to elicit M.W.'s opinion as to N.L.'s behavior. Judge Johnstone sustained the objection and denied defense counsel's request. c. N.L.'s Return to Alaska The third instance in which the trial court restricted Kitchens' examination of M.W. related to N.L.'s decision to move back to Alaska during the spring of 1993 in order to take a job. M.W. had advised N.L. not to return to Alaska. Kitchens' attorney sought to question M.W. about N.L.'s willingness to return to Alaska despite M.W.'s advice and despite her knowledge that Kitchens had been released on bail after being charged with sexual assault. Kitchens' attorney argued: 'Well, I think it goes to her state of mind that he's concerned, [']why are you taking this job when you know that this guy's out there on the streets!,'] because he's worried about protecting her and she seems totally carefree and unconcerned." Judge Johnstone excluded the proposed testimony: "Your witness giving an opinion she didn't seemed concerned about working on the slope . there's nothing in the rules to provide for that." DISCUSSION On appeal, Kitchens challenges the trial court's rulings as erroneous in each of the foregoing instances involving restriction of M.W.'s testimony. As to each instance, Kitchens asserts that the proposed testimony was relevant to impeach N.L.'s credibility. Pointing out that evidence relating to the demeanor of the complaining witness in a rape case has frequently been held admissible to bolster the complainant's credibility, Kitchens argues that the same rule should be applied when demeanor evidence is offered to discredit the complainant. Kitchens insists that exclusion of relevant defense evidence amounts to constitutional error. See Michigan v. Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 1747, 114 L.Ed.2d 205 (1991); Rock v. Arkansas, 483 U.S. 44, 55-56, 107 S.Ct. 2704, 2711-12, 97 L.Ed.2d 37 (1987). In response, the state maintains that Kitchens had no right to have M.W. testify that he did not believe N.L.'s claim of rape, since that testimony would amount to M.W.'s lay opinion as to the truthfulness of N.L.'s testimony. The state analogizes Kitchens' ease to child sexual abuse cases in which this court has disapproved of expert testimony offered to establish the truthfulness of the complainant's report of abuse. See, e.g., Colgan v. State, 711 P.2d 533 (Alaska App.1985). Alternatively, the state argues that the trial court allowed Kitchens to introduce abundant evidence of N.L.'s post-assault demeanor. Both parties acknowledge that trial court rulings on the admissibility of evidence are ordinarily subject to review only for abuse of discretion. Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980); Gamer v. State, 711 P.2d 1191, 1195 (Alaska App.1986). As Kitchens correctly points out, however, this court has previously emphasized the importance of the defendant's right to present favorable evidence and has expressly cautioned that "[t]he fundamental nature of the right counsels strongly against its grudging and parsimonious application." Shepard v. State, 847 P.2d 75, 83 (Alaska App.1993). With these principles in mind, we examine each of the rulings disputed in this ease. 1. N.L.'s Demeanor Upon Arrival in Texas The propriety of the first ruling restricting M.W.'s testimony, which centered on N.L.'s demeanor upon her arrival in Texas immediately after the alleged assault, is the easiest to deal with. N.L.'s demeanor on the day after the alleged rape was certainly a legitimate area of inquiry for the defense. Contrary to Kitchens' argument on appeal, however, Judge Johnstone did not preclude Kitchens from questioning M.W. about N.L.'s appearance and conduct in the immediate aftermath of the assault. Rather, the judge simply sustained an objection to a single question during Kitchens' redirect examination of M.W. that was argumentative and called for speculation on M.W.'s part: "Did she appear like she had been raped and she was in fear that somebody was out there trying to kill her?" By this point, M.W. had already testified on direct examination that N.L. had given him no indication upon arriving in Texas "that she might have been raped or traumatized or put in fear[.]" He had also said that N.L. "seemed like the same [N.L.] I'd known all along." Furthermore, M.W. had reiterated on cross-examination that N.L. had given him no indication of "anything being different or extraordinary" when she came to Texas after the alleged rape. Finally, after Judge Johnstone sustained the objection to the disputed question, Kitchens successfully pursued the same point in a less argumentative way, asking M.W. if N.L. had given him "any inkling at all" that she had been raped; M.W. replied that she had not. Given these circumstances, we find no abuse of discretion. 2. N.L.'s Grand Jury Rehearsal The second disputed ruling involves Kitchens' attempt to question M.W. about N.L.'s grand jury testimony. Kitchens offered two reasons for pursuing this line of inquiry. His primary objective was to establish that M.W. had wanted to hear N.L. testify because he did not believe her story; his secondary objective — offered as an apparent afterthought when the trial court rejected Kitchens' primary theory — was to apprise the jury that N.L. had rehearsed her story before giving her grand jury testimony. a. M.W.'s Opinion of N.L.'s Credibility With respect to Kitchens' primary objective, the trial court correctly recognized that Kitchens had no right to prove M.W.'s disbelief of N.L.'s charges against Kitchens. Kitchens was not entitled to present M.W.'s lay opinion as to the credibility of N.L.'s story unless he first established that the opinion was rationally based on M.W.'s own observations and that the opinion would have been helpful to the determination of a fact in issue. See Alaska Rule of Evidence 701. In the present case, M.W. repeatedly acknowledged that his skepticism toward N.L.'s version of events was not rationally based on his observations of N.L.'s behavior, but that it arose instead from his own jealous and possessive nature. Moreover, we fail to see how M.W.'s opinion of the credibility of N.L.'s story could have materially assisted the jury in deciding any disputed fact. The court did not preclude Kitchens from questioning M.W. about specific observations indicating a lack of candor on N.L.'s part. Hence, the jury was fully capable of forming its own opinion as to N.L.'s credibility and stood in no apparent need of assistance from M.W. M.W.'s personal opinion as to the truthfulness of the complaint had no bearing on any issue apart from the issue of N.L.'s general credibility. To the extent M.W.'s opinion might have been relevant for general impeachment of N.L. s credibility, its admissibility was governed by Alaska Rule of Evidence 608(a) and (b). Under this rule, Kitchens could properly ask M.W. for his opinion of N.L.'s general credibility, but Kitchens was not entitled to elicit MW.'s opinion as to the credibility of any specific statement by N.L. Finally, by the time the trial court precluded Kitchens from delving farther into MW.'s opinion of N.L.'s version of events, the jury had already been given a clear picture of M.W.'s personal opinion. M.W. had testified at the outset of his direct examination that he "always doubted [N.L.] in a lot of ways." And N.L. had specifically testified, on cross-examination by defense counsel, that M.W. had tried to listen to her grand jury testimony because he did not believe her and because he wanted to make sure that she was telling the truth. b. The Fact of N.L. ⅛ Rehearsal The trial court's rejection of Kitchens' offer to question M.W. about N.L.'s "rehearsal" of her grand jury testimony — the secondary purpose of Kitchens' proposed inquiry into the events of April 1993 — presents a somewhat closer issue. Contrary to the state's assertion below (which Judge John-stone evidently accepted), it does not appear from the record that Kitchens sought to question M.W. as to any opinion M.W. might have formed concerning the rehearsal. Rather, it seems that Kitchens sought merely to establish, through M.W., that a grand jury rehearsal had occurred: that M.W. had witnessed N.L. discussing her proposed grand jury testimony with a prosecutor the day before the grand jury hearing. To the extent that this evidence might have shown that N.L. concocted her testimony, it was relevant and arguably admissible. But it was also wholly cumulative. In his cross-examination of N.L., Kitchens thoroughly explored N.L.'s rehearsal of her grand jury testimony. N.L. expressly acknowledged that the rehearsal had occurred, and she described the event. Given N.L.'s acknowledgement of the fact that she had rehearsed her grand jury testimony, we find no abuse of discretion in the trial court's refusal to allow further inquiry of M.W. on the same point. 3. N.L.'s Return to Alaska a. Admissibility The trial court's third disputed ruling dealt with Kitchens' request to question M.W. about N.L.'s decision to return to Alaska after Kitchens' indictment. The court's rejection of Kitchens' request is troubling. Contrary to the view expressed by the court below and to the state's argument on appeal, Kitchens' offer of proof did not involve an attempt to obtain speculative or otherwise impermissible opinion evidence from M.W. Kitchens' desire to prove that N.L. displayed no fear and seemed "totally carefree and unconcerned" when she decided to return to Alaska in the spring of 1993 would not have required M.W. to express any opinion beyond his opinion of N.L.'s state of mind. This opinion, in turn, would have been based on M.W.'s personal observation of N.L.'s demeanor and on statements by N.L. revealing her own state of mind. Evaluation of personal demeanor is an inherent part of ordinary social interaction and, in most situations, entails little more than commonsense judgment. Hence, if demeanor is relevant, there is ordinarily nothing impermissible in asking a witness to describe the demeanor of a person with whom the witness has spoken. The trial court erred in concluding that the proposed inquiry called for speculative opinion evidence. Assuming N.L.'s state of mind was relevant, M.W.'s proposed testimony was a proper vehicle for its proof. The state does not contend that N.L.'s lack of fear was irrelevant; nor does it appear that such an argument could be sustained. N.L. claimed that her assailant had threatened to kill her. Kitchens offered to show that, against M.W.'s wishes and despite her knowledge that Kitchens had been released on bail after being charged with her assault, N.L. readily accepted a job that required her to return to Anchorage. According to the proposed testimony, in deciding to take the job, N.L. had shown no signs of concern or fear. Evidence of N.L.'s carefree attitude was at least marginally relevant to Kitchens' consent defense and tended to undermine N.L.'s credibility, since N.L.'s apparent lack of fear might indicate that in actuality she had no reason to fear Kitchens — that Kitchens had never threatened her. Because we find nothing in the record to support the conclusion that this evidence had any potential for prejudice that might have outweighed its probative value, we conclude that the trial court erred in excluding it. b. Harmless Error We must separately consider whether the error was sufficiently prejudicial to require reversal. Given the significance and constitutional dimension of the accused's right to present favorable evidence, we assume that the constitutional standard of review applies in Kitchens' case, and we inquire whether the error was harmless beyond a reasonable doubt. Love v. State, 457 P.2d 622 (Alaska 1969); but see Shepard v. State, 847 P.2d at 84 (applying nonconstitutional standard in an analogous situation in holding that error required reversal). Kitchens correctly argues that N.L.'s credibility was a crucial issue at trial. Nevertheless, the excluded evidence — while unquestionably relevant to some degree — was not particularly forceful: it dealt with N.L.'s state of mind at a time well-removed from the date of the alleged assault, and its probative value depended on a relatively attenuated series of inferences. Kitchens had at his disposal many other, more compelling grounds for impeachment, including N.L.'s failure to report the incident for more than two weeks, her apparent lack of fear or distress in the immediate aftermath of the assault, her numerous inconsistent statements, and her initial misidentification of Zane Vaughn as her assailant. Kitchens' trial counsel ably availed himself of these alternative grounds for impeachment. In the final analysis, it seems clear that Kitchens' lack of success in attempting to challenge N.L.'s credibility stemmed not from any dearth of material to work with, but rather from the strength of the prosecution's ease. Even apart from N.L.'s testimony, the evidence against Kitchens was extremely strong: it included the tape-recorded telephone conversation in which he admitted that he had forced N.L. to have sex with him. This admission was followed by a police interview in which Kitchens, unaware of the recording, adamantly denied any contact with N.L. at all. Only after learning of the recording did Kitchens claim consent. By far the most significant factor bearing on the issue of harmless error in Kitchens' case, however, is that Kitchens was allowed to cross-examine N.L. on virtually the same issue that the court barred him from covering with M.W. And N.L.'s responses to Kitchens' questions did not differ materially from the proposed testimony that was improperly excluded. N.L. candidly acknowledged that she decided to return to Alaska against M.W.'s advice and with full knowledge that Kitchens had been released on bail. Given N.L.'s testimony on cross-examination, M.W.'s testimony would have added nothing of material value to the evidence already before the jury. In short, our review of the record convinces us that the error was harmless beyond a reasonable doubt. SENTENCING Kitchens separately contends that his sentence is excessive. A first felony offender, Kitchens was convicted of five felonies in the present case: two counts of first-degree sexual assault, one count of second-degree sexual assault, one count of first-degree burglary, and one count of second-degree robbery. The two counts of first-degree sexual assault are unclassified felonies carrying a maximum term of thirty years' imprisonment. Kitchens was subject to a presumptive term of eight years for each count; the superior court found no aggravating or mitigating factors applicable to these offenses. The remaining offenses are class B felonies, for which the maximum term is ten years; no presumptive term applied to these offenses. For the two counts of first-degree sexual assault, Judge Johnstone sentenced Kitchens to consecutive terms of eight years and eight years with four years suspended. The judge imposed lesser, concurrent sentences for the remaining offenses. Kitchens' composite sentence is thus sixteen years with four years suspended. This composite term falls well within the sentencing range of ten to fifteen years that has been established as a benchmark for first felony offenders convicted in aggravated cases of first-degree sexual assault or abuse. See, e.g., DeGross v. State, 768 P.2d 134, 139 (Alaska App.1989). Given that Kitchens' case involved two separate acts of first-degree sexual assault and three subsidiary class B felonies, his case readily qualifies as an aggravated one. We nevertheless find it necessary to remand for reconsideration of Kitchens' sentence. In addressing his decision to impose consecutive sentences in Kitchens' case, Judge Johnstone commented: "Legislation recognizes that when dealing with multiple sexual assault eases, consecutive sentences must be imposed." The sentencing court's belief that consecutive sentences were mandatory is incorrect; in the circumstances of Kitchens' case, Judge Johnstone was authorized to impose Kitchens' sentences consecutively or concurrently. Given the court's apparent belief that consecutive sentences were mandatory, we must remand Kitchens' case for resentencing under the correct legal standard. We AFFIRM Kitchens' convictions and REMAND his case for resentencing as directed. . Kitchens also claimed that the incident occurred the night before N.L.'s departure to Texas, not the night of her departure, and he presented an alibi witness in an attempt to establish that the incident could not have occurred on the night of September 17/18, as reported by N.L. The testimony of the alibi witness was inconclusive, however. In any event, the actual date of the incident proved to be of little significance in light of Kitchens' claim of consent. . As examples of such cases, Kitchens cites State v. Alexander, 303 S.C. 377, 401 S.E.2d 146, 148 (1991), State v. Shaw, 149 Vt. 275, 542 A.2d 1106, 1107 (1987), and Padilla v. People, 156 Colo. 186, 397 P.2d 741, 743 (1964). . Kitchens cites Larson v. State, 102 Nev. 448, 725 P.2d 1214 (1986) (describing as arguably relevant to a consent defense a photograph of the complaining witness smiling shortly after the alleged assault). Kitchens also cites State v. McCarthy, 446 A.2d 1034 (R.I.1982) (finding error in exclusion of evidence that the complainant filed and withdrew charges against another man shortly after the alleged sexual assault), but McCarthy did not involve demeanor evidence. . Moreover, the point was hardly disputed. In her own testimony, NX. had readily acknowledged that she told no one about the incident until after she and M.W. returned from Texas. Specifically, NX. indicated on cross-examination that, when she arrived in Texas, she tried to act as if nothing had happened. She also stated that she gave M.W. no inkling that something had happened to her. . A.R.E. 701 provides: If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue. . Alaska Rule of Evidence 608(a) and (b) provides: (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness; and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific Instances of Conduct. If a witness testifies concerning the character for truthfulness or untruthfulness of a previous witness, the specific instances of conduct probative of the truthfulness or untruthfulness of the previous witness, may be inquired into on cross-examination. Evidence of other specific instances of the conduct of a witness offered for the purpose of attacking or supporting that witness' credibility is inadmissible unless such evidence is explicitly made admissible by these rules, by other rules promulgated by the Alaska Supreme Court or by enactment of the Alaska Legislature. . The relevant portion of N.L.'s testimony concerning the rehearsal is as follows: Q The day before you testified at the grand juiy, you had a call from the district attorney, right? A Yes. You spoke with her and I believe her name was Suzanne Lombardi or was it Diane O'Gorman? a Diane O'Gorman. Okay. And you had sort of a rehearsal. Yes. A rehearsal of what she was going to ask you? That's a question. Yes. And a rehearsal as to what you would answer. As to what was the truth. As to what you would answer. Yes. Okay. And at that point, you had set up for the following date a telephonic conference for you to participate at the grand juiy. Yes. > And that had been a prob — there was a dispute between you and [M.W.] as to where the call was being set up. o That's correct. Because apparently you had set it up at some friends of his parents house. Correct. And he did not want that. That's right. In fact, he wanted to sit in and listen to your testimony at the grand juiy. That's correct. Because he did not believe you. At that point, I don't know. > . The relevant portion of N.L.'s cross-examination is as follows: Q Okay. [M.W.], however, was scared for you to be back up in Alaska, right? A Yes. Q And — but sometime after the grand jury, you decided to come up anyway. A Yes. Q And that was against his wishes. A Yes. Q And you were no longer scared. A That's not true. Q Well, you no longer had [M.W.] to protect you, right? A I was no longer with [M.W.]. Q That's right. And he had cautioned you about taking a job up at the slope because you would be in Anchorage two weeks— you would be up at the slope two weeks, two weeks in Anchorage, right? A Two weeks in Alaska. Q Two weeks in Alaska and [M.W.] was scared that the person who had been in-dieted who was not [sic] on the streets might come after you, right? A Yes. Q But you were not scared and you took the job anyway. A I can't say I wasn't scared, but, yes, I did take the job anyways. . Prior to sentencing, the state propósed, as an aggravating factor, that Kitchens' conduct was among the most serious included in the definition of first-degree sexual assault. See AS 12.55.155(c)(10). Judge Johnstone rejected this proposed factor, finding that Kitchens' conduct was no more serious than conduct typically involved in first-degree sexual assault cases. We do not construe Judge Johnstone's rejection of the state's proposed aggravating factor to be incompatible with the conclusion that Kitchens' case is an aggravated one for purposes of the applicable sentencing benchmark. Aggravating factors such as that proposed by the state and rejected by Judge Johnstone apply to individual offenses on a count-by-count basis. In contrast, the benchmark sentencing range discussed in DeGross applies to the totality of an offender's conduct in a given case. We find nothing inconsistent in concluding, on the one hand, that Kitchens' individual acts of first-degree sexual assault were not among the most serious included in the definition of the offense, while finding, on the other, that the totality of his conduct in this case is sufficiently serious to qualify the case, on the whole, as an aggravated case of first-degree sexual assault. . See AS 12.55.025(e) & (g); State v. Andrews, 707 P.2d 900, 908-09 (Alaska App.1985), affd 723 P.2d 85 (Alaska 1986). Perhaps the sentencing court had in mind AS 12.55.025(h), under which consecutive sentencing is mandatory in the event of multiple convictions for assaultive crimes in which the victim or victims are minors. N.L. was not a minor. . We recognize that, in imposing sentence, Judge Johnstone emphasized that the individual sentences he imposed were of secondary importance and that his overriding intent was to impose a composite term of sixteen years with four years suspended. Nevertheless, it is unclear whether or to what extent Judge Johnstone's choice of an appropriate composite term was colored by his belief that consecutive sentences were mandatory for the first-degree sexual assault convictions.

10398092

Charmaine Elizabeth ROARK, Appellant, v. STATE of Alaska, Appellee

Roark v. State

1988-08-05

No. A-1755

644

648

758 P.2d 644

758

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Charmaine Elizabeth ROARK, Appellant, v. STATE of Alaska, Appellee.

Charmaine Elizabeth ROARK, Appellant, v. STATE of Alaska, Appellee. No. A-1755. Court of Appeals of Alaska. Aug. 5, 1988. Motion to Publish Granted Aug. 5, 1988. Susan Orlansky, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant. Robert D. Bacon, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2631

16343

OPINION BRYNER, Chief Judge. Charmaine Elizabeth Roark was charged with murder in the first degree. A jury acquitted Roark of the murder charge but found her guilty of the lesser-included offense of manslaughter. Superior Court Judge Karl S. Johnstone sentenced Roark, a first offender, to the presumptive term of five years' imprisonment. Roark appeals her sentence, contending that the sentencing court erred in rejecting one of her proposed mitigating factors. We affirm. Roark's conviction stemmed from the shooting death of Howard Taylor, a man with whom Roark lived in a de facto marital relationship. Taylor was apparently a frequent abuser of cocaine. On July 17, 1984, he obtained and injected some cocaine. Around 2:00 a.m. on July 18, he locked himself in the bathroom of the fami ly residence with additional cocaine and refused to come out. When Roark got up the next morning, Taylor was still in the bathroom. Taylor's employer called between 9:00 and 10:00 a.m. to offer him his old job back; Taylor came out to take the call. The employer told him to take a flight to the North Slope later that day. Despite the call, Taylor returned to the bathroom and again locked the door. He refused to leave even when his children said they needed to use the bathroom. Later that morning, Roark approached the bathroom door with a large kitchen knife. At trial, Roark claimed that she had the knife in order to pry open the bathroom door. The state disputed this claim. In any event, Taylor opened the bathroom door and a struggle over the knife ensued. Taylor sustained a defensive knife wound to his hand in the course of the struggle. Roark was also cut. Taylor ultimately managed to lock himself back in the bathroom. Roark then instructed her children to go to a neighbor's house. She armed herself with a handgun that belonged to Taylor and again approached the bathroom door. At trial, Roark claimed that she had gotten the gun to take it to a pawn shop in order to obtain money for family necessities. She testified that she did not know how to operate it or whether it was loaded. According to Roark, as she stood outside the bathroom to tell Taylor what she intended to do, Taylor opened the door and grabbed for the gun. Roark claimed that she struggled with Taylor over the gun and that during the struggle the gun accidently discharged. Taylor was struck with a bullet in the chest. He died later that day. The state's theory at trial was that Roark intentionally fired the shot that killed Taylor. The jury rejected both the state's theory of intentional homicide and Roark's claim of accident, finding that Roark had committed manslaughter by recklessly causing Taylor's death. See AS 11.41.120(a)(1). At the sentencing hearing, Judge John-stone, after considering the jury's verdict and the evidence presented at trial, found that Roark had become angered by Taylor's obstinate conduct, armed herself with Taylor's handgun, and confronted him, hoping to force him out of the bathroom by threatening him with the gun. Judge John-stone believed that the shooting resulted from a struggle over the gun that occurred after Taylor attempted to grab it. Judge Johnstone stated, in relevant part: I find . that the defendant intended to go into the bathroom with a loaded firearm for the purpose of frightening, scaring and intimidating the [victim] into complying with her wishes. That she was angry at the time because of what had gone on before. That she had no intention of actually pulling the trigger at that time and killing the defendant, but that her conduct . [did] constitute reckless conduct. That she was aware of and consciously disregarded a substantial and unjustifiable risk that death would occur by bringing a loaded firearm in with the intent to scare the defendant. And frighten him, to intimidate him to complying with her wishes. That it would be reasonable under those circumstances for the person in the bathroom to grab the gun thinking that there may be a different intention in mind. At the sentencing hearing, Roark alleged that her offense was subject to the mitigating factor specified in AS 12.55.155(d)(7), which allows a presumptive term to be reduced when "the victim provoked the crime to a significant degree." Roark contended that, for purposes of this mitigating factor, provocation could be equated with contributing to the commission of the offense. Roark advanced two theories under which she alleged that Taylor's conduct contributed to his own death. First, she argued that it was Taylor's obstinate refus al, over a period of eleven or twelve hours, to leave the bathroom and to stop using cocaine that caused her to confront him with the handgun. Second, she argued that Taylor's act of grabbing for the gun significantly contributed to the ensuing discharge of the weapon. Judge Johnstone rejected both of Roark's theories and concluded that Roark had failed to prove significant provocation by clear and convincing evidence. In relevant part, Judge Johnstone found: And I cannot consider that grabbing the firearm is significant provocation under those circumstances. And I cannot consider that the defendant taking drugs, or using the bathroom for 12 hours, or not answering the phone to go to work is the type of provocation that this mitigator envisions to be used under the circumstances. I'm not clearly convinced that that has been established. On appeal, Roark does not dispute Judge Johnstone's factual findings concerning the circumstances surrounding the shooting. Rather, Roark contends only that the sentencing court incorrectly interpreted the scope of the proposed mitigating factor. Roark argues: The trial court in this case rejected the "provocation" mitigator, because the court applied an unduly narrow definition of "provoked." Although the defense attorney at sentencing specifically contended otherwise ., the court seemed to conclude that only an aggressive act could constitute "provocation" for purposes of this mitigator.... The judge found that the victim's other behavior— his excessive drug use, unreasonable monopoly of the bathroom, and irrational refusal to come out and get ready for work — could not be considered as "the type of provocation that this mitigator envisions to be used under the circumstances." Roark maintains that when the disputed mitigating factor is properly construed the facts of the case fall squarely within its scope. Our own reading of Judge Johnstone's findings differs from the reading advocated by Roark. We believe that the judge's remarks, when read in context, do not purport to adopt, as a matter of law, a restrictive interpretation of the disputed mitigating factor. In our view, Roark is incorrect in asserting that the sentencing court concluded, "that only an aggressive act could constitute 'provocation' for purposes of this mitigator." Rather, we believe that the court, relying on its interpretation of the circumstances surrounding the shooting, found as a factual matter that Taylor did not provoke the crime to a significant degree. This seems particularly clear in light of the judge's conclusion, "I'm not clearly convinced that [the mitigating factor] has been established." In any event, to the extent that Judge Johnstone's ruling implies a narrow reading of the disputed mitigating factor, the narrowing consisted only of rejecting Roark's specific contention that "provoking" a crime could be equated with contributing in any manner to its commission. The position adopted by Roark below was that, for purposes of AS 12.55.155(d)(7), the victim can be found to have "provoked an offense to a significant degree" upon a mere showing that the victim's conduct contributed to the commission of the offense in a causally significant way. It is this argument that Judge Johnstone appears to have rejected. His decision was not error. As the state correctly notes in urging rejection of Roark's broad reading of the statutory mitigating factor, the victim's conduct causally contributes to the commission of almost all assaultive crimes. A parent who physically abuses an infant might be prompted to do so by the child's persistent crying. While the child's conduct clearly contributes to the abuse in the sense that the parent's crime would not have occurred but for the infant's crying, it would be absurd to conclude that the offense should be deemed mitigated under AS 12.55.155(d)(7) because the infant provoked the crime. The revised Alaska Criminal Code does not expressly define what constitutes "significant provocation" for purposes of AS 12.55.155(d)(7). A related but separate statutory mitigating factor allows reduction of the presumptive term in cases of assault under AS 11.41.200-.230, "when the defendant acted with serious provocation from the victim." AS 12.55.155(d)(6). Under AS 12.55.155(h), "serious provocation" is given the meaning used in AS 11.41.-115(f)(2) for purposes of the heat of passion defense to murder: "Serious provocation" means conduct which is sufficient to excite an intense passion in a reasonable person in the defendant's situation, other than a person who is intoxicated, under the circumstances as the defendant reasonably believed them to be; insulting words, insulting gestures, or hearsay reports of conduct engaged in by the intended victim do not, alone or in combination with each other, constitute serious provocation. Both parties in the present case agree that, for purposes of the mitigating factor in dispute here, the legislature's choice of the wording "provoked . to a significant degree" rather than "serious provocation" manifests an intent to apply a broader standard of provocation than the relatively restrictive standard set out for the heat of passion defense in AS 11.41.115(f)(2). For purposes of the present case it is unnecessary for us to decide the precise limits of the broader standard adopted in AS 12.55.155(d)(7). We believe it preferable, in large measure, to allow sentencing courts to apply the statutory language on a case-by-case basis, guided by the plain and ordinary meaning of its terms. Two observations concerning the standard are nonetheless appropriate. The first observation relates to the requirement that provocation be "significant." The concept of proportionality has traditionally been applied to the heat of passion defense; we have recognized that proportionality is inherent in the statutory definition of "serious provocation" that is set out in AS 11.41.115(f)(2). See LaPierre v. State, 734 P.2d 997, 1001-02 n. 3 (Alaska App.1987). See generally 2 W. LaFave and A. Scott, Substantive Criminal Law § 7.10(b) at 256-57 (1986). This same concept must apply under AS 12.55.155(d)(7) to determine whether the defendant's crime was provoked "to a significant degree." The requirement of proportionality involves a common sense balancing of the seriousness of the defendant's crime against the seriousness of the provocation. Even slight provocation may be significant when the offense committed is a minor one; conversely, for a more serious offense, more serious provocation would be required before significant provocation could properly be found. The second observation has to do with the meaning of "provocation." In common usage, "to provoke" means: "1. to excite to some action or feeling 2. to anger, irritate, or annoy 3. to stir up (action or feeling) 4. to call forth; evoke." Webster's New World Dictionary (2d College ed. 1980). This definition plainly suggests something more direct and purposive than a mere causal link between the person who provokes a response and the action or feeling that is provoked. When the victim directs actions or words at the defendant for the express purpose of eliciting a response, it is clear that the defendant may be said to have been "provoked." When the victim's conduct is neither directed at the defendant nor intended to influence the defendant's actions or emotions, however, the mere fact that it has the incidental effect of prompting the defendant to react, thereby contributing in a causal sense to the commission of the crime, would not in itself justify a finding of provocation. Between these two hypothetical extremes is a broad middle ground in which the existence of provocation is best left to a case-by-case determination by the sentencing court, based on the totality of the circumstances. In the present case, however, it is apparent that Judge Johnstone did not err in rejecting as a matter of law Roark's contention that "provocation" may be found for purposes of AS 12.55.155(d)(7) whenever the victim's conduct significantly contributes, in a causal sense, to the commission of a crime. Nor did the sentencing court err in finding, as a matter of fact, that Roark failed to establish significant provocation by clear and convincing evidence. Neither of the two theories relied upon by Roark in support of the proposed mitigating factor is persuasive. Roark's first theory is that Taylor's acts of locking himself into the bathroom, injecting cocaine, and refusing to come out left her at wits' end and prompted her to act recklessly. Although Roark's anger and frustration with Taylor may be understandable, her feelings resulted from conduct on Taylor's part that does not appear to have been primarily directed at Roark or meant to elicit any particular action or emotion on her part. Rather, Taylor's conduct seems to have been primarily self-indulgent; its effect on Roark, although understandable, was to a large extent incidental. When the nature and extent of Taylor's conduct is compared to the extreme recklessness of Roark's response, Roark's response seems clearly disproportionate. As noted by Judge Johnstone, Roark had just approached Taylor with a large kitchen knife. He had grabbed for the knife and a fight ensued, resulting in wounds to both Roark and Taylor. Roark then elected to arm herself with Taylor's gun so that she could again confront him and attempt to intimidate him into complying with her wishes. The likelihood of a struggle over the gun resulting in death or serious physical injury should have been obvious under the circumstances. To the extent that Taylor's conduct can be said to have provoked Roark to anger, her response was disproportionate to the provocation. Roark's second theory of provocation is that Taylor's action in grabbing for the gun caused the struggle that resulted in his death and thereby amounted to provocation. Yet as correctly noted by the sentencing court, the recklessness for which Roark was convicted did not occur during her struggle with Taylor over the gun; rather, her recklessness consisted in electing to approach and threaten Taylor with the weapon when it was clear that a struggle was likely to ensue. Taylor's predictable reaction in trying to grab the gun did nothing to provoke the recklessness of Roark's conduct in trying to threaten him with the gun. Absent clear error, the sentencing court's determination that Roark failed to establish the proposed mitigating factor by clear and convincing evidence must be upheld. See Walsh v. State, 677 P.2d 912, 916 (Alaska App.1984). We find no clear error in the present case. Having independently reviewed the sentencing record, we further conclude that the sentence imposed below is not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The sentence is AFFIRMED. . At the sentencing hearing, Roark' also alleged the existence of the mitigating factor specified in AS 12.55.155(d)(3) (the offense was committed under duress, coercion, threat, or compulsion). She alternatively requested referral to the three-judge panel under AS 12.55.165. Judge Johnstone found AS 12.55.155(d)(3) to be inapplicable and declined Roark's request for referral to the three-judge panel. On appeal, Roark does not challenge these rulings.

10395335

TAYLOR CONSTRUCTION SERVICES, INC., and Ritchie Transportation Company, Inc., a joint venture, and Fidelity and Deposit Company of Maryland, Appellants, v. URS COMPANY, Appellee

Taylor Construction Services, Inc. v. URS Co.

1988-07-22

No. S-2014

99

103

758 P.2d 99

758

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

Before RABINOWITZ, C.J., and MATTHEWS, COMPTON and MOORE, JJ.

TAYLOR CONSTRUCTION SERVICES, INC., and Ritchie Transportation Company, Inc., a joint venture, and Fidelity and Deposit Company of Maryland, Appellants, v. URS COMPANY, Appellee.

TAYLOR CONSTRUCTION SERVICES, INC., and Ritchie Transportation Company, Inc., a joint venture, and Fidelity and Deposit Company of Maryland, Appellants, v. URS COMPANY, Appellee. No. S-2014. Supreme Court of Alaska. July 22, 1988. Geoffrey G. Currall, Keene <& Currall, Ketchikan, and Robert J. Burke, Oles, Morrison, Rinker, Stanislaw & Ashbaugh, Seattle, Washington, for appellants. David D. Clark, Cummings, Clark & Tug-man, Anchorage, and Wayne C. Booth and Donald P. Lehne, Beresford, Booth, Baron-sky & Trompeter, Seattle, Wash., for appel-lee. Before RABINOWITZ, C.J., and MATTHEWS, COMPTON and MOORE, JJ.

1768

11235

ORDER IT IS HEREBY ORDERED: The judgment of the superior court is AFFIRMED by an evenly divided court. RABINOWITZ, Chief Justice, joined by MATTHEWS, Justice, would affirm the superior court for the following reasons. This appeal arises from a contract dispute among Taylor Construction Services, Inc. and Ritchie Transportation Company, Inc. ("Taylor-Ritchié"), URS Company ("URS"), and the City of Wrangell ("Wrangell"). Taylor-Ritchie contracted with Wrangell to perform a project engineered by URS. An unresolved dispute led Taylor-Ritchie to sue Wrangell and URS for contract balances and delay and impact damages, alleging negligence and breach of implied warranty. Taylor-Ritchie sought roughly $334,000.00. Wrangell counterclaimed for defects in construction resulting in damages of approximately $600,000.00. URS did not file a counterclaim. Prior to trial Wrangell and URS made a joint offer to settle all claims against them, as well as Wrangell's counterclaim against Taylor-Ritchie, by payment of $70,000.00, unapportioned between the offerors. Taylor-Ritchie did not accept the offer within 10 days. After a five week bench trial, the superi- or court found all parties were negligent to some degree and that (1) Wrangell and URS were jointly and severally liable to Taylor-Ritchie on its claim in the approximate sum of $162,000.00, and (2) Taylor-Ritchie was liable to Wrangell on its counterclaim in the approximate sum of $223,-700.00. The superior court deducted the former from the latter and gave judgment to Wrangell for $61,700.00. No attorney's fees were awarded to any party because all parties were found to be at fault. The superior court was subsequently informed of the offer of judgment. It recomputed its calculation of damages and raised Wrangell's award from $61,700.00 to $86,-900.00. In accord with Civil Rule 68, the court then awarded Wrangell after-offer attorney's fees of $45,000.00 and costs of $11,959.80, with interest. It also awarded URS attorney's fees of $35,000.00 and costs of $18,659.41, with interest. Taylor-Ritchie appeals only from the award of attorney's fees and costs to URS. Taylor-Ritchie argues first that the joint offer of judgment was ineffective to invoke Rule 68's penal cost sanctions. Second, it argues that its recovery was more favorable than the joint settlement offer, and that cost sanctions under Rule 68 are therefore impermissible. Finally, Taylor-Ritchie argues that the superior court abused its discretion by reversing its initial decision that each party should bear its own costs and attorney's fees, and by imposing fees substantially higher than those allowed by Rule 82(a)(1). We are not persuaded by these arguments and accordingly would affirm the superior court's award pursuant to Civil Rule 68 of post-offer attorney's fees and costs. Discussion At the time the superior court entered its judgment, Civil Rule 68 provided in pertinent part, "If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." 1. JOINT OFFER This court has not previously addressed the factual circumstances of an offer of settlement made by multiple defendants where one defendant has a counterclaim against the plaintiff. We have previously held that joint offers of settlement by one defendant to several plaintiffs are ineffective under certain circumstances to invoke the penal cost sanctions of Rule 68. In Brinkerhoff v. Swearingen Aviation Corp., 663 P.2d 937, 943 (Alaska 1983), we held that defendant's failure to apportion the offer among plaintiffs deprived each plaintiff of the opportunity to accept or reject its portion of the offer. Because apportionment problems among offerees could frustrate the purpose of Rule 68 to encourage settlement of civil litigation, we held that defendant's joint offer of settlement was ineffective to trigger Rule 68's cost sanctions. We have also held that a joint offer conditioned on its acceptance by all plaintiffs is ineffective to trigger Rule 68's cost sanctions. Hayes v. Xerox Corp., 718 P.2d 929, 937-38 (Alaska 1986) (affirming Rule 68 fee award where offer was not conditioned on joint acceptance). Taylor-Ritchie's argument by analogy that these cases render the offer in this case ineffective to bring into play Rule 68's sanctions is not persuasive. The settlement offer clearly indicated all claims between the parties would be resolved if the offer were accepted. In the words of the superior court, "the offer was inclusive of all of the relationships among the parties and their conflicting claims." We further agree with the superior court's observation that "[n]o apportionment difficulty existed, and plaintiff, in failing to accept the offer, assumed the risk of the penalty." We would hold that the settlement offer was sufficient to trigger the penal cost sanctions provided for in Rule 68. II. THE JUDGMENT OBTAINED Taylor-Ritchie argues that the $162,000.00 judgment it obtained against Wrangell and URS jointly and severally was more favorable than the joint and several settlement offer of $70,000.00, and hence an award of Rule 68 penal cost sanctions to URS was improper. It is important to note, however, that in addition to a $70,000.00 payment, Wrangell and URS's settlement offer included dismissal of Wrangell's counterclaim against Taylor-Ritchie. While the superior court awarded Taylor-Ritchie $162,000.00 in damages, the court also awarded Wrangell $223,700.00 in damages for Wrangell's counterclaim (later recomputed to equal $248,900.00). The court then offset the two recoveries to achieve a "[n]et award" to Wrangell of $61,700.00 (later $86,900.00). A judgment requiring Taylor-Ritchie to pay $61,700.00 is clearly less favorable to Taylor-Ritchie than an offer from Wrangell and URS to pay Taylor-Ritchie $70,000.00, and to drop Wrangell's counterclaim. Therefore, the language of Rule 68 at the time of the judgment controls: "If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." III. ATTORNEY'S FEES IMPOSED Taylor-Ritchie argues that the superior court abused its discretion in awarding URS attorney's fees in a greater amount than would have been allowed by the schedule set forth in Civil Rule 82(a). Rule 82 clearly gives the trial court discretion to award fees in an amount different from that prescribed by the schedule. Rule 82(a) (1) provides: Unless the court, in its discretion, otherwise directs, the following schedule of attorney's fees will be adhered to in fixing such fees for the party recovering any money judgment therein: [table set forth] Should no recovery be had, attorney's fees may be fixed by the court in its discretion in a reasonable amount. (Emphasis added.) Civil Rule 82(a)(2) further authorizes the court to exercise its discretion in certain cases: In actions where the money judgment is not an accurate criteria [sic] for determining the fee to be allowed to the prevailing side, the court shall award a fee commensurate with the amount and value of legal services rendered. We have repeatedly recognized the trial court's broad discretion in awarding attorney's fees. Tolstrup v. Miller, 726 P.2d 1304, 1307 (Alaska 1986); Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970); Dale v. Greater Anchorage Area Borough, 439 P.2d 790, 793 (Alaska 1968). We have required only that the trial court specify its reasons in the record when it departs from the fee schedule of Rule 82(a). Hayes, 718 P.2d at 938-39; Patrick v. Sedwick, 413 P.2d 169, 179 (Alaska 1966). This the superior court did: Applying the formula of Rule 82(c)(1) [sic] to the net award of $86,900 would result in a fee award of $11,190. This sum does not provide an accurate criterion for the fee to be allowed, being insufficient to be commensurate with the amount and value of the legal services rendered. The trial lasted approximately five weeks (in excess of 24 trial days) and involved a very substantial number of witnesses, including experts on all sides. There was a large mass of exhibits, many of which were lengthy and detailed construction records. Attorney fees should accordingly be set under Rule 82(a)(2) rather than by the schedule in sub-paragraph (1) of the Rule. BURKE, J., not participating. . The offer provided that the proposed compromise judgment would be [i]n full settlement for all alleged claims or damages including special and general damages and claims allegedly suffered by plaintiff Taylor/Ritchie Contractors against the City of Wrangell and URS Company, including prejudgment interest and the relinquishment of all counterclaims by the City of Wrangell, over and above all lawful off-sets.... . The superior court entered its judgment on October 27, 1986. Civil Rule 68 was amended by Supreme Court Order 818, effective August 15, 1987. The provision analogous to the quoted language now appears at Rule 68(b). . The judgment entered by the superior court reads in part: "[T]he defendant City of Wrangell shall recover from plaintiff, and its surety, a net award of $86,900.00, with . attorney fees in the amount of $80,000.00, with $45,000.00 of that to the defendant City of Sitka [sic] and $35,000.00 to the defendant URS Company." . The superior court further reasoned: Although the major award was to the defendant City of Sitka, [sic] both defendants were joined in responsibility for the offer of judgment that plaintiff rejected. Also both defendants participated jointly in presentation of the defense that accomplished a minimizing of the result on plaintiffs claims. The defendant URS should not be excluded from some share of partial attorney fees.

10395390

Floyd H. HOWELL, Appellant, v. STATE of Alaska, Appellee

Howell v. State

1988-06-17

No. A-1311

103

108

758 P.2d 103

758

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Floyd H. HOWELL, Appellant, v. STATE of Alaska, Appellee.

Floyd H. HOWELL, Appellant, v. STATE of Alaska, Appellee. No. A-1311. Court of Appeals of Alaska. June 17, 1988. Rex Lamont Butler, Anchorage, for appellant. Robert D. Bacon, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2964

18000

OPINION BRYNER, Chief Judge. Floyd H. Howell was convicted by jury of ten counts of sexual assault in the first degree, AS 11.41.410(a)(3) and (4), and three counts of sexual abuse of a minor in the first degree, AS 11.41.434(a)(1) and (2). Superior Court Judge Karl S. Johnstone sentenced Howell to an aggregate term of thirty-eight years. Howell appeals his conviction and his sentence. We affirm his conviction but remand for resentencing to a term of not more than twenty-five years with five years suspended. The charges against Howell stem from the sexual abuse of his daughters, J.H. and Y.H. At trial, J.H. testified that Howell began having intercourse with her in 1974 when she was four years old, when the family was living in Hawaii. She stated that when her mother took her brothers and sisters to the grocery store, her father would sexually abuse her. In 1980, the family moved to Alaska and operated a gold mine in Petersville. J.H. testified that when Howell left the mine to get supplies, he would take J.H. with him; these trips often lasted a week or two, and Howell had intercourse with her every night. J.H. stated that between 1974 and 1984 Howell had intercourse with her on perhaps as many as 600 occasions. According to J.H., when she was fourteen Howell told her, "When you're fifteen, then you have a baby, and then he'll be really smart, and we can start a human race." He said that he would be the father of the child. Howell was also charged with one incident of digital penetration of his daughter, Y.H., who was nine years old at the time of the incident. Y.H. testified at the trial that she had no recollection of the incident. The state was permitted to impeach her testimony by playing a recording of previ ous testimony Y.H. had given before the grand jury. At trial, Howell denied any abuse of J.H. or Y.H. He claimed that his oldest daughter, Pamela, fabricated the allegations of sexual abuse of J.H. as revenge against him. He admitted that he touched Y.H.'s genital area on one occasion, after she told him she was experiencing pain there. Howell also acknowledged having a prior sexual relationship with F.H., a stepdaughter, but claimed that he did so only after she turned seventeen years old. On rebuttal, the state was allowed to present evidence that F.H. was actually the mother of J.H. F.H. testified that she, like J.H., had been abused by Howell since she was four years old and that J.H. was born as a result of Howell's incestuous relationship with her. Howell initially challenges his conviction. He alleges that numerous errors occurred before and during his trial. Howell's claims have little merit and do not require extended discussion. Howell next contends that his sentence is excessive. Counts I through XII of the indictment charged sexual penetration of J.H., during different periods from 1980 through 1984. Counts XIII and XIV charged sexual penetration of Y.H. during the period, from October to December 1984. The jury found Howell guilty on all counts except Count XI, which had earlier been dismissed. The indictment contained seven pairs of counts charging each offense under alternative theories of sexual assault in the first degree: sexual penetration of a person under thirteen, and incest. The alternative counts were merged for sentencing purposes. The presumptive term for first-degree sexual abuse or first-degree sexual assault of a minor is eight years for a first felony offender, fifteen years for a second felony offender, and twenty-five years for a third felony offender. AS 12.55.125(i). Judge Johnstone found that Howell was a worst offender. He also found two aggravating factors by clear and convincing evidence: that Howell knew that his victims were particularly vulnerable, AS 12.55.155(c)(5), and that Howell's conduct was among the most serious included in the definition of the offense, AS 12.55.155(c)(10). The judge imposed consecutive terms totalling thirty-eight years of unsuspended imprisonment. Howell does not dispute the court's worst offender finding or contend that the aggravating factors were inapplicable to his case. Rather, he argues that as a first felony offender he should not have been sentenced to significantly more than the presumptive term, State v. Andrews, 707 P.2d 900 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986), and that he should have received a more favorable sentence than the presumptive term for a second felony offender, Austin v. State, 627 P.2d 657 (Alaska App.1981). In Andrews, we held that the appropriate sentencing range for first felony offenders convicted of aggravated cases of sexual abuse is between ten and fifteen years of unsuspended incarceration and that longer terms would be permissible only in exceptional cases. 707 P.2d at 913. We have consistently reaffirmed the propriety of the ten- to fifteen-year benchmark in cases involving sexual abuse of minors. See, e.g., Mosier v. State, 747 P.2d 548 (Alaska App.1987); Covington v. State, 747 P.2d 550 (Alaska App.1987); Soper v. State, 731 P.2d 587 (Alaska App.1987). In Mosier, the defendant committed a series of sexual assaults on his two daughters and encouraged his stepson to sexually abuse the oldest daughter. The trial court, however, did not address the Andrews benchmark and nothing in the record established that a sentence in excess of fifteen years was necessary to protect the public. We found the sentence of twenty-four years with four years suspended to be clearly mistaken. In Covington, the victim testified that Covington sexually abused her for nine years, subjecting her to virtual daily intercourse during the last two years. We found that this testimony qualified Cov-ington as an aggravated offender deserving of an aggravated sentence. However, there was nothing in the record to justify a sentence in excess of the Andrews benchmark and we remanded for imposition of a sentence not to exceed fifteen years. In Soper, the defendant was convicted of sexual assault in the first degree for the abuse of his daughter. Given the extended abuse of the victim, coupled with a verified and substantial history of abuse of his other daughters, we held that the trial court was not clearly mistaken in imposing a sentence of fourteen years with four years suspended. See also Polly v. State, 706 P.2d 700 (Alaska App.1985). In several exceptionally aggravated cases we have approved sentences in excess of the ten- to fifteen-year benchmark for first offenders. These cases have involved multiple offenses and multiple victims. Even so, we have never approved a first offender sentence of more than twenty years of unsuspended incarceration except when the defendant used a significant amount of violence, had previously been incarcerated for a substantial period, or both. In Goolsby v. State, 739 P.2d 788 (Alaska App.1987), the defendant was convicted of four separate sexual offenses involving violent assaults on separate victims who were strangers. We approved a composite sentence of thirty-seven years with twelve years suspended. In Hancock v. State, 741 P.2d 1210 (Alaska App.1987), the defendant engaged in a continuous course of sexual abuse of his girlfriend's daughter and had also abused her siblings. The defendant had spent some time in prison for similar conduct and had been violent and exhibited deliberate cruelty towards his victims. We held that a sentence of up to forty years would not be clearly mistaken. By contrast, in Lewis v. State, 706 P.2d 715 (Alaska App.1985), Lewis, a Boy Scout troop leader, was sentenced to forty-six years with fifteen years suspended for first-degree sexual abuse of a minor. Lewis' conduct took place over a four-yéar period and involved many victims but no significant violence. Lewis had no prior record of misconduct. We held that Lewis' sentence should not exceed twenty-five years with five years suspended. See also Dymenstein v. State, 720 P.2d 42, 46-47 (Alaska App.1986) (approving a sentence of eighteen years to serve for an aggravated first offender convicted of conduct reflecting an extended period of abuse of three children); Seymore v. State, 655 P.2d 786 (Alaska App.1982) (approving a twenty-year sentence for a defendant who had sexually penetrated his stepdaughter on three occasions after having previously been charged with other sexual contacts with her); Qualle v. State, 652 P.2d 481 (Alaska App.1982) (approving a twenty-one year sentence for a defendant who had two children perform sexual acts with him and with each other, who took sexually explicit photographs of them for sale to pornographic magazines, and who had previously admitted sexually assaulting his own three children). Howell has no previous convictions for violent crimes, and he did not resort to physical violence as a means of coercing J.H.'s and Y.H.'s compliance. His history nevertheless does include some violent behavior. In the 1970's, he whipped F.H. with a belt to force her to return to him. On one occasion, he attempted to kidnap J.H.; he maced his wife and F.H., stealing J.H. and fleeing with her. Howell successfully kidnapped J.H. in 1973, when he and an acquaintance posed as police officers and seized her from a motel in Ohio where F.H. and her husband were living. Judge Johnstone noted the severe trauma suffered by Howell's victims: While there's been no apparent physical harm to the victims, there's been this type of harm that has the same effect as physical harm and it's more lasting. Most physical deformities can resolve themselves. It appears that they have not where [F.H.] is concerned, where his first wife is concerned, where [J.H.] 's concerned, and perhaps [Y.H.]_ And I without reservation say that I believe that Mr. Howell truly is a danger to those members of his family which I consider to be members of the public.... Judge Johnstone also found that Howell was dangerous and that his chances for rehabilitation and deterrence were low. The findings made by Judge Johnstone are supported by the record and qualify Howell's case for treatment as an exceptionally aggravated one, justifying a sentence in excess of the Andrews benchmark. In addition to the statutory aggravating factors found by Judge Johnstone, a number of non-statutory factors are present in this case. Howell's offenses were part of a pattern of sexual misconduct resulting in two generations of sexually abused victims. His sexual abuse of J.H. and F.H. continued over a prolonged period of time and involved frequent incidents of penetration. He kept J.H. out of school, effectively isolating her from her peers and from people from whom she could seek help or counseling. J.H., as well as F.H. and Y.H., have suffered severe psychological harm as a result of Howell's conduct. Howell has refused to accept responsibility for his acts and has steadfastly maintained his innocence. Indeed, he has filed suit against F.H. and his oldest daughter for conspiring to take J.H. away from him, and he has filed suit against state officials calling for repeal of all sexual abuse laws. Howell's denial of responsibility suggests that his prospects for rehabilitation are poor. See Dymenstein v. State, 720 P.2d 42, 47 (Alaska App.1986). On the other hand, Howell has no prior criminal record and has never previously spent any time in prison. He did not use physical violence as a means of coercing his victims to participate in the sexual abuse. In our view, this case is comparable to Lewis. Lewis had no prior convictions and, aside from the charged offenses, he had an excellent record of community service. However, based on the lengthy period of abuse, the number of victims, and the number of sexual acts involved, we concluded that a sentence in excess of ten to fifteen years was appropriate. Given Lewis' lack of prior convictions, however, and the absence of violence, we concluded that actual incarceration for more than twenty years would be clearly mistaken. Accordingly, we authorized a term of no more than twenty-five years with five years suspended. We find that Howell's prolonged abuse of J.H. and F.H. constitutes the exceptional circumstances that warrant a sentence in excess of the Andrews benchmark for aggravated first offenders. We further conclude, however, that the total sentence of thirty-eight years imposed below is clearly mistaken; we remand for resentencing not to exceed twenty-five years with five years suspended. The conviction is AFFIRMED. The sentence is VACATED, and this case is REMANDED for resentencing. . In brief, Howell argues: (a) The trial court erred in denying his oral motion to dismiss the indictment. Howell failed to bring a timely motion to dismiss, and he provides no basis for finding that waiver should be precluded. Selig v. State, 750 P.2d 834, at 837, 838 (Alaska App., February 26, 1988); Alaska Criminal Rules 12(e) and 16(f)(3). (b) The trial court erred in denying his motion for a bill of particulars. The indictment here was sufficient to inform Howell of the charges against him. Judge Johnstone did not abuse his discretion in denying the motion. Lupro v. State, 603 P.2d 468, 472 (Alaska 1979); Covington v. State, 703 P.2d 436, 439-40, aff'd on rehearing, 711 P.2d 1183 (Alaska App.1985). (c) The trial court erred in allowing evidence of his prior sexual misconduct with F.H. Soper v. State, 731 P.2d 587 (Alaska App.1987), is controlling, and F.H.'s testimony was admissible. Judge Johnstone did not abuse his discretion in admitting the evidence. Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980). (d) The trial court erred in denying Howell's motion for a stay of proceedings. Howell has failed to show that the court abused its discretion in denying the stay. Salazar v. State, 559 P.2d 66, 71-72 (Alaska 1976); Best v. Anchorage, 712 P.2d 892, 894-95 (Alaska App.1985). (e) The trial court erred in admitting hearsay testimony. (1) Dorothy Lee, a child protection worker, testified that J.H. told her that she had been sexually abused since she was age four. Any error is harmless under the circumstances of this case. J.H.'s prior consistent statement to Lee was made before any motive to fabricate arose and did not add to or repeat any specific details of the abuse testified to by J.H. See Nusunginya v. State, 730 P.2d 172, 174-75 (Alaska App.1986). (2) Dr. Linda Eckman testified that J.H. had told her that she had been abused since she was age four and that Howell planned to impregnate her for the purpose of starting a new race. Again, any error was harmless. Id. (3) At trial, Y.H. claimed that she could not remember any incidents of abuse by Howell. The state played for the jury a tape of a police interview with Y.H. and a tape of her grand jury testimony. Prior inconsistent statements may be used for impeachment purposes as well as for proof of the facts contained in the statement; Howell's opportunity to cross-examine Y.H. at trial was sufficient to satisfy his right to confrontation. Van Hatten v. State, 666 P.2d 1047, 1049 (Alaska App.1983); A.R.E. 801(d)(1)(A). (f) The trial court erred in denying his motion for acquittal based on the fact that alternative legal theories were presented to the jury. The state may present alternative counts to the jury, as long as only one sentence is imposed on the two charges. Gilbert v. State, 598 P.2d 87, 91 (Alaska 1979). (g) The prosecutor's improper comments during closing argument denied him due process. Howell cites three statements made by the prosecutor which he claims referred to uncharged prior sexual misconduct with F.H. As to the first two statements, the prosecutor merely reiterated evidence that was presented at trial or could be inferred from that evidence. Patterson v. State, 747 P.2d 535 (Alaska App.1987); Potts v. State, 712 P.2d 385 (Alaska App.1985). The third comment was arguably an improper personal attack against the defendant. Under the circumstances of this case, however, the prosecutor's conduct did not undermine the fundamental fairness of the trial. United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985); Potts, 712 P.2d at 390. (h) The trial court erred in denying Howell's motion for a new trial. (1) Hearsay evidence. The trial judge did not abuse his discretion on the limited admissibility of the evidence concerning Howell's relationship with F.H. Brown v. State, 693 P.2d 324, 327 (Alaska App.1984). (2) Ineffective assistance of trial counsel based on counsel's failure to call certain witnesses and to pursue certain lines of inquiry. Howell failed to submit any affidavits from witnesses or from his trial counsel. He has failed to show that his trial counsel's conduct did not conform to the standard of competence of a reasonable attorney. Risher v. State, 523 P.2d 421, 425 (Alaska 1974). (3) Witness tampering by the prosecutor. Evidence established that the prosecutor was merely informing witnesses about protective orders that would prohibit them from mentioning certain subjects in their testimony. A motion for a new trial is addressed to the sound discretion of the trial court and is subject to reversal only if an abuse of discretion occurs; that is, if the trial court's decision is clearly untenable or unreasonable. Nygren v. State, 616 P.2d 20, 22 (Alaska 1980); Gonzales v. State, 691 P.2d 285, 286 (Alaska App.1984). Judge Johnstone did not abuse his discretion in denying the motion for a new trial. (i) Howell was denied the effective assistance of his second attorney. Howell failed to raise this issue below; he cannot raise it for the first time on appeal. Barry v. State, 675 P.2d 1292, 1296 (Alaska App.1984).

10395605

Alan STEIN, Appellant, v. STATE of Alaska, Appellee

Stein v. State

1988-07-29

No. A-2386

132

133

758 P.2d 132

758

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Alan STEIN, Appellant, v. STATE of Alaska, Appellee.

Alan STEIN, Appellant, v. STATE of Alaska, Appellee. No. A-2386. Court of Appeals of Alaska. July 29, 1988. William Bixby, Valdez, for appellant. Robert D. Bacon, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

455

2801

OPINION PER CURIAM. Alan Stein was convicted of unlawfully fishing in closed waters in violation of 5 Alaska Administrative Code (AAC) 33.-310(c)(5). The case was prosecuted on a strict liability theory as a violation pursuant to Beran v. State, 705 P.2d 1280 (Alaska App.1985). A fine of $1,000 was imposed and paid. Two years later, Stein moved, apparently in reliance on Alaska Criminal Rule 35(a), to correct his sentence and reduce the fine to $300. He relied on Constantine v. State, 739 P.2d 188 (Alaska App.1987), in which we held as a matter of statutory construction that the legislature had limited fines for strict liability violations of fishing regulations to $300. The trial court denied relief and Stein appeals. On appeal, the state concedes that Constantine must be applied retroactively since it, in effect, determines the jurisdiction of the court to assess fines for strict liability violations in excess of $300. See Farleigh v. Anchorage, 728 P.2d 637, 640-41 (Alaska 1986) (discussing circumstances under which decisions must be applied retroactively). The state argues, however, that Stein was obligated to raise the issue on appeal and by failing to do so, forfeited his right to bring this action. The state relies on Criminal Rule 35.1(b) and Marrone v. State, 653 P.2d 672 (Alaska App.1982). Having thoroughly reviewed the authorities, we are satisfied that the state has misperceived the basis for Stein's claim for relief. Stein's sentence was illegal. The trial court lacked jurisdiction to impose it. Stein's argument should be construed as relying on Criminal Rule 35(a), which provides for a motion to correct an illegal sentence. As one authority points out: "A sentence can be attacked as illegal under Rule 35(a) regardless of whether the point could have been raised on an earlier direct appeal." 3 C. Wright, Federal Practice and Procedure: Criminal 2nd § 584 at 395 (1982). A motion to correct an illegal sentence must be distinguished from an application for post-conviction relief. See id. § 583 at 391-393. We therefore conclude that the trial court erred in not correcting Stein's sentence. The judgment of the district court is REVERSED. . The parties have not briefed the question whether Stein is entitled to any remedy beyond correction of the judgment against him. We express no opinion as to whether the district court has jurisdiction to grant restitution because the parties have not briefed the issue.

10394070

Richard BAUMGARTNER, Appellant, v. STATE of Alaska, Appellee

Baumgartner v. State

1990-03-02

No. A-2201

1039

1041

787 P.2d 1039

787

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:20:32.898824+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Richard BAUMGARTNER, Appellant, v. STATE of Alaska, Appellee.

Richard BAUMGARTNER, Appellant, v. STATE of Alaska, Appellee. No. A-2201. Court of Appeals of Alaska. March 2, 1990. Robert Herz, Asst. Public Defender, Ke-nai, and John B. Salemi, Public Defender, Anchorage, and Carol A. Brenckle, Kenai, for appellant. Tonja Woelber, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1151

6996

OPINION SINGLETON, Judge. Richard Baumgartner was convicted by a jury of one count of misconduct involving a controlled substance in the third degree, cocaine, a class B felony, in violation of AS 11.71.030(a)(1). He appeals contending that the trial court erred in failing to suppress new evidence discovered subsequent to a search warrant served for earlier offenses. We agree and reverse. Baumgartner was wanted by the police for two alleged sales of cocaine during an undercover operation. Three months elapsed between the time of the sales and the police decision to arrest Baumgartner. During that time, Baumgartner had changed residences and left the state. Upon learning that he had returned to the state, the police decided to arrest him at a residence where they expected him to be found. On January 9, 1987, State Trooper Eugene A. Kalous appeared before Magistrate Robin L. Turnbull in Kenai and testified under oath in support of a search warrant. Officer Kalous informed Magistrate Turnbull that a two-count arrest warrant for misconduct involving a controlled substance in the third degree was outstanding regarding Baumgartner. The first sale occurred on October 9 and the second on October 10, 1986. Officer Kalous further testified that the ongoing undercover investigation that delayed the arrest of Baum-gartner had been completed and that he had information, that Baumgartner was currently residing in a local residence in Kenai. He generally described the residence and set out the following information to indicate that Baumgartner might be there: Two months ago the Kenai police department and also at the time these cases took place on Baumgartner he resided at a log residence on Fourth Avenue in Ke-nai. And at that location was a brown Dodge van, a later '78 model, I believe registered to a subject by the name Ma-del (ph) or Mendel, M-E-N-D-E-L. I received that information from Sgt. Ka-lar who was at this location last night and did some surveillance at around 11:00 o'clock p.m. Sgt. Kalar told me last night around midnight that there was the same van he believed that lived also at Fourth Avenue and also at this location described on the search warrant. Sgt. Kalar also at my request made a telephone call to what he believed to be the Rick Baumgartner residence, . where a female answered the phone. Sgt. Kalar told me that he asked for Rick, the female told Kalar — of course Kalar was unidentified — the female told Sgt. Kalar that — to call back at about 20 minutes. The female didn't indicate whether he was there or not but to call back in 20 minutes. The female also didn't indicate anything that this was a wrong number or anything like that. Officer Kalous told the magistrate that the phone number was assigned to the residence previously identified as the target for the search warrant. Officer Kalous also told the magistrate that he had maintained surveillance outside of the residence. He observed the dark brown van early in the morning at around 1:30 a.m. and later between 9:15 and 9:30 a.m. Finally, Officer Kalous told the magistrate that Baum-gartner was a flight risk, he had been known to brandish weapons and that the police could not afford to simply wait around until they spotted Baumgartner to pick him up. The issue in this case concerns whether there was sufficient probable cause to warrant a finding that Baumgartner would be at the residence in question at the time it was to be searched. See, e.g., Snyder v. State, 661 P.2d 638 (Alaska App.1983). In essence, the question is: was there a sufficient nexus between Baumgartner and the residence to warrant a finding that Baum-gartner would be found at the residence if it were searched. In making this determination, the magistrate could only consider the oral testimony and other evidence presented to her. When we review the transcript of the warrant hearing, we find only two items of information: first, a van had been regularly seen at a prior residence of Baumgartner's and was then seen at the residence in question at about the time the search was to take place. The van, however, was registered to a third party, Medel or Mendel, not Baumgartner. The magistrate was given no information that Baumgartner had ever been seen in the van or seen driving it. The only information in any way linking Baumgartner to the vehicle was that it had been seen near his former residence. The magistrate was not told how many people resided at that residence or why there was probable cause to believe that Baumgartner would be using the van at about the time the search was to take place. Based on these facts, there was an insufficient nexus shown between the van and Baumgartner to warrant a finding that the presence of the van at the residence in question supplied probable cause that Baumgartner would be present. Second, the telephone call to the residence inquiring if "Rick" was there is insufficient to establish probable cause. Baumgartner was not identified by his total name, nor was there any reason presented to the magistrate to support a belief that the unidentified female was indicating that Rick Baumgartner would be available in twenty minutes. We consequently conclude that there was insufficient probable cause to establish a nexus between Baumgartner and the residence to be searched to justify the issuance of a search warrant. In reaching these conclusions, we realize that the police probably had substantially more information than they disclosed to the magistrate. It is possible that police officers had observed Baumgartner driving the vehicle and using it as his own. It is also possible that the police officers knew that Baumgartner's girl friend was renting or leasing the residence in question, and that her close relationship with Baumgartner made it clear that her response to the telephone call established that Rick Baumgart-ner would be present at a later time. This information, however, was not disclosed to the magistrate. In summary, looking only at the testimony taken by the magistrate and construing it in the light most favorable to the state, we cannot find probable cause. The judgment of the superior court is REVERSED. . Baumgartner raises a number of other objections to his conviction, including claims that a second search warrant was also invalid. Our conclusion that the original warrant was invalid necessarily establishes that the second warrant and its fruits were fruits of the original invalid warrant. Consequently, it is unnecessary for us to further address those issues.

10384925

Marion BEAVERS, Appellant, v. ALASKA CONSTRUCTION, INC., ALPAC/INA, and Alaska Workers' Compensation Board, Appellees

Beavers v. Alaska Construction, Inc.

1990-02-16

No. S-3114

643

645

787 P.2d 643

787

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:20:32.898824+00:00

CAP

Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

Marion BEAVERS, Appellant, v. ALASKA CONSTRUCTION, INC., ALPAC/INA, and Alaska Workers’ Compensation Board, Appellees.

Marion BEAVERS, Appellant, v. ALASKA CONSTRUCTION, INC., ALPAC/INA, and Alaska Workers’ Compensation Board, Appellees. No. S-3114. Supreme Court of Alaska. Feb. 16, 1990. Chancy Croft, Fairbanks, for appellant. Ann Stoloff Brown, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for appellees. Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

824

5099

OPINION BURKE, Justice. The sole issue in this case is whether the superior court abused its discretion when it denied Marion Beavers' motion to accept a late appeal from a decision of the Alaska Workers' Compensation Board. Most of the relevant facts in this case are undisputed. After receiving an adverse decision from the Alaska Workers' Compensation Board on August 24, 1988, Marion Beavers appealed the decision to the superior court. His notice of appeal was not filed until November 1, 1988, some 36 days beyond the last day permissible for an appeal under Alaska Rule of Appellate Procedure 602(a)(2). Beavers requested relief from the filing requirement pursuant to Appellate Rule 502(b), which provides in pertinent part: When by these rules or by a notice given thereunder or by order of the appellate court an act is required or allowed to be done at or within a specified time, the appellate court may in its discretion, either on motion of a party, showing good cause, or sua sponte: (1) Extend the time period, either before or after its expiration or (2) Validate an act done after the expiration of the time period. Beavers contended that he was entitled to relief under the rule because his attorney had wrongfully misled him into believing he would file an appeal, then failed to do so. The superior court denied the relief. We affirm. Beavers never contended below, nor does he contend on appeal, that his attorney can demonstrate good cause for the delay justifying relief under Rule 502(b). Rather, he asserts that the delay should be excused because he cannot fairly be held accountable for his attorney's conduct in failing to perform as promised. We have soundly rejected this argument on numerous occasions. Most recently, in Hartland v. Hartland, 777 P.2d 636, 645 (Alaska 1989), we observed: Patricia argues that relief from judgment under [Civil Rule 60(b)(1) ] is inappropriate because Jay's attorney's conduct did not constitute "excusable neglect." We agree. As this court stated in Rill v. State, Dep't of Highways, 669 P.2d 573, 576 (Alaska 1983), "[a]n attorney's failure to act responsibly toward his or her clients when the attorney could be expected to do so constitutes inexcusable neglect." The Rill court noted that the client's appropriate remedy is an action for malpractice. Rill, 669 P.2d at 576 n. 1. As commentators have noted, "[ojutside the default setting, negligent errors of counsel are treated less sympathetically and relief frequently denied on the grounds that the negligent act was inexcusable." J. Friedenthal, M. Kane, A. Miller, Civil Procedure 572 (1985). (Emphasis added; footnote omitted). Beavers' claim for relief in the instant case is based solely on the alleged negligence of his attorney in failing to perform as promised. The superior court cannot be said to have abused its discretion in refusing to relieve Beavers of " 'the consequences of the acts or omissions of [his] freely selected agent' (his attorney)." Mely v. Morris, 409 P.2d 979, 983 (Alaska 1966) (quoting Link v. Wabash R.R., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962)). The superior court's order denying Beavers' Motion to Accept Late Appeal is AFFIRMED. RABINOWITZ, J., dissents. . The attorney representing Beavers in the present appeal did not represent him in his appeal to the superior court. . Appellee Alaska Construction disputed this factual contention, and introduced evidence tending to show that the attorney's decision was a tactical one, of which the client was well aware. We need not resolve this dispute, as we conclude that, even construing the facts most favorably to Beavers, his claim must fail.

10380998

SEA LION CORPORATION, Appellant, v. AIR LOGISTICS OF ALASKA, INC., et al., Appellees

Sea Lion Corp. v. Air Logistics of Alaska, Inc.

1990-02-09

No. S-2967

109

119

787 P.2d 109

787

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:20:32.898824+00:00

CAP

Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

SEA LION CORPORATION, Appellant, v. AIR LOGISTICS OF ALASKA, INC., et al., Appellees.

SEA LION CORPORATION, Appellant, v. AIR LOGISTICS OF ALASKA, INC., et al., Appellees. No. S-2967. Supreme Court of Alaska. Feb. 9, 1990. David E. Kohfield, Ronald E. Cummings and William K. Walker, Anchorage, for appellant. Kevin G. Clarkson and Clark R. Nichols, Perkins Coie, Anchorage, for appellees. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

5774

34335

COMPTON, Justice. This appeal is from a grant of summary judgment in favor of Air Logistics of Alaska, Inc. (Air Log). The principal question presented is whether Sea Lion Corporation (Sea Lion) should be held liable on a contract executed between Air Log and an entity referred to in the contract as "Bush Transport Systems" (BTS). We conclude that Sea Lion ratified the contract and therefore affirm. I. FACTUAL AND PROCEDURAL BACKGROUND The facts, resolving disputes in the evidence in favor of Sea Lion, are as follows. Myron Naneng (Naneng) was at all relevant times the president and chairman of the board of directors of Sea Lion. Between 1982 and October 1984, Larry D. Gillespie (Gillespie) was employed by Sea Lion as a consultant in connection with Sea Lion's operation of an air taxi service. Gillespie also owned and operated his own air cargo service, Air Valley. Sea Lion had financed Gillespie's formation of Air Valley by means of a loan. In the summer of 1984, Gillespie and Sea Lion began discussions with a view toward merging their operations in the air transport business. Contemplated was the eventual formation of a limited partnership with Gillespie as the general partner and Sea Lion, inter alia, as a limited partner. The limited partnership was to take the name of BTS, then being used by Gillespie as a d/b/a of his own flight service. Around the same time, Air Log, which owned cargo aircraft, decided to shut down a portion of its Alaska operations and send surplus aircraft to the "lower 48." Gillespie, hoping to use Air Log's planes in connection with BTS operations, approached Air Log and asked what it would take for Air Log not to shut down its Alaska operations. Air Log replied that BTS would need to pay all expenses which would result from maintaining the operation. Gillespie then represented to Air Log that "Sea Lion had the financial depth to make this agreement work." A second meeting was held between representatives of Air Log, Gillespie, and two officers of Sea Lion, Naneng and James Joseph (Joseph). Joseph was at all relevant times the secretary/treasurer of Sea Lion, its general manager and a member of its board. Air Log made clear to both Naneng and Joseph that there would be no deal between itself and BTS unless "Sea Lion signed the contract and agreed to back up" the obligations of BTS. On October 1, 1984, Gillespie and Nan-eng met with Air Log in order to execute a flight service agreement (FSA) whereby BTS would obtain aircraft and services from Air Log. The 1984 FSA consisted of a five page Agreement for Flight Service (Agreement) containing the bulk of the substantive elements of the contract, and two "Side Letters." All three items were presented to Gillespie and Naneng as a single document. The FSA expired by its terms on December 31, 1984. The Agreement was signed under the name of BTS "by" Gillespie and Naneng, without reference to Sea Lion. The accompanying Side Letters contained supplementary and clean up terms to the Agreement. The signature block of the first Side Letter is identical to that of the Agreement. The second Side Letter notes that its purpose "is to explain, clarify, define or expand the intent" of the FSA. It contains arbitration, choice of law, and force majeur clauses. Furthermore, it contains an "identification" clause, which states "... given the prudent requirement to maintain nondisclosure of the identities of the principals, let it now be revealed that the participants of Bush Transport System are: Sea Lion Corporation, P.0. Box 44, Hooper Bay, AK 99604," inter alia. The second Side Letter was signed BTS "by" Gillespie and "by" "Myron Naneng, Sea Lion Corporation." There is no evidence to suggest that Naneng signed in any capacity other than as a purported Sea. Lion representative, and both Joseph, testifying as the designated representative of Sea Lion and Naneng admit that he acted in this capacity. Naneng signed the 1984 FSA on the heels of a repeated insistence by Air Log that Sea Lion sign the FSA or there would be no deal and the planes would be removed from Alaska. Following the execution of the 1984 FSA, both Joseph and Ronald Cummings, counsel for Sea Lion, learned what Naneng had done. Cummings told Joseph that Naneng had signed a document that "put us in a bad position later on." When Joseph saw the 1984 FSA for himself, he told Naneng "Oh,_, please don't sign it," but by then Naneng already had. (Expletive deleted). The reason for Joseph's concern was his realization that the 1984 FSA obligated Sea Lion, "to deliver services that . we're not supposed to deliver." Cummings then drafted a "Memorandum of Understanding." In the memo, Naneng, on behalf of Sea Lion, and Gillespie agreed inter se that Naneng's signature was not intended to obligate Sea Lion on the 1984 FSA, but was merely for "security purposes only." Air Log never saw this memo nor learned of its terms or its existence. On October 28 Sea Lion's board met. The result of the meeting was inconclusive. The major question was "whether Sea Lion would participate in the BTS venture with Air Valley." A $75,000 "advance" was made to Gillespie. The advance was "considered a loan with interest unless the board of Sea Lion decides to enter into a partnership." The loan was evidenced by a promissory note. Gillespie, who was present at the meeting, told the board "an additional $75,000 would be required for November, thus requiring an up front $150,000 to buy into the partnership." On November 9 the Sea Lion board met again. The full board "voted in favor of becoming a member of BTS as a limited partner." The board authorized another $81,000 advance to Gillespie, also evidenced by a promissory note. Sea Lion's audited 1984 financial statement stated that in January 1985 Sea Lion Corporation "entered into a limited partnership" with Gillespie. A March 1985 entry in BTS' books ascribes $156,000 of "partner's equity" to Sea Lion as of date. Joseph testified, however, that the Sea Lion board never authorized participation as a general partner in BTS. On December 31, 1984, the 1984 FSA expired. Gerald Skipton (Skipton), a CPA employed by Sea Lion, met with Gillespie and representatives of Air Log to discuss the execution of a new FSA for 1985. Gillespie told Air Log at this meeting that Sea Lion "wasn't going to be a general partner; they were going to be a limited partner." Air Log repeated its position that there would be no dealings with BTS unless Sea Lion signed a FSA and was financially liable. Skipton laughed and told Air Log to try and "talk them (Sea Lion) into it and get the board to vote that way." In April Gillespie and Naneng met with Air Log to execute the 1985 FSA. The 1985 FSA is virtually identical to the 1984 FSA. It consists of a nine-page Agreement for Flight Service, and two 2-page "Side Letters." All documents were again presented in a single package and executed seriatim. The second Side Letter of the 1985 FSA is indistinguishable from the second Side Letter of the 1984 FSA. It notes that its purpose "is to explain, clarify, define or expand the intent" of the main body. It contains arbitration, choice of law, and force majeur clauses. Furthermore, it contains an "identification" clause, which states "... given the prudent requirement to maintain non-disclosure of the identities of the principals, let it now be revealed that the participants of Bush Transport System are: Sea Lion Corporation, P.O. Box 44, Hooper Bay, AK 99604," inter alios. When confronted with the second Side Letter, Gillespie objected on the grounds that there was no valid reason for Naneng to sign the FSA, because Sea Lion was not going to be a general partner in BTS. Air Log was unmoved and repeated its position that if Sea Lion did not sign the FSA, there would be no deal. Naneng then signed the FSA. He did so to keep the planes in the state and avoid having Air Log withdraw from the deal, "the same [reason] we (Sea Lion) signed . the first one." As with the 1984 FSA, the Agreement and the first Side Letter were signed BTS "by" Gillespie and "by" Naneng, without reference to Sea Lion. The second Side Letter was signed BTS "by" Gillespie and "by" "Myron Naneng, Sea Lion Corporation." As with the 1984 FSA, Naneng showed Joseph the 1985 FSA, bearing Naneng's signature, shortly after its execution. Joseph again realized that Naneng's signature exposed Sea Lion to the risk of liability and told Naneng "Myron, come on, you shouldn't have signed this." Testifying as the designated representative of Sea Lion, Joseph also admitted that the corporation knew of Naneng's act and its repercus sions. This admission was repeated at oral argument. On May 26, 1985, a formal limited partnership agreement was finally executed between Gillespie and Sea Lion. Sea Lion concedes that it and Gillespie were not limited partners until this agreement was executed, contending they were merely creditor and debtor. This limited partnership agreement was never shown nor its terms made known to Air Log until litigation. No statutory certificate of limited partnership was filed until July 26, 1985. BTS eventually fell substantially behind on payments due for services rendered under the 1985 FSA. Along with Sea Lion individually, BTS and Gillespie were sued for moneys owing and other claims by Air Log. The superior court granted summary judgment in favor of Air Log on the issue of liability. Sea Lion was found liable as a matter of law on five grounds: 1) being a direct signatory to the contract, 2) defective execution of the limited partnership agreement between Sea Lion and Gillespie, 3) excessive participation in the affairs of the partnership, 4) partnership by estoppel and 5) joint venturer by estoppel. We find it necessary only to address the direct signatory theory. II. DISCUSSION THE SUPERIOR COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT TO AIR LOG ON THE GROUND THAT SEA LION WAS A DIRECT SIGNATORY TO THE 1985 FSA. A. Sea Lion cannot raise its arguments that (1) the 1985 FSA and its "Side Letters" ought not to be construed as one contract, and (2) there was no "mutual assent" between Sea Lion and Air Log on appeal. Sea Lion contends that there are material questions of fact regarding 1) which documents ought to be considered part of the 1985 FSA to determine whether Sea Lion signed it or not, 2) the presence of mutual assent between Sea Lion and Air Log, and 3) Naneng's actual or apparent authority to bind Sea Lion to the 1985 FSA. Air Log contends that these issues were not raised in the superior court and ought not to receive appellate review. In the alternative, Air Log contends that there are no material questions of fact as to these issues. Sea Lion, in turn, argues that the issues either were explicitly raised, or ought to be entertained anyway, relying on State v. Northwestern Construction, Inc., 741 P.2d 235 (Alaska 1987). Arguments are considered on appeal if raised explicitly in the superior court, or if the issue is "1) not dependent on any new or controverted facts; 2) closely related to the appellant's trial court arguments; and 3) could have been gleaned from the pleadings," or if failure to address the issue would propagate "plain error." Northwestern Construction, Inc., 741 P.2d at 239. Our review of the record reveals that Sea Lion raised only the agency argument before the superior court. Sea Lion suggests that the integration and assent arguments "could be gleaned" from no more than the text of the 1985 FSA itself and its answer, generally denying liability on the 1985 FSA. This court will not glean new theories on appeal from nothing more than a general denial. Cf. Smith v. Sellar, 371 P.2d 809, 810 (Alaska 1962). Any theory at all could be gleaned from a general denial. This court has entertained otherwise improper arguments if to refuse would constitute plain error. Northwestern Construction, 741 P.2d at 239. Plain error exists if it appears that an obvious mistake "has been made which creates a high likelihood that injustice has resulted." Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981). Our refusal to consider these issues does not propagate plain error. No obvious mistake has been made. There is a paucity of either evidence or argument directed toward either issue appearing in the record. Furthermore, assuming arguendo that Sea Lion has raised either issue, its positions have little merit. Where two or more contractual documents are executed substantially simultaneously and are clearly interrelated, they must be construed as the whole contract, as a rule of construction. E.g., Kroblin Refrigerated XPress, Inc. v. Pitterich, 805 F.2d 96, 107-08 (3rd Cir.1986) (applying Pennsylvania law); Deer Creek, Inc. v. Clarendon Hot Springs Ranch, Inc., 107 Idaho 286, 688 P.2d 1191, 1200 (Ct.App.1984); Atlas Corp. v. Clovis Nat'l. Bank, 737 P.2d 225, 229 (Utah 1987). It is undisputed that the 1985 Agreement was executed simultaneously with the second Side Letter. Naneng signed the second Side Letter, purportedly in his corporate capacity. The second Side Letter makes express reference to the rest of the contract, noting that its "purpose" is to "explain, clarify, define, or expand the intent of certain terms and conditions of Agreement for Flight Services." The documents are thus expressly interrelated. The Side Letter also contains substantive contract terms, including choice of law, force majeur, and arbitration clauses. These clauses are not merely declaratory but create substantive rights and duties. If, as Sea Lion argues, the second Side Letter was merely declaratory, these clauses would be unnecessary. Naneng signed this document on Sea Lion's behalf. Furthermore, Joseph, testifying on behalf of Sea Lion in his deposition, understood that Naneng's acts in connection with the 1985 and the analogous 1984 FSAs amounted to the execution of a contract. The foregoing suffices as a matter of law to find Naneng at least purported to execute the whole on Sea Lion's behalf, setting aside the issue of scope of authority, It is axiomatic that a party need not sign every page of a contract to be bound to the whole of the contract. E.g., Westinghouse Elec. Corp. v. Nielsons, Inc., 647 F.Supp. 896, 902 (D.Colo.1986); 37 C.J.S. Frauds, Statute of § 205 (1955). The superior court's resolution of the issue cannot be seen as plain error. Nor did the court commit plain error regarding mutual assent. Mutual assent is an elementary requirement for a binding contract. State v. Fairbanks North Star Borough School Dist., 621 P.2d 1329, 1331 n. 3 (Alaska 1981). It is elementary that mutual assent can be found in the objective meaning of words used. Howarth v. First Nat'l. Bank of Anchorage, 596 P.2d 1164, 1167 (Alaska 1979). "A party cannot rely on its subjective intent to defeat the existence of a contract if its words and actions objectively and reasonably led another to believe a contract had been entered." Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1281 (Alaska 1985). No one contends, unlike in Zeman, that the 1985 FSA, signed by Naneng, was a mere negotiation. A final contract involving someone plainly existed. Naneng signed it, purportedly on behalf of Sea Lion. Furthermore, it is undisputed that Naneng, as Sea Lion's president and chairman, was an agent of Sea Lion. Sea Lion's "mutual assent" argument thus stands revealed as merely another expression of its agency argument: that it should not be held liable on the contract because Naneng exceeded his authority. The irrelevance of the scope of Naneng's authority is addressed infra. Sea Lion incidentally argues that the language in the 1985 FSA identifying Sea Lion as a "participant" in BTS is ambiguous. This is irrelevant. Sea Lion does not contend that the part of the 1985 FSA obligating the signatories to pay for services rendered is ambiguous, and Naneng signed on Sea Lion's behalf. B. Sea Lion is liable as a direct signatory to the 1985 FSA upon a theory of "ratification by silence." Air Log contends in its brief that Sea Lion by its silence ratified Naneng's signature on the 1985 FSA. Sea Lion responds, in essence, that there are material questions of fact for the jury on the issue of ratification. Even though this was not a theory expressly relied upon by the trial court, both parties have briefed the issue. An appellee may defend a judgment on any basis established by the record, whether or not it was relied on by the trial court or even raised before the trial court so long as no new factual determinations are required. Demoski v. New, 737 P.2d 780, 786 (Alaska 1987); Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961). When reviewing a grant of summary judgment, this court must determine whether there is a genuine issue of material fact and whether the moving party is entitled to judgment on the law applicable to the established facts. Zeman v. Lufthansa German Airlines, 699 P.2d at 1281. All reasonable inferences of fact from proffered materials must be drawn against the moving party (Air Log) and in favor of the non-moving party (Sea Lion). Id. "[I]f the movant establishes prima facie that it is entitled to judgment as a matter of law, the party opposing summary judgment must demonstrate that there exists a genuine issue of material fact to be litigated." Wassink v. Hawkins, 763 P.2d 971, 973 (Alaska 1988). To grant summary judgment on a direct signatory theory, the superior court must have found 1) either actual or apparent authority as a matter of law, or 2) that despite no actual or apparent authority, Sea Lion should nonetheless be bound as a matter of law. Alaska has in three cases recognized the doctrine of "ratification by silence." Alaska Continental Bank v. Anchorage Commercial Land Associates, 781 P.2d 562, 565 (Alaska 1989); Bruton v. Automatic Welding & Supply Corp., 513 P.2d 1122, 1126-28 (Alaska 1973); Gaikema v. Bank of Alaska, 8 Alaska 495, 507 (1934). Ratification is an agency doctrine, created by common law courts to deal with a situation where, after a transaction is entered into by a second party purporting to act for a principal, the principal manifests an intent to be bound by the acts of the second party. Bruton, 513 P.2d at 1127. The focus is on what occurred subsequent to the agent's act; the scope of the agent's authority becomes irrelevant. Id. Thus, evidence going to Naneng's authority or lack thereof creates no issue of material fact as to ratification; we assume he lacked authority. In Bruton, this court outlined two requirements for an otherwise unauthorized act to be ratified by the principal's silence. The first is that the act sought to be ratified, as with any theory of ratification, must be done by someone who held himself out to the third party as an agent for the principal. Id.; see also Pullen v. Dale, 109 F.2d 538, 539 (9th Cir.1940) (applying Alaska law). Naneng's execution of the 1985 FSA clearly satisfies this first requirement. Second, the principal must then have failed to act in response under circumstances which "according to the ordinary experience and habits of men, one would naturally be expected to speak if he did not consent...." Bruton, 513 P.2d at 1127, quoting Restatement (Second) of Agency § 94, comment a (1957). The prior knowledge, or lack thereof, of the principal regarding the likelihood of reliance by the third party on the agent's authority is irrelevant. See Restatement (Second) of Agency § 94, comment a (1957). Although ordinarily ratification is a question of fact, silence of the principal effects ratification as a matter of law if the "case is so clear that reasonable men could come to but one conclusion." Id.; Guaschino v. Eucalyptus, Inc., 3 Haw.App. 632, 658 P.2d 888, 894 (1983). In essence, this standard is the same as the one used for reviewing summary judgments. Moreover, the Restatement notes: A principal's silence is usually more significant if an agent has exceeded his powers in the particular transaction, especially if the agent acted from an excess of zeal. If such an agent reports the matter to the principal at a time or in a manner calculated to call for dissent if the principal were unwilling to affirm, the latter's failure to dissent, if unexplained, furnishes sufficient evidence of affirmance. Restatement (Second) of Agency § 94, comment b (1957). Cases adopting and interpreting this section of the Restatement have often held that this second requirement is met as to a third party where the principal has actual knowledge of the material facts surrounding a transaction entered into by an agent with some authority to act for the principal and takes no action to repudiate it. Rouse Woodstock, Inc. v. Surety Fed. Sav. & Loan Ass'n, 630 F.Supp. 1004, 1011 (N.D.Ill.1986); Evanston Bank v. Conti-Commodity Services, Inc., 623 F.Supp. 1014, 1034 (N.D.Ill.1985); University Mktg. & Consulting v. Hartford Life & Accident Ins. Co., 413 F.Supp. 1250, 1260 (E.D.Pa.1976). See also Seavey, Ratification by Silence, 103 U.Pa.L.Rev. 30, 33 (1954); Story, Agency 300 (9th ed. 1882). Thus it appears that the Sea Lion board would have to have known of Naneng's execution of the 1985 FSA, and therefore done nothing to repudiate that act, in order for Naneng to have bound the corporation. The knowledge necessary to ratify an unauthorized act must be that of an entity with power to authorize it in the first instance. E.g., Ulloa v. Guam Economic Dev. Auth., 580 F.2d 952, 956 (9th Cir.1978); See-Tee Mining Corp. v. National Sales, Inc., 76 N.M. 677, 417 P.2d 810, 811 (1966); 2 Fletcher Cyc. Corp. ¶ 762 (1982). However, when it is the board of directors which must authorize the transaction, the board may ratify by acquiescence and without any formal action. It need not act at a meeting regularly called. Ulloa, 580 F.2d at 956 (quoting Fletcher at ¶ 762). See also Bank of Santa Fe v. Honey Boy Haven, Inc., 106 N.M. 584, 746 P.2d 1116, 1119 (1987). The rationale is plain: liability is not predicated upon some act of the board, but upon its failure to act. The lack of evidence that Sea Lion's board did not hear of or discuss Naneng's signature at a formal board meeting is thus not fatal. The relevant facts, taken in the light most favorable to Sea Lion, show that Naneng was its president and chairman of its Board, with some authority to act on its behalf. Naneng admits that he signed the 1985 FSA on behalf of Sea Lion. Naneng and Joseph, another board member, were both aware that the reason Air Log insisted that Naneng sign the 1985 FSA was to make Sea Lion liable on it, and that Air Log would not have entered the 1985 FSA if he did not. Naneng admits that he signed the contract so that Air Log would not withdraw from negotiations. When confronted with the fact that Nan-eng signed the 1985 FSA, Joseph read the document and exclaimed, "Myron, come on, you shouldn't have signed this." Joseph knew that the document exposed Sea Lion to a risk of liability, having earlier testified that Sea Lion knew in connection with the analogous 1984 FSA that "we had to get out of this contract because we're [Sea Lion] not supposed to be in this kind of contract at all." More importantly, Joseph, testifying as Sea Lion's designated representative, admitted that Sea Lion knew it. This admission was repeated at oral argument. Joseph also testified that he had "told Myron not to sign, but apparently Gillespie needed the aircraft, so it was" and that "we were forced into this." "We" obviously refers to Sea Lion. Joseph characterized Air Log's insistence that Naneng sign in his corporate capacity as "blackmail." Despite being "blackmailed," and despite its assertion that it was at that time still negotiating with Gillespie for limited liability, Sea Lion said nothing tending to disavow the effect of Naneng's signature to Air Log. The "Memorandum of Under standing" between Sea Lion and Naneng prepared following execution of the 1984 FSA, was not shown or made known to Air Log, at this time despite Sea Lion having been advised by counsel as to the effect of Naneng's signature on the analogous 1984 FSA. This fact pattern is indistinguishable from the Restatement (Second) of Agency § 94, comment b, quoted supra. An admitted agent exceeded his authority in a moment of zeal to avoid the loss of an investment opportunity for his principal. He reported the matter to his principal, who on a previous analogous occasion drafted a secret memo qualifying the effect of his signature. On both occasions the secretary/treasurer of the principal chastised the agent, realizing the risk created. The principal then said nothing to the third party (Air Log) to disavow the agent's signature until it was sued about a year later. This is "sufficient evidence of affirmance" absent an adequate explanation. Restatement (Second) of Agency § 94, comment b (1957). There is no adequate explanation on the record. In fact, the obvious explanation for Sea Lion's conduct was concern that disavowal would both jeopardize the deal with Air Log as well as subject its president to individual liability on a large contract. To summarize: Air Log has shown (1) an agency relationship, (2) actual knowledge of the purportedly unauthorized act by the principal, and (3) no act of subsequent disavowal by Sea Lion communicated to Air Log until litigation arose over a year later. Sea Lion presents no material evidence to the contrary. III. CONCLUSION There is no genuine issue of material fact as to ratification by silence under the test of the Restatement (Second) of Agency § 94 and Bruton. Secret disavowals of liability do not suffice. AFFIRMED. ORDER On consideration of the petition for rehearing, filed on December 18, 1989, IT IS ORDERED: 1. The petition for rehearing is granted. 2. Opinion No. 3537, filed by the court in the above matter on December 8,1989, is withdrawn. 3. The attached Opinion on Rehearing, No. 3558 is filed on this date in its place. Entered by direction of the court at Anchorage, Alaska on February 9, 1990. . At oral argument, counsel for Sea Lion made the following concession: JUSTICE COMPTON: Okay, and after he (Naneng) signed it, this second letter, in a corporate capacity, authorized or not, the board became apprised of what had happened, is that right? KOHFIELD: Uh,- I'm not . JUSTICE COMPTON: The board learned that he had signed this . this agreement . whatever the agreement was.... The board of Sea Lion Corporation learned that Naneng had signed this, isn't that correct: KOHFIELD: Yes, I believe that's correct. JUSTICE COMPTON: And, then, what did the board do in response to that, to, uh, alert Air Logistics that it was not going to, um, assume any liability for what Mr. Naneng did? KOHFIELD: Well, I guess in one sense I question just how much the board of Sea Lion Corporation has to do to alert Air Log that they have no intention of being liable on the contract.... . The superior court also rejected Sea Lion's defense that Air Log should be estopped from treating Sea Lion as anything more than a limited partner, on the grounds that Alaska law does not accept the doctrine of "limited partnership by estoppel." Sea Lion first contends that despite the fact that it had not filed a certificate of limited partnership pursuant to AS 32.10.020, Air Log should either be estopped or quasi-es-topped from holding Sea Lion liable as anything more than a limited partner. This court recently reiterated the requirements for both "traditional" and "quasi" estoppel. Dressel v. Weeks, 779 P.2d 324 (Alaska 1989). Traditional estoppel requires the assertion of a position by conduct or word, reasonable reliance thereon by a party, and resulting prejudice. Id. at 329. Quasi-estoppel precludes a party from taking a position inconsistent with one taken previously when circumstances render the assertion of the second position unconscionable. Id. There is no evidence in the record that Air Log ever accepted Sea Lion's self-characterization as a limited partner or creditor before the 1985 FSA was executed. Rather, the record is clear that Air Log insisted that Sea Lion back up the 1985 FSA regardless of how it characterized itself. Air Log cannot thus be said to have taken the position that Sea Lion was a limited partner; rather, this is an attempt by Sea Lion to ascribe its litigation position to Air Log. We also note that estoppel is an equitable remedy. Equity requires that those who seek it shall have acted fairly and without fraud or deceit as to the controversy in issue. Knaebel v. Heiner, 663 P.2d 551, 554 (Alaska 1983). There exists substantial doubt, given Sea Lion's secret disvowals of Naneng's signature, whether it is entitled to equity. Alternatively, Sea Lion urges us to adopt the rule that where a partnership has been formed, yet no certificate of limited partnership has been filed, creditors dealing with the partnership as a limited partnership other than in good faith are estopped from relying on the lack of filing. E.g., Garrett v. Koepke, 569 S.W.2d 568 (Tex.Civ.App.1978). Although this is the rule under the Revised Uniform Limited Partnership Act, a few courts have adopted the rule judicially in jurisdictions, such as Alaska, still utilizing the old Act. See Revised Unif. Ltd. Partnership Act § 304(b), 6 U.L.A. 311 (Supp.1989). We do not reach this issue. Sea Lion concedes it was not a partner of any kind at the time Naneng executed the 1985 FSA and we do not resolve this case on a partnership theory. . Sea Lion's arguments that it should not be held liable summarily on the issues of actual or apparent authority are persuasive, though in the end irrelevant. Naneng acted as an agent of Sea Lion at the 1985 FSA signing. A disclosed principal is subject to liability upon contracts made by an agent acting within his authority. Restatement (Second) of Agency § 144 (1958). Authority sufficient to bind a principal can be either actual or apparent. Bruton, 513 P.2d at 1125. Air Log contends as an initial matter that Sea Lion did not raise the question of the scope of Naneng's authority until after summary judgment had been entered. Air Log's contention is without merit. As discussed infra, Sea Lion presented considerable evidence explicitly calling the scope of Naneng's authority into doubt and which was relevant to no other issue, despite not arguing it explicitly until its motion for reconsideration. See Thorstenson v. ARCO Alaska, Inc., 780 P.2d 371, 375 (Alaska 1989). Actual authority is created by "written or spoken words or other conduct of the principal which, reasonably interpreted, causes the agent to believe that principal desires him so to act on the principal's account." Bruton, 513 P.2d at 1125 (quoting Restatement (Second) of Agency § 26 (1958)). Summary judgment was improper on an actual authority theory. The reasonableness of Naneng's belief as to what he was authorized to do is at issue here. See Perkins v. Willacy, 431 P.2d 141, 143 (Alaska 1967). The record, drawing all reasonable inferences in favor of Sea Lion, shows that Naneng knew, based on the 1984 Memorandum of Understanding, that he lacked board approval to obligate Sea Lion on contracts in connection with BTS. These allegations raise material questions of fact with regard to the reasonableness of Naneng's beliefs regarding the extent of his authority. Apparent authority, by contrast, focuses on the reasonable beliefs of the third party (Air Log). Apparent authority to do an act is created as to third persons by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him. City of Delta Junction v. Mack Trucks, Inc., 670 P.2d 1128, 1130 (Alaska 1983) (quoting Restatement (Second) of Agency § 27 at 103 (1958)). See also Jackson v. Power, 743 P.2d 1376, 1381 (Alaska 1987). Skipton, Sea Lion's accountant, testified he told Air Log that Sea Lion was unwilling to be bound as a general partner and wanted only limited partner liability. He testified that he informed Air Log that the Sea Lion board would have to approve further action. Furthermore, Gillespie testified that at the actual signing of the 1985 FSA, he also informed Air Log that "Sea Lion Corporation was not a general partner in [BTS] and, therefore, had no responsibility to sign the agreement." A reasonable trier of fact could come to the conclusion that any belief by Air Log that Naneng had authority to sign the 1985 FSA was unreasonable. Sea Lion appears to contend, against the vast weight of authority in Alaska, see, e.g., Bruton; Perkins; City of Delta Junction, that the Restatement view of apparent authority is not the law in Alaska. They cite dictum from one case, State v. Neal & Sons, Inc., 489 P.2d 1016, 1019 (Alaska 1971), to the effect that as a matter of law a third party must either investigate the extent of an agent's authority or deal only at its peril. All subsequent (and prior) Alaska law is to the contrary, utilizing the Restatement view. To the extent the dictum in Neal & Sons, Inc. suggests otherwise, it is expressly disapproved. . There is uncontradicted evidence in the record that a second liability-adjusting memorandum (MOU) was drafted, though the document itself does not appear. As the document would be cumulative evidence of Sea Lion's knowledge of the 1985 FSA, its existence or non-existence is immaterial. . In its reply brief, Sea Lion asks rhetorically, "[H]ow many times must Air Log hear a clear statement regarding Sea Lion's intent not to be bound to BTS obligations?" The answer is "Only once." However, this "once" must come after its agent signs a contract on its behalf and the principal learns of the act and realizes the risk created, especially when advised by counsel on the matter. Furthermore, the third party must hear it.

10547335

James NIZINSKI, Appellant, v. GOLDEN VALLEY ELECTRIC ASSOCIATION, INC., an Alaska corporation, Appellee

Nizinski v. Golden Valley Electric Ass'n

1973-04-27

No. 1685

280

285

509 P.2d 280

509

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:20:37.984128+00:00

CAP

Before RABINOWITZ, C. J., and CONNOR, ERWIN, and BOOCHEVER, JJ-

James NIZINSKI, Appellant, v. GOLDEN VALLEY ELECTRIC ASSOCIATION, INC., an Alaska corporation, Appellee.

James NIZINSKI, Appellant, v. GOLDEN VALLEY ELECTRIC ASSOCIATION, INC., an Alaska corporation, Appellee. No. 1685. Supreme Court of Alaska. April 27, 1973. James Nizinski, pro se. David H. Call, Call, Haycraft & Fenton, Fairbanks, for appellee. Before RABINOWITZ, C. J., and CONNOR, ERWIN, and BOOCHEVER, JJ-

2137

12907

OPINION ERWIN, Justice. This appeal arose out of the dismissal of appellant, James Nizinski, by the appellee, Golden Valley Electric Association, Inc. On March 31, 1971 appellant helped to extinguish a fire on one of appellee's D9 Cats. Concerned with the lack of training in fire fighting received by employees of the appellee, appellant wrote a grievance statement. Copies were given to Mr. Graham, the plant superintendent, and Mr. Von Blarcom, the shop steward. The part of the statement which eventually led to the appellant's termination read: I believe, in view of this experience that any further attempts, at this time, by the employees of this power plant, in the line of fire protection, could be extremely hazardous to their well being and, to the well being of others in the plant. I also wish it to be known now, rather than at a time of emergency (hoping the same never again will occur), that I feel I cannot lend my assistance in order to save equipment or property of this plant in the line of fire fighting as I feel I have not had proper and/or qualified instruction. On April 15, 1971 appellant and Mr. Von Blarcom were called into Mr. Graham's office to discuss the matter further. Appellant failed to retract or to explain his written statements to the satisfaction of appel-lee's representative and his employment was terminated the same day. The first three steps of the grievance procedure were undertaken after appellant filed a written grievance maintaining his termination was unjustified and without proper cause. No progress was made in resolving the dispute so step four, arbitration, was invoked. Mr. Charles Currington was chosen as the arbitrator for this dispute. The arbitration hearing was held in Fairbanks, Alaska on May 11, 1971. The decision was handed down by Mr. Curring-ton on May 14, 1971 and stated: After reviewing the transcript of the Arbitration hearing in this case, I find the discharge of James Nizinski justified. It has long been the practice in isolated areas that it is the responsibility of all personnel to do their utmost to furnish fire protection, and to allow an employee to refuse to assume his responsibility of combating fire could be taking complete authority away from the company and placing it in the hands of the individual employees to do as they desired in defiance of company policy. Realizing discharge is the maximum penalty imposed on an employee, I find, in this case, the company is justified. Appellant next commenced this action by filing a complaint against Golden Valley Electric Association, Inc. alleging three claims for relief. Appellant summarized them in the brief submitted to this court as follows: a. That the Plaintiff/Appellant was unlawfully and improperly discharged from his employment; b. That an arbitration in which the Defendant participated was in violation of a contract between the Defendant and a bargaining agency representing the Plaintiff/Appellant; and c. That the Plaintiff/Appellant's discharge was in violation of the rights guaranteed him by the First Amendment and that the award was granted as a result of the incompetency and the bad faith of the arbitrator. Appellee filed a motion for summary judgment under Civil Rule 56, and on January 12, 1972, the court granted appellee's motion. In order to uphold this decision the court must find that there was an absence of a genuine issue as to any material fact, and that appellee was entitled to judgment as a matter of law. Appellant was a beneficiary of a collective bargaining agreement between appellee and his union which provided for binding arbitration as the last step in the grievance procedure involving disputes between the contracting parties. The arbitrator under that agreement rendered a decision holding that appellant was terminated for "good cause". The law now favors arbitration with a minimum of court interference. In Astoria Medical Group v. Health Insurance Plan of Greater New York, it was noted that arbitration was "essentially a creature of contract, a contract in which parties themselves charter a private tribunal for the resolution of their disputes." If the parties have submitted the dispute to binding arbitration the merits of the controversy are not subject to judicial review. However, there are certain instances where courts will interfere with decisions made by an arbitrator. Some of the most common instances in which a court can grant relief is where there has been gross negligence, fraud, corruption, gross error or misbehavior on the part of the arbitrator. With this background in mind the summary judgment granted against appellant must now be analyzed. This court has recently held in Braund, Inc. v. White that the essence of the motion of summary judgment is that "there is no genuine issue of material fact to be resolved by the trier of fact, and that the movant is entitled to judgment on the law applicable to the established facts." Inferences of fact from the proffered proofs are drawn in favor of the party opposing the motion and against the movant. Note 5 in Braund may best describe the mechanics of summary judgment. In order to carry the burden of proof in summary judgment, the party seeking the judgment must not only prove his own case but also disprove the affirmative defenses of his opponent. He has the entire burden of proving that his opponent's case has no merit. Summary judgment depends upon provable facts. The court must pierce the pleading's in search of genuine factual issues, placing a definite burden on both the movant and the respondent to present sworn facts in support of their positions. The respondent must present factual material to avoid summary judgment, and he may not rely on general allegations. If respondent does not have the facts necessary to controvert the claims made by movant, he must ask for additional time to obtain them under Civil Rule 56(f) or suffer the consequences of not properly opposing a motion for summary judgment. A mere allegation by respondent is that it is possible he may get proof of his position in the future is insufficient. To base denial of a motion for summary judgment on such an allegation would ignore the plain meaning of Civil Rule 56. It would operate to defeat the purpose of requiring the parties to show by evidence that summary judgment is or is not proper, and would destroy the effectiveness of the rule (citations omitted) (emphasis in original). Golden Valley offered proof that the arbitrator did not rely substantially on fraudulent and untrue statements made by their representatives as alleged in plaintiff's first cause of action. It would seem that 'the truth or interpretation of the statement would not present a factual issue since appellees offered in support of their motion for summary judgment an affidavit of the arbitrator in which he stated under oath that the sole reason for his decision was that "James Nizinski had, in writing and orally, stated that he would not lend assistance to the fighting of a, fire that might occur at his place of employment, in Healy, Alaska." Appellant in his affidavit in opposition to the motion for summary judgment made no presentation of factual material to avoid a summary judgment on his first cause of actions but instead relied on general allegations of what he would try to show at trial. Appellant made no formal request for additional time under Civil Rule 56(f) to obtain the facts necessary to controvert the claims made by movant. For these reasons it appears that the motion for summary judgment was properly granted here. We recognize that 'freedom of contract' is a qualified and not an absolute right and cannot be applied on a strict, doctrinal basis. An established principal is that a court will not permit itself to be used as an instrument of inequity and injustice. (citations omitted) The second claim for relief raised by appellant was that he was terminated in violation of a contract between the defendant arid a bargaining agency representing the plaintiff/appellant. The third claim for relief raised the claim that appellant's termination violated his First Amendment rights and that the award was granted as a result of the incompetency and the bad faith of the arbitrator. It would seem that these allegations could only stand if in fact plaintiff was dismissed for other than "good cause". The appellant offered no evidence in his affidavit that this was the case — no factual material was presented to avoid the summary judgment. Since "good cause" of appellant's termination was the focal issue of the arbitration proceeding it would not be subject to judicial review except in certain rare instances. While fraud or gross error on the part of the arbitrator may provoke judicial review, appellant has set forth no factual material to justify a reversal of the summary judgment order of the superior court in this instance. In fact a review of the record in this instance indicates there was no fraud or gross error. The arbitrator was selected in an impartial manner, appellant was given notice of the arbitration proceedings and an opportunity to be heard. The record of the arbitration proceeding indi cated that it was conducted in a fair and reasonable manner with each side given ample opportunity to present their position. While we might not necessarily agree with the decision of the arbitrator, it does not appear to be a product of fraud, gross negligence, corruption, gross error or misbehavior on the part of the arbitrator. The decision of the superior court is affirmed. FITZGERALD, J., not participating. . The first three steps of the grievance procedure spelled out in the agreement between the appellee and appellant's union provided: 4.3 Step One: The matter shall be discussed between the shop steward or the employee and the plant superintendent or his authorized representative. 4.4 Step Two: If not settled as provided above within seven (7) days, the matter shall be reduced to writing and submitted to the Union representative and the Production Superintendent. 4.5Step Three: Should any matter not be adjusted in accordance with the above procedure after an additional seven (7) days, the manager of the Company and Union representative and/or their authorized representative shall meet and attempt to settle the complaint. . The relevant portion of Civil Rule 56(c) states: Judgment shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affi davits, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. . The agreement between Golden Valley Electric Association, Inc. and the International Union of Operating Engineers, Local Number 302 in paragraph 4.6 states that: Any dispute not settled within ten (10) days after it is so presented in Step Three will be submitted to arbitration. Disputes submitted to arbitration may be presented orally or in writing by both parties. . . . Decision shall be rendered within seven (7) days after such hearing and such decision shall be final and binding on both parties. . Arbitration is defined as a "substitute for proceedings in court." McRae v. Superior Court, 221 Cal.App.2d 1166, 169, 34 Cal.Rptr. 346, 349 (1963); see also Parsons v. Norfolk & W. Ry. Co., 310 F.Supp. 1197, 1201 (S.D.W.Va.1970), aff'd. 442 F.2d 1075 (4th Cir. 1971); Riverton Valley Elec. Ass'n v. Pacific Power & Light Co., 391 P.2d 489, 495 (Wyo.1964). See A.S. 09.43.010-09.43.-180. . 11 N.Y.2d 128, 132, 227 N.Y.S.2d 401, 403, 182 N.E.2d 85, 87 (1962). . Ficek v. Southern Pacific Company, 338 F.2d 655, 656 (9th Cir. 1964), cert. denied, 380 U.S. 988, 85 S.Ct. 1362, 14 L.Ed. 2d 280 (1965); Monte v. Southern Delaware County Authority, 335 F.2d 855, 857 (3rd Cir. 1964); Cortez v. California Motor Express Co., 226 Cal.App.2d 257, 261, 38 Cal.Rptr. 29, 31 (1964); Riley v. Pig'n Whistle Candy Co., 109 Cal. App.2d 650, 651, 241 P.2d 294, 295 (1952); Silva v. Mercier, 33 Cal.2d 704, 708, 204 P.2d 609, 612 (1949). . Pacific Vegetable Oil Co. v. C. S. T., 29 Cal.2d 228, 174 P.2d 441, 449 (1946); Cassara v. Wofford, 55 So.2d 102, 105-106 (Fla.1951); Park Constr. Co. v. Independent School Dist., 216 Minn. 27, 11 N.W.2d 649, 653 (1943). . 486 P.2d 50, 53 (Alaska 1971). . Wilson v. Pollet, 416 P.2d 381, 384 n. 13 (Alaska 1966); 6 J. Moore, Federal Practice § 56.04 [2], at 2066-67 (2d Ed. 1972). . 486 P.2d at 54 n. 5. . See notes 6 and 7 supra. . In Inman v. Clyde Hall Drilling Co., 369 P.2d 498, 500 (Alaska 1962), this court stated:

10408616

STATE of Alaska, Appellant, v. Travis Dean WILLIAMS, Appellee

State v. Williams

1985-08-02

No. 6025

219

226

704 P.2d 219

704

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:21:28.159013+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

STATE of Alaska, Appellant, v. Travis Dean WILLIAMS, Appellee.

STATE of Alaska, Appellant, v. Travis Dean WILLIAMS, Appellee. No. 6025. Court of Appeals of Alaska. Aug. 2, 1985. David Mannheimer, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellant. David J. Schmid, Kay, Christie, Saville and Coffey, Anchorage, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

4628

28590

OPINION PER CURIAM. The United States Constitution and the Alaska Constitution each provide that no person shall be twice put in jeopardy for the same offense. U.S. Const, amend. Y; Alaska Const, art. 1, § 9. In this case, the trial court dismissed an indictment for tampering with evidence against Travis Dean Williams, who had been acquitted of first-degree murder in connection with the same incident. The double jeopardy protection afforded by the Alaska Constitution requires this result. A majority of the court holds that article 1, section 9 of the Alaska Constitution incorporates the approach to serial prosecutions set forth in Model Penal Code § 1.07(2) (Proposed Official Draft 1962). The trial court's ruling dismissing the tampering prosecution against Williams is AFFIRMED. _ COATS, J., BRYNER, C.J., and SINGLETON, J., concur.

10417977

George Larry GARROUTTE, Appellant, v. STATE of Alaska, Appellee

Garroutte v. State

1984-05-18

No. 7457

262

269

683 P.2d 262

683

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:21:41.023872+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

George Larry GARROUTTE, Appellant, v. STATE of Alaska, Appellee.

George Larry GARROUTTE, Appellant, v. STATE of Alaska, Appellee. No. 7457. Court of Appeals of Alaska. May 18, 1984. Kevin F. McCoy, Asst. Public Defender, Kenai, and Dana Fabe, Public Defender, Anchorage, for appellant. Richard W. Maki, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3497

22106

OPINION BRYNER, Chief Judge. George Larry Garroutte was charged by indictment with one count of theft by taking in the second degree and one count of theft by receiving in the second degree. AS 11.46.100(1); AS 11.46.130(a)(1); AS 11.-46.190. Following a jury trial, Garroutte was convicted of theft by receiving and acquitted of theft by taking. Superior Court Judge Seaborn J. Buckalew sentenced Garroutte to serve four years in prison. Garroutte appeals, contending that the trial court improperly excluded a statement against penal interest made by his co-defendant, Richard Snyder, In addition, Garroutte argues that the court erred in admitting evidence that guns were found in a truck driven by Garroutte and Snyder on the night of the offense and in denying Garroutte's motion for a new trial. Gar-routte also argues that his sentence is excessive. We affirm Garroutte's conviction, but remand for amendment of the sentence. FACTS On the night of April 7, 1982, an Alaska State Trooper stopped a blue pickup truck traveling towards Anchorage on the Parks Highway near Wasilla. George Garroutte was driving the truck, and Richard Snyder was in the passenger's seat. A large quantity of heavy electrical cable was in the bed of the truck. The trooper arrested Snyder on an outstanding federal warrant for a parole violation. Garroutte was cited for driving while his license was suspended. Since no one was left to drive the truck, it was impounded. A routine inventory search later disclosed two loaded handguns, one under the driver's seat and the other under the passenger's seat. On the next morning, troopers received a report that approximately 500 feet of electrical cable had been stolen during the night from a gravel pit operated by the M.B. Construction Company near Wasilla. Investigation confirmed that the cable in the impounded pickup truck was stolen from the M.B. Construction Company. Garroutte and Snyder were subsequently charged with the theft. Snyder eventually entered a plea of guilty to the charge. Jay Seymore, the probation officer assigned to write Snyder's presentence report, interviewed Snyder prior to his sentencing hearing. Snyder admitted stealing the cable .but told Seymore that he had been assisted by Gregory Hayes and that Garroutte was innocent of the offense. Seymore included a summary of Snyder's statement in his presentence report. Garroutte was tried after Snyder had already been sentenced. At Garroutte's trial, the state attempted to call Snyder as a witness. Despite offers of state and federal immunity, and despite a finding of contempt by the court, Snyder refused to testify. Based on Snyder's unavailability as a witness, Garroutte offered to call Sey-more as a witness to testify about Snyder's statement to Seymore, which exculpated Garroutte. Judge Buckalew ruled that the statement was hearsay and was not within any exception to the hearsay rule. He therefore excluded it. EXCLUSION OF EXCULPATORY EVIDENCE 1. Statement Against Penal Interest Garroutte contends that testimony of Snyder's statement to Seymore should have been admitted because it fell within the hearsay exception for statements against penal interest. Alaska Rule of Evidence 804(b)(3) provides: (b) Hearsay Exceptions. The following are not included by the hearsay rule if the declarant is unavailable as a witness: (3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. [Emphasis added.] Although this rule has not previously been interpreted in Alaska, Federal Rule of Evidence 804(b)(3), which is virtually identical, has received considerable attention. The federal cases generally require that three criteria be met before evidence of a statement against penal interest can be admitted to exculpate the accused in a criminal trial: To be admissible under [Federal Rule of Evidence] 804(b)(3), a statement must meet three tests: the declarant's testimony must be unavailable; the statement must so far tend to subject the declarant to criminal liability "that a reasonable man in his position would not have made the statement unless he believed it to be true"; and the statement, if offered to exculpate the accused, must be corroborated by circumstances clearly indicating its trustworthiness. United States v. Thomas, 571 F.2d 285, 288 (5th Cir.1978). See also United States v. MacDonald, 688 F.2d 224, 232-33 (4th Cir.1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983). In the present case, no question of unavailability is presented. Judge Buckalew found that Snyder was unavailable by virtue of his refusal to testify, and this finding has not been challenged by the state. There is a substantial question, however, whether Snyder's statement was against his penal interest and whether it was adequately corroborated. Snyder's statement that Garroutte was not involved in the theft was not, standing alone, against Snyder's interest. The portion of Snyder's statement that exculpated Garroutte can be deemed to be against Snyder's penal interest only if it is read in conjunction with the portion of the statement in which Snyder personally admitted guilt. There is authority holding that a statement exculpating another person may be deemed to be against the penal interest of the declarant when the exculpatory statement is an integral part of a confession or when it creates an inference that the declarant was the guilty party. See, e.g., United States v. Thomas, 571 F.2d at 288; United States v. Goodlow, 500 F.2d 954, 956 (8th Cir.1974). Here, the portion of Snyder's statement that exculpated Gar-routte was closely connected to his statement admitting guilt and implicating Hayes. Nevertheless, because Snyder's admission of guilt to Seymore occurred after Snyder had already entered a plea of guilty to the theft, it is difficult to view the admission as one that would actually have exposed Snyder to additional criminal liability. As the state correctly notes, Snyder's candid admission of guilt to his presentence probation officer might actually have worked to his benefit at sentencing. Garroutte argues that the exculpatory portion of Snyder's statement could have resulted in a harsher sentence if the statement was determined to be false. While this argument may be correct, the extent to which the statement exposed Snyder to liability is attenuated by the strong possibility that the statement would not be determined to be false. Snyder's admission was not, on its face, contrary to his penal interest when made. The likelihood that the truthfulness of the statement could not be ascertained prior to Snyder's sentencing makes it doubtful whether Snyder would reasonably have been deterred from making a false statement to Seymore. There is, however, sound authority for the proposition that Evidence Rule 803(b)(3) should be construed broadly in determining whether a statement meets the requirement of being against penal interest: If Congress had wanted courts to take a restrictive approach to whether a statement is against penal interest, it would not have chosen "the broadly worded phrase 'tended to subject' " in Rule 804(b)(3). United States v. Benveniste, 564 F.2d 335, 341 (9th Cir.1977). United States v. Satterfield, 572 F.2d 687, 691 (9th Cir.), cert. denied, 439 U.S. 840, 99 S.Ct. 128, 58 L.Ed.2d 138 (1978). See also United States v. Thomas, 571 F.2d at 288. It should nonetheless be recognized that an out-of-court statement exposing the declar-ant to only a slight possibility of prosecution or punishment will tend to be less trustworthy; this factor may in turn be considered in determining the extent of corroboration necessary to meet the requirements of Rule 804(b)(3). See United States v. Satterfield, 572 F.2d at 691. Because we believe that Snyder's statement to Seymore was not adequately corroborated, we will assume that it tended to expose him to a sufficient threat of criminal liability to satisfy the requirement of being against penal interest. In considering the issue of corroboration, federal courts have consistently emphasized that under Evidence Rule 803(b)(3), corroboration will be deemed sufficient only if it clearly indicates the trustworthiness of an out-of-court statement exculpating the accused. See United States v. Satterfield, 572 F.2d at 693; United States v. Alvarez, 584 F.2d 694, 701 (5th Cir.1978); United States v. Bagley, 537 F.2d 162, 167 (5th Cir.1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 816, 50 L.Ed.2d 794 (1977). Garroutte argues that Snyder's statements are corroborated by evidence indicating that Garroutte made statements shortly after the offense asserting his own innocence. He also claims that corroboration is provided by evidence that he was injured and incapable of lifting heavy electrical cable at the time of the offense. We do not find these arguments persuasive. Garroutte's own professions of innocence are obviously self serving, and while they might establish lack of recent fabrication, they do little to enhance the credibility of Snyder's out-of-court statement. Evidence of Garroutte's injuries also fails to provide significant corroboration. As indicated by Garroutte's conviction of theft by receiving instead of theft by taking, it is entirely possible that he was not directly involved in loading the stolen cable into the pickup truck. Nothing in the evidence at trial precluded the possibility that Snyder and Garroutte were assisted by others. Moreover, testimony indicated that the stolen electrical cable could have been loaded into the truck by one person. The weakness of the corroborating evidence in this case is further underscored by the circumstances indicating that Snyder's statement to Seymore might have been fabricated. As we have already noted, the fact that Snyder's statement was only marginally against his penal interest bears directly on its trustworthiness. Snyder's statement was not spontaneous, and circumstances suggest that Snyder might have been highly motivated to give his probation officer a false story. As an integral part of his statement, Snyder claimed that Gregory Hayes had helped him to steal electrical cable. At the time Snyder made this claim, however, he was well aware that Hayes was the person who had provided authorities with information that led to his arrest and that Hayes had testified against both Snyder and Garroutte before the grand jury. The corroboration requirement of Evidence Rule 804(b)(3) recognizes a significant risk that out-of-court statements purporting to exculpate the accused in a criminal proceeding may be unreliable. The commentary to the rule states: When [a statement against penal interest] is offered by the accused by way of exculpation, the resulting situation is not adapted to control by rulings as to the weight of the evidence, and hence the provision [Rule 804(b)(3) ] is cast in terms of a requirement preliminary to admissibility. Cf, Rule 104(a). The requirement of corroboration should be construed in such a manner as to effectuate its purpose of circumventing fabrication. Evidence Rules Commentary at 256-57. Here, when we consider the evidence in its entirety, we cannot conclude that there are corroborating circumstances clearly indicating the trustworthiness of Snyder's statement. Accordingly, we hold that Judge Buckalew did not err in excluding evidence of the statement at trial. See United States v. Satterfield, 572 F.2d at 693. 2. Violation of Due Process Garroutte separately argues that exclusion of Snyder's statement violated his constitutional right to due process of law. He relies on Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In Chambers, the United States Supreme Court held that the due process clause was violated by mechanical application of a state law excluding statements against penal interest. The court reversed the defendant's conviction because he had been precluded from admitting an out-of-court statement that "afforded persuasive assurances of trustworthiness" and was "well within the basic rationale of the exception for declarations against interest." Chambers, 410 U.S. at 302, 93 S.Ct. at 1049, 35 L.Ed.2d at 313. The standards of admissibility prescribed by Evidence Rule 804(b)(3) parallel the constitutional mandate of Chambers. United States v. MacDonald, 688 F.2d at 232 n. 13. Our holding that Snyder's statement was not clearly corroborated therefore controls Garroutte's constitutional claim. DENIAL OF MOTION FOR NEW TRIAL After conclusion of his trial, Garroutte moved for a new trial based on newly discovered evidence. He submitted an affidavit indicating that Snyder was no longer reluctant to be a witness and was willing to provide testimony exculpating Garroutte. Judge Buckalew denied Garroutte's motion. In refusing to grant a new trial, Judge Buckalew commented that Snyder's testimony was unlikely to change the outcome of Garroutte's case. The standard applicable to motions for new trial based on newly discovered evidence was described by the supreme court in Salinas v. State, 373 P.2d 512, 514 (Alaska 1961): A motion for a new trial based on the ground of newly discovered evidence has to meet the following requirements: (1) It must appear from the motion that the evidence relied on is, in fact, newly discovered, i.e., discovered after the trial; (2) the motion must allege facts from which the court may infer diligence on the part of the movant; (3) the evidence relied on must not be merely cumulative or impeaching; (4) must be material to the issues involved; and (5) must be such as, on a new trial, would probably produce an acquittal. [Footnote omitted.] In this case, Snyder's belated willingness to testify does not amount to new evidence. "When a defendant who has chosen not to testify subsequently comes forward to offer testimony exculpating a co-defendant, evidence is not 'newly discovered.' " United States v. Diggs, 649 F.2d 731, 740 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981). Furthermore, in view of the lack of significant evidence to corroborate Snyder's statement and the strong possibility that the statement was motivated by Snyder's desire for revenge against Hayes, we find that Judge Buckalew did not abuse his discretion in concluding that an acquittal would be unlikely even if Snyder testified at a new trial. See United States v. Metz, 652 F.2d 478, 480-81 (5th Cir.1981); State v. Anderson, 499 P.2d 169, 170-71 (Ariz.App.1972). ADMISSIBILITY OF EVIDENCE OF FIREARMS Over Garroutte's objection, the state was permitted to present evidence that two loaded handguns were found under the seat of the pickup truck that Garroutte was driving on the night of the offense. Gar-routte argues that this evidence was irrelevant. We disagree. Garroutte's defense at trial was based on lack of knowledge. Garroutte testified that he was unaware that the stolen cable was in the bed of the pickup truck. According to Garroutte, Snyder had given him a ride in the truck shortly before it was stopped. We believe that evidence concerning the presence and location of the two loaded guns that were found in the cab of the pickup tended to undercut Gar-routte's defense by indicating that he was not simply a casual occupant of the truck. The guns further support the state's theory that Snyder and Garroutte were using the truck to commit the theft. While this evidence certainly does not conclusively establish a criminal purpose on the part of Snyder and Garroutte, under Alaska Rule of Evidence 401 the evidence need only have had a slight tendency to show the existence of a criminal purpose in order to be considered relevant. See Byrne v. State, 654 P.2d 795, 795-96 (Alaska App. 1983); Denison v. Anchorage, 630 P.2d 1001, 1003 (Alaska App.1981). Particularly in light of Garroutte's defense, we hold that the evidence of the guns was relevant and that Judge Buckalew did not abuse his discretion in admitting it. SENTENCING Judge Buckalew found that Garroutte was subject to presumptive sentencing because of a 1972 conviction for receiving and concealing stolen property. Former AS 11.20.350. Although Garroutte had an extensive history of prior convictions, including numerous felonies, the 1972 conviction was the only felony within the seven-year limit applicable for purposes of triggering presumptive sentencing. See AS 12.55.-145(a)(1). Prior to sentencing, Garroutte objected to the use of his 1972 conviction for presumptive sentencing purposes. He argued that since the statute under which he had been convicted of receiving and concealing stolen property did not require proof of value, the elements of that offense were not substantially identical to any felony under current Alaska law. Thus, Gar-routte contended that his 1972 conviction could not properly be deemed to be a prior felony conviction under AS 12.55.145(a)(2). After hearing argument on the issue, Judge Buckalew found that the actual value of the stolen property involved in Gar-routte's 1972 conviction exceeded $500, the jurisdictional minimum for felony theft under current law. See AS 11.46.130(a)(1). On this basis, Judge Buckalew concluded that Garroutte's 1972 felony qualified as a prior conviction for presumptive sentencing purposes. Garroutte contends that this ruling was in error. In Lee v. State, 673 P.2d 892, 895 (Alaska App.1983), we decided that, under AS 12.55.145(a)(2), a criminal conviction entered under prior Alaska law or under the law of another jurisdiction may be deemed to be a prior felony conviction for presumptive sentencing purposes only if the offense for which the prior conviction was entered had elements substantially identical to those of a felony under current Alaska law. See also Wasson v. State, 652 P.2d 117, 119 (Alaska App.1982). Since the elements of the receiving and concealing statute under which Garroutte was convicted in 1972 did not require proof of value, that offense differed substantially from current law and does not qualify as a prior felony conviction. Accordingly, Judge Buckalew erred in imposing a presumptive sentence based on Garroutte's 1972 conviction. Although we conclude that Judge Buckalew improperly sentenced Garroutte to a presumptive term and that a remand for imposition of a non-presumptive sentence is necessary, we do not believe that a new sentencing hearing will be required upon remand. Garroutte has a lengthy history of misdemeanor and felony convictions. Although his felony convictions do not qualify to trigger presumptive sentencing, they are highly relevant to his sentence in this case and could properly be considered by the sentencing court. See Lee v. State, 673 P.2d at 895; Peetook v. State, 655 P.2d 1308, 1312 (Alaska App.1982). Garroutte was subject to a maximum sentence of five years for this offense. In choosing to impose a four-year sentence, Judge Buckalew carefully considered the circumstances of the present case, as well as Garroutte's history of similar criminal misconduct. Judge Buckalew found that Garroutte was very close to being a worst offender. He further found that there appeared to be little prospect for Garroutte's rehabilitation. We think these findings are supported by the record. Judge Buckalew also gave careful consideration to all appropriate sentencing criteria. See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1971). It is evident from his sentencing remarks that Judge Bucka-lew believed the four-year term he imposed would be justified regardless of the requirements of presumptive sentencing. We are convinced that a remand for a new sentencing hearing would merely result in reimposition of a non-presumptive four-year term. Our consideration of the sentencing record further convinces us that Garroutte's four-year sentence was not clearly mistaken, except insofar as it was presumptively imposed. We thus conclude that the superior court should not be required to hold a full new sentencing hearing in this case. Instead, we believe that, on remand, the superior court should have the option of entering an amended judgment imposing a non-presumptive four-year term of imprisonment. See Tookak v. State, 680 P.2d 509 (Alaska App.1984). We AFFIRM the conviction and REMAND this case for entry of an amended judgment imposing a non-presumptive sentence. . The record indicates that Gregory Hayes was an acquaintance of both Garroutte and Snyder. At the time of the offense, Garroutte rented a room from Hayes at Hayes's home. Hayes was apparently aware of the federal warrant that had been issued for Snyder, and, several weeks prior to the offense, he had informed a federal probation officer that Snyder could be located in the Wasilla area. On the night of the offense, Hayes provided information to the Alaska State Troopers that led to Snyder's arrest. Hayes subsequently testified before the grand jury that indicted Snyder and Garroutte. . Our decision does not preclude the superior court from exercising discretion to permit a full new sentencing hearing upon remand, should it deem such a hearing to be appropriate. Nor does our decision restrict Garroutte's right to seek reduction of his sentence pursuant to Criminal Rule 35(a).

10418235

William O'SHEA, Appellant, v. STATE of Alaska, Appellee

O'Shea v. State

1984-06-15

No. 7257

286

290

683 P.2d 286

683

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:21:41.023872+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

William O’SHEA, Appellant, v. STATE of Alaska, Appellee.

William O’SHEA, Appellant, v. STATE of Alaska, Appellee. No. 7257. Court of Appeals of Alaska. June 15, 1984. Jeffrey F. Sauer, Asst. Public Defender, Kenai, and Dana Fabe, Public Defender, Anchorage, for appellant. John A. Scukanec, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1677

10637

OPINION BRYNER, Chief Judge. William O'Shea appeals from an order revoking his probation and imposing a previously suspended seven-year sentence. O'Shea contends that the superior court lacked authority to reimpose the suspended sentence because his probation had expired. O'Shea originally pled guilty in September of 1976 to two counts of forgery. Former AS 11.25.020. In February of 1977, Superior Court Judge James A. Hanson sentenced O'Shea to seven years' imprisonment, all of which was suspended. As a condition of the suspended sentence, O'Shea was required to complete five years' probation. His probation was scheduled to expire on February 24, 1982. Approximately six months later, in September of 1977, the state filed a petition to revoke O'Shea's probation, which alleged that he had left a drug rehabilitation program without permission and that his whereabouts were unknown. In February of 1978, O'Shea was convicted in Oregon for felony theft and sentenced to five years' imprisonment. O'Shea was subsequently released on parole in Oregon; during 1979 and 1980 his Oregon parole was revoked at least twice for reasons that are not clear from the record. In April of 1981, O'Shea was again paroled in Oregon and he returned to Alaska. Following O'Shea's return, the Alaska petition to revoke his probation, which had been outstanding since September of 1977, was amended to include an allegation that he had violated the conditions of his probation by committing theft in Oregon. On June 23, 1981, O'Shea appeared be- ' fore Judge Hanson for a probation revocation hearing. Based on the violations alleged in the petition, Judge Hanson extended O'Shea's probation for a two-year period, until February 24, 1984. Eight months later, in February of 1982, O'Shea again left Alaska without permission and returned to Oregon. A new petition to revoke probation was filed. The following month, O'Shea was convicted of misdemeanor theft in Oregon. After serving his sentence in Oregon, he returned to Alaska. The Alaska petition to revoke O'Shea's probation was amended in May of 1982 to include the misdemeanor theft conviction. O'Shea then filed a motion to dismiss the amended petition, contending that the petition; charged him with violations that occurred after his probation had legally expired. O'Shea argued that the court had had no authority to extend his probation from February of 1982 to February of 1984. At a probation revocation hearing in June of 1982, Judge Hanson denied O'Shea's motion to dismiss the petition. Judge Hanson found that the petition alleged a violation that had occurred during O'Shea's original term of probation. The judge also found that, because O'Shea had agreed to the two-year extension of probation in June of 1981, he was barred from claiming that his probation had expired. After Judge Hanson denied O'Shea's motion to dismiss, O'Shea entered admissions to the allegations in the amended petition. In September of 1982, over O'Shea's continuing objection, Judge Hanson revoked O'Shea's probation and sentenced him to serve seven years in prison with two years suspended. On appeal, O'Shea contends that, under AS 12.55.090(c), the maximum period of probation he could be required to serve was five years. He thus claims that his probation expired on February 24, 1982, five years after his original sentencing date. O'Shea maintains that the superior court lacked jurisdiction to extend his original probation by two years because of the five-year limitation. Accordingly, O'Shea argues that the court lacked jurisdiction to revoke his probation. AS 12.55.090 states: Granting of probation, (a) Probation may be granted whether the crime is punishable by fine or imprisonment or both. If a crime is punishable by both fine and imprisonment, the court may impose a fine arid place the defendant on probation as to imprisonment. Probation may be limited to one or more counts or indictments, but, in the absence of express limitation, shall extend to the entire sentencing and judgment. (b) The court may revoke or modify any condition of probation, or may change the period of probation. (c) The period of probation, together with any extension, shall not exceed five years. [Emphasis added.] The state concedes that under AS 12.55.090(c), O'Shea could not properly be subjected to a total term of probation exceeding five years. The state's concession appears to be well-founded. See, e.g., Gonzales v. State, 608 P.2d 23, 26 (Alaska 1980) (holding that AS 12.55.090(c) precluded consecutive imposition of probationary terms exceeding five years for two related offenses). We therefore accept the concession and hold that, regardless of O'Shea's consent, the superior court could not properly require more than five years of probation. Our acceptance of the state's concession does not mean that Judge Hanson lacked authority to extend O'Shea's probation or that O'Shea's original five-year term of probation expired on February 24, 1982. The state argues that O'Shea's unauthorized absence from probation tolled the running of his probationary term. We conclude that the state's position is meritorious. No Alaska statute expressly provides that a probationer's unauthorized absence from supervision tolls a term of probation. However, AS 12.55.025(c) states that "[t]he time during which a defendant is voluntari ly absent from official detention after he has been sentenced may not be credited toward service of his sentence." While this provision is not directly applicable to periods of probation imposed under AS 12.-55.090, we believe it is helpful in interpreting the probation statute. The five-year limitation of probation specified in AS 12.55.090(c) is identical to the time limit imposed under the analogous federal probation statute, 18 U.S.C. § 3651. The Alaska Supreme Court has recognized that federal decisions construing § 3651 constitute persuasive authority for interpretation of Alaska's probation statute. See Gonzales v. State, 608 P.2d at 26 n. 6; Jackson v. State, 541 P.2d 23, 25 (Alaska 1975). Federal courts have consistently held that a period of probation imposed under 18 U.S.C. § 3651 is tolled when a probationer is imprisoned for another crime. For example, in United States v. Workman, 617 F.2d 48, 51 (4th Cir.1980), the court held: The calculation of the five-year limitation [under 18 U.S.C. § 3651] has been the subject of considerable litigation. The unifying principle implicit in the resulting decisions is that a probationer can not obtain credit against the five-year period for any period of time during which he was not, in fact, under probationary supervision by virtue of his own wrongful act. The focus has been on whether the probationer's wrongful act resulted in the termination of probationary supervision, rather than on a simple, mathematical computation of five years from the date the probationary term began. Consequently, in computing the five-year period courts have excluded the time period during which a probationer is imprisoned on an unrelated offense . See also United States v. Rodriguez, 682 F.2d 827, 829-30 (9th Cir.1982) (prison term due to probation violations tolls the five-year probationary period). In Gillespie v. State, 17 Wash.App. 363, 563 P.2d 1272, 1274-75 (1977), the Washington Court of Appeals expressly held that a statute similar to AS 12.55.080 was tolled by the defendant's unauthorized absence from the state. The court stated: Because Gillespie failed to report to the probation authorities and absconded supervision, the period until he returned from North Carolina on December 21, 1974 should not count as part of his probationary period. Probation is an act of judicial grace or lenience motivated in part by the hope that the offender will become rehabilitated. To achieve this goal, the probationer must remain within the jurisdiction of the court that retains control over him and must subject himself to probation supervision, as directed by the court and the Board of Prison Terms and Paroles. [Citations omitted.] We believe that the holding of the court in Gillespie and the reasoning of the federal decisions interpreting 18 U.S.C. § 3651 are highly persuasive. Accordingly, we hold that the five-year time limit for probation under AS 12.55.090(c) is suspended when a probationer terminates supervision by leaving the state without permission or by severing contacts with supervising authorities. In the present case, the record establishes that O'Shea left the drug rehabilitation program in which he was required to participate at some time prior to September 23, 1977, and severed contacts with the probation department. While the precise date of O'Shea's return to supervision is unclear from the record, it is clear that, prior to reestablishing contact, he left Alaska without permission and remained outside the state at least through April of 1981, when he was released on parole in Oregon. O'Shea's five-year period of probation, which was originally scheduled to expire on February 24, 1982, was thus tolled for a period of more than two years. Thus, the order entered by Judge Hanson on June 23, 1981, extending O'Shea's probation two years beyond February 24, 1982, did not violate the five-year limit on O'Shea's probation. Even if Judge Hanson had not expressly extended O'Shea's probation for two years, the tolled period resulting from O'Shea's unauthorized absence would have subjected him to continued supervision for at least two years beyond the original expiration date. Accordingly, we hold that O'Shea remained on probation and under the jurisdiction of the superior court when the amended probation revocation petition was filed in May of 1982. The judgment of the superior court is AFFIRMED. . We need not decide whether or to what extent statutes of limitation for criminal conduct would apply to cases involving probation violations. This issue has not been briefed or argued, and it appears that application of these provisions would not alter the result in this case. See AS 12.10.010 (prosecution for a crime must commence within five years of the prohibited act); AS 12.10.040 (limitation period tolled for a maximum of three years if defendant is a fugitive from justice).

10361568

Michael ALEXANDER, Appellant, v. STATE of Alaska, Appellee

Alexander v. State

1992-08-21

No. A-2764

269

276

838 P.2d 269

838

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

Before COATS, J., and ANDREWS and WOLVERTON, Superior Court Judges.

Michael ALEXANDER, Appellant, v. STATE of Alaska, Appellee.

Michael ALEXANDER, Appellant, v. STATE of Alaska, Appellee. No. A-2764. Court of Appeals of Alaska. Aug. 21, 1992. Rehearing Denied Oct. 23, 1992. James M. Hackett, Fairbanks, for appellant. John A. Scukanec, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before COATS, J., and ANDREWS and WOLVERTON, Superior Court Judges. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

4519

27982

COATS, Judge. A jury convicted Michael Alexander of first-degree murder and kidnapping. AS 11.41.100(a)(1); AS 11.41.300(a)(1). Superi- or Court Judge Jay Hodges sentenced Alexander to the maximum ninety-nine-year sentence on each conviction, imposed these sentences consecutively, and ordered that Alexander would not be eligible for parole. Alexander appeals his conviction and sentence. We affirm. K.S., a West Valley High School student, left her Fairbanks, Alaska home around 8:45 p.m. on March 23, 1987, to return to nearby West Valley High to retrieve a book from her locker. K.S. never returned home. K.S.'s parents found the family automobile in the West Valley High parking lot with the engine running and the keys in the ignition. The body of the young girl was found on the outskirts of Fairbanks on March 24, 1987, around 11:30 p.m., lying in the snow on the side of Springer Road. After a much publicized police investigation which had concentrated on several key suspects, Alaska State Troopers (AST) arrested appellant Michael Alexander. At trial, the state relied heavily on blood, hair, fiber, and glitter evidence to link Alexander to K.S.'s body. Jeff Dayton testified that he found the decedent's body at about 11:30 p.m. on March 24, 1987. Trooper Richard Smith testified that he responded to the scene after midnight and photographed tire marks and footprints. Forensic pathologist Michael T. Propst estimated decedent's death at about 2:00 a.m. on March 24,1987. Based on lividity patterns, Propst opined that the victim had been placed on her back and then later moved and placed face down. AST Investigator James McCann explained the importance of trace evidence which is transferred to and from the crime scene; testified that there was no evidence of a struggle at the scene of the abduction; stated that, when he arrived at the Springer Road location, decedent's body had not yet assumed the temperature of the scene; noted that there was a fingerprint on the victim's shoe that was never identified; and testified that he observed glitter-like material on the decedent's body. Through Investigator McCann, the state played recordings of interviews in which Alexander told police that he had been sitting in his car the night K.S. was abducted, that he had witnessed some people put her into a red car as she screamed, and that he then went to a Denny's restaurant without reporting the incident to the police. The state introduced evidence of stains found on decedent's underpants. FBI Ser-ologist Mark Babyak testified that semen stains on K.S.'s undergarments had the presence of both A and H factors in two stains, consistent with a person having type A blood and being a secretor; Agent Babyak testified that Alexander was type A and a secretor. Babyak further stated that he found dried stains with the H factor alone, consistent with a person having type O blood and being a secretor. While he did not know whether K.S. was a se-cretor, Agent Babyak testified that she had type O blood. Babyak testified that in the five stains with only H factors, the H factor came either from the victim or from the semen of an O-type secretor. However, the agent also stated that the stains with A-type factors had to have come from someone with type A blood and could not have come from someone, like the victim, with type O blood. Several law enforcement officers testified regarding seizures of hair, fiber, fabric, glitter, debris, and other trace evidence from Alexander's car and two of his residences. Alexander's estranged wife, Darla, testified that she surrendered several bottles of glitter to police which had been in the family residence for use by the children during the time Alexander lived there. Toni Harris described furniture and chattels she had helped Alexander move from his family residence to another apartment. FBI Agent Robert Webb testified as a polymer expert that glitter particles found on the decedent's body and clothing, and the medical examiner's sheets, were "identical" or "consistent" with the glitter samples surrendered by Darla Alexander. FBI Agent Chester Blythe testified as a hair and fiber expert that two head hairs and a pubic hair found on the decedent's clothing were "consistent with having come from [Alexander]." He testified that it was rare, but not impossible for a person to have head hair which matched another person and also to have pubic hairs which matched the same person. Blythe testified that he found fibers on the decedent which were "the same," "identical," or were consistent with samples taken from Alexander's car and his couch. Blythe also found hair fragments on the victim, too small for comparison, consistent with African-American hair types. Alexander is African-American. Thomas Wickham, the manager of the Mom & Pop's grocery store near the school and Alexander's employer, testified that Alexander's time card showed that Alexander did not clock in on March 23 (the day K.S. disappeared) and that Alexander had worked from 1:30 to 2:30 p.m. on March 24 (the day the body was found). The defense strategy at trial was to establish or suggest a nearly complete alibi, that the physical evidence was inconclusive, and that someone else — possibly another suspect such as Robert M. or Bob H. — had committed the crimes but the police had accused Alexander in a rush to close the case. Two defense witnesses stated that they drove down Springer Road at 7:30 and 9:30 p.m., respectively, on the evening of March 24, and saw no body on the roadside. Two additional witnesses testified that between 10:00 p.m. and midnight on March 24 they saw a Caucasian man along the side of Springer Road in the area where the body was later found. Burbie Robar testified that, at some time after 9:00 p.m. on the night of March 24, she had to swerve to avoid hitting a Caucasian man who was alongside a dark car parked on the shoulder of Springer Road in the area where' the body was discovered. She stated that the man was carrying something that appeared to be a large, red, wet bundle — possibly something wrapped in a blanket or sleeping bag. Trooper Carol Solomon testified for the defense that she had seen the vehicle of another suspect in the case, Robert M., in the area at around 11:00-11:30 p.m. that same night. Robar was unable to identify Robert M., a Caucasian, as the man she had seen alongside Springer Road. Alexander called witnesses to establish his whereabouts on the night of March 23 and 24. Gilbert Somers testified that he had seen Alexander at the Mom & Pop's on March 23 between 7:00 and 8:00 p.m. and believed that he recalled Alexander saying something about meeting someone later at a Denny's restaurant. Arthur Fournier, an employee of Mom & Pop's and a classmate of the victim, testified that Alexander was in the store between 7:00 and 8:00 p.m. on March 23 and that it was not unusual for Alexander to be around when he was not scheduled to work. On March 24, according to Fournier, Alexander was working at Connie's Music Studio at about 10:00-11:00 p.m. Fournier stated he talked to Alexander from approximately 11:00 p.m. until midnight. Tonya Brownlie testified that Alexander helped her lockup her salon, located next to Mom & Pop's, at about 10:00 p.m. on March 24. Pastor Robert Eason testified that he saw Alexander at Mom & Pop's during the evening of March 23 and at noon on March 24. He further testified that, on the night of March 24, Alexander came to his wife's shop, Connie's Music Studio, and helped paint. Pastor Eason testified that Alexander was with him at the studio from about 9:00-10:00 p.m. until 3:30-3:45 a.m. the next day. Eason's wife also testified that she had seen Alexander at the studio at about 10:00 or 11:00 p.m. on March 24. Pastor Eason testified that when the police arrested Alexander he was present, and, when they interviewed Eason and he related being with Alexander on March 24, the police called him a liar and "got real upset." The defense called AST Investigator Paul Bartlett. Bartlett testified that, al though he made tire and footprint impressions at the West Valley High parking lot and the Springer Road location, he was unable to link any impressions to Alexander. He also stated that he had, at one point, concentrated the investigation on Robert M. and accused Robert M. of murdering the victim. Robert M. and Bob H. were called by the defense. Both men described being accused by the police of involvement in the murder and having been subject to intense police scrutiny. Timothy Gilbert testified that police told him that they had "good evidence" against Robert M., that he wore a wire to record conversations with Robert M., and that Robert M. asked him to fabricate an alibi for him for the night of March 23. Both Robert M. and Bob H. denied any involvement in the crimes. Defense investigator Robert Nearing testified that it took 35 minutes to travel 28 miles, one way, from Alexander's residence to the Springer Road location. He further testified that the 32.8 miles from the high school to the Springer Road site took 45 minutes to drive at the speed limit. Benjamin Smith, a West Valley High student, testified that he left the parking lot area (where the victim's car was later found) at 9:30 p.m. on March 23 but that K.S.'s car was not in the lot at that time. The state called Amy Voigt, as a rebuttal witness, to testify that she saw K.S.'s car in the lot at about 8:50 p.m. on March 23 when she picked her sisters up at West Valley High. The defense argued that, in their rush to close the case, the police had accused the wrong person and that, based on the testimony of the witnesses who testified that Alexander was with Eason the night of March 24, it was impossible for Alexander to have dumped K.S.'s body on Springer Road. The jury rejected the defense theory and convicted Alexander of kidnapping and first-degree murder. Alexander first contends that Judge Hodges erred in denying his motion for a change of venue from Fairbanks. The state concedes that Fairbanks' media covered the K.S. murder and investigation extensively. Local newspaper articles commented on the purported strength of the case against Alexander, reported the existence of forensic evidence, and discussed Alexander's prior criminal record. Alexander claims that Judge Hodges erred in not allowing him the opportunity to show, in a pretrial hearing, that there was a substantial likelihood that he could not receive a fair trial in Fairbanks. The right to an impartial jury is guaranteed by the sixth amendment to the U.S. Constitution and article 1, § 11 of the Alaska Constitution. Alaska Statute 22.-15.080(1) permits the trial court to change the venue of a trial when "there is reason to believe that an impartial trial cannot be had." In Wylie v. State, we stated: Generally, criminal trials should be held where the alleged offense occurred. Nevertheless, the trial court has discretion to change venue where necessary to ensure a fair trial. The general rule is that jury selection should be commenced in the venue of the crime and then moved only if voir dire reveals that an impartial jury cannot be obtained. 797 P.2d 651, 656 (Alaska App.1990) (citations omitted). In Chase v. State, we stated that: "[A] trial judge will seldom be found to have abused his discretion in denying a motion for change of venue prior to jury voir dire." 678 P.2d 1347, 1350 (Alaska App.1984). The Chase decision quoted from Mallott v. State: Whether pretrial publicity is so prejudicial and so pervasive that no such jury could be selected to try a particular case in a particular locale is a determination that is exceedingly difficult to make prior to the questioning of potential jurors. Therefore almost without exception trial courts have been permitted the discretion to rely on voir dire rather than their own speculation as to the impact of pretrial publicity. 608 P.2d 737, 746 (Alaska 1980). It is therefore clear that Judge Hodges did not abuse his discretion in conducting a voir dire examination to attempt to select an impartial jury in Fairbanks. From the record, it does not appear that there is any reason to conclude that the jury which tried Alexander was other than impartial. In the instant case, of the thirty-one people the attorneys questioned, Alexander challenged only one prospective juror for cause related to pretrial publicity; the challenge was granted. The parties agreed to release another person due to his exposure to the case and his feelings about it. Alexander did not challenge any of the selected jurors for cause, and did not request additional peremptory challenges. Alexander individually and privately questioned each prospective juror extensively about what they might know about the case, the victim, the defendant, and the witnesses. The selected jurors all stated that they had only heard or read basic background and rumor about the case and were not acquainted with the specifics of the case or the details of the accusations. After selecting a jury, Alexander did not renew his motion for a change of venue. When a defendant does not renew his motion to change venue after jury voir dire, the failure to renew the motion is considered to be an "apparently deliberate waiver" of the motion to change venue. Mallott, 608 P.2d at 748; Wylie, 797 P.2d at 656. We note that although Alexander has contended that his attorney did not adequately represent him in other respects, he has not alleged that his trial attorney erred in failing to renew the motion for change of venue. Indeed, from the record before us, it appears that Alexander and his attorney could well have failed to renew the motion to change venue because Alexander and he were satisfied that the jury was impartial. We accordingly find no merit to Alexander's contention that Judge Hodges erred in denying his motion to change venue. Alexander next raises several contentions that he received ineffective assistance from his trial counsel. Our supreme court has established a two-pronged test to determine whether a defendant is entitled to a new trial based on claims of ineffective assistance of counsel. Risher v. State, 523 P.2d 421 (Alaska 1974). Risher provides that the defendant must initially show that his attorney's conduct fell below the minimal range of competence required of a counselor "with ordinary training and skill in the criminal law." Id. at 424. The attorney's reasonable tactical decisions are virtually immune from subsequent challenge even if, in hindsight, better approaches could have been taken. State v. Jones, 759 P.2d 558, 569-70 (Alaska App.1988). The second prong is satisfied by a showing, by the defendant, of prejudice. Id. at 572. The defendant must establish that a reasonable doubt exists that his attorney's incompetence contributed to the verdict. Jackson v. State, 750 P.2d 821, 824 (Alaska App.), cert. den'd, 488 U.S. 828, 109 S.Ct. 80, 102 L.Ed.2d 56 (1988). The United States Supreme Court has held that the sixth amendment requires that a defendant be afforded a new trial if "[t]he defendant [can] show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Alexander extensively discusses the standard which courts in Alaska should apply to ineffective assistance of counsel claims and contends that Judge Hodges did not apply a correct test in evaluating his claims. Alexander apparently agrees with the trial court's interpretation of the first part of the Risher test: that the defendant must initially show that his attorney's conduct fell below the minimum range of competence required of a counselor "with ordinary training and skill in the criminal law." 523 P.2d at 424. However, Alexander quarrels with the trial court's interpretation of the prejudice prong of the Risher test. We believe that Jones, 759 P.2d at 572-73 presents a thorough discussion of what the defendant must show to establish prejudice under the Risher standard. In Jones, we stated: Although Risked s prejudice prong is significantly less demanding than Strickland's, the state and federal standards are nevertheless similar in one important feature: both impose upon the accused the affirmative burden of proving prejudice. . Because Risher and Strickland alike require the accused to prove both incompetence and actual prejudice, it follows that a mere conclusory or speculative allegation of harm will not suffice. The accused must do more than present "abstractions without context." Once the performance prong of the Risher standard has been established, the accused must, in addition, make a specific factual showing that counsel's incompetence had some actual, adverse impact on the case — that is, the accused must prove "some effect of [the] challenged conduct on the reliability of the trial process[.]" . Once the accused demonstrates that trial counsel's incompetence actually had an adverse effect on the case, the court, under Risher, need only find a reasonable doubt that the incompetence contributed to the conviction. When, on the other hand, the accused fails to allege or show that counsel's incompetence resulted in any actual adverse impact and relies instead on the fleshless allegation that prejudice in some imaginable but unsubstantiated form was reasonably possible, the burden of proving prejudice is not satisfied. Id. (alterations in original) (citations omitted). After an extensive evidentiary hearing, Judge Hodges made oral findings. As we have previously stated, Alexander made numerous claims that his attorney did not adequately represent him in trial. As to most of these claims, Judge Hodges found that Alexander's trial attorney provided adequate representation. However, Judge Hodges found that trial counsel had not effectively represented Alexander in some areas. He concluded that trial counsel should have obtained work data from the FBI which would have helped counsel to evaluate the FBI testing. He found that trial counsel was ineffective in failing to have the glitter and fiber evidence independently tested and in failing to retain a forensic expert to assist him in cross-examination. He also concluded that trial counsel was ineffective in not being more familiar with Alexander's recorded statements, which were on eleven hours of tape, to possibly present further statements from the tape. However, Judge Hodges concluded that these alleged errors by trial counsel did not prejudice Alexander. In making this finding, Judge Hodges stated: With respect to the second prong, the defense must show . the trial counsel's failure to perform as a competent counsel would create a reasonable doubt that the verdict had been affected.... [B]ased on the evidence which the court has had an opportunity to listen to throughout the course of the trial as well as the evidence which was presented at the time of the evidentiary hearing, . even if the evidence had been presented at trial the verdict would not have been different. It appears to us that Judge Hodges used the correct standard in evaluating whether Alexander had established prejudice. We have extensively reviewed the evidence which Judge Hodges considered in rejecting Alexander's motion for a new trial which was based on ineffective assistance of counsel. We conclude that his findings are supported by the record. At the evidentiary hearing on the ineffective assistance of counsel issue, Alexander's main witness was Lucien Haag, an expert on forensic evidence. He testified concerning the glitter, hair, and fiber evidence which the state presented at Alexander's trial. From our review of Haag's testimony, we believe that Judge Hodges could properly find that an expert like Haag would have been useful to Alexander's trial counsel for cross-examination and to independently test glitter, hair, and fiber evi dence. However, Judge Hodges could properly conclude Haag's testimony did not significantly undermine the testimony of the FBI's experts. In particular, Haag conceded the importance of the fact that Alexander's head and pubic hairs were comparable to hairs which the police found on the victim's body. Basically, Haag conceded that nothing which he found would exclude Alexander as the murderer and that much of the evidence pointed toward Alexander. With respect to Alexander's argument that his trial counsel should have been more familiar with the statements which he made during his eleven hours of conversation with the police, appellate counsel has not shown how admission of any additional statements which Alexander made might have had an impact on his case. After thoroughly reviewing the record, we believe that Judge Hodges could properly find that in all other respects Alexander's trial counsel was effective. We accordingly conclude that Judge Hodges did not err in refusing to grant Alexander a new trial based on ineffective assistance of counsel. Alexander next contends that his sentence was excessive. Judge Hodges sentenced Alexander to ninety-nine years of imprisonment for murder in the first degree and to a consecutive ninety-nine years of imprisonment for kidnapping. Judge Hodges imposed these sentences consecutively, and ordered that Alexander would be ineligible for parole for the maximum period of time allowable by law. Alexander points to Thompson v. State, where we stated: We do not believe that a sentence in excess of ninety-nine years can be justified except where the trial court finds that in order to protect the public the defendant must spend the rest of his life in prison without any possibility of parole. 768 P.2d 127, 133-34 (Alaska App.1989). Alexander argues that such a finding is inappropriate in his case. In the trial court and on appeal, Alexander pointed to his good military record, his good work record, his family support, and the progress which he had made in the community following his release from probation in 1982. In sentencing Alexander, Judge Hodges recognized these favorable qualities. However, Judge Hodges concluded from Alexander's present offense and his extensive prior record that Alexander had very poor prospects for rehabilitation, that he was a very dangerous offender, and that it was necessary to incarcerate Alexander for the remainder of his life in order to protect the public. Although we believe that such findings and such a sentence are appropriate only in rare circumstances, we believe that Judge Hodges' findings and sentence are supported by the record in this case. See Nukapigak v. State, 663 P.2d 943, 946 (Alaska 1983); Washington v. State, 828 P.2d 172, 175 (Alaska App.1992); Stern v. State, 827 P.2d 442, 450 (Alaska App.1992); Weitz v. State, 794 P.2d 952, 958 (Alaska App.1990); Hastings v. State, 736 P.2d 1157, 1160 (Alaska App.1987); Krukoff v. State, 702 P.2d 664, 666 (Alaska App.1985) (cases finding not clearly mistaken sentences that required the defendant to spend the rest of his life in prison without any possibility of parole). In sentencing Alexander, Judge Hodges placed primary emphasis on Alexander's extensive criminal background. Alexander has several prior felony convictions. In 1969 he was convicted in Austin, Texas for passing a forged U.S. Treasury check. In 1971 at Ft. Leavenworth, Kansas, he was convicted of possession of heroin. In 1973 he was convicted of robbery in Anchorage, Alaska; the robbery was committed with a firearm. In October 1973 Alexander was again convicted of robbery; again the robbery was committed with the use of a firearm. In June 1976 Alexander raped a sixteen-year-old woman at knifepoint and was convicted in Anchorage of statutory rape and sentenced to seven and one-half years of imprisonment. In addition to these felony convictions, the state presented extensive evidence that Alexander had committed other prior assaults, including sexual assaults. Judge Hodges found this evidence to be credible and gave it weight in sentencing. This background supports Judge Hodges' conclusion that Alexander is a dangerous offender for whom there is little hope for rehabilitation. This record leads to the conclusion that Alexander's history of prior assaultive conduct, particularly the sexually assaultive conduct, escalated to the instant offense. This history provides every reason to believe that Alexander would commit similar offenses if he were ever released from imprisonment. We accordingly conclude that Judge Hodges was not clearly mistaken in imposing a sentence which requires Alexander to spend the rest of his life in prison without any possibility of parole. The conviction is AFFIRMED. BRYNER, C.J., and MANNHEIMER, J., not participating. . Alexander was denied a challenge on S.F., an alternate who did not participate in the verdict. The defense was concerned that the alternate juror knew two of the witnesses. . According to Alexander's trial counsel, he consulted with a forensic expert who reviewed the FBI's report. Counsel stated that he researched glitter manufacturing, reviewed a transcript from a similar forensic evidence case to aid in trial preparation, and felt that he was adequately prepared to cross-examine the FBI hair, fiber, and polymer experts in the case without having the evidence independently tested or retaining an expert to assist with cross-examination. A review of the trial attorney's cross-examination of the state's experts demonstrates this background. . We have considered the fact that counsel did not obtain the FBI work data as subsumed within the failure of counsel to obtain an independent expert to test the glitter, hair, and fiber evidence and to aid counsel in cross-examination. The parties and trial court treated this issue as subsumed. . At trial, Alexander's counsel argued that Alexander's statements to the police had been made in the context of eleven hours of questioning by police interrogators and that the brief statement placing Alexander near the scene of the abduction was "babble" which simply did not make sense. Appellate counsel has not made any specific suggestions concerning what other tactic would have been more effective to place Alexander's statements in context. . In Stern v. State, we stated: When a sentencing judge restricts parole eligibility, the judge must specifically address the issue of parole restriction, setting forth with particularity his or her reasons for concluding that the parole eligibility prescribed by AS 33.16.090 and AS 33.16.100(c)-(d) is insufficient to protect the public and insure the defendant's reformation. When the defendant's sentence is lengthy, as in Stern's case, Alaska law presumes that questions of discretionary release are better left to the Parole Board, since the Board evaluates the advisability of parole release in light of the defendant's tested .response to Department of Corrections rehabilitative measures. However, because the Alaska legislature has affirmatively given sentencing judges the power to restrict or deny parole eligibility, this presumption (that parole release of long-term prisoners should normally be evaluated after the defendant has established an institutional history) must remain rebuttable. 827 P.2d 442, 450 (Alaska App.1992) (citations omitted).

10395295

Loren W. CROXTON, Personal Representative of the Estate of Ruth E. Croxton, deceased, Appellant, v. CROWLEY MARITIME CORPORATION, a Delaware corporation, Appellee

Croxton v. Crowley Maritime Corp.

1988-07-22

No. S-2123

97

99

758 P.2d 97

758

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

Loren W. CROXTON, Personal Representative of the Estate of Ruth E. Croxton, deceased, Appellant, v. CROWLEY MARITIME CORPORATION, a Delaware corporation, Appellee.

Loren W. CROXTON, Personal Representative of the Estate of Ruth E. Croxton, deceased, Appellant, v. CROWLEY MARITIME CORPORATION, a Delaware corporation, Appellee. No. S-2123. Supreme Court of Alaska. July 22, 1988. James D. Rhodes, Hartig, Rhodes, Norman, Mahoney & Edwards, Anchorage, for appellant. David T. Hunter, Lane, Powell & Barker, Anchorage, for appellee. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

1361

8430

OPINION MOORE, Justice. In 1981, Ruth Croxton was killed in an airplane crash while co-piloting a plane as an employee of Puget Sound Tug and Barge Co. ("PST & B"), a wholly-owned subsidiary of Crowley Maritime Corp. She left no dependents. Since Croxton died without any dependents, her estate was entitled to no workers' compensation death benefits under Alaska's Workers' Compensation Act except funeral expenses. AS 23.30.215. However, her employer was required to deposit $10,-000 into the "second injury" fund. AS 23.30.040(c). Pursuant to AS 23.30.015(c), payment of the $10,000 into the second-injury fund "operate[d] as an assignment to the employer" of any wrongful death action her estate may have had against third parties. The personal representative of Ruth Croxton's estate ("Croxton") sued PST & B and Crowley for wrongful death. The superior court dismissed the claim against PST & B, since an employer's liability under the workers' compensation statutes is exclusive of all other liability. AS 23.30.-055. The court dismissed Croxton's claim against Crowley on the ground that Crox-ton's estate was not a proper party because the cause of action had been assigned to PST & B by operation of AS 23.30.015(c) when PST & B deposited $10,000 into the second injury fund. Although PST & B's insurer had reassigned the cause of action back to Croxton, the court held that such reassignments of personal injury claims are invalid. We reverse on the ground that the reassignment in this case was not invalid. I. When an employee is injured or killed on the job, the employer's liability as specified in the Alaska Workers' Compensation Act is generally exclusive of all other statutory or common law liability. AS 23.30.055. Thus, the estate of an employee killed in a work-related accident does not have a wrongful death action against the employer. However, this statutory scheme does not relieve third parties from liability. AS 23.30.015. If an employee with dependents is killed at work, the employer must pay (1) reasonable funeral expenses not to exceed $2,500 and (2) additional compensation that depends on the level of the employee's previous wages. AS 23.30.215(a)(2). If the deceased employee had no dependents, the employer must pay the funeral expenses but is not required to make additional compensation to the employee's estate. AS 23.30.215(a). When an employee having no dependents is killed at work, in addition to paying funeral expenses, the employer or insurance company must pay $10,000 into the workers' compensation second injury fund. AS 23.30.040(c). This fund is available to partially reimburse all employers or insurance carriers who make payments to an injured employee whose injury was aggravated by a preexisting injury. AS 23.30.-205. Once an employer pays into the second-injury fund pursuant to AS 23.30.040(c), any cause of action that the deceased has against a third party is assigned to the employer. AS 23.30.015(c). Alaska Statute 23.30.015 provides in part: (c) Payment of compensation into the second-injury fund as a result of death operates as an assignment to the employer of all rights of the representative of the deceased to recover damages from the third person. (i) If the employer is insured and the carrier has assumed the payment of compensation, the carrier shall be subrogat-ed to all the rights of the employer. (Emphasis and footnote added). However, if the employer recovers on the assigned cause of action, either with or without instituting suit, the employer is entitled to retain only the amount paid as compensation or to the second-injury fund, plus reasonable costs and fees. AS 23.30.015(e)(1). If there is any excess recovery, the employer must pay it to the employee or the employee's dependents or estate. AS 23.-30.015(e)(2). II. This court has never addressed whether a cause of action for unliquidated personal injuries can be assigned by contract. In Ishmael v. City Electric of Anchorage, Inc., 91 F.Supp. 688, 689 (D.Alaska 1950), the federal district court held that "[i]n the absence of a statute to the contrary, tort actions for personal injuries do not survive, nor are they assignable." Various other courts have reached the same conclusion. See, e.g., Putnam v. Continental Air Transp. Co., 297 F.2d 501, 503 (7th Cir.1961) (applying Illinois law); Ross v. Superior Court, 128 Ariz. 301, 625 P.2d 890, 891 (1981) ("[w]e now hold that the claim assigned to the insurance carrier by operation of law is neither assignable to a third person nor reassignable to the insurance claimant" — a holding now superseded by Ariz.Rev.Stat.Ann. § 23-1023 (1983)); North Chicago St. Ry. Co. v. Ackley, 171 Ill. 100, 49 N.E. 222, 225-26 (1897) (assignment of personal injury claims is against public policy); Travelers Indem. Co. v. Chumbley, 394 S.W.2d 418, 423-24 (Mo.App.1965). Similarly, the Restatement of Contracts § 547(1) (1932) states that it is illegal and ineffective to assign a claim for personal injury that has not been reduced to judgment. Restatement (Second) of Contracts § 317 comment c (1981) observes that "the historic common-law rule that a chose in action could not be assigned has largely disappeared. It remains applicable to some non-contractual rights, particularly claims for damages for personal injury. ." As for why such causes of action could not be assigned, some courts have "felt that unscrupulous people would purchase causes of action and thereby traffic in law suits for pain and suffering." Harleysville Mut. Ins. Co. v. Lea, 2 Ariz.App. 538, 410 P.2d 495, 498 (App.1966) (citing Rice v. Stone, 83 Mass. 566 (1861)). While this reason may be sensible in other situations, it has little force in the specific context of an insurer reassigning a right of action back to the estate of a deceased employee. In this limited context, the purchase and sale of a cause of action for pain and suffering would be between the employer (or insurer) and the estate of the deceased employee. This type of transaction is considerably less offensive to us than when an unrelated third party purchases the rights to such a cause of action. The Fourth Circuit, when confronted with a similar question, stated: Neither do we find any merit in the defendant's reliance upon the general rule of the non-assignability of personal injury claims. In the first place, the reassignment in question (like the initial statutory assignment) affects only the right to bring and control action on the claim; it does not affect the beneficial interests in that claim.... All that is involved is a recasting of real party in interest status for the purpose of prosecuting a claim in which there remain joint beneficial interests. More importantly, the main purposes of the general rule of non-assigna-bility of claims for personal injury are not offended by this type reassignment. Those purposes, to prevent unscrupulous strangers to an occurrence from preying on the deprived circumstances of an injured person, and to prohibit champerty, simply have no applicability where the assignment is to the injured person himself. Caldwell v. Ogden Sea Trans., 618 F.2d 1037, 1048 (4th Cir.1980) (footnote omitted). We agree. In the absence of any public policy against such reassignments, we see no reason to prevent them. We hold that the superior court erred in determining that the reassignment of the cause of action against Crowley from INA to Croxton was invalid. REVERSED and REMANDED for proceedings consistent with this opinion. . These sections are based almost word-for-word on sections 33(c) and (h) of the federal Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 933(c), (h). . Other courts have held that such causes of action were not assignable because they did not survive the death of the injured party. See Ishmael, 91 F.Supp. at 689; see also 6 Am.Jur.2d Assignments § 39 (1963) (and cases cited therein). In Alaska, all causes of action except defamation survive. AS 09.55.570.

10399276

Patricia R. JUELSON, Appellant, v. STATE of Alaska, Appellee

Juelson v. State

1988-08-05

No. A-2343

1294

1297

758 P.2d 1294

758

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Patricia R. JUELSON, Appellant, v. STATE of Alaska, Appellee.

Patricia R. JUELSON, Appellant, v. STATE of Alaska, Appellee. No. A-2343. Court of Appeals of Alaska. Aug. 5, 1988. William F. Morse, Sen K. Tan, Asst. Public Defenders, and Dana Fabe, Public Defender, Anchorage, for appellant. David Mannheimer, Cynthia M. Hora, Asst. Attys. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for ap-pellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1396

8653

OPINION COATS, Judge. Patricia R. Juelson was convicted, based upon her plea of no contest, of one count of sexual abuse of a minor in the first degree, AS 11.41.434(a)(1), an unclassified felony, and one count of sexual abuse of a minor in the second degree, AS 11.41.436(a)(2), a class B felony. Count I alleged that on or about April 1986 through June 1986, Juel-son engaged in sexual penetration with two four-year-old children, K.P. and S.V. Count II alleged that on or about April 1986 through June 1986, Juelson engaged in sexual contact with the same two children. Juelson entered her no contest pleas in front of Superior Court Judge Victor D. Carlson. As a first felony offender, Juelson faced a presumptive term of eight years on Count I, the unclassified felony. AS 12.55.-125(i)(l). Juelson did not face a presumptive sentence on Count II, the class B felony. The prosecuting attorney and Juel-son's attorney agreed that the eight-year presumptive term would be manifestly unjust. They recommended to Judge Carlson that he refer Juelson's case to the three-judge panel. AS 12.55.165-.175. Judge Carlson found that imposition of the eight-year presumptive term would be manifestly unjust, and referred the case to the three-judge panel. Juelson's attorney told Judge Carlson that he believed that the three-judge panel might refuse to take jurisdiction of the class B felony because that offense did not involve a presumptive sentence. He suggested that the court could either set a status hearing which would take place after the three-judge panel had dealt with the sentence for Count I, or the court could impose a probationary sentence on Count II. Judge Carlson indicated that he would prefer to wait to see what action the three-judge panel took before imposing sentence on Count II. The three-judge panel imposed a sentence of five years' imprisonment with four and one-half years suspended. The three-judge panel appears to have concluded that it did not have jurisdiction to sentence on the class B felony because no presumptive term was involved. The case was returned to Judge Carlson for sentencing on Count II. Judge Carlson imposed a sentence of five years with two years suspended on Count II, and made that sentence concurrent to the sentence on Count I. Juelson now appeals to this, court. We affirm. Juelson first contends that separate convictions and sentences for Counts I and II violate the constitutional guarantee against double jeopardy. See Horton v. State, 758 P.2d 628 (Alaska App.1988). Juelson argues that the sexual contact charged in Count II could have been mere preparation for the sexual penetration charged in Count I. See Oswald v. State, 715 P.2d 276 (Alaska App.1986). In Juelson's case, the charges to which Juelson pled were arrived at by an agreement between the state and Juelson. At least two separate acts were involved, because Count I charges sexual penetration with two separate victims. By agreeing to the charges as they now stand, Juelson avoided being charged with two unclassified felonies. Under these circumstances, Juelson has received a benefit from the agreement which she entered into with the state. The underlying facts would support at least two charges of at least as severe a nature as the charges to which Juelson pled. We therefore do not see any double jeopardy problem. Juelson's remedy, if any, would be by motion to withdraw her plea. Juelson points out that it is anomalous that the three-judge panel sentenced her to less time to serve on the unclassified felony than Judge Carlson imposed on the class B felony. Juelson contends that the sentence which the three-judge panel imposed should have constituted an upper limit to the sentence which Judge Carlson imposed. She argues that Judge Carlson's greater sentence on the lesser charge undermined the actions of the three-judge panel. In the abstract, it is odd that Juelson received a substantially greater sentence for the class B felony than she did for the unclassified felony. At the sentencing in front of Judge Carlson, however, the state presented the testimony of Helen Craig, a psychological counselor from the Langdon Clinic who had worked with Juelson. Craig had worked with Juelson while she was incarcerated at the Meadow Creek Correctional Center in the sex-offender program. Craig indicated that there was a substantial possibility that Juelson would reoffend if she did not complete a sex-offender program and that it would take approximately three to four years for Juelson to complete treatment while incarcerated. In sentencing Juelson, Judge Carlson concluded that out-patient treatment would not be sufficient to rehabilitate Juelson and to protect the public. He therefore imposed three years to serve so that Juelson would undergo treatment while incarcerated. Judge Carlson was presented with different information at sentencing than was available to the three-judge panel. He evaluated the cases differently. It is not unusual for a defendant to be sentenced on similar offenses by two different judges and to have the judges evaluate the case and the offender differently. It does not seem to us that there is anything inherently improper in this result. The only question is whether the sentence which resulted was excessive. We therefore turn to Juelson's last contention: the sentence which Judge Carlson imposed was excessive. At the time of sentencing, Juelson was twenty-three years old. She had no prior criminal offenses. There was evidence that Juelson had border-line intellectual functioning and was mildly retarded. In sentencing Juelson, Judge Carlson emphasized that Juelson had admitted abusing a child in a day-care center prior to the time she committed the offenses involving the two children named in the indictment. Juelson was fired from her job in one day-care center. Juelson then obtained employment in the second day-care center where she abused the two children named in the indictment. Judge Carlson also emphasized the testimony of therapist Helen Craig who indicated that Juelson appeared to be a pedophile, and had engaged in repeat behavior. He emphasized Craig's recommendation that Juel-son be treated in jail for a period of three to four years. In Austin v. State, 627 P.2d 657 (Alaska App. 1981), we indicated that a first felony offender should not receive more time to serve than the presumptive term for a second felony offender except in an exceptional case. The presumptive sentence for a second felony offender convicted of a class B felony is four years. Therefore, Juel-son's sentence of three years to serve does not violate the Austin standard. We conclude that the sentence which Judge Carlson imposed was not clearly mistaken. The conviction and sentence are AFFIRMED. . It appears to us that the three-judge panel may have had jurisdiction to sentence Juelson on Count II, the class B felony. Each of the superi- or court judges who made up the three-judge panel individually had jurisdiction to sentence Juelson for a felony offense. When the legislature established the presumptive sentencing scheme, it limited the authority of an individual sentencing judge to modify a presumptive sentence. AS 12.55.125. The legislature gave the three-judge panel extensive authority to modify presumptive sentences. AS 12.55.165-.175. Therefore, the three-judge panel has greater authority than an individual superior court judge, but arguably does not have less. Accordingly, the three-judge panel would have authority to sentence a defendant on any charge which an individual superior court judge could. Although we feel it is important for us to note this issue, we do not feel that it is appropriate for us to resolve the issue in this case. The issue of the jurisdiction of the three-judge panel to sentence Juelson on Count II was not raised by Juelson either in the trial court or on appeal. It was raised by this court sua sponte in oral argument. Even if the three-judge panel did have jurisdiction to sentence Juelson on Count II, we do not believe that the sentencing procedure which occurred in this case can be characterized as being so fundamentally unfair that we should find plain error.

10398082

STATE of Alaska, Appellant, v. Lige AMBROSE, Appellee

State v. Ambrose

1988-08-05

No. A-2069

639

644

758 P.2d 639

758

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:19:47.464935+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

STATE of Alaska, Appellant, v. Lige AMBROSE, Appellee.

STATE of Alaska, Appellant, v. Lige AMBROSE, Appellee. No. A-2069. Court of Appeals of Alaska. Aug. 5, 1988. Michael J. Stark, Asst. Atty. Gen., Crim. Div. Central Office, and Grace Berg Schai-ble, Atty. Gen., Juneau, for appellant. Charles R. Pengilly, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2316

14518

OPINION BRYNER, Chief Judge. In this appeal, the state challenges an order of the superior court releasing Lige Ambrose, a sentenced prisoner, for a period of four days to attend a ceremonial pot-latch. The appeal requires us to determine the scope of the superior court's authority under Alaska Criminal Rule 35(b), which allows the court to modify a sentence in light of changed circumstances. We conclude that the superior court lacked authority to order Ambrose's release. Lige Ambrose was convicted of assault in the third degree. On November 7,1986, Acting Superior Court Judge Christopher E. Zimmerman sentenced Ambrose to a term of three years with one year suspended. On May 28, 1987, Ambrose filed a motion for modification of his sentence pursuant to Criminal Rule 35(b). The motion requested the court to order Ambrose's release from confinement for four days, stating: [A] funeral potlatch for Mr. Ambrose's late brother and sister will be held from June 4 through June 8, 1987, in Hughes. Given the religious and cultural significance of this event, Mr. Ambrose very much wants to be present. He asks this court to modify his sentence pursuant to Alaska R.Crim.P. 35(b) so as to allow him to attend. Following an expedited hearing, Judge Zimmerman, over the state's objection, granted Ambrose's motion. The state appeals, claiming that the court had no jurisdiction under Criminal Rule 35(b) to order Ambrose's release. Alaska Criminal Rule 35(b) provides in part: Modification or Reduction of Sentence — Changed Conditions or Circumstances. The court may modify or reduce a sentence at any time during a term of imprisonment if it finds that conditions or circumstances have changed since the original sentencing hearing such that the purposes of the original sentence are not being fulfilled. (1) The sentencing court is not required to entertain a second or successive motion for similar relief brought under this paragraph on behalf of the same petitioner. (2) No sentence may be reduced or modified so as to result in a term of imprisonment which is less than the minimum required by law. In challenging the court's authority to order Ambrose's release under this rule, the state advances two primary arguments, neither of which is persuasive. First, the state points out that the rule applies to changes in circumstances or conditions arising after the original sentence is imposed. The state reasons that, because Ambrose's brother and sister died before the original sentencing hearing, Ambrose's need to attend a potlatch in their honor does not qualify as a changed condition or circumstance occurring after his sentencing. This argument is without merit, since the event that constituted a changed condition and gave rise to Ambrose's request for modification was plainly the scheduling of a funeral potlatch, not the death of his brother and sister. As a circumstance that arose after Ambrose's sentence was imposed, the scheduling of the funeral pot-latch at least theoretically qualifies for consideration under Rule 35(b). Second, the state urges us to hold that Rule 35(b) applies only to unanticipated changes in circumstances or conditions relating to a prisoner's classification by the Department of Correction following the imposition of sentence. The state cites the legislative commentary to ch. 166, § 12, SLA 1978 — the legislative provision amending the current form of Rule 35(b). The commentary states, in relevant part: The thrust of this amendment [to Criminal Rule 35(b)] is to provide for correction of demonstrable inequities resulting from breakdowns in the process of classifying prisoners. Presently, after a defendant is sentenced to imprisonment he is classified by a committee within the [Department] of Corrections for placement, treatment, work and educational releases. If the sentencing court determines that the defendant needs alcohol rehabilitation treatment and sentences the person with that in mind, the classification committee may inadvertently subvert that purpose by it's [sic] decision for placement or manner of treatment. Current rules allow for a motion to modify sentence in such circumstances for only a limited period after the sentencing hearing. This amendment would grant such jurisdiction to the court at any time during a term of imprisonment if it finds that the change in circumstances or conditions results in subverting the intent of the original sentence. This amendment makes it clear that this section cannot be used to result in a term of imprisonment which may be less than that required by the presumptive sentencing structure in the revised criminal code or by current law. 1978 Senate Journal 1445. Relying on this commentary, the state maintains that, "the clear import of Criminal Rule 35(b) is to grant jurisdiction to the superior court to correct inequities relating to prisoner classification which may have occurred since the original sentencing hearing such that the purposes of the original sentence have been subverted." We find this contention to be without merit, for its reading of the plain language of Criminal Rule 35(b) is too restrictive. While the "thrust" of the legislature's amendment to Rule 35(b) was undoubtedly to allow for correction of inequities in the classification process, the clear and unambiguous wording of the amendment did not confine the court's authority to the narrow subject matter that was apparently the legislature's core concern. Nothing in the legislative commentary is inconsistent with an intent on the legislature's part to confer powers on the court somewhat broader than those minimally necessary to address its core concern. Absent significant ambiguity or uncertainty in the language of the rule, we see no basis for narrowing the rule by refusing to give effect to its literal terms. The language of Criminal Rule 35(b) attaches only three prerequisites to the court's authority to modify a sentence at any time after it is originally imposed. First, some change in conditions or circumstances affecting the defendant must occur after the original sentence is imposed. For purposes of the present case, we need not decide whether the changes must be in the conditions or circumstances as they actually were at the time of sentencing or as the court and parties believed them to be. Second, the change must relate to "the purposes of the original sentence." A change relates to a purpose of the original sentence either when it significantly affects one of the fundamental sentencing goals, see State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970), and AS 12.55.005, or when it implicates some other specific objective of the original sentence that was expressly addressed in the written judgment or in the court's oral sentencing remarks. Third, the effect of the subsequent change in conditions or circumstances must be so significant as to defeat or substantially frustrate implementation of the sentencing goal or objective. In our view, a motion for modification of a sentence under Criminal Rule 35(b) will suffice to invoke the original sentencing court's jurisdiction when it alleges a change in conditions or circumstances which, if established, would meet these criteria. Should the sentencing court find that the allegations set out in a motion for modification have been established, it may, in its sound discretion, order the original sentence modified or reduced in any way that would originally have been lawful, provided that the modification or reduction does not "result in a term of imprisonment which is less than the minimum required by law." Alaska R.Crim.P. 35(b)(2). Although we reject the narrow interpretation of Rule 35(b) proposed by the state, we conclude that Ambrose's motion for modification failed to satisfy the broader requirements of the rule as we have interpreted it. The ceremonial potlatch that Ambrose sought to attend satisfied the first requirement under the rule: it qualified as a changed circumstance occurring after imposition of the original sentence. However, neither the second nor third requirements under Rule 35(b) were met. Ambrose's motion did not allege that the potlatch directly related to any basic sentencing goal, and the court, in ordering Ambrose's release, did not purport to find any such relationship. Nor has Ambrose ever alleged that the requested modification implicated some other specific sentencing objective that was addressed in the court's original sentencing order or remarks. Even if we posit some hypothetical relationship between Ambrose's attendance at the potlatch and his eventual rehabilitation, Ambrose did not allege, and the court did not purport to find, that the sentencing goal of rehabilitation would be defeated if Ambrose were unable to attend the pot-latch. Under the requirements of Rule 35(b), the court was authorized to modify Ambrose's sentence by allowing-him to attend the potlatch only if it found that his attendance at the potlatch was actually necessary to assure his rehabilitation or to prevent the frustration of some other sentencing goal. In short, Ambrose failed to allege or establish any relationship between the relief that he sought and any particular goal of the original sentencing order, and the court found no such relationship. In the absence of either an allegation by Ambrose or an express finding by the superior court, we cannot simply assume that Ambrose's inability to attend the funeral potlatch would have defeated some basic goal of the original sentencing order. Our conclusion is strengthened by the form of the superior court's order in this case. While the court's original sentencing order could lawfully have provided for a periodic term of imprisonment, see AS 12.-55.015(a)(3) and AS 12.55.125(h), and the court could have modified the original sentence by entering an amended judgment providing for periodic confinement, neither in its verbal findings nor in its written order releasing Ambrose did the court purport to impose a periodic term. In fact, nothing in the court's verbal comments or written order indicates that the court actually considered itself to be modifying the original sentence. Rather, the court simply issued an ad hoc order requiring the Department of Corrections to release Amb-rose from confinement for a period of four days. We recognize that the form of the court's order should not govern over its substance; however, the fact that the court ordered Ambrose released without even a pretense of actually modifying the original sentence is a telling indication that its order did not seek to correct any change in conditions or circumstances affecting a basic sentencing goal of the type contemplated by Rule 35(b). We do not mean to imply any insensitivity to or disrespect for Ambrose's religious beliefs, and we recognize that the opportunity to attend the funeral potlatch was undoubtedly a matter of tremendous personal importance to Ambrose. Nevertheless, as the state correctly observes, the day-to-day management of prisoners is properly within the purview of the Department of Corrections, and it is generally the Department's responsibility to assure that a prisoner's needs and well-being are provided for. In this regard, the Department of Corrections has the authority to release prisoners on furloughs of short duration. See AS 33.30.121. The Department has adopted regulations to implement its statutory authority. See, e.g., 22 Alaska Administrative Code (AAC) 05.316-.326. Ambrose has asserted no legal challenge to the adequacy of these regulations. Criminal Rule 35(b) does not authorize the sentencing court to invade the authority that is properly vested in the executive branch of government. See LaBarbera v. State, 598 P.2d 947, 949 (Alaska 1979); Rust v. State, 582 P.2d 134, 137-38 (Alaska) modified on reh'g, 584 P.2d 38 (Alaska 1978). This is precisely what the superior court appears to have done in the present case. The order entered by the superior court is REVERSED. . The court subsequently reduced Ambrose's sentence to a term of three years with two and one-half years suspended. This reduction is not relevant to the issues presented on appeal. . This court subsequently denied an emergency motion by the state for a stay of the superior court's order pending appeal. Although we recognized that the denial of the stay would technically render an appeal moot, we expressly provided that our denial was without prejudice to the state's right to argue for an exception to the mootness doctrine. On appeal, the state argues that this case falls within an exception to the mootness doctrine, and Ambrose does not dispute the state's contention. Because we conclude that this case presents an important question of public interest that is capable of repetition and might repeatedly circumvent review, we have decided to address the issue raised on appeal despite its technical mootness. See Hayes v. Charney, 693 P.2d 831, 834 (Alaska 1985). . These three prerequisites render the provisions of Criminal Rule 35(b) significantly narrower than those of Criminal Rule 35(a). Under subsection (a), the sentencing court is given broad authority to reduce a sentence. No limitation or restriction of the court's authority is specified in the language of the subsection; the court is empowered to reduce a sentence for virtually any reason, subject only to the restriction that the reduction not amount to an abuse of discretion. See 3 C. Wright, Federal Practice and Procedure § 586 at 398-404 (1982). However, the court's authority to reduce a sentence under subsection (a) may be exercised only within 120 days after a sentence is imposed. This time limitation acts as a necessary concomitant of the court's broad authority under subsection (a). Id. § 587 at 407-10. See also III Standards for Criminal Justice § 18.-7.1 and commentary at 501-02 (Approved Draft 1979). In the present case, relief would not have been available to Ambrose under subsection (a) because of the 120-day time limitation, and his motion was necessarily governed by the narrower requirements of subsection (b).

10394021

Theodore SMITH, Appellant, v. STATE of Alaska, Appellee

Smith v. State

1990-02-23

No. A-2953

1038

1039

787 P.2d 1038

787

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:20:32.898824+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Theodore SMITH, Appellant, v. STATE of Alaska, Appellee.

Theodore SMITH, Appellant, v. STATE of Alaska, Appellee. No. A-2953. Court of Appeals of Alaska. Feb. 23, 1990. John M. Holmes, Asst. Public Defender, Barrow and John B. Salemi, Public Defender, Anchorage, for appellant. Kevin Fitzgerald, Asst. Dist. Atty., Dwayne W. McConnell, Dist. Atty., Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

759

4656

OPINION BRYNER, Chief Judge. A jury convicted Theodore Smith of driving while license revoked (DWLR), AS 28.-15.291(a) and reckless driving, AS 28.35.-040. Smith appeals the denial of his motion to suppress in which he alleged he gave an involuntary confession, was illegally arrested, and did not receive Miranda warnings. At the evidentiary hearing on the motion to suppress, Trooper Gregory Chilcote testified that during the early morning hours of May 2, 1988, he was dispatched to the scene of a single-car accident at Mile 11.5 of the Glenn Highway. Upon arriving at the scene, Chilcote observed a Honda Civic which had left the northbound lane of the highway and come to rest in a group of trees; the driver was not present. The trooper ran a computer check on the ear and learned that its owner was Theodore Smith. Anchorage Police Officer Lawrence T. Pippin testified that he and two other officers were dispatched to Smith's home in Eagle River. They arrived around 5:30 a.m., and Smith's wife answered the door. Pippin testified he requested Smith's wife to awaken her husband; Smith's wife claimed that the officers ordered her to awaken Smith. When questioned, Smith told the officers that he had not been driving when the accident occurred. He said that earlier in the evening he loaned his car to his brother-in-law. Pippin testified that he offered Smith a ride to the accident scene so he could "take care of his car," and Smith agreed to accompany him. Smith and his wife claimed that Pippin ordered Smith to accompany him. At the accident scene, Smith was directed to Officer Chilcote's patrol car. Chilcote questioned Smith about the accident, and Smith again denied that he had been driving. Chilcote then informed Smith that he was suspected of being the driver because it was obvious he had been drinking. Chil-cote also pointed out that a bump on Smith's forehead was consistent with a crack in the car's windshield and that a boot print at the scene appeared to match his boots. Chilcote assured Smith, however, that he was "not interested in prosecuting anyone for drunk driving;" he only wanted to find out who had been driving. According to Chilcote, Smith immediately appeared to relax and admitted he had been driving his car when it went off the road. Smith contends that his confession must be deemed involuntary. In determining the voluntariness of a confession, this court must conduct an independent review of the record and consider the totality of the circumstances surrounding the confession. A confession is involuntary when "an examination of all the circumstances discloses that the conduct of law enforcement was such as to overbear [the defendant's] will to resist and bring about confessions not freely self determined." Thompson v. State, 768 P.2d 127, 131 (Alaska App.1989) (quoting United States v. Ferrara, 377 F.2d 16, 17 (2d Cir.1967)). It is well settled that a confession is improperly induced if it is made in response to a promise of immunity from prosecution. Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 186, 42 L.Ed. 568 (1897) (confession is involuntary when "obtained by any direct or implied promises, however slight"); State v. Ely, 237 Or. 329, 390 P.2d 348, 350-51 (1964) (confession held involuntary when school authorities assured defendant they did not intend to prosecute him for sexual abuse of a student); 1 W. La-Fave & J. Israel, Criminal Procedure § 6.2, at 446 (1984); 4 C. Torcía, Wharton's Criminal Evidence § 638, at 152 (14th ed. 1987). Here, Smith found himself in a situation which, although arguably not actually custodial, was at least quasi-custodial. When confronted by the police in this setting, his initial response was to completely deny involvement. The police thereafter expressly assured Smith that they were seeking information for limited purposes and had no interest in pursuing a charge of DWI against him. Smith's confession followed directly on the heels of this assurance. Under the circumstances, we hold that Smith's confession was plainly induced by the promise of leniency and must consequently be deemed involuntary. The conviction is REVERSED. . Having reversed on this ground, we find it unnecessary to decide Smith's other claims.

10380274

STATE of Alaska, Appellant, v. Dale HULETZ, Appellee

State v. Huletz

1992-09-18

No. A-4034

1257

1261

838 P.2d 1257

838

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

STATE of Alaska, Appellant, v. Dale HULETZ, Appellee.

STATE of Alaska, Appellant, v. Dale HULETZ, Appellee. No. A-4034. Court of Appeals of Alaska. Sept. 18, 1992. Stephanie Rhoades, Asst. Dist. Atty., Edward E. McNally, Dist. Atty., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellant. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2851

17843

OPINION BRYNER, Chief Judge. Dale Huletz was convicted of fourth-degree assault following a non-jury trial before District Court Judge William H. Fuld. Judge Fuld suspended the imposition of Huletz's sentence on condition that Huletz have no contact with his victim and no similar offenses for a year; in addition, the judge ordered Huletz to pay a fine of $250 and perform forty hours of community service. The state appeals, contending that the sentence is too lenient. We agree and disapprove the sentence. Huletz was convicted of assault for beating his girlfriend, S.M., who lived with Hu-letz in his trailer in Anchorage. Shortly before midnight on August 20, 1990, S.M. arrived home from work. She was tired and had a class to attend the next morning. Huletz was already at home; he was highly intoxicated and argumentative. S.M. did not want to argue, so she went directly to the trailer's bedroom and tried to go to sleep. Huletz ordered her to get up; when she did not respond, he flicked the light switch on and off repeatedly, then turned the trailer's stereo system on at full volume. Finally, S.M. decided to leave. Huletz stood at the front door of the trailer. As S.M. tried to walk out, Huletz struck her several times in the face with his fists, then grabbed her by her hair and arms and threw her back. S.M. started for the door once more. Huletz hit her again with his fist. Fearing more violence, S.M. sat down on the couch and made no further effort to leave. Huletz remained by the door, blocking S.M.'s exit, from approximately 1:00 a.m. until almost 6:00 a.m., when it was time for him to go to work. After Huletz left, S.M. packed her belongings and moved out. Suffering from bruises and swelling on her face, head, and forearms, she went to the hospital emergency room for treatment. At the time of the assault, Huletz was forty-one years of age. Although Huletz had no history of assaultive behavior, he had been convicted of driving while intoxicated in 1983 and of leaving the scene of an accident in 1988. At trial, Huletz denied S.M.'s charge of assault. He acknowledged striking S.M. once, but claimed that he did so only to calm her down after she had argued with him and become hysterical. The trial court found Huletz guilty, concluding that his version of the incident was not credible. However, given that Huletz had no prior assault convictions and had apparently never previously assaulted S.M., the court decided to suspend the imposition of his sentence. Even though Huletz had two prior misdemeanor convictions, the court stated that there was "no reason for you to have the stigma of a conviction for the rest of your life." Although the court recognized that Huletz's past and current offenses indicated the likelihood of a longstanding drinking problem, the court thought it unnecessary to require Huletz to engage in any form of alcohol rehabilitation screening or treatment; nor did the court deem it necessary to order any type of counseling for Huletz's apparent difficulty in controlling his anger. The court further concluded that no jail time was necessary, since Huletz had served honorably in the military, had been a productive member of society, and had hired an attorney to represent him. Based on these findings, the court suspended the imposition of Huletz's sentence for one year on condition that he refrain from any contact with the victim and commit no similar offenses; the court also ordered Huletz to pay a fine of $250 and to perform forty hours of community service. To accommodate Huletz's work schedule, the court indicated that he could perform his community service at any time within six months. The court expressed the view that this disposition satisfied the sentencing goals set out in State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970), particularly the goal of rehabilitation. Having independently reviewed the entire sentencing record, we conclude that the trial court's sentencing decision was clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). Assault in the fourth degree is a class A misdemean- or, and, as such, it is punishable by a maximum term of one year in jail, a fine of $5,000, or both. AS 11.41.230; AS 12.55.-135(a); AS 12.55.035(b)(3). Given these maximum penalty provisions, it is apparent that the sentence in this case falls near the bottom of the authorized range of sentences for fourth-degree assault. Huletz received a suspended imposition of sentence, with no jail time at all, only a minimal fine ($250), and a modest period of community service (forty hours), which the court allowed Huletz to perform at any time over a period of six months (on average, slightly less than two hours per week). Huletz will be entitled to have his conviction removed from his record in one year if he avoids similar offenses and refrains from any contact with S.M. It seems self-evident that a sentence such as this — one clearly falling at the bottom of the permissible range of sentences for a given offense — should be reserved for the most mitigated of cases — those near the bottom of the potential range of seriousness for the offense. In the present case, the sentencing court did not purport to find Huletz's offense to be particularly mitigated, and we are convinced that the record would not have supported such a finding had one been made. Prior decisions of this court suggest that, in determining whether a case is aggravated or mitigated, the sentencing court must consider the totality of the circumstances relating to the background and personal characteristics of the offender, the seriousness of the conduct involved in the commission of the offense, and the nature and extent of the resulting harm. See, e.g., State v. Jackson, 776 P.2d 320, 326-27 (Alaska App.1989). In the present case, the evidence concerning Huletz's background and personal characteristics provides little basis for characterizing his case as particularly mitigated. On the one hand, Huletz's background is favorable in some significant respects. As the sentencing court noted, Huletz has served in the military; throughout his life he has been a productive member of society. On the other hand, however, the record contains significant negative information concerning Huletz's background and personal characteristics. At forty-one years of age, and with two prior misdemeanor convictions, Huletz is hardly a youthful first offender. While neither of Huletz's prior offenses involved assault, both were class A misdemeanors — the most serious form of non-felony offense. It is significant that one of the prior offenses was alcohol related, as is Huletz's current crime. It is also significant that Huletz's other offense resulted in a suspended imposition of sentence. A suspended imposition of sentence is a unique disposition: by providing for the eventual set-aside of a conviction, a suspended imposition of sentence offers the offender an incentive for reform and an opportunity to start anew with a clean slate. By its very nature, however, a suspended imposition of sentence is primarily meant to be a one-time opportunity for particularly deserving first-offenders. It is a disposition ill-suited for repeated use with a persistent offender. At the time of sentencing in his current ease, Huletz had already received a suspended imposition of sentence, and, as demonstrated by his renewed criminal misconduct, he failed to take advantage of the unique opportunity for reform that it represented. It is not at all clear why the sentencing court deemed another opportunity appropriate. Also relevant in this regard is Huletz's attitude toward his current crime. Throughout his trial and sentencing, Hu-letz remained doggedly unrepentant, clinging to a version of events that the trial court deemed untrue — a version that shifted the blame for Huletz's conduct to his victim. At the sentencing hearing, Huletz provided little indication that he accepted responsibility for his conduct. While Hu-letz certainly cannot be penalized for declining to admit his guilt, his failure to acknowledge responsibility and his insistence on a version of events that the trial court deemed untrue are additional factors casting doubt on his prospects for reform. We next consider the evidence in the record concerning the seriousness of Hu-letz's conduct and the extent of harm he caused his victim; like the evidence concerning Huletz's background, this evidence provides little basis for a particularly mitigated sentence. Huletz struck S.M. repeatedly with his fists and virtually held her hostage in his trailer overnight. As a result of the attack, S.M. suffered not only significant emotional trauma, but also considerable physical pain, which required her to go for treatment to the emergency room. There she was found to have sustained multiple contusions on her face, head, and arms. The sentencing court seemed inclined to treat Huletz leniently because it found that he did not assault S.M. with the specific intent to injure her but, instead, simply "lashed out" in anger at her, causing her injuries recklessly. Yet such reckless conduct is squarely within the norm for assault in the fourth degree. Indeed, the offense, as defined in AS 11.41.230(a)(1), consists of recklessly causing physical injury to another person; while Huletz's conduct might have been substantially more aggravated than the norm for fourth-de gree assault had he acted with the express purpose of inflicting injury on S.M., the fact that he simply "lashed out" violently at S.M. without specifically intending to cause her injuries does not substantially mitigate the offense. In short, although the nature of Huletz's actions and the magnitude of S.M.'s injuries might not justify a finding that Hu-letz's conduct was unusually aggravated for a fourth-degree assault, neither would these factors justify a finding that his conduct was particularly mitigated, that is, substantially less serious than conduct typically involved in a case of fourth-degree assault. Because the present case could not reasonably be deemed mitigated from the standpoint of Huletz's personal background, the seriousness of his conduct, or the extent of the resulting harm, we believe the sentencing court was clearly mistaken in fashioning a sentence that was among the most lenient possible for the offense. We fully recognize that the sentencing court bears the primary responsibility for determining the importance and relative priority of the Chaney sentencing goals in each case. Nicholas v. State, 477 P.2d 447, 448-49 (Alaska 1970). And we do not fault the court in this case for emphasizing Hu-letz's rehabilitation as the most important goal of sentencing. In our view, however, the sentence imposed below fails to satisfy any of the Chaney sentencing goals, including the goal of rehabilitation. Despite Huletz's apparently longstanding problem with alcohol, his past conviction for another alcohol-related crime, and his past failure to deal with this problem, the court declined to require Huletz to submit to alcohol screening or to participate in any form of substance-abuse therapy. And despite the trouble Huletz evidently has in managing his anger, the court similarly declined to require him to engage in anger-management counseling. Considering that Huletz's current offense was plainly alcohol related, that Huletz has insisted on a false explanation of the offense, and that he has consistently shifted blame for his conduct to his victim, the sentencing court's failure to provide for any meaningful form of treatment aimed at Huletz's rehabilitation seems inexplicable. We fail to see how the sentence, as currently structured, serves the goal of rehabilitation. Neither does the sentence satisfy the Chaney goals of deterrence and community condemnation. Huletz's sentences for his past crimes have included informal probation and short periods of time in jail, yet these measures have apparently failed to deter his continued criminality. There is no reason to suppose that the small fine and modest community service requirement in his current sentence will deter him from future misconduct, when sterner measures have already failed. Nor can such a sentence reasonably be expected to deter other similarly situated offenders. By the same token, Huletz's sentence seems ill-suited to express community condemnation for the type of violent crime involved in this case. The state presents a cogent argument that assaults involving domestic violence occur with alarming frequency in our society, often having devastating consequences. When a court im poses a mitigated sentence in a domestic assault case that is not particularly mitigated, it unduly depreciates the seriousness of this type of criminal misconduct: such a sentence inevitably creates the impression that domestic violence is a form of assault which is somehow less worthy of societal condemnation (and therefore somehow less serious) than other forms of assault. The appearance that the justice system deems domestic assaults to be trivial can only be exacerbated when unusually lenient treatment is accorded to an offender with a prior criminal record. We by no means suggest that all instances of fourth-degree assault involving domestic violence should result in jail sentences; to the contrary, we recognize the need for, and encourage the use of, creative alternatives to incarceration, particularly in misdemeanor cases. Nor do we intimate that fourth-degree assault cases involving domestic violence should be targeted for categorically harsher treatment than other types of fourth-degree assault. Our concern is precisely the opposite: we seek only to assure that assaults involving domestic violence be given parity — the same serious consideration and treatment that is typically given to assaults occurring outside the home. The danger we perceive is that, as a category, fourth-degree assaults involving domestic violence may receive treatment that is more lenient than other types of fourth-degree assault. The very fact that domestic assaults are so commonplace, and that they typically occur in the privacy of the home — usually between people who are intimate or related — invites an unwarranted complacency toward this form of criminal violence. Courts exposed day in and day out to such cases may find it altogether too easy, in the long run, to adopt an attitude of resigned toleration — to regard domestic assault as conduct which, though regrettable, is nevertheless understandable and inevitable. Yet this type of complacency must be vigorously resisted. A violent and unprovoked attack against a spouse or domestic partner is no more acceptable, and can be no more tolerated, than a like attack against a stranger. In the present case, as the sentencing court found, Huletz was angry, frustrated and highly intoxicated; he "lashed out" violently. In the eyes of the law, the fact that he selected a domestic partner rather than a stranger as the target of his violence can provide no occasion for leniency. The sentence imposed by the district court is DISAPPROVED. . When the state appeals a lawfully imposed sentence as too lenient, this court may approve or disapprove the sentence, but is not authorized to change it. See AS 12.55.120(b). . The remaining Chaney sentencing goal — isolation of the offender for the protection of society — comes into play primarily in cases involving offenders who have established themselves to be particularly dangerous and incapable of rehabilitation, thereby demonstrating the need for prolonged incarceration in the interest of public safety. The state does not argue that Huletz falls into this category of offender, and the record would not support such a conclusion. The sentencing court properly recognized that the present case did not call for a sentence designed to isolate Huletz for purposes of public safety. . The following passage from a recent report by Alaska's Council on Domestic Violence and Sexual Assault is illustrative: A woman is beaten every 18 seconds and 4,000 battered women are killed every year in the United States. Nationwide, more than one million abused women each year seek medical assistance for injuries caused by battering. In Alaska, 26% of adult women have been physically abused by a spouse sometime during their lives and most of the battered women were abused at least once a month. It is estimated that a minimum of 13,200 women living in Alaska have required medical treatment by a doctor or hospital for injuries sustained by abuse at some time in their life. In 1990, fifty percent of female murder victims in Alaska were killed by their husbands or boyfriends. More than half of all homeless women are on the street because they are fleeing domestic violence. There are nearly three times as many animal shelters in the United States as there are battered women shelters. Children raised in violent homes suffer the effects of living in this environment and are at higher risk for physical and sexual abuse. Children raised in violent homes are 1500% more likely to be physically abused or seriously neglected. Nearly fifty percent of abusive husbands batter their wives when they are pregnant, making these battered women four times more likely to bear infants of low birth weight. These women also have twice as many miscarriages as non-battered women. Council on Domestic Violence and Sexual Assault, Annual Report to Governor Hickel and the Alaska Legislature at 2 (March 1992).

10373433

ALASKA FISH SPOTTERS ASSOCIATION, Ron Gribble, Dennis Thacker, Jerry Mahony, Lee William Budde and Richard Sorenson, Appellants, v. STATE of Alaska, DEPARTMENT OF FISH AND GAME, and Board of Fisheries, Appellees

Alaska Fish Spotters Ass'n v. State, Department of Fish & Game

1992-09-11

No. S-4540

798

804

838 P.2d 798

838

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

ALASKA FISH SPOTTERS ASSOCIATION, Ron Gribble, Dennis Thacker, Jerry Mahony, Lee William Budde and Richard Sorenson, Appellants, v. STATE of Alaska, DEPARTMENT OF FISH AND GAME, and Board of Fisheries, Appellees.

ALASKA FISH SPOTTERS ASSOCIATION, Ron Gribble, Dennis Thacker, Jerry Mahony, Lee William Budde and Richard Sorenson, Appellants, v. STATE of Alaska, DEPARTMENT OF FISH AND GAME, and Board of Fisheries, Appellees. No. S-4540. Supreme Court of Alaska. Sept. 11, 1992. William F. Brattain, II, and Anthony M. Sholty, Faulkner, Banfield, Doogan & Holmes, Juneau, for appellants. Stephen M. White and Larri Irene Spengler, Asst. Attys. Gen. and Charles E. Cole, Atty. Gen., Juneau, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2940

18373

OPINION COMPTON, Justice. The Alaska Fish Spotters Association and several individual fish spotters operating in Bristol Bay (Fish Spotters) challenged 5 Alaska Administrative Code (AAC) 06.378 (1991), which prohibits the use of aircraft to locate salmon during open commercial salmon fishing periods. The superior court upheld the regulation. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND In 1988 the Alaska Board of Fisheries (Board) adopted a statewide ban on the use of aircraft for the purposes of locating salmon for commercial taking or directing commercial salmon fishing operations. 5 AAC 39.292 (rep. 7/30/89). In July 1989 the Board repealed the statewide ban and decided to consider the matter on an area by area basis. In March 1990 the Board adopted a proposed regulation to ban fish spotting in Bristol Bay on a five to two vote. The promulgated regulation provided as follows: "During open commercial salmon fishing periods no person may use an aircraft to locate salmon for the commercial taking of those fish or to direct commercial salmon fishing operations." 5 AAC 06.378. Fish Spotters filed a complaint alleging that the regulation was unconstitutional and beyond the Board's regulatory authority. Specifically, Fish Spotters contended that the Board acted outside the scope of its authority when it promulgated the regulation. Fish Spotters also contended that the regulation violated several provisions of the Alaska Constitution: the common use clause, article VIII, section 3; the no exclusive right of fishery clause, article VIII, section 15; the uniform application clause, article VIII, section 17; and the equal rights clause, article I, section 1. On cross-motions for summary judgment, Superior Court Judge Larry R. Weeks entered a judgment upholding the regulation. Fish Spotters appeal. II. STANDARD OF REVIEW Whether a regulation promulgated by an administrative agency was consistent with the Alaska Constitution is a question of law which requires de novo review. See McDowell v. State, Dep't of Fish & Game, 785 P.2d 1 (Alaska 1989). "[Sjummary judgment may be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thus, we review de novo an order granting summary judgment." Gilbert v. State, Dep't of Fish & Game, 803 P.2d 391, 394 (Alaska 1990) (citations omitted). III. DISCUSSION A. The Board Has Authority to Ban Fish Spotting. According to Fish Spotters, 5 AAC 06.-378 was "outside the Board of Fishery's authority and [was] not the product of reasoned decision making." Because this appeal is technically moot, we refrain from a discussion of whether 5 AAC 06.378 was the product of reasoned decision making. Rather, we consider only whether the Board has the authority to ban fish spotting in Bristol Bay. We conclude that the Board has such authority. In conformity with article VIII, section 2 of the Alaska Constitution, the legislature created the Board of Fisheries "[f]or purposes of the conservation and development of the fishery resources of the state." AS 16.05.221(a). "We have previously defined 'conserving' as 'implying]' controlled utilization of a resource to prevent its exploitation, destruction or neglect. 'Developing' connotes management of a resource to make it available for use.' " Gilbert, 803 P.2d at 393 n. 1 (alteration in original) (quoting Kenai Peninsula Fisherman's Coop. v. State, 628 P.2d 897, 903 (Alaska 1981). In support of these goals, the legislature has authorized the Board to adopt regulations it considers advisable for "establishing the means and methods employed in the pursuit, capture and transport of fish" and for "regulating commercial, sport, subsistence, and personal use fishing as needed for the conservation, development, and utilization of fisheries." AS 16.05.251(a)(4), (12). The legislature also directed the Board to "establish criteria for the allocation of fishery resources among personal use, sport and commercial fishing." AS 16.05.251(e). Based on the Alaska Constitution, these statutes and our past decisions, we conclude that the Board has the authority to ban fish spotting if such a ban is properly based on conservation, development or allocation goals. The Board's power to regulate fishing means and methods for conservation purposes originates from the Alaska Constitution and is undisputed. Alaska Const, art. VIII, § 2. In prior cases we have recognized the Board's power to allocate between users as it controls utilization of fisheries resources. We have held that the Board's "duty to conserve and develop fishery resources implies a concomitant power to allocate fishery resources among competing users." Meier v. State, Bd. of Fisheries, 739 P.2d 172, 174 (Alaska 1987) (citing Kenai Peninsula Fisherman's Coop., 628 P.2d at 903) (approving allocation between commercial and recreational users). We have also held that the Board's authority encompasses the power to allocate a fishery resource between two competing subgroups of commercial users. Meier, 739 P.2d at 174 (approving allocation between setnet and driftnet fishers). Because this case is moot we need not determine specifically whether 4 AAC 06.378 was properly adopted. However, we again stress the importance of an adequate decisional document to facilitate judicial review. For a court to determine that an agency acted within its authority in adopting a regulation, it is vital that the agency clearly voice the grounds upon which the regulation was based in its discussions of the regulation or in a document articulating its decision. Peninsula Mktg. Ass'n v. State Bd. of Fisheries, 817 P.2d 917, 922-23 (Alaska 1991); Messerli v. State Dep't of Natural Resources, 768 P.2d 1112, 1118 (Alaska 1989) overruled on other grounds, Olson v. State, 799 P.2d 289, 292-93 (Alaska 1990). B. The Regulation Did Not Violate the Alaska Constitution. Fish Spotters contend that the common use clause obligates the state to guarantee public access to natural resources and that "a minimum requirement of this duty is a prohibition against any monopolistic grants or special privileges." Owsichek v. State Guide Licensing and Control Bd., 763 P.2d 488, 496 (Alaska 1988) (Fish Spotters' emphasis). Fish Spotters argue that irrespective of whether the regulation created a monopoly, it unconstitutionally eliminated their "historical" and "long enjoyed" access to the fishery resource. In the context of their common use clause argument, Fish Spotters do not dispute the state's power to regulate the means and methods which may be used in taking fish. Rather, they appear to argue that they have acquired a unique "user group" status defined by their preferred means of accessing the resource. We believe that Fish Spotters' concession regarding the power of the state to regulate fishing means and methods is fatal to their claim. Further, we do not agree with Fish Spotters' fundamental premise that the common use clause obligates the state to guarantee access to a natural resource by a person's preferred means or method. We conclude that the regulation banning fish spotting in Bristol Bay was not constitutionally infirm. Rather, it constituted a permissible limitation of the type traditionally imposed by the state on the means and methods which citizens may employ as they utilize fishery resources. As we noted above, the Alaska legislature has authorized the Board to adopt regulations it considers advisable for "establishing the means and methods employed in the pursuit, capture and transport of fish." AS 16.05.251(a)(4). Through this authority, the Board has prohibited many means and methods of pursuing and capturing fish in Alaska. In Bristol Bay for example, the Board regulates gill net mesh size and prohibits the use of boats more than 32 feet in length for salmon net fishing. 5 AAC 06.331, .341. Statewide, the Board has banned the use of explosives and poisons in the taking of fish. 5 AAC 39.-150. No person may mount a seine drum or reel aboard a seine vessel. 5 AAC 39.-155. In several locations, no person may commercial fish with any type of trawl gear. 5 AAC 39.165. No one may commercial fish with nets made of monofilament purse seine web. 5 AAC 39.170. Artificial lights may not be used to attract salmon out of closed waters. 5 AAC 39.-175. Like these regulations, the regulation at issue in this case prohibited any person from using a certain means — an aircraft— to assist in the pursuit and capture of salmon. We simply believe that Fish Spotters' constitutional arguments carry little weight where, as in this case, the Board has exercised its authority by restricting means and methods of access in a manner which applies equally to all citizens. We observe initially that, in guaranteeing people "common use" of fish, wildlife and water resources, the framers of the constitution clearly did not intend to prohibit all regulation of the use of these resources. Licensing requirements, bag limits, and seasonal restrictions, for example, are time-honored methods of conserving the resources that were respected by delegates to the constitutional convention. Owsichek, 763 P.2d at 492. Significantly, when the framers of the Alaska Constitution submitted their proposal to the voters of Alaska for ratification, they also submitted for approval an ordinance which prohibited the use of fish traps for commercial salmon fishing in all of Alaska's coastal waters. These framers, who crafted the common use clause and the other provisions raised by Fish Spotters, apparently found no inconsistency between a complete ban on fish traps, a "traditional" tool used for many years, and a reservation of the state's fish, wildlife and waters to the people for their common use. We see no distinction between the ban of fish traps in coastal waters proposed by the framers of the Alaska Constitution and the ban of fish spotting in Bristol Bay adopted by the Board. Each ban prevented any person from using a certain means of taking fish. Although applying equally to all persons in the state, each ban directly affected only a small number of people who had previously used the banned tool. Each ban precluded a preferred use of the fisheries resource. However, neither precluded all uses of the resource. Fish Spotters may access the resource in the same manner open to any other commercial fishers. They may participate in industries which support the fishery harvest. They may continue to use their planes to spot fish before an open commercial fishing period and to transport supplies and personnel for commercial fishing clients. In light of these alternative ways Fish Spotters may use the fisheries resource, we cannot conclude that the regulation banning fish spotting violates the common use clause of the Alaska Constitution. Rather, it constitutes a permissible limitation on the means and methods which any person may use to take salmon in Bristol Bay. Fish Spotters contend that they are "users" of the resource and ought not be treated differently from fishers. Fish Spotters argue that in Owsichek we made no distinction between hunters and hunting guides as "users" of the resource. In Ow-sichek we said: Admittedly, there is a difference between commercial fishermen and professional guides: a commercial fisherman takes his catch himself before selling it to others for consumption, while a hunting guide does not actually take the game, a privilege reserved for the client. We view this as an insignificant distinction that does not remove professional hunting guides from protection under the common use clause. The work of a guide is so closely tied to hunting and taking wildlife that there is no meaningful basis for distinguishing between the rights of a guide and the rights of a hunter under the common use clause. 763 P.2d at 497 n. 15. In Owsichek we recognized hunting guides as professional or commercial users of Alaska's wildlife resources, based on the nature of their use of the resource. We did not recognize their status as users based on a preferred means or method they used to gain access to the resource. Id. at 497. We explicitly reject Fish Spotters' argument that they are a distinct "user group" defined by the means and methods they use to gain access to the resource. In the context of "common use" clause analysis, we have consistently defined "user groups" in terms of the nature of the resource (i.e., fish or wildlife) and the nature of the use {i.e., commercial, sport or subsistence). See, e.g., McDowell, 785 P.2d at 8; Owsichek, 763 P.2d at 497. Recognition of user groups defined by use of a particular means or method of access would not be in accordance with the views of the framers of Alaska's constitution and would needlessly impair the Board's power and duty to control utilization, development and eonser-vation of fisheries resources for maximum public benefit. See Alaska Const, art. VIII, § 2. Fish Spotters contend that 5 AAC 06.378 violated the "no exclusive rights" clause because it excluded fish spotters from the Bristol Bay fishery and because it sheltered [fishers who do not use aerial spotters] against competition from spotter-aided fishermen. Invoking the "no exclusive rights" clause, this court has struck down schemes which granted a special monopolistic privilege to a limited number of individuals. Owsichek, 763 P.2d at 498; see McDowell, 785 P.2d at 9. However, the challenged regulation was not flawed in this manner because it did not grant a privilege to anyone. A ban on the use of a means of fishing does not equal a creation of an exclusive right or a special privilege. It is true that only those who previously used aircraft to spot fish were directly affected by the disputed regulation. However, this will be the case whenever a regulation is adopted which bans the use of a certain tool for taking fish. When the ban on fish traps was implemented, only people who previously used the traps were directly affected. Although Fish Spotters were clearly affected by the disputed regulation, the regulation did not exclude them from many uses of the resource. Fish Spotters' argument that the regulation sheltered some fishers against competition from others is wholly without merit. Finally, Fish Spotters argue that they were denied equal protection of law because the regulation prohibited their access to the fishery which others use and because they were treated differently from spotters in other areas. Fish Spotters argue that the regulation was void for the same reasons under the more stringent review appropriate under "uniform application" clause analysis. For the reasons articulated above we are not persuaded by these arguments. The regulation applied equally to all citizens. It did not implicate Alaska's "equal protection" or "uniform application" clauses. The superior court's summary judgment in favor of the state is AFFIRMED. . This appeal is technically moot. On January 11, 1992, after the parties submitted their briefs to this court, the Board changed its position and voted to allow aerial fish spotting in Bristol Bay. However, both parties believe that we should address the dispute because the issues are capable of repetition, because the mootness doctrine, if applied, may repeatedly circumvent review of the issues and because the issues are so important to the public interest that overriding the mootness doctrine is justified. We agree and therefore consider the issues through application of the public interest exception to the mootness doctrine. See Peninsula Mktg. Ass'n v. State Bd. of Fisheries, 817 P.2d 917, 920 (Alaska 1991). . If the Board bans fish spotting for the purpose of allocating the resource between competing subgroups of commercial uses, it must comply with AS 16.05.251(e). Peninsula Mktg. Ass'n, 817 P.2d at 922. Alaska Statute 16.05.251(e) requires the Board to establish criteria for allocation of the fisheries resource among different users. . Article VIII, section 3 of the Alaska Constitution provides: "Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use." . The full text of the proposed ordinance is as follows: As a matter of immediate public necessity, to relieve economic distress among individual fishermen and those dependent upon them for a livelihood, to conserve the rapidly dwindling supply of salmon in Alaska, to insure fair competition among those engaged in commercial fishing, and to make manifest the will of the people of Alaska, the use of fish traps for the taking of salmon for commercial purposes is hereby prohibited in all the coastal waters of the State. Alaska Const. Ord. 3, § 2. In 1957, the legislature enacted a statutory prohibition of fish traps, noting that the people of Alaska had "repeatedly and overwhelmingly" voted in favor of such a ban. Ch. 44, SLA 1957. . Article VIII, section 15 of the Alaska Constitution provides in part: "No exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the State." . Article I, section 1 of the Alaska Constitution provides: This constitution is dedicated to the principles that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State. . Article VIII, section 17 of the Alaska Constitution provides: "Laws and regulations governing the use or disposal of natural resources shall apply equally to all persons similarly situated with reference to the subject matter and purpose to be served by the law or regulation."

11627135

Michael Adam NAQUIN, Appellant, v. April Laine NAQUIN, Appellee

Naquin v. Naquin

1999-03-05

No. S-8728

383

386

974 P.2d 383

974

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:22:12.382875+00:00

CAP

Before MATTHEWS, Chief Justice, and EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

Michael Adam NAQUIN, Appellant, v. April Laine NAQUIN, Appellee.

Michael Adam NAQUIN, Appellant, v. April Laine NAQUIN, Appellee. No. S-8728. Supreme Court of Alaska. March 5, 1999. Kenneth C. Kirk, Anchorage, for Appellant. Cris W. Rogers and David S. Houston, Houston & Houston, Anchorage, for Appel-lee. Before MATTHEWS, Chief Justice, and EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

1543

9578

OPINION PER CURIAM. I. INTRODUCTION When Michael Adam Naquin (Adam) and April Naquin (April) divorced, the superior court awarded primary physical custody of their two children to Adam and granted reasonable visitation to April. After four months under a voluntary, informal agreement in which April had primary physical custody, April moved to modify the original custody order. Although Adam opposed this motion and disputed various factual assertions in April's affidavit, the superior court granted the motion without holding a hearing. Because we conclude that the decision to forego a hearing was in error, we reverse and remand for a hearing on the motion to modify custody. II. FACTS AND PROCEEDINGS Adam and April Naquin separated in May 1994. They have two children, Shadow and Tavin. April moved out of the marital home, but the children remained with Adam. In April 1997 Adam and April entered into an arrangement under which Adam paid April $500 a month to provide day care for the children from approximately 8:00 a.m. to 7:00 p.m. while Adam worked. At the same time, Adam wrote a letter, transferring primary physical custody to April from April 1997 until September 1997, allegedly to help April to qualify for day care assistance. In August 1997 both Adam and April appeared before the superior court in an uneon-tested hearing to finalize their divorce. April outlined for the court the terms of the parties' proposed agreement. These included an award of primary physical custody to Adam with reasonable visitation for April, despite the fact that she had temporary custody of the children at the time of the hearing. Adam appeared at this hearing to voice his agreement to April's terms. Superior Court Judge Eric Smith then issued a divorce and custody decree on September 17,1997, based on the parties' agreement. Eleven days after the date of the decree, Adam wrote a letter allowing April to have physical custody of both children "until further notice." The children began to stay with April during the week while attending school. April moved to modify custody and to formalize this transfer of physical custody in late January 1998. Adam opposed the motion, arguing that there was no significant change in circumstances and maintaining that the parties agreed to this temporary transfer in order for Adam to work more hours to pay off outstanding marital debts. Adam also requested an evidentiary hearing on April's motion. The trial court granted April's motion without first holding a hearing, finding that Adam had "voluntarily transferred custody of the children" to April. Adam moved for reconsideration, again asserting his right to a hearing. The court denied this motion, stating: [T]here are no material facts at issue. As defendant cannot deny, there was a significant change in circumstances in this case when defendant assigned the children to plaintiff "until further notice." . In short, defendant has provided no facts to challenge plaintiffs assertion that, as of the time of her motion (which was several months after plaintiff had received the children from defendant), it was in the best interests of the children for them to remain with her as principal custodian. Having provided no facts, defendant is not entitled to an evidentiary hearing. Adam appeals. III. DISCUSSION A. Standard of Review "The adequacy of the notice and hearing afforded a litigant in child custody proceedings involves due process considerations." Because a constitutional issue presents a question of law, we review such an issue de novo, applying our independent judgment. B. The Superior Court Erred in Granting the Motion to Modify Custody Without an Evidentiary Hearing. Adam argues that because he opposed the motion to modify the original custody order, the court should have held an evidentiary hearing. "Procedural due process under the Alaska Constitution requires 'notice and opportunity for hearing appropriate to the nature of the case.' " In a custo dy proceeding, the parties have a right to an adequate hearing, "which grants them the opportunity to present the quantum of evidence needed to make an informed and principled determination." "We have repeatedly held that '[a] party opposing a motion to modify child custody has the right to a hearing before the superior court grants the motion.' " Because Adam opposed the motion, the trial court should not have required him to meet an evidentiary threshold for a hearing. Although the trial court is not required to grant a hearing on a motion to modify if it is plain that the facts alleged in the moving papers would not warrant a modification, this rule is "inapplicable to a case . in which the trial court grant[s] rather than denie[s] an opposed motion to modify a child custody order." Our decision in Walker v. Walker directly controls this case. In Walker, the superior court granted a motion to modify custody without holding a hearing. It based its decision on the parties' written agreement to transfer physical custody during the school year, submitted by the father in support of his motion. But the children's mother had opposed the motion and submitted an affidavit contesting the father's allegation of unfit conduct, as well as the scope and purpose of the agreement. We held that the superior court erred in failing to hold an evidentiary hearing before ruling on the opposed motion to modify custody, and we remanded for an evidentiary hearing to determine whether the proposed modification was in the best interests of the children. Here, the superior court did not hold an evidentiary hearing because it found that there were "no material facts at issue." But like the mother opposing the motion to modify in Walker, Adam submitted an affidavit contesting April's assessment of his current fitness for custody and the duration and purpose of the agreement. Thus, the superior court's failure to hold an evidentiary hearing on the best interests of the children and an appropriate visitation schedule constitutes reversible error. Our holding today does not mean that the trial court erred in finding a significant change of circumstances. When addressing an informal modification of a visitation arrangement in Morino v. Swayman, we noted that although "[cjustodial parents should have the flexibility to experiment with new visitation schedules without fearing that every temporary change could be the basis for modifying visitation[,][ ] . at some point, informal or de facto modifications of custodial or visitation arrangements should be formalized." Even the dissent in Morino agreed that "changing a child's residence during the school week[ ] may be sufficient even if lasting for a few months, assuming the change was in the child's best interests." Under Adam and April's arrangement, the children's residence shifted during the school week for a period of months. Thus, April met her burden to merit a hearing on a possible change in custody. But April's success in meeting that requirement does not affect Adam's right to be heard on the issue of the children's best interests or to present his recommendations for a visitation schedule. In this case, the superior court had already-awarded Adam primary physical custody in accordance with the parties' agreement. Nevertheless, by granting April's motion to modify custody without holding a hearing, the court, in effect, forced Adam to bear the burden of demonstrating that maintaining his physical custody award was in the best interests of the children. IV. CONCLUSION Because the superior court erred by not holding a hearing before granting the opposed motion to modify custody, we REVERSE and REMAND for a hearing. . We note that the superior court has the discretion to maintain the custody arrangement currently in place pending a hearing. . Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska 1998); see also Walker v. Walker, 960 P.2d 620, 621-22 (Alaska 1998). . See Walker, 960 P.2d at 622; Lashbrook, 957 P.2d at 328. . Wright v. Black, 856 P.2d 477, 480 (Alaska 1993) (quoting Aguchak v. Montgomery Ward Co., 520 P.2d 1352, 1356 (Alaska 1974)). . Howlett v. Howlett, 890 P.2d 1125, 1127 (Alaska 1995) (citation omitted). . Walker, 960 P.2d at 622 (alteration in original) (quoting Lashbrook, 957 P.2d at 328); see also Hernandez v. Freeman, 938 P.2d 1017, 1018 (Alaska 1997) (relying on Howlett); Howlett, 890 P.2d at 1127. . See Walker, 960 P.2d at 622; see also C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska 1998). . Hernandez, 938 P.2d at 1018. . 960 P.2d 620 (Alaska 1998). . See id. at 622. . See id. at 622-23. . 970 P.2d 426 (Alaska 1999). . 970 P.2d at 429; see Gaston v. Gaston, 954 P.2d 572, 574 n. 4 (Alaska 1998) ("Alaska's family law encourages custodial parents to be flexible in experimenting with visitation schedules, and in most cases parents should feel free to end such experiments if they conclude that they are not working."). . Morino, 970 P.2d at 429. . Id. at 432 (Fabe, J., dissenting). . Cf. Boone v. Boone, 960 P.2d 579, 582 (Alaska 1998) (holding that in the context of a modification of a child support order, children's temporary and voluntary change in residence for a period of ten months was a material change in circumstances).

10408315

Larry NORENE, Don Karabelnikoff and Grayce Oakley, as Citizens and taxpayers in the Municipality of Anchorage, Appellants, v. MUNICIPALITY OF ANCHORAGE and Humana of Alaska, Inc., d/b/a Humana Hospital, Appellees

Norene v. Municipality of Anchorage

1985-08-09

No. S-276

199

205

704 P.2d 199

704

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:21:28.159013+00:00

CAP

Before RABINOWITZ, C.J., and BURKE, MATTHEWS and COMPTON, JJ.

Larry NORENE, Don Karabelnikoff and Grayce Oakley, as Citizens and taxpayers in the Municipality of Anchorage, Appellants, v. MUNICIPALITY OF ANCHORAGE and Humana of Alaska, Inc., d/b/a Humana Hospital, Appellees.

Larry NORENE, Don Karabelnikoff and Grayce Oakley, as Citizens and taxpayers in the Municipality of Anchorage, Appellants, v. MUNICIPALITY OF ANCHORAGE and Humana of Alaska, Inc., d/b/a Humana Hospital, Appellees. No. S-276. Supreme Court of Alaska. Aug. 9, 1985. Michael W. Price, Michael P. Condon, Groh, Eggers & Price, Anchorage, for appellants. David G. Berry, Asst. Municipal Atty., Anchorage, for appellee Municipality of Anchorage. J.D. Cellars, Delaney, Wiles, Hayes, Reit-man & Brubaker, Anchorage, for appellee Humana of Alaska, Inc. Before RABINOWITZ, C.J., and BURKE, MATTHEWS and COMPTON, JJ.

3105

19728

OPINION RABINOWITZ, Chief Justice. Three Anchorage taxpayers, Larry No-rene, Don Karabelnikoff, and Grayce Oakley (Norene) attack a land exchange between the appellees Municipality of Anchorage (Anchorage) and Humana Hospital (Humana). Humana had been leasing its hospital site from Anchorage. In the transaction, Humana received the site (the Humana Hospital site), and adjoining land forming part of the municipal landfill (the landfill property), as well as $450,000. In exchange, Anchorage acquired interests in three downtown properties. First, it received title to the site of the old Community Hospital (the 825 'L' Street property), which it had been leasing from Humana and using as headquarters for its health department. Second, it received the right to lease the land immediately north of the Community Hospital (the lease-purchase property) for $100,000. The lease was to begin on January 1, 1983, and to run for a year. Humana gave Anchorage the option to purchase the property for $870,000, with the lease payment applied to the purchase price. Finally, Anchorage accepted an option to purchase three other downtown lots (the option-to-purchase property) for $906,-395. The option was to be exercised before the end of 1983. The Anchorage Assembly approved this arrangement on December 7, 1982. Norene filed suit three months after the Assembly approved these exchanges, eventually raising four distinct arguments against the transaction. First, Norene contended that the landfill property which Anchorage gave up in the exchange had been dedicated as a park so that it could not be conveyed without voter approval. Second, Norene contended that the Anchorage Municipal Code (AMC) required Anchorage to appraise the tract adjacent to the landfill before disposing of it, and that Anchorage violated its own code when it did not em ploy an expert appraiser to do this. Third, Norene contended that the exchange, taken as a whole, constituted an abuse of discretion on the part of those who govern Anchorage. Finally, Norene contended that the Assembly had entered into "[a] lease purchase agreement with respect to acquisition of a capital improvement valued in excess of $1,000,000," and that under the Anchorage Home Rule Charter this transaction was invalid unless approved by the voters. The superior court rejected these arguments and granted summary judgment to Anchorage. We affirm. In 1981, Alaska Hospital, Humana's predecessor in interest, suggested that Anchorage exchange part of the landfill and its interest in the Humana Hospital site for the land and building at 825 'L' Street. Anchorage hired an appraiser, who valued the interests Anchorage would acquire at $3,000,000, and the interests it would give up at $2,225,000. The appraiser for Alaska Hospital valued the 825 'L' Street property at between $3,400,000 and $4,000,000. The parties struck a tentative bargain. In return for the 825 'L' Street property, Anchorage would give Alaska Hospital the landfill property, the Humana Hospital site, and $775,000. The matter was presented to the Assembly. At this point, the Mayor of Anchorage made his reservations known. Shortly afterwards, the Alaska Hospital sold Humana all of its assets, including the 825 'L' Street property and its leasehold interest in the landfill property, and a new round of negotiations began. Eventually, the municipal staff and representatives of Humana negotiated the agreement that Norene is now attacking. The Assembly approved this agreement in December 1982. The land swap proved controversial. Interested citizens contended that the appraisals on which the Assembly had relied were outdated, and that the property Anchorage was acquiring had been overvalued, while the property it was giving up had been undervalued. An ordinance rescinding the transaction was introduced. By a vote of 7-3, the Anchorage Assembly refused to rescind the transaction. Two months later, Norene filed suit in superior court. I. Does AMC § 25.30.080 require Anchorage to obtain a formal appraisal from a qualified appraiser before disposing of land? AMC § 25.30.080 reads, in pertinent part, as follows: Appraisal-Notice of Disposal A. Prior to the disposal of an interest in municipal land under Section 25.30.040A, the Division of Property Management shall determine the fair market value of the land. Raymond Mann, property management officer for the Municipality of Anchorage, estimated the fair market value of Parcel 'F', one of the pieces of landfill property. Neither Mann nor anyone on his staff was a qualified appraiser. Norene contends that the title of AMC § 25.30.080 "clearly indicates two requirements: first appraisal, and second, notice of disposal." Norene asserts that the term appraisal should be given its most common meaning: "an appraisal performed by a qualified appraiser for the purposes of determining fair market value." According to Norene, the City did not meet the appraisal requirement of AMC § 25.30.080 because Mann is not a qualified appraiser, and therefore the sale of Parcel 'F' is void. Norene further contends that because Parcel 'F' was an integral part of the whole transaction, the entire transaction is void. Anchorage suggests an alternative definition of the term "appraisal" as "a valuation of property by the estimate of an authorized person." Anchorage maintains that AMC § 25.30.080 does not require the Division of Property Management (DPM) to use any specific method to estimate fair market value, or to use appraisers with particular skills. In support of this position, Anchorage argues that had the Assembly wished to require an appraisal by a qualified appraiser, it would have done so. Previous disposal ordinances had expressly required such appraisals. See Greater Anchorage Area Borough Code of Ordinances § 14.20.030(A); and City of Anchorage Code of Ordinances § 4.16.230. AMC § 25.-30.080 has no such requirement. We are in agreement with Anchorage's interpretation of AMC § 25.30.080 and therefore hold that the superior court properly granted summary judgment in favor of Anchorage on this issue. In our view, the record in this case reflects that Anchorage's property management officer determined the fair market value of the subject 2.5 acre parcel in accordance with accepted appraisal methodology, thereby fulfilling the requirements of AMC § 25.30.080. II. Was the land exchange an abuse of discretion? The parties agree that Anchorage had discretion to enter into land exchanges, and that a reviewing court has the authority to decide whether or not Anchorage abused this discretion. Norene argues that since there were a variety of factual errors in the information supplied to the Assembly by the municipal administration regarding the land-swap, the Assembly's decision to consummate the land swap constitutes an abuse of discretion. Anchorage responds that, given the information presented by the municipal administration, the Assembly did not act arbitrarily. While Norene may take issue with the wisdom of the Assembly's judgment, Anchorage argues in light of the facts as presented to the Assembly, no abuse of discretion took place. Implicit in Anchorage's argument is the further contention that it is the Assembly's exercise of discretion which this court should review and not that of the municipal administration. We agree with Anchorage's position. According to McQuillin, "where a local legislative body has power to determine the expediency or necessity of measures relating to local government, its judgment upon the matters within the scope of its authority cannot be controlled by the courts." As we stated in Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974): It is not a court's role to decide whether a particular statute or ordinance is a wise one; the choice between competing notions of public policy is to be made by elected representatives of the people. With these considerations in mind, we hold that the superior court appropriately granted summary judgment on this issue. Appraisers informed the Assembly that the land exchange was financially sound, and the Assembly was made aware of the problems with the properties it was acquiring. Varying estimates of the value of the land it was giving up were before it. The Assembly decided to rely on one estimate and disregard others. Consideration of such factors is for the Assembly, not the courts. III. Does § 13.08 of the Anchorage Home Rule Charter require voter approval because the transaction Anchorage entered into was a lease-purchase agreement worth more that $1,000,-0001 At issue here is one component of the subject land exchanges and § 13.08(b) of the Anchorage Home Rule Charter. Section 13.08(b) provides: The Assembly by ordinance may authorize a contract, lease, or obligation re quiring funds from future appropriations. A lease purchase agreement with respect to acquisition of a capital improvement valued in excess of $1,000,000 is not valid until approved by a majority of the qualified voters voting on the question. We must first answer the question whether the transaction concerning Lots 7A, 8A, and 9A, Block 84, was a lease-purchase agreement as defined by AMC § 25.20.-060. We conclude that this transaction was a lease-purchase agreement as defined by AMC § 25.20.060. Anchorage agreed to lease for one year Lots 7A, 8A, and 9A, Block 84, for $100,000. After one year, Anchorage had the option to purchase the property for $870,000. The purchase price was to be reduced by the $100,000 Anchorage had paid in rent. Thus, the lease agreement would fall under any one of AMC § 25.20.060's subsections. In reaching our conclusion, we reject Anchorage's argument that the transaction should not be considered a lease-purchase agreement. According to Anchorage, § 13.08(b) of the Anchorage Home Rule Charter is designed to preclude the use of lease-purchase agreements to avoid the constitutional debt limitation. Anchorage maintains that this transaction does not lock it into a long-term lease agreement which will compel it to purchase the property or lose the equity it has built up through rent payments. Therefore, Anchorage argues that considering this transaction a lease-purchase agreement will not further the policy behind § 13.08 of the Anchorage Home Rule Charter. We are not persuaded by Anchorage's position. This transaction meets the definition of a lease-purchase agreement set out in AMC § 25.20.060. Further, the fact that the lease's term is for only one year is not of any legal significance. Anchorage will lose the $100,000 in equity if it does not purchase the land. Therefore, we conclude that the transaction concerning Lots 7A, 8A, and 9A, Block 84, is a lease-purchase agreement. Second, we must decide if the agreement is a capital expenditure valued in excess of $1,000,000, and therefore violative of § 13.-08 of the Charter. Anchorage contends that the purchase price of the leased properties is less than $1,000,000. The Charter refers to "a capital improvement." In the land swap Anchorage acquired three different properties. According to the Charter, it is the capital improvement, not the lease-purchase agreement, which must be valued in excess of $1,000,000. The capital improvement at issue here, the property Anchorage would acquire under the lease-purchase agreement, was worth $870,000, the price Anchorage was willing to pay for it. Because this amount is less than $1,000,000, we conclude that the transaction did not violate the Charter. IV. Was the landfill dedicated as a park so that Anchorage could not transfer it without first obtaining voter approval pursuant to § 10.02(8) of the Anchorage Home Rule Charter? In July of 1973, the Department of Environmental Conservation (DEC), State of Alaska, enacted solid waste management regulations. These provided, in part, that no person could operate a large solid waste disposal facility without a state permit, and that no one could obtain a permit without submitting a report detailing the proposed method of operation, population and area to be served, the characteristics, quantity and source of material to be processed, the use and distribution of processed materials, method of residue disposal, emergency operating procedures, the type and amount of equipment to be provided, and the proposed ultimate land use plan. 18 Alaska Administrative Code (AAC) § 60.020(b)(4) (1973) (repealed October 9, 1983). In response, the City of Anchorage proposed a Municipal Sanitary Landfill Master Plan. The Master Plan provided that 110.8 acres of the landfill would eventually be used as a park, with a "variety of facilities and uses," including a center for retired persons, a ski hill, and a stadium. This Master Plan was presented to the City Council in December 1973, and finally approved on August 27, 1974. The Council's minutes describe what it approved as a "Landfill Plan — Final Land Use and Gravel Extraction." The memorandum the administration submitted to the council specifically noted that part of the landfill "was designated as Park," but also recited that "[a]ll park uses shown on [the] attached map are illustrative and in all probability will be altered before time of implementation." The administration estimated that the site would continue to be a landfill for fifteen years. By 1978, Anchorage had changed its mind about the property. In that year, it adopted the Merrill Field Master Plan, providing that the landfill property would eventually be used for airport expansion, and that an area south of the property, across 15th Avenue, would be designated as a park. Various letters and memoranda circulated between 1978 and 1982 indicate that the landfill property was to have become a park. In fact, one letter refers to the removal of a "Park land dedication restriction" on the property. If Anchorage had indeed dedicated the property for park purposes, it could not have transferred the property without approval from the voters. Section 10.02(8) of the Anchorage Charter provides in part: An ordinance conveying an interest in real property dedicated to public park or recreational purposes is valid only upon approval by a majority of those voting on the question at a regular or special election. The Assembly shall publish notice of the election, including a description of the property by proper place name and legal description and the terms and conditions of the conveyance. Norene's argues that when the Anchorage City Council approved the landfill plan in 1974, it expressly dedicated the landfill property for park purposes. Anchorage responds that approval of a plan is not a formal designation of land use under § 10.02(8) of the Anchorage Charter. The commentary to the Anchorage Charter § 10.02(8) defines "dedication" as a "formal designation." This paragraph provides that conveyance of an interest in real property 'dedicated' to public park or recreational purposes requires a majority vote of the people. The term 'dedicated' is intended to indicate formal designation of the land in question for permanent or long-term park or recreational purposes. Land intended for ultimate use for some other purpose may be used in the interim for park or recreational purposes without triggering the election requirement of this paragraph. On the basis of the foregoing, we conclude that for the purposes of § 10.02(8) of the Charter, Anchorage formally and explicitly dedicated the property in question as public park and recreation land when it adopted the Municipal Sanitary Landfill Master Plan on August 27, 1974. However, the 1979 Merrill Field Master Plan essentially superseded the 1974 Municipal Sanitary Landfill Master Plan. The Merrill Field Master Plan constituted a formal and express subsequent dedication of the land in question for purposes other than park and recreational purposes. McQuillin states the following: Where . the dedication is made by the state, the intention of the state controls the use, and the state may change the original use for other public uses.... 11 E. McQuillin, The Law of Municipal Corporations § 33.74, at 820-21 (3d ed. 1983). On the record before us, this formal and express dedication made in 1979 of the land in question constituted an effective revocation of the 1974 dedication of the property for park and recreational purposes. There is no indication in the record that the 1979 administrative action taken by Anchorage was intended to facilitate disposal of the property in contravention of the majority approval-election requirements of § 10.-02(8) of the Anchorage Charter. We therefore hold that Anchorage had the authority to revoke the 1974 dedication to park and recreational land. AFFIRMED. MOORE, J., not participating. . Norene identifies four categories of mistakes. First, Norene contends that the appraisals on which the Assembly relied were flawed because the appraisals were out of date and were inadequate with respect to one of the landfill tracts Anchorage was to relinquish. (Norene identifies a $209,000 error in the valuing one of the tracts.) Second, Norene contends that the municipal administration failed to inform the Assembly that a municipal employee believed that the 825 'L' Street building would require extensive repairs. Third, Norene contends that Anchorage lacked a clear land disposal policy. Lastly, Norene contends that Anchorage's interest in the Humana Hospital site was worth far more than the Assembly realized. . 2 E. McQuillin, The Law of Municipal Corporations § 10.33, at 825 (3d ed. 1979). . AMC § 25.20.060 reads as follows: Lease-purchase agreements. The municipality may acquire real property by a lease-purchase agreement under Chapter § 13.08(b), which shall mean an agreement: A. Under which the municipality pays rent for the use of the real property; B. which grants the municipality an option to purchase the real property; and C. which allows the municipality to apply all or part of the rent payments to the purchase price of the real property. . The Charter's crucial sentence has two antecedents ("[a] lease purchase agreement" and "a capital improvement") and two consequents ("valued in excess of $1,000,000" and "is not valid") and it is certainly possible to read "valued in excess of $1,000,000" as referring to "lease purchase agreement." We reject this reading, principally because "valued" is a term one usually applies to property, not to agreements. . Anchorage acquired three different properties in the land exchange. If it had planned to use all three properties in a single project, then they might have constituted a single capital improvement. As it is, they do not. . Prior to August 1974, the City included references to park construction in its long range capital improvement program. Even after unification, plans for park construction were still being made, although construction was pushed further and further into the future. . The Charter Commission's commentary is intended as "[a]n aid to legislative history, to assist in the interpretation of the Charter document."

10415472

Phillip J. ADAMS, Appellant, v. STATE of Alaska, Appellee

Adams v. State

1985-08-09

No. A-116

794

799

704 P.2d 794

704

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:21:28.159013+00:00

CAP

Before COATS and SINGLETON, J., and DIMOND, Senior Justice.

Phillip J. ADAMS, Appellant, v. STATE of Alaska, Appellee.

Phillip J. ADAMS, Appellant, v. STATE of Alaska, Appellee. No. A-116. Court of Appeals of Alaska. Aug. 9, 1985. Tina Kobayashi, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant. Robert D. Bacon, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before COATS and SINGLETON, J., and DIMOND, Senior Justice. Dimond, Senior Justice, sitting by assignment made pursuant to Article IV, section 11, of the Constitution of Alaska.

2785

16534

OPINION DIMOND, Senior Justice. Based on information received from a drug informer named Fuselier, Anchorage police found the body of James Gummo in his apartment. His hands and feet had been bound with neck ties; a sock was stuffed in his mouth, and he had been shot in the back of the head. Fuselier told the police that Adams had committed the murder. Adams was arrested, indicted, tried, and convicted for first degree murder, and was sentenced to ninety-nine years in prison. He appeals on several grounds.. THE CONFESSION Under interrogation by police officers, Adams confessed to having murdered Gum-mo. Adams moved to suppress the confession on the ground that it was improperly elicited from him in violation of his right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Adams was arrested and brought to the police station at approximately 1:30 a.m. He was placed in an interview room where he remained until he confessed to the crime at about 4:30 a.m. At the omnibus hearing on his motion to suppress, Adams stated that he had been advised of his Miranda rights at the time of arrest and that he was familiar with such rights since he had been arrested before. He did not speak to the arresting officers. Adams testified that he was left alone in the interview room for about an hour. He had fallen asleep when Officer Maxine Farrell entered the room, read him his Miranda rights, and asked him if he wanted to talk. He declined to talk to her. Adams further testified that Officer Farrell re-entered the room about fifteen minutes later with Assistant District Attorney Helene Antel. When they presented him with a waiver of rights form, Adams said he pointed to the first line where it said, "You have the right to remain silent," and said "that's what I want to do." According to his testimony, Adams resumed sleeping, with his head resting on the desk. A police officer checked on him approximately every fifteen minutes. Sometime later Adams was told by a police officer that Fuselier had made a statement and that the police had the gun with Adams' fingerprints on it. Adams then signed a waiver of rights form and started talking. Officer Farrell, who had been talking to Adams, called Officer Douglas Jones into the room where an interview with Adams was recorded, with Farrell questioning Adams, shortly after 4:30 a.m. On cross-examination, Adams testified that though he was tired when Farrell and Antel entered the interview room, he understood what was going on and knew that he did not have to talk to them. Adams was awake when Officer Jones entered the room at about 4:30 a.m. At no point during the recording of his interview with Officer Farrell, with Jones present, did Adams say he did not want to talk to her or that he wanted a lawyer. The only witness produced by the state at the omnibus hearing was Officer Jones. While Jones was the officer in charge of the Gummo investigation, his only significant contact with Adams came after 4:30 a.m. when Officer Farrell brought Jones into the interview room. Jones testified that Adams was awake and at no time expressed a desire not to talk. During the fifteen minute interview in Jones' presence, Adams confessed to killing Gummo. After hearing the testimony of Adams and Officer Jones, Judge Moody denied the motion to suppress, finding that Adams never indicated he did not want to talk to the police. Judge Moody stated that he disbelieved Adams' testimony. If that is the case, then there is nothing in the record to account for the three-hour period between 1:30 a.m., when Adams was placed in the interview room at the police station, and about 4:30 a.m., when Officer Maxine Farrell called Jones into the interview room for Adams' confession. It seems highly unlikely that Adams would be placed in an interview room for three hours and that no police officer would have talked to him or would have attempted to "interview" him during that period of time. In an attempt to fill in this gap, the state filed the affidavit of Officer Farrell who did not testify at the omnibus hearing. She states in her affidavit that she did talk to Adams on two or three occasions and advised him of his rights, and "[a]t no time during these events did Mr. Adams indicate a desire to exercise his rights to silence or to counsel." The question that is immediately raised is whether the state could rely on Farrell's affidavit in lieu of her oral testimony. Alaska Rule of Criminal Proce dure 50(b) incorporates by reference Civil Rule 77 relating to motion practice. State v. Johnson, 525 P.2d 532, 534 and n.2 (Alaska 1974). This rule provides for the filing of affidavits upon which the moving party intends to rely in support of the motion the party has made, and also by the opposing party in opposition to a motion. We believe that Civil Rule 77, made applicable to criminal actions by Criminal Rule 50(b), was intended to provide a uniform procedure for handling the many and diverse types of general procedural motions that arise in the course of litigation, both civil and criminal. In the absence of a conflict in the evidence the trial court may rely on Civil Rule 77(k) in making fact findings based upon affidavits or other documentary evidence regarding suppression motions. Where, however, the defendant testifies under oath and is subject to cross-examination, the trial court may abuse its discretion if it does not require oral testimony from the state's witnesses. An abuse of discretion is most clear in those cases, such as this one, in which the defendant's testimony, if not impeached or contradicted, would establish a violation of his or her constitutional rights and the state relies upon affidavits to contradict the defendant's testimony. Civil Rule 77(k), in providing for hearing a motion on affidavits, was not intended to substitute affidavits for the vital oral testimony of necessary witnesses essential in the determination of whether an accused's constitutional right to remain silent when questioned by the police has been scrupulously honored. The state has a heavy burden to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 724 (1966). The accused should have the right to cross-examine a state's witness whose testimony is intended to meet such a heavy burden. The burden of proving that a confession is voluntary is one which the State must assume when the admissibility of a confession is questioned on the grounds that it was coerced. Only by producing all the material witnesses connected with the controverted confession can the State discharge this burden. People v. Armstrong, 51 Ill.2d 471, 282 N.E.2d 712, 715 (1972), quoting People v. Wright, 24 Ill.2d 88, 180 N.E.2d 689, 691 (1962). See also Smith v. State, 256 Ark. 67, 505 S.W.2d 504 (1974). The filing of affidavits in lieu of producing witnesses, such as that of Officer Farrell, simply will not suffice. If what Adams said at the suppression hearing is true, then a serious question is raised as to whether his constitutional right to remain silent was scrupulously honored by the police. Miranda states that if "the individual indicates in any manner . that he wishes to remain silent, the interrogation must cease." 384 U.S. at 473-74, 86 S.Ct. at 1627, 16 L.Ed.2d at 723 (emphasis added). And in Michigan v. Mosley, 423 U.S. 96, 102, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 320 (1975), the court said: "To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned." We recognize the right of Judge Moody to judge the credibility of the witnesses before him, because he had the opportunity to observe their demeanor. But when Adams, in his testimony, raises the question of whether his confession was ob tained by forbidden means, one simply cannot disregard everything Adams said when the state does not produce a single witness who can contradict or cast doubt on the veracity of what Adams has testified to. The state had the burden, after Adams had testified, to demonstrate that he was advised of his Miranda rights and that they were scrupulously honored. The record as it stands indicates that the state failed to meet that burden. We shall remand this case to the trial court for concise and adequate findings of fact as to what precisely took place between the police and Adams during the time from his arrest at about 1:00 a.m. until he made his confession sometime after 4:30 a.m. The court may, in its discretion, hold additional hearings and order any or all of the original witnesses to be recalled. The court may also permit additional testimony or other evidence, argument, or briefing. See Johnson v. State, 631 P.2d 508, 513-14 (Alaska App. 1981). If the trial court determines that Adams' statements should have been suppressed, it shall order a new trial. EVIDENCE OF PRIOR CRIME BY FUSELIER The theory of defense at trial was that the key prosecution witness, Fuselier, had actually committed the murder. Gummo, the victim, had been struck on the head and shot prior to being robbed. Fuselier was convicted in 1976 of assault with attempt to rob. In that case he had entered into the victim's hotel room with a club and had hit the man on the head in attempt to rob him, but was interrupted by the police. Adams sought to introduce Fuselier's prior conviction under Alaska Rule of Evidence 404(b) as a "method of operation for Mr. Fuselier that indicates when he is in needful [sic] of money or something he enters other people's houses and robs them." Judge Carlson denied the request, finding that the prior conviction was not indicative of a pattern. Adams again sought to introduce Fuselier's prior conviction during cross-examination. An offer of proof was made. Adams argued that this was a "signature crime," admissible for the purposes of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Judge Carlson again denied the request, finding an insufficient link to activate Evidence Rule 404(b). Judge Carlson's ruling was correct. The only similarity between the two crimes is that Fuselier's 1976 assault with intent to rob involved entering a hotel room with a club and hitting the victim on the head. In this case, Gummo was hit on the head, but in addition, had his hands and feet bound, his mouth stuffed with a sock, and had been shot in the head. The two crimes are not nearly similar enough to show identity or to constitute a "signature crime." Galauska v. State, 527 P.2d 459, 467 (Alaska 1974). Certainly, the two crimes here were not sufficiently similar and unusual in their pattern to constitute a modus oper-andi probative of Fuselier being the assailant in both instances. Cf. Coleman v. State, 621 P.2d 869, 875 (Alaska 1980). DENIAL OF MOTION FOR CONTINUANCE At the trial the state called an expert on fingerprints, Officer Morris, who testified that he had lifted several palm prints from the scene of the crime and that none of them matched the palm prints received from Adams or other witnesses. On cross-examination Adams got Morris to admit that he did not have palm prints of Fuselier to compare to the prints lifted from the crime scene. Subsequently, the state obtained prints from Fuselier and sought to recall Officer Morris to testify that the lifted prints were not Fuselier's either. Adams requested a. continuance of at least one week to get an independent analysis of the palm prints. Judge Carlson denied the request for a continuance but stated that if Adams' expert said that the prints from the crime scene were Fuselier's then he would grant a new trial based upon newly discovered evidence. Adams further argued that he was being deprived of an opportunity to prepare to cross-examine Officer Morris. Judge Carlson did not abuse his discretion in denying the request for a continuance. Adams had been aware of the lifted prints and that Morris was to be called as an expert witness. He had prepared to cross-examine Morris as to the lifted prints and their dissimilarity to Adams' prints. The only unanticipated evidence was the new testimony that the prints did not match Fuselier's. Once the defense had adopted its theory that Fuselier committed the crime, it should have been evident that comparison of Fuselier's prints to those lifted from Gummo's apartment would be material. Especially in the light of Judge Carlson's offer to grant a new trial if the expert Adams proposed to engage said that the prints lifted from the scene were Fuse-lier's, his denial of the motion for continuance did not prejudice Adams' rights and was not an abuse of discretion. Nielsen v. State, 623 P.2d 304, 307 (Alaska 1981). THE SENTENCE Adams argues that his maximum sentence of ninety-nine years is excessive. He claims that Judge Carlson was clearly mistaken in classifying him as a "worst offender" and in giving little weight to the sentencing goal of rehabilitation. In concluding that Adams was a worst offender, and thus was subject to a maximum sentence, Judge Carlson considered Adams' history of criminal activity, including a prior conviction for armed robbery. The offense here was a particularly brutal and cold blooded murder; Gummo was hit with a pistol, bound, gagged, and then shot in the head at close range. There is simply no merit to Adams argument that his case "was neither better nor worse than the average first-degree murder case." The priority of sentencing goals is within the trial judge's discretion. Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973). Judge Carlson was not clearly mistaken in imposing a ninety-nine year sentence. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). This case is REMANDED to the trial court for further proceedings consistent with the views expressed in this opinion. BRYNER, C.J., not participating. . Farrell testified at the trial. She said that she knew nothing about what had happened to Adams during the three or four hour period that he was in custody before she initiated contact with him at about 4:00 or 4:30 a.m. when she "gave him his rights," and he confessed to the crime. This is not consistent with the assertions she made in her affidavit. . Criminal Rule 50(b) provides in relevant part: (b) Civil Rules to Apply. All other provisions of the Rules of Civil Procedure relating to attorneys, regarding applications to the court, stipulations, examining witnesses, . shall apply to practice in criminal actions in the courts of the state. . Civil Rule 77(k) provides: (k) When a motion is based on facts not appearing of record, the court may hear the matter on affidavits or other documentary evidence presented by the respective parties, but the court may direct that the matter be heard wholly or partly on testimony or deposition. . Evidence Rule 404(b) reads as follows: (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . This exception to the rule which prohibits evidence of other crimes committed by the witness is used, as Professor McCormick states, to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device must be so unusual and distinctive as to be like a signature. E. Cleary, McCormick on Evidence § 190, at 449 (2d ed. 1972) (footnotes omitted). . Bell v. State, 598 P.2d 908, 915 (Alaska 1979).

10408702

Jo Ann MORROW, Appellant, v. STATE of Alaska, Appellee

Morrow v. State

1985-08-09

No. A-510

226

233

704 P.2d 226

704

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:21:28.159013+00:00

CAP

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

Jo Ann MORROW, Appellant, v. STATE of Alaska, Appellee.

Jo Ann MORROW, Appellant, v. STATE of Alaska, Appellee. No. A-510. Court of Appeals of Alaska. Aug. 9, 1985. Carl E. Forsberg, Birch, Horton, Bittner, Pestinger and Anderson, Anchorage, for appellant. John A. Scukanec, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3468

21568

OPINION COATS, Judge. On December 1, 1983, the mother of a sixteen-year-old juvenile, M.W., contacted Alaska State Trooper Geoffrey Engleman. M.W.'s mother informed Trooper Engle-man that she believed her daughter was dealing drugs. Later that day, Trooper Engleman and another officer met with M.W.'s mother at her residence. There, she informed them that she had discovered plastic bags containing pills in M.W.'s purse. An officer then searched M.W.'s purse and discovered six plastic bags containing different colored pills. Subsequently, Trooper Engleman interviewed M.W. At that time, M.W. informed the trooper that seven to nine days previously, Jo Ann Morrow had supplied her with 300 pills. She had obtained them from Morrow while in Morrow's car. At that time, Morrow told M.W. the pills were "speed" and instructed M.W. to sell each pill for $1.00. Morrow told M.W. "she would receive ½ of the money from the sales and if M.W. ran out of pills, Morrow could supply more. M.W. also stated that she had sold some of the pills and had given Morrow $39 and Morrow had returned $12 or $14 to M.W. on November 30, 1983, as commission on the sales. Trooper Engleman had the pills field-tested and determined that they were not "speed." However, because of their appearance, they could pass for "speed" on the street. Subsequent laboratory tests disclosed that the pills contained caffeine and ephedrine. Based on the information provided by M.W., and his own familiarity with "fake controlled substances," Trooper Engleman obtained a search warrant for Morrow's residence. The warrant authorized a search of the residence for: drugs which appeared to be amphetamine based; written records of the ordering of such drugs; and magazines or books from which such drugs could be ordered. A search of the residence on December 1, 1983, resulted in the seizure of: approximately 5,000 tablets and capsules, similar to those obtained from M.W.; brochures advertising diet pills and stimulants; various items of drug paraphernalia; and from Morrow's purse, a list of names and telephone numbers, including M.W.'s. On December 6, 1983, a grand jury returned a two-count indictment charging Morrow with delivery of an imitation controlled substance to a minor and possession of an imitation controlled substance with intent to deliver. AS 11.73.030(a); AS 11.-73.010(a). On March 10, 1984, a jury returned a verdict of guilty on the possession with intent to deliver charge only. Morrow now appeals, raising the following issues: (1) that the trial court erred by denying her motion to suppress evidence because the search warrant for her residence was not supported by probable cause; (2) that the trial court erred in denying her motion to dismiss the indictment because hearsay evidence was presented to the grand jury in the form of a "telex" preliminary lab report; and (3) that AS 11.73.099, the statute defining "imitation controlled substances," is unconstitutional. SEARCH WARRANT ISSUES The standard of review regarding a magistrate's determination of probable cause was enunciated in Rosa v. State, 633 P.2d 1027, (Alaska App.1981), where this court said: In reviewing a magistrate's determination of probable cause this court must give great deference to the magistrate s decision and must resolve doubtful or marginal cases largely by the preference to be accorded warrants.... "The Fourth Amendment's requirements are practical and not abstract, and affidavits 'must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion....'" The burden of proof on questions pertaining to the sufficiency of the affidavit is on the defendant. [Citations and footnotes omitted.] Id. at 1029-30, quoting State v. Davenport, 510 P.2d 78, 82 n. 8 (Alaska 1973). With these standards in mind, the question to be asked is "whether the issuing judge [or magistrate] was provided sufficient evidence to make an independent finding of probable cause" to issue a warrant. Lockwood v. State, 591 P.2d 969, 970 (Alaska 1979), quoting Davis v. State, 499 P.2d 1025, 1028 (Alaska 1972), rev'd on other grounds, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Morrow argues that the affidavit in support of the search warrant was inadequate because there was no indication that M.W. was a credible informant. See Kralick v. State, 647 P.2d 1120, 1124-25 (Alaska App.1982). Morrow argues that the affidavit does not make any allegation that M.W. had given reliable information in the past and the police did not conduct an independent investigation to corroborate her statements. Morrow also contends that this warrant is defective for the same reasons we articulated in Jones v. State, 681 P.2d 364 (Alaska App.1984). In Jones we held that an affidavit in support of a search warrant by a police detective was not sufficient where the detective relied on a report by a juvenile informant that he witnessed a sale of one-half gram of cocaine at Casey Jones's apartment. The juvenile also stated that he had been to the apartment several times when "he or his companions have purchased cocaine from Jones in the last few months." Id. at 365. The juvenile also pointed out an apartment which was confirmed by another police officer to be Jones's apartment. In noting that the hearsay statement of the juvenile informant was not sufficient to support the warrant, we stated: Moreover, B.V.'s statements that he had observed a friend purchase cocaine and that he had been to Jones's apartment ten to fifteen times when "he or his companions" had purchased cocaine do not qualify as the kind of declarations against penal interest which a court could find inherently credible. It is not a crime to be present when someone else is purchasing cocaine even though that someone else is a friend; nor would vague admissions about past purchases of cocaine support a criminal prosecution in the absence of evidence establishing a-corpus delicti for a specific purchase. More significantly, the affidavit does not explain the circumstances under which B.V.'s statement was made. If B.V. was being prosecuted by juvenile authorities for drug transactions unrelated to Casey Jones, he would hardly view his statement that he had purchased cocaine in the past from Jones as increasing his exposure to criminal sanctions. Id. at 365. We see the situation in this case as significantly different from that in Jones. M.W. had the imitation drugs in her possession and apparently believed that she was confessing to the police that she had been selling amphetamines. There was every reason for the magistrate to credit her story as a declaration against interest. 1 W. LaFave, Search and Seizure, § 3.3(c) (1978). We conclude that M.W.'s credibility was adequately supported. Morrow next argues that the affidavit in support of the warrant did not establish probable cause because it was based on stale information. She argues this is true because M.W.'s alleged transaction with Morrow had occurred seven to nine days prior to the issuance of the warrant. In Snyder v. State, 661 P.2d 638, 647 (Alaska App.1983), this court said: The question of whether the information contained in the affidavit was "stale" depends on an evaluation of the circumstances related by the affidavit and the length of time between the issuance of the search warrant and the time of the most recent incriminating activity described in the affidavit. In evaluating "staleness," this court has chosen to evaluate the following four factors: (1) the type of crime; (2) the nature of the items sought; (3) the extent of the suspect's opportunity for concealment; and (4) normal inferences as to where a criminal would be likely to hide incriminating articles. Id. at 648. It appears that the magistrate could have properly concluded the information was not stale because the affidavit evidenced ongoing criminal activity. See, e.g., 1 W. LaFave, Search and Seizure § 3.7(a), at 683-87 (1978); State v. Ogden, 391 So.2d 434 (La.1980) (probable cause found despite fact that drug sale took place five days prior to the issuance of the warrant where the informant's statements indicated continuous activity and drug transactions, supporting an inference that a continuing supply of cocaine would be available). On the present facts, the affidavit stated that although the actual capsules and tablets were obtained from Morrow seven to nine days previously, money had been turned over to Morrow "within the last few days." Also, Morrow had represented to M.W. that if M.W. "sold out" of the substances, Morrow could readily obtain more. We conclude that the magistrate could properly find that there was probable cause that Morrow was still in possession of the imitation drugs and related material. Next Morrow argues that because M.W. indicated she obtained the pills from Morrow while Morrow was in her car, there was no nexus between Morrow's residence and the items to be searched for. In Snyder, 661 P.2d at 645, we said: Probable cause to search requires sufficient information to permit the conclusion that criminal activity or evidence of crime will be found at the place to be searched. Put another way, there must be a "nexus" between the place to be searched, criminal activity, and the items sought. 1 W. LaFave, Search and Seizure § 3.7(d), at 704 (1978). See also State v. Gutman, 670 P.2d 1166 (Alaska App.1983). We believe that the magistrate could properly conclude from the continuing contacts between M.W. and Morrow that Morrow was engaged in an ongoing business and it is logical to assume that some of the drugs would be stored at her residence. We conclude there was probable cause to search Morrow's residence. Morrow next contends that the police should not have been permitted to seize the telephone list which had on it M.W.'s name and telephone number along with several other names and telephone numbers. Morrow concedes the police could search her purse to find the list, but argues that the incriminating nature of the list was not immediately apparent and therefore the police had no authority to seize it. We disagree. The fact that Morrow had M.W.'s name and telephone number on a list in her purse showed her connection to M.W. and corroborated M.W.'s version of the relationship. It was also probable that the other names and telephone numbers on the list were connected with Morrow's distribution of imitation controlled substances. We conclude the police had authority to seize the list and that the trial judge did not err in refusing to suppress the use of the list as evidence. GRAND JURY Morrow argues that the indictment should have been dismissed since the state proved by means of a preliminary laboratory report that the substance which she was charged with possessing contained ephedrine and caffeine. Morrow claims that introduction of this report was inadmissible hearsay for which there was no compelling justification. Alaska R.Crim.P. 6(r). Morrow recognizes that in McKinnon v. State, 526 P.2d 18 (Alaska 1974), the supreme court permitted the state to introduce the results of a laboratory report de spite the fact that the report was hearsay. Morrow specifically objects to the fact that the report presented to the grand jury was a telex which read: "Preliminary screening indicates presence of ephedrine and caffeine. Final report will be mailed upon completion of analysis." She argues that the situation in her case is more similar to that described by the supreme court in Metler v. State, 581 P.2d 669, 673-74 (Alaska 1978), where the court disapproved of introducing at grand jury the hearsay conclusion of handwriting experts. In Metier the court concluded that the grand jury was given insufficient information to evaluate the credibility of the experts and their methods. However in Morrow's case, Trooper Engleman, who introduced the report, did give the grand jury background information about the chemist who performed the test. He indicated that the chemist, Suzanne Feller, was a state chemist that he was personally acquainted with and that she had testified as an expert in other drug cases. Trooper Engleman also testified that he field-tested the suspected drugs and found they were not amphetamines. We also note that Suzanne Feller's testimony at trial was apparently essentially the same as her preliminary report, so it appears that we do not have a situation where later tests were inconsistent with the preliminary one. We conclude that under these circumstances the grand jury had sufficient information to evaluate Suzanne Feller's hearsay testimony and that the grand jury could properly find that the substances which Morrow possessed fell within the imitation controlled substances statute. VAGUENESS AND OVERBREADTH Morrow next challenges the statute under which she was convicted as being unconstitutionally overbroad and vague. U.S. Const, amend. XIV and Alaska Const, art. 1 § 7. Morrow was convicted of possession of imitation controlled substances with the intent to deliver in violation of AS 11.73.010(a). That statute provides in part that "a person may not manufacture, deliver, or possess with intent to deliver, an imitation controlled substance." The definition of "imitation controlled substances" is found in AS 11.73.099(3) which provides: (3) "imitation controlled substance" means a substance containing ephedrine, ephedrine sulfate, pseudoephedrine, pseudoephedrine hydrochloride, phemyl-propanolamine, caffeine, theophylline, li-docaine, procaine, tetracaine, dyelonine, acetaminophen, salicylamide, doxylamine, diphenhydramine, pheniramine, chlopher-amine, or pryrilamine, or their salts, that is not a controlled substance, and that by dosage unit appearance (including color, shape, size, and markings) or by representations would lead a reasonable person to believe that the substance is a controlled substance; the term "representations", as used in this paragraph, includes (A) statements made by an owner or by anyone else in control of the substance concerning the nature of the substance, or its use or effect; (B) statements made to the recipient that the substance may be resold for inordinate profit; (C) whether the substance is packaged in a manner normally used for controlled substances; (D) evasive tactics or actions used by the owner or person in control of the substance to avoid detection by law enforcement authorities; (E) the storage, packaging, presentation, display of or reference to a controlled substance with, near, or in connection with the activity involving the imitation controlled substance. [Emphasis provided.] Morrow points out that this statute could reach some conduct which it is unlikely that the statute was intended to cover. Morrow proposes a hypothetical where someone, without any intent to deceive, gives caffeine diet pills, which are available as non-prescription medicine, to someone indicating that the pills are "as effective for weight loss as any prescription medicine." The state recognizes that the stat ute could be construed to reach conduct, such as that described by Morrow, which it is unlikely that the legislature intended to prohibit in promulgating the statute. The state urges us to interpret the statutory language defining an "imitation controlled substance" in such a manner that the meaning of the statute will be more clear to avoid any vagueness problems. As AS 11.73.099(3) now reads in part, an "imitation controlled substance" is a substance containing specific chemical components which "by dosage unit appearance . or by representations would lead a reasonable person to believe that the substance is a controlled substance." [Emphasis provided.] The state asks us to read the "or" in AS 11.73.099(3) as "and" in construing the statute. The state argues that as so construed, the statute would not reach innocent behavior. In Summers v. Anchorage, 589 P.2d 863, 866-67 (Alaska 1979), the supreme court set out three factors which must be considered in determining whether a statute is unconstitutionally vague: First, a statute may not be so imprecisely drawn and overbroad that it "chills" the exercise of first amendment rights. The second consideration is that in order to be consistent with notions of fundamental fairness a statute must give adequate notice of the conduct that is prohibited. The final element in an analysis of statutory vagueness is whether the statute's imprecise language encourages arbitrary enforcement by allowing prosecuting authorities undue discretion to determine the scope of its prohibitions. [Footnotes omitted.] The first question we need to answer is whether the statute is overbroad. The overbreadth doctrine was described in Marks v. Anchorage, 500 P.2d 644, 646 (Alaska 1972): The overbreadth doctrine has evolved to give adequate breathing room to specific first amendment freedoms; a statute violates the doctrine when constitutionally-protected conduct as well as conduct which the state can legitimately regulate are included within the ambit of the statute's prohibition. [Footnote omitted.] The statute in question regulates conduct, the possession and sale of certain specific drugs, not speech or association. See Summers v. Anchorage, 589 P.2d at 867; McKenzie v. Anchorage, 631 P.2d 514, 516-17 (Alaska App.,1981). We therefore conclude that the statute is not overbroad. The next question which we need to answer is whether the statute gives "adequate notice of the conduct that is prohibited." The state has conceded that the statute does have vagueness problems in this area and has asked us to construe the statute. In Stock v. State, 526 P.2d 3, 8 (Alaska 1974), the supreme court stated the doctrine which allows a court to construe a statute which is vague on its face in such a way as to avoid constitutional vagueness problems: A statute in its broad contours may be subject to criticism for failure to give adequate notice as to all types of conduct which are punishable, but, when not involved with the "overbreadth" problem, may still pass muster if: (a) there can be no question as to its applicability to the particular offense involved, and (b) a construction may be placed upon the statute so that in the future the type of offenses coming within its purview may reasonably be understood. [Footnotes omitted.] In this case the state contends Morrow possessed certain imitation drugs with the intent to deliver those drugs. The state alleges that Morrow knew that the drugs were imitation drugs but intended to deliver them while intentionally misrepresenting that the imitation drugs were controlled drugs. Certainly the conduct which the state alleges is clearly covered by the statute. We believe that the statute can be interpreted by us to apply to those situations involving an intentional misrepresentation that an imitation drug is a controlled drug. As so interpreted we believe that the statute is not vague. The third factor which we are to consider is the statute's potential for arbitrary enforcement. The record of this ease does not reflect a history of arbitrary or selective enforcement of this statute. See Summers v. Anchorage, 589 P.2d at 868. We also do not find that the language of the ordinance is so vague that arbitrary enforcement is likely. See Brown v. Anchorage, 584 P.2d 35 (Alaska 1978). We therefore do not invalidate the ordinance for vagueness on this ground. We conclude that the statute, as interpreted, is not unconstitutionally vague. The state asks us to affirm Morrow's conviction even though the state concedes that the jury instructions which were given in the trial below vary from the interpretation of the imitation controlled drug statute which the state has argued on appeal.- The state contends that it is clear that Morrow's defense did not turn on the particular jury instructions which were given in her trial and which might be modified in response to her vagueness claim. See Stock v. State, 526 P.2d at 11-12. Morrow did not file a reply brief and therefore has not responded to the state's argument that the statute can be construed so that it is not vague or whether, if the statute is so construed, Morrow's conviction should be affirmed. Furthermore, we have before us only a minimal record to decide this case, which does not include a transcript of the trial. We therefore do not decide whether Morrow has any claim that her conviction was improper because of a claim that might arise out of our post-trial construction of the statute. We remand the case to the trial court to determine whether Morrow's conviction should stand in light of our construction of the statute under which she was convicted. This case is REMANDED for proceedings not inconsistent with this opinion. . It appears to us that it may be argued that certain other conduct falls within the statute. An example of conduct which might fall within the statute would be a person who delivers an imitation drug honestly believing that the imitation drug is a controlled substance. However, the case before us does not present this question, and this matter has not been briefed on appeal. We reserve ruling on this issue. . We retain jurisdiction of this appeal.

10423660

Michael L. MARTIN, Appellant, v. STATE of Alaska, Appellee

Martin v. State

1985-09-06

No. A-722

1341

1342

704 P.2d 1341

704

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:21:28.159013+00:00

CAP

Before BRYNER, C.J., COATS and SINGLETON, JJ.

Michael L. MARTIN, Appellant, v. STATE of Alaska, Appellee.

Michael L. MARTIN, Appellant, v. STATE of Alaska, Appellee. No. A-722. Court of Appeals of Alaska. Sept. 6, 1985. Allan Beiswenger, Robinson & Beiswen-ger, Soldotna, for appellant. James L. Hanley, Asst. Dist. Atty., Thomas M. Warded, Dist. Atty., Kenai, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS and SINGLETON, JJ.

790

5023

OPINION BRYNER, Chief Judge. Michael L. Martin pled nolo contendere to burglary in the second degree, in violation of AS 11.46.310, a class C felony. Superior Court Judge Charles K. Cranston sentenced Martin, a third felony offender, to a term of five years, of which two years were suspended. Martin appeals his sentence, contending that the court erred in finding prior convictions under AS 12.55.-145(a)(2) and in finding an aggravating factor. Martin contends that a 1983 Oklahoma conviction for felony escape while on work release from a Department of Corrections treatment facility is not a prior conviction for purposes of presumptive sentencing. He argues that the statute under which he was convicted, Okla.Stat. tit. 21 § 435, did not have elements similar to those of a felony defined as such under Alaska law at the time the offense was committed. AS 12.55.145(a)(2). Judge Cranston found that the Oklahoma escape statute did have elements "substantially similar" to AS 11.56.-310, a class B felony. Judge Cranston did not err in finding that the elements were substantially similar. See Wells v. State, 687 P.2d 346, 351 (Alaska App.1984). Martin is incorrect in his assertion that the Alaska statute does not apply to escapes other than from a penitentiary. AS 11.56.310(1) proscribes escape either from a "correctional facility" or from "official detention for a felony or for extradition." "Detention" is defined as "custody, arrest, surrender in lieu of arrest, or confinement under an order of a court in a criminal or juvenile proceeding, other than an order of conditional bail release." AS 11.81.900(b)(34). Cf. Beckman v. State, 689 P.2d 500 (Alaska App.1984) (defendant did not escape from "official detention" when he ran away from drug treatment facility because the court had not ordered him confined there). Although there are differences between the elements of the Oklahoma and Alaska statutes, those differences render the Oklahoma statute more restrictive than the Alaska statute. Accordingly, while it appears that there may be some cases where a defendant convicted under the Alaska statute would not be convicted under the Oklahoma law, the converse is not true: any offender who could be convicted under the Oklahoma law would be subject to conviction under the elements of the Alaska statute as well. Under these circumstances, any differences between the legislative schemes will not preclude a finding of substantial similarity. Martin was properly sentenced as a third-felony offender. Martin also challenges Judge Cran-ston's finding that Martin's conduct was among the "most serious conduct included in the definition of the offense," AS 12.55.-155(c)(10), an aggravating factor which allowed for a sentence exceeding the presumptive three years' imprisonment. AS 12.55.125(e)(2). In this case, Martin broke through the bay door of a commercial garage in Kenai using a forklift, which he drove without permission. He caused $2,771 in damage. Once inside the building, Martin broke into an office and took the keys to a tractor-trailer, which was parked in the garage. The vehicle was valued at approximately $125,000. He drove the tractor-trailer from Kenai to Anchorage, where he abandoned it. Martin argues that because he was convicted only of burglary, the court could not properly consider the amount of damage caused to the building, the value of the tractor-trailer, and the fact of its use and abandonment as circumstances constituting the "most serious conduct" for burglary in the second degree. We find Martin's argument to be without merit. The sentencing court was entitled to consider the totality of the circumstances surrounding Martin's offense in determining the seriousness of his conduct. Judge Cranston did not clearly err in finding that this factor was proved by clear and convincing evidence. Juneby v. State, 641 P.2d 823 (Alaska App.1982), modified on other grounds, 665 P.2d 30 (Alaska App.1983). Martin's sentence is AFFIRMED. . Martin was convicted for violating Oklahoma Statute title 21, section 435 which provided: Every prisoner confined in any other than the penitentiary, who by force or fraud escapes therefrom, is punishable by imprisonment in the penitentiary not exceeding two (2) years.... Alaska Statute 11.56.310 provides in pertinent part: One commits the crime of escape in the second degree if, without lawful authority, one (1) removes oneself from (A) a correctional facility while under official detention; or (B) official detention for a felony or for extradition. See also AS 11.81.900(b)(7) and (34) (subsections defining "correctional facility" and "official detention").

9151580

Evelyn RUSH, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Pat Pourchot, Commissioner, Appellee

Rush v. State, Department of Natural Resources

2004-09-17

No. S-10926

551

556

98 P.3d 551

98

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:03:40.188015+00:00

CAP

Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

Evelyn RUSH, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Pat Pourchot, Commissioner, Appellee.

Evelyn RUSH, Appellant, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Pat Pourchot, Commissioner, Appellee. No. S-10926. Supreme Court of Alaska. Sept. 17, 2004. Geoffrey Y. Parker, Law Office of Geoffrey Y. Parker, Anchorage, for Appellant. John T. Baker, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

2976

17982

OPINION FABE, Justice. I. INTRODUCTION Mat-Su Resource Conservation and Development, a non-profit corporation, owns the buildings that make up the Big Lake Hatch ery and leases from the state the land under those buildings. The Alaska Department of Natural Resources plans to auction the land. It intends to run the auction according to the terms of AS 38.05.090 as that statute read when the corporation took on the lease, which will require any buyer of the land to also purchase the buildings from the corporation. The statute has since been amended. The appellant, Evelyn Rush, argues that the auction and the disposition of the buildings must follow the current version of the statute, but the state claims that doing so would unlawfully give the statute retroactive effect. We hold that applying the current statute would have an impermissible retroactive effect on property rights. II. FACTS AND PROCEEDINGS A. Factual History The ten-acre parcel, home to the Big Lake Hatchery, lies on Meadow Creek in the Ma-tanuska-Susitna Borough. In 1975 the Department of Natural Resources (DNR) leased the parcel to the Alaska Department of Fish and Game (ADF & G) under a twenty-year lease so that ADF & G could start a fish hatchery. The lease incorporated some, but not all, of the provisions of AS 38.05.090, a statute governing the disposition of improvements upon the termination of a lease of state land. In 1998 ADF & G stopped operating the hatchery, which by that time consisted of several buildings on about ten acres, and assigned the lease to the Matanus-ka-Susitna Borough (the Borough). The Borough and Mat-Su Resource Conservation and Development (RC & D), a non-profit corporation, agreed that RC & D would provide a caretaker for the site. The Borough accepted the assignment from ADF & G on April 26, 1994; DNR approved the transaction a month later. Also on April 26, 1994, the state transferred the buildings on the site to the Borough. Under the transfer agreement, the Borough could not convey an interest in the buildings for two years, after which it would automatically gain unconditional title Also on that day, RC &D and the Borough extended their caretaker agreement, granting RC & D the right to manage and "conduct its own business in and from" the hatchery, and the Borough and DNR extended the term of the lease to 2015. In 1996 the Borough assigned the lease to RC & D, with DNR's approval. In 1998 confusion arose over who owned the buildings. The president of RC & D wrote to the Borough manager, claiming that the buildings were included with the lease assignment because the various April 26, 1994 agreements "consolidated" the buildings and land into "one package." The letter offered no documentation for this understanding of the transactions. A DNR staffer acknowledged the confusion over ownership but did not resolve it. In 1999 RC & D applied to purchase the land. DNR found that selling the parcel at auction would be in the best interest of the state, a prerequisite to the sale under AS 38.05.035(e). DNR's decision announced that "[if Mat-Su RC & D is not the highest bidder for the land, the highest bidder must pay Mat-Su RC & D for the appraised value of the structures." This directive, as more fully described below, corresponds to the requirements of AS 838.05.090 as it stood before its amendment in 1997. Evelyn Rush, a neighbor of the hatchery site, appealed the decision to the Commissioner of DNR, challenging RC & D's ownership of the buildings. The Commissioner remanded the case to DNR staff for a determination of who owned the buildings. In response, on February 15, 2000, the Borough passed an ordinance "con-veyling] the buildings, structures, and equipment on the Big Lake Hatchery to RC & D." DNR then found that RC &D owned the buildings and otherwise affirmed its previous decision. The Commissioner affirmed the staff decision. Rush then appealed to the superior court. B. Procedural History On appeal to the superior court, Rush challenged DNR's decision, advancing several different reasons to support her contention that the sale would not be in the best interests of the state. The claims relevant to this appeal argue that the terms that DNR set out for the auction are arbitrary. Rush claimed that "requiring a bidder to pay Mat-Su RC & D the appraised value of the buildings" is unlawful under the version of AS 38.05.090 currently in force. The superior court held that the department correctly applied the former version of the statute because the 1997 amendments "affect[ ] substantive rights and [are] not merely procedural." The trial court affirmed DNR in all other respects, but Rush appeals only her claim that the current version of AS 38.05.090 should apply. IIL DISCUSSION A. Standard of Review On appeal from an administrative agency, we substitute our judgment for that of the agency on questions which do not implicate agency expertise. This appeal presents a pure question of law that requires no such expertise. B. Rush Did Not Waive Her Claim that the Auction of the Hatchery Land Should Follow the Present Version of AS 38.05.090. Two distinct questions arise in cases concerning the retroactive application of statutes. First, may the statute be applied retroactively? Second, would applying the statute in this case be retroactive? In this case, the answer to the first question is beyond dispute. Alaska law holds that "[nlo statute is retrospective unless expressly declared therein," and there is no such declaration for the amended AS 88.05.090. The second question, whether applying the current version of the statute would have a retroactive effect, engages us here. If it would be retroactive, then it may not be applied. The state claims that Rush raised the issue of retroactivity for the first time in her reply brief before the superior court and therefore waived her claim. While the state is correct that Rush used the term "retroactive" for the first time in her superior court reply brief, this does not constitute a waiver of any claim because Rush is not claiming that any law should be applied retroactively. The heart of her position is that the termination of a lease of state land ought to be governed by the law in effect at the time of the termination; that the previous version imposed different requirements is not raised in her claim. It was the state's response that raised the issue of retroactivity, saying that it could not lawfully apply the current statute to this lease because doing so would give the statute retroactive effect. Rush's counter-argument, raised in her reply brief below, is that applying the current statute to this lease will not give it retroactive effect. This is the first point in the litigation at which Rush had any need to refer to retroactivity. When this court's case law discusses when the court will or will not consider "new arguments," we mean entirely new legal theories. Rush's reference to ret-roactivity in her reply brief below was not a new theory. It was an appropriate reply to the State's argument, supporting her basic argument that the current AS 88.05.090 should apply to this lease termination. Furthermore, she does not change that line of attack on appeal. Her basic claim has been the same all along: The current version of the statute should be applied. Rush has not waived her claim. C. Applying the Current Version of AS 38.05.090 Would Have an Impermissible Retroactive Effect on Transactions Conducted Under the Former Version. Alaska Statute 88.05.090 governs the disposition of improvements placed on state land by lessees of the land. In 1997 the legislature changed the statute in a number of ways. Two of the changes are relevant here. First, the former statute required removal of improvements owned by a lessee, so long as removal would not damage the land. The current statute also requires removal and provides that lessees must return the land to "good and marketable condition." Under the former statute, improvements or chattels whose value exceeded $10,000 could be sold at public auction if not removed, with the proceeds going to the lessee. Most importantly, any subsequent purchaser of the land was required to purchase improvements that had "become fixtures of the land," with the proceeds also going to the former lessee. Under the current statute, any property left on the leasehold, whether a fixture or not, becomes the property of the state and the lessee receives no compensation, unless they are "[plrivate residential improvements." The current version also includes stronger restoration requirements than the former statute, which could become important later in the life of this parcel but are not implicated directly by the DNR decision from which Rush appeals. As described above, the question in this case is whether the current version of AS 38.05.090 would have a retroactive effect if applied to the termination of RC & D's lease. If it would, the statute may not be applied. "[A] statute will be considered retroactive insofar as it 'gives to pre-enactment conduct a different legal effect from that which it would have had without passage of the statute.'" A statute creates this "different legal effect" if it "would impair rights a party had when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Under the former statute, when a lessee acquired fixtures by purchasing or building them, among the property rights he gained was the right to force any buyer of the state land to purchase the fixtures. Under the new statute, that property right no longer exists. The record is not clear as to whether RC & D acquired the buildings under the old law when it accepted the assignment of the lease or under the new law when the Borough passed its ordinance conveying them. The timing of the acquisition does not matter to the outcome of the case, however, because under either seenario, applying the new law would alter the consequences of a transaction conducted under the former version and therefore have a retroactive effect. The former statute was in effect in 1996 when RC &D accepted assignment of the lease. If RC & D acquired the buildings at that time, then it had the right to force their purchase upon sale of the land. Applying the new law would take away that right, thus altering the legal effect of its acquisition. Alternatively, RC & D may have only acquired the buildings as a result of the 2000 Borough ordinance, after the law changed. But the Borough acquired the hatchery fixtures from ADF & G in 1994, under the old statute, and therefore its property rights in the buildings included the right to force their sale. At the same time, the Borough gained the right to transfer everything it owned-the buildings and all of its property rights it had in them. The ability to transfer all rights is a basic aspect of property: A property right "consists not merely in its ownership and possession, but in the unrestricted right of . disposal." This principle is most commonly encountered in the law of zoning. A landowner may have a "grandfathered" right to use his property in a way that current zoning would not allow because he had put the land to that "nonconforming use" before it was barred. When the owner sells the land, the purchaser takes the grandfathered right to continue the nonconforming use. Similarly, here the right to force a sale of the fixtures was part of what the Borough gave RC & D when it transferred the buildings via the 2000 Borough ordinance. Applying the new statute would deny RC & D that right and thus diminish the Borough's right to transfer all that it held, a right that it gained when it acquired the buildings from ADF & G in 1994. This would change the legal effect of the 1994 transaction, the mark of a retroactive application. IV. CONCLUSION Because the current version of AS 38.05.090 may not be applied retroactively and because applying it to the sale of this parcel would have a retroactive effect regardless of when RC & D acquired the buildings, we AFFIRM the decision of the superi- or court. . Earth Res. Co. of Alaska v. State, Dep't of Revenue, 665 P.2d 960, 964-65 (Alaska 1983). . AS 01.10.090. . The only express declaration of retroactivity at all connected to AS 38.05.090 applies to a different part of the Act that amended the statute. Ch. 91, § 44, SLA 1997. . See, eg., Krossa v. All Alaskan Seafoods, Inc., 37 P.3d 411, 418-19 (Alaska 2001) (rejecting as an impermissible "new argument" the plaintiff's claim that contract was void because he entered it under duress, where his arguments below all sought enforcement of the contract as he interpreted it). . Ch. 91, § 21, SLA 1997. The pre-1997 version of AS 38.05.090 provided in relevant part: Removal or reversion of improvements upon termination of leases. (a) Improvements owned by a lessee on state land shall, within 60 days after the termination of the lease, be removed by the lessee if removal will not cause injury or damage to the land. The director may exiend the time for removing improvements in cases where hardship is proven. The retiring lessee or permittee may, with the consent of the director, sell improvements to the succeeding lessee or permittee. (b) If improvements or chaitels, or both, having an appraised value exceeding $10,000 as determined by the director are not removed within the time allowed, the improvements or chattels or both shall, upon notice to the lessee, be sold at public sale under the direction of the director. The proceeds of sale inure to the lessee who placed the improvements or chattels on the land after paying to the state all rents due and expenses incurred in making the sale. If there are no other bidders at the sale, the director may bid in the name of the state. The bid money shall be taken from the fund to which the land belongs and the fund shall receive all money or other value subsequently derived from the sale or leasing of the improvements or chatiels. The state acquires all the rights that any other purchaser could acquire by reason of the purchase. (c) If improvements or chattels, or both, having an appraised value of $10,000 or less, as determined by the director, are not removed within the time allowed, they revert to the state and absolute title vests in the state. The preference right lessees of grazing or forest land may follow the provisions for removal of im-provemenis upon termination of the lease as authorized in the cancelled federal lease or permit. (d) Improvements of the lessee which have become fixtures of the land shall be purchased by the subsequent purchaser or lessee of the land if the improvements were authorized in the former lease or by permit from the director. Upon the termination of a lease, and at additional times which may be necessary, the value of the authorized fixtures remaining on the land shall be set by agreement between the former lessee and the director or, if agreement cannot be reached, by an independent appraisal made at cost to the former lessee. The current version of AS 38.05.090 provides in relevant part: (a) Unless otherwise agreed to in writing by the commissioner, a lessee shall remove from a former leasehold (1) all personal property, including above-ground tanks, transportable buildings, equipment, machinery, tools, and other goods, not belonging to the state, within 30 days after termination of the lease; and (2) all buildings and fixtures, including gravel pads, and below-ground tanks, foundations, and slabs, not belonging to the state, within 60 days after termination of the lease. (b) Unless otherwise agreed to in writing by the commissioner, the lessee shall restore the leasehold to a good and marketable condition, acceptable to the commissioner, within 120 days after termination of the lease. (c) If the lessee does not remove personal property, buildings, and fixtures as required within the time specified under (a) of this section, title to the personal property, buildings, and {fixtures that remain automatically vests in the state unless the commissioner elects to remove and dispose of the remaining personal property, buildings, and fixtures of the lessee. The commissioner may assess upon the lessee the cost of removing and disposing of personal property, buildings, and fixtures remaining upon the land. (d) If the lessee does not restore the land within the time period specified under (b) of this section, the commissioner may have the land restored and assess the costs upon the lessee. (e) As part of a lease agreement, and in order to protect the public interest, the commissioner may require terms for removal or reversion of improvements additional to those specified in (a)-(d) of this section. . Former AS 38.05.090(a). . AS 38.05.090(a), (b). . Former AS 38.05.090(b). . Id. at (d). . AS 38.05.090(c). . Id. at (®). . Id. at (d), (e). Neither party makes any argument concerning the effect of these provisions on the retroactivity of the statute as a whole. . Eastwind, Inc. v. State, 951 P.2d 844, 847 (Alaska 1997) (quoting Norton v. Alcoholic Beverage Control Bd., 695 P.2d 1090, 1093 (Alaska 1985)). . Landgraf v. USI Film Prods., Inc., 511 U.S. 244, 245, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). . O'Connor v. City of Moscow, 69 Idaho 37, 202 P.2d 401, 404 (1949). . See 1 KemnEtu H. Yours, AmpErson's American Law or Zoning § 6.0-6.06 (4th ed.1996). . See 8A McQuium's Municrrat Corporations § 25.183.50 (3d ed.2003).

6990590

Samuel Corbin JOHNSON, III, Appellant, v. Kathleen Finnerty JOHNSON, Appellee

Johnson v. Johnson

2010-09-24

No. S-13512

393

410

239 P.3d 393

239

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:03:10.583506+00:00

CAP

Before: FABE, WINFREE, CHRISTEN, and STOWERS, Justices, and EASTAUGH, Senior Justice pro tem.

Samuel Corbin JOHNSON, III, Appellant, v. Kathleen Finnerty JOHNSON, Appellee.

Samuel Corbin JOHNSON, III, Appellant, v. Kathleen Finnerty JOHNSON, Appellee. No. S-13512. Supreme Court of Alaska. Sept. 24, 2010. Robert C. Erwin, Robert C. Erwin, LLG, Anchorage, for Appellant. Appellee did not participate. Before: FABE, WINFREE, CHRISTEN, and STOWERS, Justices, and EASTAUGH, Senior Justice pro tem. Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Rule 23(a) of the Rules Governing the Administration of All Courts.

10526

64194

OPINION EASTAUGH, Senior Justice pro tem. I. INTRODUCTION This appeal concerns post-divorce efforts by both parties to enforce, correct, or modify their property division. Sam Johnson challenges various post-divoree superior court rulings, including: an award of Alaska Civil Rule 82(b)(8) full attorney's fees to Kathleen Johnson after Sam made three unsuccessful motions to enforce their property division; the denial of Sam's show-cause motion to force Kathleen to produce or account for his personal property; and the denial of his motion for Rule 82 fees on the judgment entered after remand from a prior appeal. Because Sam's three enforcement motions were in part potentially meritorious and thus not "vexatious or bad faith conduct," we reverse part of Kathleen's first full fees award. We also vacate the denial of Sam's show-cause motion, because it raised unresolved genuine, material issues of fact. 'We otherwise affirm. II. FACTS AND PROCEEDINGS A. Prior Proceedings Kathleen and Sam Johnson married in 1972 and divorced in June 2007, after a four-day trial. The superior court explained in its findings and conclusions that it was making an "approximately" 50/50 division of the parties property. It divided, among other things, the parties' "Azalea" and "Glacier" real properties and the associated personal property. As to the Azalea personalty, the superior court seems to have largely accepted the appraised value of $121,927.50, because it awarded each party $60,000 of the Azalea personalty without awarding either party specific items. The court also entered a qualified domestic relations order (QDRO) for Sam's military retirement; it ordered Sam to pay Kathleen 50 percent of his military retirement each month until the QDRO payments began. The court entered a similar, but not identical, QDRO for Kathleen's retirement. Sam timely sought clarification, but did not raise the issues now before us. This is Sam's third appeal relating to the divorce. The issues he now raises require a detailed description of the parties' post-di-voree motion practice. B. Sam's First Motion To Compel In March 2008, while his first appeal was pending, Sam asked the superior court to compel Kathleen to: (1) return geotechnical road fabric Sam had purchased after separation; (2) reimburse him for heating fuel he purchased for the Glacier property during the divorce proceedings and pay for a later fuel delivery; and (8) "return" some 28 items of Azalea personalty listed in his motion papers and described as "non-marital." Kathleen responded that Sam's motion was frivolous, was deficient as not identifying the order to be enforced, raised disputes litigated at trial, and sought untimely reconsideration. Sam replied that relief was authorized by Civil Rule 70. He also asserted that the superior court's findings and conclusions "require transfer" of the disputed items. By order dated July 30, 2008, the superior court denied Sam's motion as to the road fabric, noting that because Sam thought his brother had taken it, Sam should pursue a claim against his brother, not Kathleen. It also denied the motion as to the fuel, finding it was Kathleen's because it went with the Glacier realty awarded to her. But as to the disputed Azalea personalty, the order provided that "[the heirlooms from [Sam's] family are to be returned to him if [Kathleen] has them. If [she] no longer has the items, she is to provide an account for what happened to them, if she knows." C. Sam's Motion To Correct Clerical Mistake Also in March 2008 Sam, citing Civil Rules 60(a) and 60(b)(1), moved to correct what he called a "clerical mistake" or error in Kathleen's QDRO (the QDRO dividing Sam's retirement payments). He contended that the court made a clerical mistake in ordering that even if Kathleen remarried, she would receive payments under her QDRO, whereas if he remarried he would receive no benefits under the QDRO dividing her pension. Kathleen's opposition argued that Sam's motion was frivolous and of "no merit" under either rule. She denied any error and asserted that as a matter of law her remarriage would not affect her benefits. She also argued that Sam had waived the issue, because every draft of the proposed QDRO had contained the same provision, Sam's expert had reviewed the provision, and Sam's trial objections had not addressed it. The superior court denied Sam's motion. The denial order essentially agreed with Kathleen. Sam appealed. We affirmed, because "the remarriage provisions were neither a clerical error nor a mistake." D. Sam's Second Motion To Compel While his first motion to compel was pending, Sam filed a second motion to compel. It asserted that: he had been awarded $60,000 of the Azalea personal property; he "did not receive his personal property as was awarded" to him; most of the items were "personal" to his family and had been owned by him before the marriage; and the remaining items were "attached to his military career." This motion again listed the 28-some items. His supporting affidavit asserted that he had received Azalea items whose value was much less than his $60,000 award, and that he was seeking return of items including "pre-mari-tal, inherited and other items." Kathleen argued in opposition that, as to the Azalea items, the second motion to compel was identical to the first and thus redundant, and should be summarily denied. Her unsworn opposition also inferentially denied that she possessed any of Sam's personal property. On July 30, 2008, the same day it denied Sam's first motion to compel, the court denied his second motion to compel as "redundant." E. Kathleen's First Award Of Actual Attorney's Fees After the superior court denied Sam's motion to correct and his two motions to compel, Kathleen sought Civil Rule 82(b)(8) actual attorney's fees as to those three motions. Over Sam's opposition, the superior court awarded Kathleen actual fees of $7,272.87. We elaborate on this fees dispute and the court's rulings in Part IIIA, which considers whether it was error to grant Kathleen's first full-fees motion. F. Kathleen's Motion For Order To Show Cause Before her first fees motion was finally resolved, Kathleen filed a show-cause motion to enforce Sam's interim post-divoree obligation to pay her half of his retirement pay each month until she began receiving direct payments from the Defense Finance and Accounting Service (DFAS). She claimed that Sam did not pay her in October, November, and December 2007, and asked the court to order Sam "to show cause why he should not be held in contempt for willfully violating the Court's order...." Sam opposed the motion. After considering documentary evidence admitted without objection at a hearing, the superior court found that Sam had not made the October, November, and December payments. It founded its ruling on Sam's admission that he had not paid in October, "the lack of proof of payment in November," and Sam's December bank statement that showed that he received the full DFAS payment on December 2. We elaborate on the arguments and ruling below in Part IILC, which addresses Sam's argument that it was error to find that he did not make the December payment. G. Sam's Cross-Motion For Order To Show Cause When he opposed Kathleen's show-cause motion, Sam cross-moved for an order requiring her to show cause "why she should not be held in contempt for willful violation of the court orders requiring her to file an accounting of the personal property in her possession [from] the Azalea residence." The cross-motion also argued that if Kathleen did not give him those items, their value should be offset against the retirement payments awarded to Kathleen. Kathleen opposed the cross-motion and, after Sam replied, the superior court denied the cross-motion without explanation. The court also denied Sam's motion to reconsider the denial. We elaborate on the parties' superior court arguments in Part IILB, which addresses Sam's argument that it was error to deny his cross-motion. H. Kathleen's Second Award Of Actual Attorney's Fees In a second motion for actual fees, Kathleen sought the fees she incurred in pursuing her show-cause motion and in opposing Sam's motions for reconsideration of her first full fees award and his motion for reconsideration of the denial of his show-cause cross-motion. The superior court granted her motion and awarded her "full reasonable" attor-mney's fees of $4,141. The court explained that "Sam's motion[s] were repetitive and not well taken, and raised no issues not previously decided by the Court,. Under Civil Rule 82, Kathleen is entitled to full fees on these motions." - Citing AS 09.50.040, the court also stated it was awarding her full fees on her show-cause motion as damages caused by Sam's failure to comply with the court's QDRO. I. Remand Proceedings After First Appeal On March 4, 2009, we issued our MO & J in Johnson v. Johnson. We there remanded because the property division erroneously double-counted a truck awarded to Sam and did not resolve all of Sam's claims for credit for his post-separation expenses. Following an evidentiary hearing on remand, the superior court ordered Kathleen to pay Sam $24,418 (the value of the truck plus a partial credit for post-separation expenses), minus $6,852.17 (what Sam owed Kathleen as retirement payments). When Kathleen then asked the court to offset her unpaid attorney's fees awards, Sam opposed, on the grounds the fees were awarded before we issued our MO & J and were being appealed in the case, S-18512, now before us. Nonetheless, the final judgment offset Kathleen's prior fees awards against the value of the truck and Sam's credits, giving Sam a net judgment of $6,132.19. Sam then moved for Rule 82 attorney's fees on the theory that he had recovered a money judgment in a case contested without trial. The superior court denied Sam's fees motion, explaining that fees were not appropriate because the corrections "were not due to post-trial litigation or enforcement," but rather to correction of a trial error. We elaborate on these facts in Part IIID, which addresses Sam's contention that it was error to deny his fees motion. Sam appeals some of these rulings. Kathleen has filed no brief on appeal. III. DISCUSSION A. Whether It Was An Abuse Of Discretion To Award Kathleen Full Reasonable Attorney's Fees On Sam's First Three Post-Trial Motions 1. The award and Sam's contentions After denying Sam's first three post-trial motions, the superior court granted Kathleen's motion for full reasonable fees of $7,272.87. Sam argues that it was error to award full fees. The January 2009 full-fees order cited four subparagraphs of Civil Rule 82(b)(3) in support and largely accepted Kathleen's contentions. Citing Rule 82(b)(8)(F), the order found that the claims Sam made in those motions "were not reasonable," and that full fees were "therefore necessary." It stated that Sam's first motion to compel was largely an untimely motion to reconsider, and that to the extent it sought compliance with an earlier order, his motion "did not cite the earlier order or explain his failure to do so." It found that Sam's motion to correct "was also an untimely motion to reconsider," was founded "on an incorrect legal premise," and identified a mistake that "was not clerical." And it found that Sam's second motion to compel was "redundant" and that "Kathleen never should have been put to the expense of defending the motion at all." Citing Rule 82(b)B)(G), it concluded that awarding full fees was "also appropriate . for vexatious and bad faith litigation conduct, as set forth above." Citing Rule 82(b)8)(H), it found that awarding full fees was appropriate because the effort and fees imposed on Kathleen were "unreasonably large compared to the value of the items at stake." Citing Rule 82(b)B)(K)'s "other equitable factors" provision, it found that awarding full fees was appropriate because Sam's decision to "continu[e] the litigation of matters that could or should have been litigated at trial, or that were in fact litigated to conclusion at trial," effectively "devalue[d] the assets awarded to Kathleen by requiring her to litigate repeatedly over the same issues." Sam argues that the record does not support the finding that his motions were ill-founded or made in bad faith,. He asserts that his motions were directed at items of personal property that he had been awarded but never received, and did not challenge the original property award. He also implies that full fees were not warranted as a matter of law on his first motion to compel because it partially succeeded. We usually review for abuse of discretion a Rule 82 award of full reasonable attorney's fees. An abuse of discretion exists if an award is "arbitrary, capricious, manifestly unreasonable, or the result of an improper motive." Because the award of actual fees calls into question Sam's litigation conduct and the potential merits of Sam's underlying three motions, we assess de novo the legal and factual viability of his motions and review relevant findings of fact for clear error. A prevailing party in a civil case is normally entitled to an award of attorney's fees, per Rule 82. Divorce cases are usually excepted from this general rule; fees awards in divorcee cases are typically based on the parties' relative economic situations and earning powers, rather than prevailing party status. This "divorce exception" to Rule 82 is based on a broad reading of AS 25.24.140(a)(1), and on the reality that there is usually no prevailing party in a divorce case. Nonetheless, we have held that Rule 82 applies to post-judgment modification and enforcement matters in domestic relations disputes and that fees are appropriately awarded under the prevailing-party standard of Rule 82 as to postjudgment money and property disputes. Rule 82 consequently applies to the parties' post-judgment enforcement motions in this case. Normally only partial fees are awarded under Rule 82, but Rule 82(b)(3) lists factors that may permit a court to depart from a partial fees award calculated under Rule 82(b)(1) and (2), and to award enhanced or even full reasonable fees. We have held that "[iln general, a trial court has broad discretion to award Rule 82 attorney's fees in amounts exceeding those prescribed by the schedule of the rule, so long as the court specifies in the record its reasons for departing from the schedule." A Rule 82(b)(8) award of full fees is "manifestly unreasonable" absent a finding of bad faith or vexatious conduct. - Black's Law Dictionary defines "bad faith" as "[dlis-honesty of belief or purpose." In the attorney's fees context, we have equated "bad faith" with "devoid of good faith." Therefore, enhanced fees may be awarded under any of the subparagraphs of Rule 82(b)(8), but full fees may be awarded under Rule 82(b)(8) only if the "vexatious or bad faith conduct" standard of Rule is satisfied. As we stated above, whether it was error to award full reasonable fees as to Sam's first three motions turns on their potential merit. 2. First motion to compel We first consider Sam's initial motion to compel. It made three requests: (1) return of the road fabric purchased for the Glacier property; (2) reimbursement for fuel Sam purchased for the Glacier property and impo sition on Kathleen of an unpaid Glacier property fuel invoice; and (8) "return" of some 28 items of Azalea personal property. The superior court largely denied the three requests, but denial does not in itself establish that the requests were made vexatiously or in bad faith. The issue is not whether they were ultimately unsuccessful, but whether they were collectively or individually so lacking in merit that it is permissible to infer that Sam or his lawyer acted in bad faith or engaged in vexatious litigation conduct. If a request was either legally or factually so deficient as to reasonably permit an inference of vexatious or bad faith litigation conduct, we must affirm the award as to that request. Conversely, to prevail on appeal, Sam must demonstrate that the request was neither legally nor factually so deficient as to permit such an inference. Although we have never said so explicitly, our cases suggest that a motion to compel is procedurally appropriate if the moving party has an established legal right to the relief sought. The question is therefore whether it would have been unreasonable for a litigant in Sam's position to believe that he had an established legal right to the requested items. The disputed rolls of road fabric appear to have been part of the Cilacier personalty, which the findings and conclusions had expressly awarded to Sam. Sam's road fabric request thus sought items that arguably had been awarded to him. This request was not so legally deficient as to warrant an inference of vexatiousness or bad faith. The road fabric request was also factually sufficient. The exhibits supporting the motion included letters between the parties' lawyers discussing the road fabric. Kathleen's lawyer's letters did not deny the existence of the rolls, or that they had been on the property, although one denied any concealment or interference with Sam's opportunities to recover the fabric. Admissible facts therefore reasonably permitted inferences that at least three rolls of road fabric were missing, that Kathleen possessed the Glacier property at relevant times, and that she might have somehow prevented Sam from recovering the missing rolls or knew what had happened to them. Whether Kathleen permitted Sam's brother to take the rolls or whether the rolls were still at the Glacier property during her possession, the request seeking an accounting of the road fabric was potentially meritorious. We turn to Sam's fuel request. Sam had argued at trial that he should get an offset for one-half the cost of a tank-load of fuel for the Glacier property, but his first motion to compel asserted that Kathleen was responsible for the cost of the entire tank-load, and that she should also pay for another billed, but unpaid for, delivery. The divorce findings and conclusions did not specifically mention Sam's reimbursement request; they instead generally provided that "the utility obligations" would "simply go with their respective properties," and awarded the Clacier realty to Kathleen. That general provision could reasonably be read as imposing the fuel obligation, at least as to any unpaid fuel invoice, on Kathleen. Because it relied on that provision, Sam's post-trial fuel request was at least in part not so legally deficient as to give rise to a reasonable inference of vexatiousness or bad faith." Sam's fuel request was also factually sufficient, at least in part. Trial testimony supported the request for reimbursement of the fuel Sam had paid for, and exhibits filed with his motion included the unpaid invoice and correspondence between the lawyers discussing the fuel dispute. Kathleen's memorandum in opposition did not even mention the unpaid invoice. Even though they denied any legal basis for Sam's fuel claims, the letters from Kathleen's lawyer did not deny any salient facts. The exhibits therefore reasonably permitted inferences that Sam had filled the tank after separation, and that when Kathleen took possession of the Glacier home following the divorce, she acquired fuel that Sam had paid for and fuel that no one had yet paid for. These facts would have supported the grant of his fuel request had Sam succeeded in convincing the court that the "utility obligations" that went with the Glacier property included either or both of the fuel bills. Finally, we turn to the sufficiency of the request for the Azalea items. Sam asserted below that they were "non-marital" or "inherited." Even though the parties ultimately waived the opportunity to litigate the division of the Azalea personalty on that basis," by ordering Kathleen to return the "heirlooms" if she had them, the superior court implicitly concluded that the "heirlooms" were indeed Sam's. Because neither party appealed the heirloom order, we do not independently inquire into that aspect of Sam's request; instead, we accept as law of the case the superior court's conclusion that Sam had a right to those items. 'We therefore conclude that Sam's request was not so legally deficient as to warrant an inference of vexatious or bad faith litigation conduct. It is unclear whether the superior court used "heirlooms" rigorously or as a shorthand reference to all of the items Sam sought. Some were not heirlooms, and Sam had no legitimate claim to others. But it does not matter precisely what the court intended, because the heirloom order established the substantial legal sufficiency of Sam's request as to most of the disputed Azalea items. Nor was the Azalea request factually deficient. The heirloom order necessarily accepted Sam's contention that these items were his. Admissible facts reasonably permitted an inference that Kathleen either still had the items or knew what had happened to them. Sam's motion with respect to the Azalea items was therefore not so factually deficient as to give rise to an inference of vexatious or bad faith conduct. Thus, with minor exceptions, each of Sam's three requests had potential legal and factual merit. Because most of the requests actually or ostensibly sought to recover items Sam could have reasonably believed had been awarded to him in the property division, Sam's first motion to compel was not so legally deficient as to support an award of full fees. We do not need to consider whether a finding of vexatious or bad faith conduct could stand if a party's litigation efforts largely had no potential merit or were not fairly disputable. The three requests made in Sam's first motion to compel were not, individually or collectively, so lacking in legal or factual merit that full fees could be awarded under Rule 82(b)(8)(G). The January 2009 order granting full fees also made findings under other subpara-graphs of Rule 82(b)(8). But because full fees may not be awarded under Rule 82(b)(8) except under Rule 82(b)(8)(G), these other findings could support an award of full fees only if they reasonably permit an inference of vexatious or bad faith litigation conduct satisfying Rule 82(b)(8)(G). The order states that a full fees award was "also appropriate under Rule 82(b)(8)(®), for vexatious and bad faith litigation conduct, as set forth above." (Emphasis added.) Several of these prior-"as set forth above"-findings were relevant. Thus, the order had found that the "claims made by Sam in the motions at issue were not reasonable." And it had found that the first motion to compel was made "long after trial," was largely an untimely reconsideration motion, and cited no order to be enforced. In a subsequent finding-and thus not one "set forth above"-the order characterized Sam's conduct as pursuing "baseless and unsupported claims" after trial. To the extent these other findings pertain to the potential legal or factual merit of the first motion to compel, they do not warrant an award of full fees, for the reasons we discussed above. We therefore conclude that it was error to award full reasonable fees as to Sam's first motion to compel. 3. Second motion to compel We turn to Sam's second motion to compel, filed while his first was pending. Both were decided the same day, some three months after Sam filed the second motion; the court denied the second as "redundant," and later awarded Kathleen full fees as to it because she "never should have been put to the expense of defending [against] the [second] motion at all," In response to a question from this court at oral argument, Sam's lawyer agreed that the second motion was redundant. But we note that the second motion addressed only the Azalea items (not the road fabric or fuel claims), and that it elaborated on the Azalea items request legally and factually, in asserting that most of the items were personal to Sam's family and were owned by Sam before the marriage, and that the remaining items were "attached" to his military career. It was also accompanied by Sam's affidavit, which explained the provenance of many of the disputed items. The second motion was filed April 18, 2008, several days before Kathleen filed her opposition to Sam's first motion. No doubt many or all of the contentions advanced in Sam's second motion to compel and its supporting papers could or should have been raised in the first. Kathleen therefore might have been awarded enhanced fees for having to address the Azalea items twice, initially in opposing the first motion, and then in addressing the expanded contentions in the second. But even though both motions sought the same 28-some items, the second motion and the supporting affidavit helpfully clarified the potential merit in Sam's request. Mere redundancy, under the cireamstances, does not justify awarding full reasonable fees as to the second motion. Moreover, the heirloom order established that at least some of the claims made in Sam's second motion had merit. And because Sam filed the second motion before the heirloom order granted him partial relief on his first motion, bad faith cannot be inferred from his effort to refine his as-yet unresolved contentions. Our comments about Sam's first motion to compel and the Rule 82(b)(8)(FP), (G), (H), and (K) findings apply equally to his second motion to compel. We therefore conclude that Kathleen was not entitled to full fees on Sam's second motion to compel. 4. Motion to correct clerical mistake The superior court also awarded Kathleen full fees as to Sam's motion to clarify the alleged clerical mistake, characterizing it as an untimely reconsideration motion that did not address any mistake that could be considered "clerical." That characterization was correct: Sam's motion identified an asymmetry in the two QDROs, but identified no clerical error or mistake correctable under Civil Rule 60(a) or Civil Rule 60(b)(1). And Sam could have raised the issue when he sought clarification of the findings soon after they were entered. We affirm the award of full fees as to Sam's motion to correct. 5. The collective merit of Sam's first three motions Because the court described Sam's three motions as "baseless and unsupported," we consider whether they collectively justified an award of full fees. That finding addressed only the three motions, not Sam's post-trial conduct generally. We are well aware that trial courts are in the best position to accurately assess the parties' motives and decide whether post-trial claims were or could have been raised at trial, And trial courts must have the tools to keep litigants from sparring on after the closing trial bell has rung. But we conclude that Sam's three motions were not collectively so "baseless and unsupported" as to justify full fees under the vexatious or bad faith conduct standard of Rule 82(b)8)(G). We reaffirm that trial courts are not without tools to provide substantial relief: they can award enhanced Rule 82(b)(8) fees-although not full feee-even absent vexatious or bad faith conduct. In short, we reverse the full fees award as to Sam's two motions to compel and affirm the award as to Sam's motion to correct. Kathleen supported her fees request with a certificate of counsel and an exhibit specifying the legal services required by each of Sam's motions, and Sam's appeal raises no dispute about the value of services performed in opposing each motion. We therefore affirm the $2,299.50 award of fees incurred in opposing his motion to correct, and reverse the $4,842 award of full fees incurred on his two motions to compel. We do not foreclose the superior court on remand from awarding Kathleen enhanced fees on Sam's motions to compel. But we observe that a rapid and economical close to this entire dispute is in the interest of both parties and that tertiary fees litigation is unlikely to be productive. B. Whether It Was An Abuse Of Discretion To Deny Sam's Cross-Motion For An Order To Show Cause The July 2008 order on Sam's first motion to compel resolved his request for the Azalea items as follows: "The heirlooms from his family are to be returned to him if [Kathleen] has them. If [shel no longer has the items, she is to provide an account for what happened to them, if she knows." An October 2008 order noted that "some elements of the court's [July] order appear to yet be performed." In December 2008 Sam cross-moved for an order requiring Kathleen to show cause why she should not be held in contempt for failing to account for the Azalea personalty in her possession. To establish that the property had been in her possession, Sam's supporting memorandum referred to his trial testimony and contended that Kathleen had submitted no response to either order. His reply memorandum referred the court to his April 2008 affidavit and noted that Kathleen had submitted no affidavit or sworn testimony in opposition, but only copies of letters from her lawyer. A January 2009 order denied Sam's motion without explanation. Sam argues on appeal that the superior court abused its discretion by failing to require Kathleen to show what happened to his Azalea personalty and by failing to hold a hearing to determine why he did not receive the property. He invokes only Civil Rule 70 on appeal, but in the superior court he relied on only Civil Rule 90(b) and AS 09.50.010(5). We have described the requirements for a contempt order as follows: (1) the existence of a valid order directing the alleged contemmor to do or refrain from doing something and the court's jurisdiction to enter that order; (2) the con-temnor's notice of the order within sufficient time to comply with it; and in most cases, (8) the contemnor's ability to comply with the order; and (4) the contemmor's wilful failure to comply with the order. Sam asserts that we should review the denial of his motion for abuse of discretion, but the appropriate standard of review is not completely self-evident. Although we have reviewed a decision not to hold a party in contempt after the lower court conducted a Rule 90(b) hearing, we have never reviewed a decision declining to hold a hearing. Rule 90(b), which Sam does not invoke on appeal, states that the court "shall" order the accused party to show cause or issue a bench warrant upon "a proper showing," supported by affidavits. It is conceivable that we should apply a less deferential standard-such as de novo review-than the abuse of discretion standard Sam proposes. After all, whether Rule 90(b) mandates a show-cause order upon a "proper showing" and whether the moving party has made out a prima facie showing of contempt are legal questions; the interpretation of the civil rules presents a legal question that we review de novo; and we exercise our independent judgment in determining whether there are genuine, material factual disputes that cannot be resolved without an evidentiary hearing. On the other hand, we review for abuse of discretion an order enforcing or declining to enforce the trial court's own decree. And we generally review a superior court's procedural decisions for abuse of discretion. There is also a substantial question whether such a dispute is best analyzed under Rule 70, Rule 90, or AS 09.50.010. It is not necessary to decide here either what review standard or what analytical standard should apply. Even under the deferential abuse of discretion review standard Sam proposes, it was error not to require Kathleen to show cause-and, if necessary, provide admissible evidence-explaining why she had not complied with the heirloom order. Given that order's words, and the course of dealings regarding the Azalea items as reflected in Sam's trial testimony, his affidavit, and the lawyers' correspondence, Kathleen should have been ordered to comply with the order requiring that she explain what she knew about the location and disposition of the items Sam sought. Sam had identified a valid order-the heirloom order-that required Kathleen to respond, and there was no dispute Kathleen had ample time in which to comply. The heirloom order was sufficiently clear that neither the issuing court nor the parties could have read it to permit Kathleen to avoid responding. The order's only possible material ambiguity concerns its phrase "if she knows." But that phrase did not excuse her from at least producing admissible evidence demonstrating that she did not know what had happened to the items. Kathleen opposed the show-cause motion, but did not demonstrate either that she was legally excused from complying with the heirloom order or that undisputed facts established her lack of knowledge. Her lawyer's unsworn opposition could not rebut permissible inferences that Kathleen did know what had happened to the items. Instead, her lawyer's letters submitted as exhibits imply that her reasons for not complying were invalid. Kathleen could have readily complied with the heirloom order by explain- ing what she knew of the 28-some items. And if she indeed knew nothing of them or what happened to them, saying so would have complied with the order. We have recognized in other contexts that it is error not to hold an evidentia-ry hearing when there is a genuine issue of fact that is material. If an appellant did not request an evidentiary hearing below, we will hold that it was error to fail to conduct such a hearing only if the failure was plain error. Plain error exists if "an obvious mistake has been made which creates a high likelihood that injustice has resulted." Sam requested a show-cause hearing, and did not specifically ask for an evidentiary hearing on the Azalea items claim. - Nevertheless, it should have been apparent from the parties' motion papers and exhibits that there were genuine, material factual disputes concerning Kathleen's compliance with the heirloom order, and that a show-cause hearing was needed to resolve those disputes. Because we conclude that even under a deferential abuse-of-discretion standard of review it was error not to take steps to enforce the heirloom order, we vacate the order denying Sam's show-cause motion and remand for further proceedings. C. Whether The Superior Court Erred In Handling Kathleen's Motion To Show Cause On Her Claim For Unpaid Retirement - In response to Kathleen's show-cause motion, the superior court conducted an eviden-tiary hearing and found that Sam had not paid Kathleen her share of his military retirement in October, November, and December 2007. Sam raises two issues concerning that finding. He first argues that it was error to find that no payment was made "for" December, because, as a matter of federal law, the January 2, 2008 payment of Sam's military retirement was "for" December. If, as Sam implies, the superior court based its finding on an interpretation of federal statutes, we would review the interpretation ruling applying our independent judgment. But the order dividing Sam's retirement entitled Kathleen to a payment every month following the divorce. Kathleen's motion did not seek compensation she should have received for December-rather, it sought the payment she should have received in December. Therefore, whether federal statutes established that the military disbursed payments for a month at the beginning of the next month-and thus, whether the payment Kathleen received in early January was "for" December-was irrelevant if she received no payment during December. We consequently review for clear error the factual finding that Kathleen was not paid in December. The evidence supported that finding. Sam's December 2007 bank statement showed that he received in that month a $3,561.90 payment from the DFAS-about twice what he would have received had Kathleen's portion been deducted. The bank statement did not show that he paid Kathleen anything that month. There was some contrary evidence: a December DFAS statement indicated that the spousal deduction had been made, and a DFAS letter stated that "direct payments to [Sam's] former spouse should tentatively commence December 2007." But the superi- or court could permissibly resolve in Kathleen's favor any factual conflict between those exhibits and the evidence Kathleen was not paid in December. The finding was consequently not clearly erroneous. Sam next argues that it was error not to offset the retirement payments he owed Kathleen against the amount he was "awarded" on remand. We read Sam's brief as contending that his proposed offset would have established that Kathleen was not the prevailing party, and was therefore not entitled to Rule 82 fees on her motion to show cause. He states: "Kathleen . was not entitled to actual attorney[']s fees on an amount of money she would have owed to [Sam] as a set off for [the] amount he owed her," Sam's brief does not explain how he raised this argument in the superior court. The record, including superior court filings not contained in Sam's excerpt (such as the motion and opposition papers relating to Kathleen's second motion for an award of actual fees), persuades us that Sam did not preserve this issue below. We therefore review it only for plain error. Sam's cursory briefing on the point does not convince us that Sam was legally entitled to a set-off that would have foreclosed awarding Kathleen attorney's fees on her show-cause motion. Sam cites no relevant authority to support his claim of error. And, as the superior court later noted when it denied Sam's own fees motion, Sam did not receive an "award" on remand; there was simply a correction in the property division. Furthermore, the correction was largely ministerial, and the dispute on remand about the truck's value was highly cireumseribed. The error and its correction concerned pre-trial events and pleadings, the property division, and findings and conclusions entered when trial ended. In comparison, Kathleen's motion to show cause was occasioned by Sam's post-divorce failure to pay her half of his retirement. We are reluctant to do anything to encourage domestic support obligors to engage in self-help by assuming that their failures to comply with the judgment will eventually be offset by correction of unrelated errors. And we are certainly unconvinced by the briefing before us that it was plain error to award Kathleen Rule 82(b) fees on her sue-cessful motion to show cause. D. Whether It Was An Abuse Of Dis-eretion To Deny Sam's Motion For Rule 82 Attorney's Fees On The Remand Judgment Sam argues that it was an abuse of discretion to deny his motion for Rule 82 attorney's fees on the "monetary judgment" he "obtained" on remand after a contested hearing. Our MO & J remanded for correction of two property division errors." After conducting a hearing on remand, the superior court ordered Sam to pay Kathleen $18,285.81 for unpaid retirement, interest, and actual attorney's fees, and ordered Kathleen to pay Sam $24,418 to correct the property division. This gave Sam a net judgment of $6,132.19. He then moved for Rule 82 attorney's fees. He reasoned that the "monetary judgment" awarded him in a contested proceeding without trial entitled him to fees of $4,395.24 (18 percent of $24,418), based on "his" judgment before offsetting Kathleen's awards. The superior court denied Sam's motion, because the corrections favoring Sam were not "due to post-trial litigation or enforcement," but to "acknowledgment" of the double-counting trial error. In effect, it treated Sam's motion as being governed by the - "divoree _ exception" - and - AS 25.24.140(a)(1), not Rule 82. A trial court has broad discretion in awarding fees in divorce cases. We apply our independent judgment to the legal question whether a fees motion is governed by the "divorce exception" or Rule 82. We discern no abuse of discretion or legal error. The superior court correctly identified the flaw in Sam's fees request: the amounts favoring Sam were not the result of new, post-trial litigation or efforts to enforce the original judgment. They were instead the result of correcting errors in the original property division. We have held that Rule 82 does not apply to divorce proceedings because "there is usually no prevailing party in a divoree case." The property division corrections made on remand did not fundamentally alter the original property division; indeed, the court made adjustments to more closely achieve the 50/50 division originally intended. Sam was no more the prevailing party when the property division was corrected on remand than he was originally. Sam describes no cireamstance compelling the superior court to deviate from the divoree exception after correcting the original property division. It is of no consequence that on remand Kathleen's lawyer cross-examined Sam or that there was some dispute about the value of the truck. The remand disputes and proceedings were not extensive, and the end result reflects what would have occurred had the issues been correctly raised and resolved at trial. And Kathleen's argument on remand-that the court should divide the assets equally-resembled the argument a party would make in a divorcee trial. We have never held in a divorcee case that a superior court must apply Rule 82 to remand proceedings when correcting errors in the original property division. And we do not have to decide here whether a superior court could, in its discretion, apply Rule 82 to a post-appeal remand proceeding in a divorce case. The superior court did not err in implicitly applying the divorcee exception to Sam's fees motion, and in denying Sam's motion on that basis. IV. CONCLUSION For these reasons, we REVERSE Kathleen's award of full fees on Sam's two motions to compel, VACATE the denial of Sam's motion for a show-cause order, and REMAND for further proceedings on his motion to show cause. We otherwise AFFIRM the rulings Sam challenges on appeal, including: the award of $2,299.50 on Kathleen's first motion for full fees; the order finding that Sam did not pay Kathleen support in December 2007; the award of $4,141 on Kathleen's second motion for full fees; and the order denying Sam's motion for Rule 82 fees on the judgment on remand. CARPENETI, Chief Justice, not participating. . Johnson v. Johnson, Mem. Op. & J. No. 1335, 2009 WL 564692 (Alaska, Mar. 4, 2009), resolved his first appeal. We there remanded for correction of the double-counting of a truck awarded to Sam and for consideration of Sam's claim for credits for post-separation costs he allegedly incurred to maintain marital property. Id. We otherwise affirmed. Id. Johnson v. Johnson, 214 P.3d 369 (Alaska 2009), resolved his second appeal. We there rejected Sam's argument that Kathleen's QDRO contained a clerical mistake warranting correction, and affirmed. Id. . For example, Sam sought his father's oil can, kitchen items that had belonged to his grandmother, and a dresser his mother had given him before he married. . See Johnson, 214 P.3d at 372. . Mem. Op. & J. No. 1335, 2009 WL 564692 (Alaska, Mar. 4, 2009). . Id. at *3, 5-6. . He does not contend that the fees incurred were unreasonable in amount. . Rule 82(b)(3) provides: The court may vary an attorney's fee award calculated under subparagraph (b)(1) or (2) of this rule if, upon consideration of the factors listed below, the court determines a variation is warranted: (A) the complexity of the litigation; (B) length of the trial; (C) the reasonableness of the attorneys' hourly rates and the number of hours expended; (D) the reasonableness of the number of attorneys used; (E) the attorneys' efforts to minimize fees; (F) the reasonableness of the claims and defenses pursued by each side; (G) vexatious or bad faith conduct; (H) the relationship between the amount of work performed and the significance of the matters at stake; (I) the extent to which a given fee award may be so onerous to the non-prevailing party that it would deter similarly situated litigants from the voluntary use of the courts; (J) the extent to which the fees incurred by the prevailing party suggest that they had been influenced by considerations apart from the case at bar, such as a desire to discourage claims by others against the prevailing party or its insurer; and (K) other equitable factors deemed relevant. If the court varies an award, the court shall explain the reasons for the variation. . Sam's brief asserted that the court made no findings of fact justifying full reasonable fees, and his excerpt did not contain the superior court's January 25, 2009 order containing the findings discussed above. Independently finding the January order in the record, we ordered Sam's attorney to address the oversight at oral argument on appeal. We describe his corrected contentions above. . Hopper v. Hopper, 171 P.3d 124, 133 (Alaska 2007) (applying abuse of discretion standard in reviewing award of full reasonable fees on post-divorce Rule 60(b) motion}. . McGee v. McGee, 974 P.2d 983, 987-88 (Alaska 1999) (applying abuse of discretion standard in reviewing award of fees on post-divorce Rule 60(b) motion). . See State, Dep't of Revenue, Child Support Enforcement Div. v. Allsop, 902 P.2d 790, 795-96 (Alaska 1995) (assessing viability of CSED's defense de novo and reviewing factual findings for clear error in reversing decision to award presumed father Rule 82 full fees in child support collection case). . Rule 82(a) provides: Except as otherwise provided by law or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's fees calculated under this rule. . Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003) (explaining divorce exception to Rule 82). . Id. . Powell v. Powell, 194 P.3d 364, 372-73 (Alaska 2008) (applying Rule 82 when former wife filed Rule 60(b) motion to modify property division); McGee, 974 P.2d at 992 (applying Rule 82 when former wife filed Rule 60(b) motion to modify dissolution decree); Saltz v. Saltz, 903 P.2d 1070, 1071 (Alaska 1995) (applying Rule 82 when former wife alleged former husband had not paid spousal support, and moved to reduce her spousal support claim to judgment); Lowe v. Lowe, 817 P.2d 453, 460 (Alaska 1991) (citing L.L.M. v. P.M., 754 P.2d 262, 264 (Alaska 1988)) (holding Rule 82 applied when former wife moved to modify dissolution decree to award her share of former husband's military retirement); Hartland v. Hartland, 777 P.2d 636, 644 (Alaska 1989) (holding that Rule 82, not divorce exception, applied when former wife moved to enforce property division). . Lowe, 817 P.2d at 460. . Alaska R. Civ. P. 82(b)(1) (scheduling partial fees awards for parties recovering money judgments); Alaska R. Civ. P. 82(b)(2) (specifying percentages of actual fees for partial fees awards to parties not recovering money judgments). . Rule 77(j) also allows awarding attorney's fees against a party presenting a "frivolous or unnecessary'' motion. It is not necessary in this case to distinguish between full fees awards under Rule 77 and Rule 82. . United Servs. Auto. Ass'n v. Pruitt ex rel. Pruitt, 38 P.3d 528, 535 (Alaska 2001) (quoting State v. Johnson, 958 P.2d 440, 445 n. 10 (Alaska 1998)) (affirming Rule 82(b)(3) award of enhanced fees because superior court adequately explained why it deviated from rule's schedule}. . Cf. Crittell v. Bingo, 83 P.3d 532, 537 & n. 20 (Alaska 2004) (affirming Rule 82(b)(3) full fees award because record supported findings of vexatious and bad faith conduct). Our cases may also allow full reasonable fees awards under Rule 82 if a claim is frivolous, even absent bad faith. Compare State Farm Ins. Co. v. Am. Mfrs. Mut. Ins. Co., 843 P.2d 1210, 1212 (Alaska 1992) (stating that full fees are permitted if party asserts frivolous claim, litigates in bad faith, or is liable under indemnity clause, or if award is made per express contract provision}, Van Dort v. Culliton, 797 P.2d 642, 644 (Alaska 1990) (stating that "departure from the [Rule 82] fee schedule, even to the extent of a full award of actual fees, may be justified where the court finds that a losing party's claim or defense was 'frivolous, vexatious, or devoid of good faith' "), and Crawford & Co. v. Vienna, 744 P.2d 1175, 1178 n. 4 (Alaska 1987) (stating that because case was frivolous, "full or substantially full attorneys' fees may be imposed" on remand, even though plaintiffs had not acted in bad faith), with Aloha Lumber Corp. v. Univ. of Alaska, 994 P.2d 991, 1003 (Alaska 1999) (implying that full fees could not be awarded based on finding of only frivolousness). The superior court did not expressly find that Sam's motions were "frivolous." It characterized the claims in the motions as "not reasonable." It also noted that it had not awarded fees after trial and that Sam's motions litigated matters that had been or could have been litigated at trial. It then stated that "[hlad Sam pursued the type of baseless and unsupported claims made in motions since trial, at or before the time of trial, the Court would likely have awarded fees to Kathleen on that basis." If frivolousness alone does justify full fees awards under Rule 82, it nonetheless does not affect the result we reach as to Kathleen's first full fees award. That is so because our ultimate conclusions about the potential merits of two of Sam's motions preclude characterizing those two motions as frivolous. . Brack's Law Dictionary 149 (8th ed. 1999). . See Van Dort, 797 P.2d at 644 (quoting State v. Univ. of Alaska, 624 P.2d 807, 818 (Alaska 1981)). . See supra note 11 and accompanying text. . See State, Dep't of Revenue, Child Support Enforcement Div. v. Allsop, 902 P.2d 790, 795-96 (Alaska 1995) (assessing viability of defendant's argument and reversing plaintiff's full fees award because [defendant's] legal position [was] tenable and not so devoid of merit as to indicate a bad faith or vexatious intent"). . See, e.g., Edelman v. Edelman, 61 P.3d 1, 3-4 (Alaska 2002) (affirming denial of former wife's motion to compel husband to assign Exxon claims because property division did not establish her right to those claims); Vill. of Chefornak v. Hooper Bay Constr. Co., 758 P.2d 1266, 1268-69 (Alaska 1988) (affirming grant of motion to compel party to make payments in accordance with prior judgment); Uhl v. Uhl Mem. Op. & J. No. 0110, 1982 WL 889009 at *2 (Alaska, July 1, 1982) (affirming grant of former husband's motion to compel former wife to return particular items of personal property awarded him in divorce). . At trial Sam did not ask the court to require Kathleen to pay for the unpaid-for fuel. The unpaid-for load was delivered April 12, 2007; trial ended May 18, 2007. The invoice supporting Sam's first motion to compel was dated "06/30/07." The record contains no earlier invoices for the April delivery. The record does not establish that Sam was obliged to raise the unpaid-for delivery claim at trial, or that he was unreasonable in first raising that claim in his 2008 motion to compel. . Very late in the divorce trial, Sam argued for the first time that many Azalea items were not marital property-and thus not to be "charged against [him]" in the property division-because he received them as gifts or inheritance or acquired them before marriage. Kathleen's attorney argued that because it was "a wash," the court should treat all the Azalea items as marital rather than differentiating marital and non-marital items. The court noted in response that it had to address the characterization issue after Sam raised it. Neither party presented a transmutation argument as to any of these items. After testimony ended, each party submitted a spreadsheet distinguishing marital and non-marital Azalea items. The findings and conclusions did not differentiate items on that basis, but simply awarded $60,000 of the Azalea personalty to Sam, and $60,000 to Kathleen, apparently treating it all as marital. Neither party sought clarification or reconsideration of the characterization issue. . The law of the case doctrine prohibits review of "issues that have been fully litigated in the superior court and as to which no timely appeal has been made" absent "exceptional circumstances presenting a clear error constituting manifest injustice." Dunlap v. Dunlap, 131 P.3d 471, 475-76 (Alaska 2006) (considering child support order settled and unreviewable because appellant failed to seek timely review) (internal quotation marks omitted). . Black's Law Dictionary, 742 (8th ed. 1999), defines "heirloom" as: 1. An item of personal property that by local custom, contrary to the usual legal rule, descends to the heir along with the inheritance, instead of passing to the executor or administrator of the last owner.... 2. Popularly, a treasured possession of great sentimental value passed down through generations within a family. . For example, at trial, Sam had waived any claim to a painting by Kathleen's mother, the compact collection, and the bed in the master bedroom. See Jaymot v. Skillings-Donat, 216 P.3d 534, 546 (Alaska 2009) (holding issue not raised in trial court is waived on appeal). . The record contains correspondence between the parties' lawyers regarding the Azalea items, the fuel, and the road fabric. That correspondence, even when reviewed deferentially to the findings awarding full fees, provides no support for finding that Sam asserted his three requests vexatiously or in bad faith. . We consequently do not need to consider the superior court's conclusions that full fees were also justified under Rule 82(b)(3)(F), (H), and (K). See supra note 20 and accompanying text. . The order also awarded full fees under Rule 82(b)(3)(H), finding that Kathleen was forced to incur fees that were "unreasonably large compared to the value of the items at stake." This finding is in part factually incorrect: the fuel and road fabric disputes were together worth more than $3,500. It is also in part irrelevant: Sam conceded that some of the Azalea items had minimal economic value, but many items had significant emotional value to Sam. For example, the "thousands" of family photographs Kathleen allegedly refused to share (or copy) had non-financial value that justified Sam's motion. Cf. Beal v. Beal, 88 P.3d 104, 118 (Alaska 2004) (acknowledging relevance of sentimental value in affirming superior court's decision to award "painting of almost entirely sentimental value to the spouse who does not receive primary physical custody of the child"). . In Johnson v. Johnson, 214 P.3d 369, 372 (Alaska 2009), we affirmed the denial of Sam's motion to correct because the remarriage provisions "were neither a clerical error nor a mistake." We also noted that "it is not contested on appeal" that remarriage was irrelevant. Id. at 372-73. In context of the superior court's full-fees award, it is significant that Sam failed to rebut, or even reply to, Kathleen's superior court contention that remarriage was legally irrelevant. . - Rule 70 provides in part: If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party. Rule 90(b) sets out the procedure for cases of indirect contempt: For every contempt other than that [which occurs in actual presence of the court], upon a proper showing on ex parte motion supported by affidavits, the court shall either order the accused party to show cause at some reasonable time, to be therein specified, why the accused party should not be punished for the alleged contempt, or shall issue a bench warrant for the arrest of such party. AS 09.50.010(5) provides that disobedience of a lawful court order constitutes contempt. 36. Hartland v. Hartland, 777 P.2d 636, 647 (Alaska 1989) (quoting L.A.M. v. State, 547 P.2d 827, 831 (Alaska 1976)). . See Stuart v. Whaler's Cove, Inc., 144 P.3d 467, 468-69 (Alaska 2006) (affirming denial of motion for order to show cause where court had conducted hearing and determined non-moving party was not in contempt). . The rule's text ostensibly requires entry of a show-cause order if an ex parte motion is supported by affidavits. We have held that because the purpose of the affidavit requirement "is to afford the one charged with contempt the procedural due process requirement of notice of the charge against him," no affidavit is required if that notice is given by other means, such as the motion for an order to show cause. See Taylorv. Dist. Ct. for the Fourth Judicial Dist., at Fairbanks, 434 P.2d 679, 681-82 (Alaska 1967); see also Cont'l Ins. Cos. v. Bayless & Roberts, Inc., 548 P.2d 398, 403 (Alaska 1976). Sam's motion was not ex parte and was supported by his affidavit and trial testimony. We express no opinion whether a show-cause motion unsupported by an affidavit or equivalent admissible evidence satisfies Rule 90(b). Likewise, we decline to decide here whether Rule 90(b) always mandates entry of a show- cause order if a "proper showing" is made, that is, if the movant has alleged admissible facts satisfying the legal requirements for civil contempt. Because Kathleen's response to Sam's motion included no sworn statements, we do not need to decide whether Rule 90(b) invariably requires entry of a show-cause order, even if the opponent proffers admissible evidence controverting the motion. We only need to consider whether a show-cause order is warranted if the opponent submits no such sworn statements. . See Universal Motors, Inc. v. Waldock, 719 P.2d 254, 259 (Alaska 1986) (holding that whether party presented evidence sufficient to establish prima facie case is question of law). . Duffus v. Duffus, 72 P.3d 313, 316 (Alaska 2003) (applying de novo review to superior court's interpretation of civil rules in post-divorce child support dispute). . See Hartley v. Hartley, 205 P.3d 342, 346-47, 350 (Alaska 2009) (applying independent judgment review to denial of former husband's motion requesting evidentiary hearing to address parties' differing interpretations of property division). Similarly, whether a parent has made out a prima facie showing sufficient to justify a child custody support modification hearing presents a question of law that we review de novo. Schuyler v. Briner, 13 P.3d 738, 741 (Alaska 2000). . Horchover v. Field, 964 P.2d 1278, 1282 (Alaska 1998) (reviewing for abuse of discretion order enforcing property division provision of divorce decree where same court had issued decree). . Walker v. Walker, 151 P.3d 444, 447 (Alaska 2007). . In letters to Sam's lawyer, Kathleen's lawyer argued that Kathleen should not have to return items that had not been awarded to Sam. But as to the "heirlooms," this contention was not viable after Kathleen was ordered to return the heirlooms if she had them. She was thereafter obliged to transfer the items in her possession to Sam or account for them if she knew what had happened to them. . See, e.g., Brooks Range Exploration Co., Inc. v. Gordon, 46 P.3d 942, 944-45 (Alaska 2002) (holding that superior court may not summarily enforce settlement agreement without conducting evidentiary hearing unless there are no genuine issues of material fact regarding terms of agreement); Goliver v. McAllister, 34 P.3d 324, 325-26 (Alaska 2001) (holding it was error not to conduct evidentiary hearing because there were genuine issues of material fact as to whether limitations period had expired); Pedersen v. Zielski, 822 P.2d 903, 907 (Alaska 1991) (noting that issues concerning application of discovery rule that present "genuine issues of material fact . must be resolved [by trial court] at an evidentiary hearing"). . - See In re Estate of Fields, 219 P.3d 995, 1011 (Alaska 2009) (affirming, because appellants did not request evidentiary hearing below and failure to hold evidentiary hearing was not plain error). . Id. . This result makes it unnecessary to consider Sam's argument that he was entitled to a "credit'" for the $60,000 of personalty "he never received." It is premature to consider what, if any, remedy would be appropriate for a violation of the heirloom order. . Sam cites, among other statutes, 37 U.S.C. § 212 (2006) and 10 U.S.C. § 1408(a) (2006). . See Cooper v. Cooper, 144 P.3d 451, 454 (Alaska 2006) (''The interpretation of a statute is a question of law which involves this court's independent judgment."). . The order's relevant passage reads: Whereas incident to the termination of the marriage of the Parties, the Court enters this Order dividing the military retirement of [Sam].... As her property interest in [Sam's] disposable pay, [Kathleen] is awarded fifty percent of said pay. Thus, before the military began paying Kathleen directly in January 2008, she was entitled to receive each month half of Sam's military retirement. - Sam does not contend that the superior court erroneously interpreted its own order. . See Hooper v. Hooper, 188 P.3d 681, 685 (Alaska 2008) (citing Hanson v. Hanson, 125 P.3d 299, 304 (Alaska 2005)) (applying clear error review to factual findings in property division). . Our March 4, 2009 MO & J remanded for correction of the double-counting error. See Johnson v. Johnson, Mem. Op. & J. No. 1335, 2009 WL 564692 at *2-3 (Alaska, Mar. 4, 2009). Correcting that error benefitted Sam in the principal amount of $25,500. . The offset would have subtracted the amount awarded Kathleen on her show-cause motion ($6,352.17) from the amount of Sam's property division correction entered on remand ($24,418). Because the latter amount exceeded the former, Sam apparently regards himself as the prevailing party on remand. He makes the same argument more explicitly in seeking Rule 82 fees on what he calls his "monetary judgment." We discuss that argument in Part IIID. . The second full-fees order awarded Kathleen fees of $4,141 on her show-cause motion and on two of Sam's reconsideration motions. This order did not find vexatious or bad faith litigation conduct, but Sam does not argue that the absence of that finding barred a Rule 82(b)(3) full fees award. . See Millerv. Sears, 636 P.2d 1183, 1189 (Alaska 1981) (declining to review claims not raised below except for plain error). . Johnson v. Johnson, Mem. Op. & J. No. 1335, 2009 WL 564692 at *1 (Alaska, Mar. 4, 2009). . Per Rule 82(b)(1), the fees award for a party recovering a money judgment in a contested matter decided without trial is 18 percent of the judgment's first $25,000. . Carr v. Carr, 152 P.3d 450, 457 (Alaska 2007) (applying abuse of discretion standard to trial court's denial of husband's request for fees in divorce action). . See Sanders v. Barth, 12 P.3d 766, 767-68 (Alaska 2000) (applying independent judgment standard in reviewing whether Rule 82 or divorce exception applies to particular case). . McDonald v. Trihub, 173 P.3d 416, 429 (Alaska 2007) (citing Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003). In comparison, this rationale does not apply on appeal, where the prevailing party "can be identified with ease." Hilliker v. Hilliker, 768 P.2d 115, 115-16 (Alaska 1988) (holding that divorce exception does not apply on appeal of divorce judgment). . This conclusion renders irrelevant any question whether Sam recovered a "money judgment" on remand, of. Rule 82(b)(1), or whether his fees request, if meritorious, should have been based on his net award, after deducting Kathleen's awards.

9149657

John W. MARTIN, Jr., Petitioner, v. STATE of Alaska, Respondent; State of Alaska, Appellant, v. John W. Martin, Jr., Appellee

Martin v. State

2004-09-10

Nos. S-10139, S-10640

206

206

98 P.3d 206

98

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:03:40.188015+00:00

CAP

Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, and FABE, Justices.

John W. MARTIN, Jr., Petitioner, v. STATE of Alaska, Respondent. State of Alaska, Appellant, v. John W. Martin, Jr., Appellee.

John W. MARTIN, Jr., Petitioner, v. STATE of Alaska, Respondent. State of Alaska, Appellant, v. John W. Martin, Jr., Appellee. Nos. S-10139, S-10640. Supreme Court of Alaska. Sept. 10, 2004. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, and FABE, Justices.

237

1453

Order The court asked the parties for supplemental briefing to discuss the effect on Case No. S-10139 of Doe v. State, Department of Public Safety, 92 P.3d 398 (Alaska 2004). Upon consideration of Martin's 7/8/04 supplemental brief, the state's 6/29/04 notice that it views Doe as dispositive of Martin's case (because Martin's sex offense conviction was set aside in 1988), and the state's notice of 7/9/04, It Is ORDERED: 1. Opinion No. 1716 issued 01/26/01 by the court of appeals in Case No. A-7089 is hereby VacatEDp. 2. The two judgments of dismissal dated 7/20/98 (one of which may be misdated 7/20/99) entered by the district court in Case Nos. SKN-98-246 and 3KN-98-684, are R-INSTATED. 3. This disposition of Martin's petition in Case No. §-10189 has the effect of mooting the issue, raised in Case No. S-10640, whether the district court had jurisdiction on 5/22/01 to enter new dismissals of the charges against Martin. This makes it unnecessary for this court to consider the question certified to this court on 9/21/01 by the court of appeals in its Opinion No. 1765 in Case Nos. A-8040 and A-8051. Entered at the direction of the court. CARPENETI, Justice, not participating.

10433482

YOUNG BROTHERS CONSTRUCTION COMPANY, INC. and William Bittner, a joint venture, Appellant, v. ROLLINS BURDICK HUNTER OF ALASKA, INC., an Alaska corporation, Appellee

Young Bros. Construction Co. v. Rollins Burdick Hunter of Alaska, Inc.

1982-10-15

No. 5799

1168

1169

659 P.2d 1168

659

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:06:59.788582+00:00

CAP

Before BURKE, C.J., RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.

YOUNG BROTHERS CONSTRUCTION COMPANY, INC. and William Bittner, a joint venture, Appellant, v. ROLLINS BURDICK HUNTER OF ALASKA, INC., an Alaska corporation, Appellee.

YOUNG BROTHERS CONSTRUCTION COMPANY, INC. and William Bittner, a joint venture, Appellant, v. ROLLINS BURDICK HUNTER OF ALASKA, INC., an Alaska corporation, Appellee. No. 5799. Supreme Court of Alaska. Oct. 15, 1982. Rehearing Denied Feb. 25, 1983. Patrick Owen, Birch, Horton, Bittner, Monroe, Pestinger & Anderson, Anchorage, for appellant. Vincent Vitale and Natalie K. Finn, Law Offices of Vincent Vitale, Anchorage, for appellee. Before BURKE, C.J., RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.

944

5964

OPINION BURKE, Chief Justice. The main issue in this appeal is whether a co-venturer had authority to sign a promissory note which would bind the joint venture to pay a debt of insurance premiums. The trial court granted judgment in favor of the insurer, holding the joint venture jointly and severally liable for the entire amount of the note. We reverse. In 1973, Donald, Herbert, John, and Jerry Young formed a partnership to engage in general construction in Alaska. In 1974, they formed a corporation called Young Brothers Construction Co., Inc., to engage in Alaskan construction projects requiring union labor. Both entities purchased all their business insurance through Rollins Burdick Hunter of Alaska, Inc. (RBH). In 1975, the corporation sought construction subcontracts which required performance and payment bonds beyond their financial means. To obtain the subcontracts, the corporation entered into a joint venture agreement with Mr. William Bittner, who was to provide the additional financial backing necessary to secure the bonds. The agreement expressly provided that the Young Brothers' corporation would be responsible for procuring the necessary insurance coverage for the joint venture. Mr. Jerry Young, as president of the corporation, obtained all the insurance for the joint venture, as well as for the other entities. The joint venture was added as an additional insured to existing Young Brothers' policies and new- policies were written for the joint venture when necessary. As was its custom, RBH kept a single, open account for these entities. RBH always billed, and the Young Brothers always paid, in lump sum figures. At no time in the course of their relationship did either party request allocation of the insurance costs between entities or policies. Mr. Bittner and the Young Brothers' corporation entered into a second joint venture agreement in April, 1976, for the purpose of completing a second construction project. This agreement was essentially the same as the first, with the Young Brothers providing the construction expertise and Mr. Bitt-ner providing financial backing to bond the project. RBH and the corporation continued their prior course of dealing regarding billing and payment of the Young Brothers' insurance account. Neither party requested allocation between the three entities or the insurance policies. Jerry Young continued to be responsible for the purchase of insurance for each of the three entities. By the end of 1976, the Young Brothers' account with RBH was delinquent and remained so through 1978. Between 1974 and 1978, RBH had billed the Young Brothers a total of $140,000.00. By June, 1978, RBH had received approximately $94,000.00 in payments, leaving a shortfall of $46,683.83. After several phone calls and meetings to negotiate its terms, RBH and Jerry Young signed a promissory note on June 6,1978, in the amount of $46,683.83. The note provided that the partnership, corporation and joint venture would be jointly and severally liable for the debt and that the amount was to be paid, with interest, in monthly installments of $5,000.00. The note contained signature lines for each of the three specifically named entities and Jerry Young signed for each entity after reading the note. Upon the Young Brothers' default, RBH brought this action on September 19, 1978. The three entities answered the complaint, and Mr. Bittner filed a third-party complaint to enforce the joint venture's promise to indemnify, made in both joint venture agreements. At trial, the corporation and partnership defaulted by failing to appear; only the joint venture appeared to defend. Following a court trial, the superior court entered judgment for RBH, holding the joint venture jointly and severally liable on the debt, and in favor of Mr. Bittner on his claim for indemnity. The joint venture now appeals. Prior to the execution of the promissory note, RBH had been provided with copies of the two joint venture agreements. Each contained the following provisions: The Joint Venture shall have the power to do everything necessary, proper, convenient or incidental to [its] purpose. The Joint Venture shall not engage in any other business or activity. [§ 1.2 of Exhibits 3 and 4] It is specifically understood and agreed between the venturers that this Joint Venture extends only to and is limited to the rights and obligations under this agreement. [§ 13 of Exhibit 3; § 12.1 of Exhibit 4] No party shall have the right to borrow money on behalf of the other party or to use the credit of the other party for any purpose unless the other party consents in writing. [§ 6.1 of Exhibit 3; § 5.1 of Exhibit 4] The second joint venture project was completed by October, 1976. In addition, the undisputed testimony and evidence at trial reveals that the insurance policies which covered the joint venture's activities expired or were cancelled long before June 6,1978, when Jerry Young signed the promissory note. Under the circumstances, we conclude that Jerry Young had no authority, real, implied or apparent, to bind the joint venture to pay that portion of the overdue premiums which were not attributable to the joint venture's own insurance policies. AS 32.05.040. Accordingly, the judgment is REVERSED and REMANDED for a determination of the amount of insurance premiums attributable to the joint venture. . This result makes it unnecessary for us to reach the other issues raised by appellant.

10433958

Cecil Ray VEST, Appellant, v. FIRST NATIONAL BANK OF FAIRBANKS and Daniel Talbott, Appellees

Vest v. First National Bank of Fairbanks

1983-02-25

No. 5969

1233

1236

659 P.2d 1233

659

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:06:59.788582+00:00

CAP

Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.

Cecil Ray VEST, Appellant, v. FIRST NATIONAL BANK OF FAIRBANKS and Daniel Talbott, Appellees.

Cecil Ray VEST, Appellant, v. FIRST NATIONAL BANK OF FAIRBANKS and Daniel Talbott, Appellees. No. 5969. Supreme Court of Alaska. Feb. 25, 1983. Clem H. Stephenson, Fairbanks, for appellant. Peter J. Aschenbrenner, Aschenbrenner & O’Meara, Fairbanks, for appellees. Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.

1681

10227

OPINION PER CURIAM. Cecil Vest asserts that Wayne Heston, former vice president of First National Bank of Fairbanks, converted payroll checks endorsed by Vest for deposit to his bank account and passed forged checks written on Vest's account. Vest further alleges that when he approached Heston, in his capacity as a bank officer, to inquire about shortage in the account, Heston fraudulently concealed his own wrongdoing and misrepresented that the bank would repay the shortages due to the forged checks. Vest has submitted affidavits establishing the substance of Heston's statements to him and the other material allegations of his complaint. Vest avers that these events took place in 1976 and 1977. Applying the general two year statute of limitations applicable to causes of action sounding in tort, the superior court granted summary judgment to First National Bank and Daniel Talcott. We reverse upon the ground that the six year limitation set forth in AS 09.10.050(3) applies. That statute provides that: No person may bring an action . (3) for taking, detaining, or injuring personal property, including an action for its specific recovery . unless commenced within six years. By its terms, AS 09.10.050(3) governs actions in trover for conversion. See Teren v. Howard, 322 F.2d 949, 954 (9th Cir.1963) (applying identical Oregon statute); Deetz v. Cobbs & Mitchell Co., 253 P. 542, 543 (Ore.1927). An action by the payee of a check against a bank failing to deposit the check sounds in conversion, Chemical Workers Basic Union Local No. 1744 v. Arnold Savings Bank, 411 S.W.2d 159, 162 (Mo.1966), and therefore falls under AS 09.-10.050(3). See Fabricon Products v. United California Bank, 264 Cal.App.2d 113, 70 Cal.Rptr. 50, 53 (Cal.App.1968) (interpreting similar statute in like circumstances). We see no reason to suspect that AS 09.10.-050(3) does not mean exactly what it appears to mean. Inasmuch as the applicable period of limitations is six years, the action was timely and summary judgment inappropriate. REVERSED and REMANDED. . The parties apparently assumed that AS 09.-10.070 applied. That statute provides: No person may bring an action (1) for libel, slander, assault, battery, seduction, false imprisonment, or for any injury to the person or rights of another not arising on contract and not specifically provided otherwise . (Emphasis added.) . AS noted by our dissenting colleague, the applicability of the six year statute of limitations, AS 09.10.050(3), is an issue not raised by the parties. The issue was raised by this court, sua sponte, in an order for further briefing. That order provided, partly: "[T]he parties shall address the following question: Is appellant's action below governed by the six year period of limitation contained in AS 09.10.-050(3), rather than the two year period prescribed by AS 09.10.070?" (Emphasis in original.) Supplemental briefs were filed in conformity with our order and, therefore, it is no longer correct to say, as does the dissent, that "the parties have premised all of their arguments on the assumption that the applicable statute of limitations is the two year period set forth in AS 09.10.070." Ordinarily, we will not consider an issue unless it has been argued in the trial court and properly raised on appeal, Wetzler v. Wetzler, 570 P.2d 741, 742 n. 2 (Alaska 1977), unless it amounts to plain error. Burford v. State, 515 P.2d 382, 383 (Alaska 1973). Where, however, an issue that has not been raised involves a question of law that is critical to a proper and just decision, we will not hesitate to consider it, particularly after calling the matter to the attention of the parties and affording them the opportunity to brief the issue. See State v. First Nat'l Bank, Slip Op. at 44 (Alaska, December 3, 1982) (trial court may inject a new theory into a case where necessary to accomplish a proper and just disposition); Stone v. Stone, 647 P.2d 582, 585-86 (Alaska 1982) (appeal disposed of under Civil Rule 60(b), a subject not raised by the parties); Dresser Industries v. Alaska Dept. of Labor, 633 P.2d 998, 1004-06 (Alaska 1981) (this court not bound by stipulation as to the controlling law); Libby v. Dillingham, 612 P.2d 33, 41-42 (Alaska 1980) (decision based on construction of a statute contrary to apparent concession by appellant's counsel). .One of the issues yet to be decided is whether AS 45.04.406 precludes appellant's action. Resolution of that issue depends upon factual determinations to be made following our remand.

6988120

3-D & CO., Appellant, v. TEW'S EXCAVATING, INC., Appellee

3-D & Co. v. Tew's Excavating, Inc.

2011-08-26

No. S-13425

819

833

258 P.3d 819

258

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.

3-D & CO., Appellant, v. TEW'S EXCAVATING, INC., Appellee.

3-D & CO., Appellant, v. TEW'S EXCAVATING, INC., Appellee. No. S-13425. Supreme Court of Alaska. Aug. 26, 2011. Kevin Williams and Louis A. Breuer, Willow, for Appellant. Jason L. Bergevin, Royee & Brain, Anchorage, for Appellee. Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.

7552

46128

OPINION STOWERS, Justice. I. INTRODUCTION This case involves a contract dispute between 8-D & Co. and Tew's Excavating, Inc. The dispute is over the terms of a construction contract for two roads in Scenic View Subdivision of the Matanuska-Susitna Borough. 3-D & Co. contends that the superior court applied the wrong legal standards and arrived at the wrong factual conclusions regarding the terms of the contract by: (1) admitting extrinsic evidence to determine the meaning of the contract, (2) applying the preponderance of the evidence standard of proof rather than a clear and convincing evidence standard, (3) finding no material breach of the contract, (4) finding that the contract was for a fixed price, (5) finding that both parties assented to constructing a T-intersection rather than a cul-de-sac, (6) finding that a construction change would likely be accepted by the Matanuska-Susitna Borough, (7) awarding damages for the culvert work, (8) finding that there was not sufficient proof for damages on road width deficiencies, (9) finding that there was no breach of contract in not meeting the contract deadline, (10) erroneously applying theories of estoppel or waiver in awarding no damages, (11) considering the duty to notify and provide an opportunity to cure, and (12) failing to award damages for the incidental cost of removing the lien placed on the property. We affirm the superior court's decisions in all respects. II. FACTS AND PROCEEDINGS 3-D & Co. (Derr) is an Alaskan realty development corporation wholly owned by Daniel Derr. Derr purchased 40 acres of land within the Matanuska-Susitna Borough (the Borough) intending to develop it into Scenic View Subdivision. The land was located just beyond the developed portion of Foothills Boulevard. Tew's Excavating, Inc. (Tew) is an Alaskan corporation whose business involves road maintenance, contracting work, and road construction. Prior to his contract with Derr, Tew had completed two road construction projects: one for the City of Houston and another for a private subdivision. Both jobs utilized three inch minus gravel" In addition Tew had at least three contracts with the Borough to provide road maintenance. In late 2005 or early 2006 Derr contacted Tew about constructing roads in his new subdivision. Tew provided Derr with an estimate for the work on one of these roads, Foothills Boulevard. This estimate set a price of $30 per linear foot to construct the road to Borough standards. The price estimate indicated, "This will not include any gravel, engineering, culverts or clearing." At the time of the estimate, Derr anticipated performing the clearing and grubbing on Foothills Boulevard himself. Derr was unable to complete the clearing and grubbing because he was arrested for felony DUI. Derr spent the next two years in jail and residential treatment. Due to the arrest Tew and Derr discussed whether the project would continue. Tew visited Derr multiple times to discuss various options for the project. In May 2006 Derr and Tew orally agreed that Tew would clear and grub the road-charging hourly-and construct Foothills Boulevard pursuant to the terms and conditions of the estimate. The parties did not create a written agreement about the price for the clearing and grubbing. In May 2006 Derr and Tew began discussing the construction of Range View Drive. By July 2006 Tew provided an oral estimate for the work and Derr agreed to the terms. Tew was now responsible for building both Foothills Boulevard and Range View Drive. Tew billed Derr periodically for the work on Derr's land in the spring of 2006. Disputes arose about the bills during this period. Tew provided Derr with invoices detailing the equipment used and hours worked. Derr believed that the work was taking too long and he was paying too much. The parties negotiated and revised several versions of a contract before they agreed to sign a written contract on August 14, 2006. The written contract specified: "All gravel for road{s] will be taken from Tract A. Per [the Borough's] preliminary plat." Derr wanted to turn the gravel pit in Tract A from which road gravel was to be removed into a pond, and had specific instructions for how the gravel should be removed. Tew did not inspect the gravel prior to the formation of the contract. The available gravel was sufficient to meet the Borough's standards for the bottom 18 inches of the road but insufficient for the top six inches. Tew requested that Derr rent screening equipment needed to ensure three inch minus gravel was used for the top of the road and offered to do the physical labor involved in sereening the gravel. Derr did not want to incur the costs of this process, so Tew suggested he could try processing the gravel using graders and gird-rollers to crush smaller rocks and remove larger rocks. Tew explained that this processing would take longer than screening and would not produce true three inch minus gravel. Tew said that the Borough would probably approve the road anyway and indicated that he had used the same process on a previous job that passed the Borough's inspection. Derr agreed to process the gravel using Tew's equipment. Tew processed the gravel as he and Derr agreed, completing the project in late October 2006. When he completed the processing, he informed Wayne Whaley, Derr's on-site representative, that the project was complete; Whaley agreed. Whaley inspected the project and determined that it was ready for the Borough's inspection. After Whaley's inspection Tew moved his equipment off of Derr's property. Derr never informed Tew that he felt that Tew's work was incomplete or insufficient. Derr measured random road widths and determined the road was not uniformly 24 feet wide. He felt some of the culvert installations were incomplete or in need of repair. He noted that some of the rocks in the road were not three inch minus and some of the rocks in the ditches were not six inch minus, thus not meeting Borough standards. He felt that the angle of the road slope was improper at various points. He was also unsatisfied with the intersection of Range View and Rolling Hills because it formed a T-intersection rather than a cul-de-sac. The only information that Tew received about potential problems was a communication from Whaley indicating that minor culvert repairs or modifications might be required. Tew was willing to make the repairs if needed. In the fall of 2006, while Tew was still working on the project, Derr solicited bids from other companies to complete work on the roads. Derr received bids from Northern Dame (Fall 2006 oral estimate), Kenner-son Excavation (October 12, 2006) and Steppers Construction (October 17, 2006) to complete road construction. He chose not to use any of these contractors and did not inform Tew that Tew had not completed the job to his satisfaction. Tew submitted a final written invoice to Derr for the remaining $50,000 Derr owed. When Derr did not pay this final invoice, Tew phoned Derr several times about the money but still did not receive payment. In January 2007 Tew filed a $50,000 lien against the property. Derr's lawyer sent a letter acknowledging that $50,000 was owed upon completion of the project but claimed the project was not complete because a Borough inspection had not occurred and the roads did not meet Borough specification. This was the first time Tew was made aware that Derr was not completely satisfied with the work Tew had done. Nevertheless, Derr paid off the lien in three months. Derr requested a formal Borough inspection in March 2007. Tew was neither notified of the inspection nor invited to attend. The inspection report by AreTerra Engineering was submitted to the Borough; it noted that with the exception of a few minor repairs the road work was completed to Borough standards. The inspection report was not shared with Tew. Another formal inspection was conducted by the Borough in July 2007. The inspection resulted in a punch list with a few minor items that required correction. Tew was not provided the punch list or copies of correspondence with inspectors. Tew was never provided an opportunity to fix the minor items identified on the punch list. Derr filed a complaint alleging breach of contract, breach of the implied covenant of good faith and fair dealing, and violation of Alaska's lien statute, AS An eight-day trial began on December 2, 2008. The superior court determined that Derr proved breach of contract regarding the requirement that the roads be 24 feet wide, but that Derr had not proven damages to any degree of certainty regarding the breach, and that Derr failed to provide Tew a reasonable opportunity to eure. The court also found several deficiencies with culvert work, road slope, and angles. The court, in accordance with the substantial performance doe-trine, held that Tew should pay Derr: (1) $800 for culvert deficiencies, (2) $5,000 for slope cover deficiencies, and (8) $5,000 for angle deficiencies. Derr appeals. III STANDARD OF REVIEW We review the trial court's factual determinations, including those pertaining to the credibility of witnesses, for clear error. We will find clear error only if "after a thorough review of the record, we come to a definite and firm conviction that a mistake has been made. All factual findings are reviewed "in the light most favorable to the prevailing party below." "We give particular deference to the superior court's factual findings when, as here, they are based primarily on oral testimony, because the superi- or court, not this court, judges the credibility of witnesses and weighs conflicting evidence. We apply our independent judgment to questions of law. "When the meaning of a contract is at issue, we review the superior court's interpretation of the contract terms using our independent judgment." IV. DISCUSSION A. The Trial Court Did Not Err In Admitting Extrinsic Evidence In Determining The Meaning Of The Contract. The superior court found ambiguity in the contract over who was responsible for producing the three inch minus gravel. The superior court looked to the interactions between the parties to resolve the ambiguity. Derr contends that four provisions of the contract establish that Tew was responsible for producing the three inch minus gravel required for the top six inches of both Foothills Boulevard and Range View Drive: (1) "Build Foothills Boulevard, approximately 4,000 feet for $30.00 per foot. Footage verified at completion. (Except clearing.)"; (2) "Build Range View Drive in Scenic View Subdivision from the intersection of Foothills Boulevard to property line between lots #8 and #4, Block 5, Scenic View Subdivision, per preliminary plat map approved by [the Borough's] Platting Board. At this juncture build temporary Cul de Sac to [Borough] satisfaction."; (8) "All road work and back slopes to meet [Borough] specifications."; (4) "All gravel for road will be taken from Tract A. Per [Borough] preliminary plat." Derr argues that the superior court effectively added the phrase "except not sereening or processing gravel into 3 [inch] minus form" into the contract after the terms pertaining to building Foothills Boulevard and Range View Drive. Derr also contends that, in accordance with Alaska Northern Development v. Alyeska Pipeline Co. and Lewis v. Anchorage Asphalt Paving Co., the superi- or court should have held that the contract was an end-result contract and Tew was responsible to ensure that the road met Borough specifications. According to Derr, this would mean Tew was responsible for providing three inch minus gravel. A contract is an end-result contract (1) "Hf no other meaning is reasonable, (2) "[the contract only calls for a certain result, and (8) "[the nature of the contract determines to a large degree who is liable for defects in the end product." To establish that the contract in this case was an end-result contract, Derr would need to prove that the superior court clearly erred in determining that the written contract did not establish who had to provide the three inch minus gravel and that the nature of the written contract did not determine who was responsible for the defect of not having three inch minus gravel. The superior court found ambiguity in the contract because the contract did not indicate who was responsible for producing the three inch minus gravel. The superior court examined both the written contract and extrinsic evidence in determining that the contract contained an ambiguity. The contract contained two pertinent conditions: (1) "All gravel for road will be taken from Tract A," and (2) "All road work and back slopes to meet [Borough] specifications." The superi- or court focused on the meaning of "All gravel for road will be taken from Tract A." The contract term specified that Derr was responsible for providing the gravel for road construction but did not discuss who was responsible for ensuring that the gravel was screened to three inch minus. Derr believed that Tew was responsible for ensuring that the gravel extracted from Tract A was suitable to meet the Borough's requirements. Tew, who was not given the opportunity to inspect the gravel, believed Derr was responsible for providing the three inch minus gravel. The superior court looked to the interactions between the parties to resolve the ambiguity. Very little written documentation exists detailing the negotiations between Tew and Derr. Tew provided Derr with a written quote for the work. This quote was for Tew to construct Foothills Boulevard for $30 per linear foot, including the cost of all labor and equipment. The quote expressly excluded "any gravel, engineering, culverts or clearing." When the quote was provided, Tew had been unable to inspect the gravel on Tract A. Tew was aware of the potential risks associated with using uninspected gravel. Tew discussed these concerns with Derr, including the potential need to screen the gravel. Given these risks, Tew excluded gravel from the price in his January quote. In July 2006 Tew provided invoices 673 and 674 to Derr reflecting work on Foothilis Boulevard and Range View Drive. Both invoices indicated Tew would not provide gravel, and invoice 674 explicitly states, "Owner to provide approved onsite gravel." Derr did not want to incur the costs of screening the gravel when Tew and Derr realized that the gravel on Tract A would not meet the Borough's specifications. Tew indicated he could attempt to process the gravel using his equipment. Derr agreed to process the gravel, even after Tew explained that it would not result in true three inch minus gravel and might not meet Borough specifications. These facts taken together support the superior court's conclusion that the written contract was ambiguous regarding who was responsible for the three inch minus gravel. The superior court did not err in considering extrinsic evidence and was not clearly erroneous in concluding that Derr ultimately took the risk that the processed gravel might not result in true three inch minus gravel. B. The Superior Court Did Not Err In Applying A Preponderance Of The Evidence Standard Rather Than A Clear And Convincing Proof Standard. Derr argues that the superior court reformed the contract and should have applied a clear and convincing proof standard rather than a preponderance of the evidence standard. Derr claims that the court reformed the contract by adding the phrase "except not screening or processing gravel into [three inch] minus form" into the contract after the phrases "[bJuild Foothills Boulevard" and "[bluild Range View Drive." Derr argues that the superior court inserted this phrase based on a theory of mutual mistake. In instances of contract reformation based on mistake courts should apply a clear and convincing standard of proof. However, neither of the parties raised any claim of mutual mistake before the superior court. Neither of the parties requested reformation of the contract. Therefore the superior court did not base its decision on a theory of mutual mistake. The superior court properly applied the preponderance of the evidence standard to Derr's breach of contract claim. Because the superior court did not reform the contract, but properly resolved contractual ambiguities by examining extrinsic evidence, it applied the proper evidentiary standard. C. The Superior Court Did Not Err In Finding That Tew Did Not Materially Breach The Contract. 1. Three inch minus gravel Derr argues that Tew materially breached the contract by not providing three inch minus gravel. Derr also argues that a material breach occurred because there was no consideration provided for the contract modification. The superior court did not find a material breach because there was an ambiguity in the contract regarding responsibility for sereening gravel to three inch minus. As we explained above, the superior court resolved the ambiguity by looking to extrinsic evidence, and reasonably determined that Tew was not responsible for providing three inch minus gravel. We conclude that the superior court did not clearly err in making these factual determinations. Therefore, the superior court did not err in determining that Tew did not materially breach the contract because Tew met the conditions of the contract regarding three inch minus gravel. It follows that there was no contract modification requiring additional consideration. 2. Leaving the job site on October 25, 2006 The superior court found that the Tew left the job site with the understanding that the job was complete, except for a few minor fixes. Derr argues that Tew breached the contract when he left the job site on October 25, 2006 because the roads were not approved by the Borough. Tew told Derr he completed the project and was preparing to leave the job site. Whaley, who was Derr's "eyes and ears" on the job site, believed the job was substantially completed when Tew left Derr never indicated to Tew that the job was incomplete or insufficient before Tew left the job site. When Tew left the job site he believed he had completed the project. Derr did not request a Borough inspection before Tew left the job site. Derr, not Tew, was in a position to request approval from the Borough; but Derr did not request a formal inspection ~until March 2007, five months after Tew left the job site. The inspection resulted in a report indicating that only minor items needed to be addressed. A second inspection was conducted in July 2007, resulting in a punch list indicating only a few minor items required correction. Neither the reports nor the punch list was provided to Tew. The evidence supports the superior court's conclusion that Tew had substantially completed the contract when he left in October 2006. D. The Superior Court Did Not Err In Finding That The Construction Of Foothills Boulevard Was For A Fixed Price. | The superior court found that there was an inconsistency between the first and second pages of the contract over whether the contract was for a fixed price. The language on the first page of the August 2006 contract stated, "Build Foothills Boulevard, approximately 4,000 feet for $30.00 per foot. Footage verified at completion. (Except clearing.)." The language in this part of the contract standing alone was unambiguous-it stated that Tew would be paid $80 per foot and the length would be determined at the end of the project. The second page of the contract contained a provision denominated "Terms of Payment," which established a fixed price for the contract as a whole. The Terms of Payment listed four tasks and payment corresponding to the completion of those tasks, and a total payment for completion of the contract. This Terms of Payment provision resulted from the negotiation process preceding the formation of the written contract. The two terms together created an inconsistency in the contract. The superior court found the Terms of Payment contained in the signed August contract to be an alteration of the original end-result agreement that was based on the July invoices provided by Tew. The superior court observed that reference to the July 2006 invoices in the Terms of Payment section of the contract indicated that the parties agreed to a fixed price contract for completing Foothills Boulevard. The superior court used the reference to the invoices to resolve the inconsistency and found that the contract was for a fixed price. Derr claims that the superior court should have found that the contract for Foothills Boulevard was for $80 per foot and not a fixed price. We define an inconsistency as "the absence of reasonable harmony in terms of the language and respective obligations of the parties. We have held that courts "may initially turn to extrinsic evidence in construing a contract, especially when there is an ambiguity or inconsistency. The factual record supports the superior court's conclusion that the inconsistency in the contract is properly resolved by viewing the Terms of Payment as an alteration of the original quote and a true representation of the contract's fixed price payment term. It appears that neither Tew nor Derr took steps to verify the length of Foothill Boulevard when the road was completed. Tew submitted a final invoice matching the Terms of Payment listed in the contract. Derr did not dispute the amount of the invoice. Derr did not immediately pay the invoice, but he argued that payment was delayed because he could not access funds, not because he disputed the amount on the invoices. The January 2007 letter sent by Derr's attorney claimed payment was not due because the project was not completed. The letter did not challenge the amount of the invoice. The letter cited three contract provisions but did not cite the provision indicating that the cost would be determined by the length of Foothills Boulevard. Derr's January 2007 complaint did not include a claim for adjustment of the final payment based on the length of Foothills Boulevard; neither did his amended complaint. Derr's Initial Disclosures did not include a calculation of overpayment resulting from the length measurement of Foothills Boulevard. These facts taken together support the superior court's conclusion that the contract ambiguity could be properly resolved in favor of a fixed price contract as written in the Terms of Payment portion of the contract. The superior court's conclusion was not clearly erroneous. E. The Superior Court Did Not Err In Finding That Derr Assented To Building A T-Intersection Rather Than A Cul-De-Sac. The superior court found that the parties agreed to abandon the planned cul-de-sac and replace it with a T-intersection. Derr argues that the "weight of the trial evidence shows that Derr never manifested assent" to the construction of a T-intersection rather than a cul-de-sac. We recognize that assent to a contract term "may be imputed based on the reasonable meaning of a party's words and acts. Significant evidence exists to support the superior court's determination that Derr assented to construct a T-intersection rather than a cul-de-sac. At the start of construction on the cul-de-sac it became apparent that the cul-de-sac was improperly placed and would both result in a waste of material and reduce the size of connecting lots. Another significant problem was that the cul-de-sac was placed in the middle of a hill on what would eventually be a through road. Derr and Tew discussed enlarging the intersection of Range View Drive and Rolling Hills to provide a place for road maintenance and emergency response vehicles to turn around. Based on these conversations, Tew began to build a T-intersection rather than a cul-de-sac. The agreement to build the T-interseetion cost Tew time in the short run, but he felt that it would save time in the long run because the cul-de-sac was temporary. Tew relied on Derr's agreement to accept the substitute work by proceeding to build the T-intersection. The words and actions of the parties indicate that Derr assented to constructing a T-intersection. The superior court also weighed the eredi-bility of the witnesses in making its determination that Derr assented to the construction of a T-intersection rather than a cul-de-sac. We give particular deference to the superior court's factual findings when, as here, they are based primarily on oral testimony, because the superior court, not this court, judges the credibility of witnesses and weighs conflicting evidence. Tew provided detailed testimony about his conversations with Derr. Derr, on the other hand, testified that he did not realize the cul-de-sac was not being built until October, just as the project was being completed. The superior court found Tew's explanation of events had a "greater ring of truth to them." The superi- or court also found Derr's testimony less credible. The court noted that Derr appeared forgetful and disorganized. Derr had difficulty presenting supporting evidence. Given the superior court's assessment of credibility and the factual evidence, strong support exists for the conclusion that Derr assented to the construction of a T-intersection rather than a cul-de-sac. The superior court's finding is not clearly erroneous. F. The Superior Court Did Not Err In Finding The T-Intersection Would Likely Be Accepted By The Borough. The superior court found that Tew "reasonably and correctly" informed Derr that the Borough would accept either a cul-de-sac or a T-intersection to meet Borough requirements. The superior court also determined that the Borough would likely accept the substitution of the cul-de-sac for the T-intersection onee Derr made a request for a modification in his initial plans. Derr argues that no evidence supports the superior court's conclusion that the Borough would likely accept the T-intersection as a replacement for the cul-de-sac. As discussed above, significant support exists for the determination that Derr assented to the T-intersection as a substitution for the cul-de-sac. Derr's agent Whaley indicated that he had a reasonable belief that the Borough would approve a T-intersection modification and construction. Regardless, the modification of the contract was not dependent upon Borough approval. Although the superior court was not required to determine whether the T-intersection would likely be approved by the Borough, its factual assessment is not clearly erroneous. G. The Superior Court Did Not Err In Its Award Of Damages For Performing The Required Culvert Work. Derr argues that if we find that Tew-and not Derr-was responsible for providing the three inch minus gravel, then the superior court improperly found that Derr was responsible for some of the delays in performing the culvert work. As explained above, we affirm the superior court's finding that Derr was responsible for any deficiencies in the three inch minus gravel, so Derr's claim for culvert work damages fails. H. The Superior Court Did Not Err In Finding Derr Did Not Prove His Damages Regarding Road Width Deficiencies. The superior court determined that Tew failed to meet the road width requirements at several points, but also found that Derr did not prove with sufficient certainty the number of places where the width was deficient or a reasonable cost for repairing the deficiencies to warrant an award of damages. Derr argues that the superior court erred in finding that he had not proved the number of road width discrepancies and the costs of remedying them. A party seeking to recover damages is required to present sufficient evidence of his damages to provide a reasonable basis for the trier of fact's award. "While the amount of damages need not be proven with mathematical accuracy, there must be 'some competent evidence' upon which to base an award. The amount of awarded damages is reviewed for abuse of discretion. Derr contends that out of a dozen measurements of road width on Foothills Boulevard, only one or two met the designated contract requirement. Derr did not record any measurements along Range View Drive. The superior court agreed that Derr demonstrated that certain spots did not meet the requirements but found that he failed to prove that this was an indication that the road was not wide enough along a sufficient number of places to constitute a material breach of the contract. The superior court also found that Derr failed to provide estimates of the cost of widening the road to 24 feet in the deficient spots. Neither of the estimates Derr provided gave a specific estimate for making the road sufficiently wide. Kennerson's estimate did not even mention road width. Northern Dame's estimate only assessed the cost of road width in combination with all its other estimated costs of work on Foothills Boulevard. This lack of both a specific estimate of cost and the extent of the road width deficiencies left the superior court with no basis for assessing damages. The superior court's determination not to award damages for road width deficiencies because of a failure of proof was not an abuse of discretion. I. The Superior Court Did Not Err In Finding No Breach Of Contract By Tew's Failure To Meet The September 30, 2006 Deadline. The contract specified that "(alll work shall be completed by September 80, 2006, weather permitting and gravel source." Tew did not complete the work until October 26, 2006. The superior court found that the delay in completion was the result of weather and gravel source and thus was not a breach of the contract. Derr argues that the superior court erred in finding that the completion deadline was waived. The superior court did not actually find waiver of the September 80, 2006 deadline. The superior court instead found Derr did not demonstrate an actionable breach of the September 30, 2006 deadline. The contract specifically anticipated potential delay in meeting the deadline by providing that the deadline was dependent on "gravel source and weather permitting." This provision is not ambiguous. The superior court found some delay occurred due to weather. The court found greater delay occurred due to the need to process the gravel. The court also found that some delay occurred when Tew was grubbing and clearing because Derr was unavailable to do the work himself as he originally intended. The potential for delay was provided for in the contract, and the superior court's finding that delay in meeting the deadline was justified under this provision is supported by the record. The superi- or court's findings are not clearly erroneous. J. The Superior Court Did Not Rely On Theories Of Estoppel Or Waiver In Not Awarding Damages To Derr. Derr claims the superior court may have relied on theories of waiver or estoppel in finding that Derr was not entitled to damages for the failure of performance regarding three inch minus gravel, the cul-de-sac, slope angles and coverings, or the 24-foot road width. Derr may be referring to the superi- or court's statement that "the occasional failure to meet this requirement [that the road be 24 feet wide] never was complained of by Derr to Tew." But in context, it is clear that the superior court did not base its decision not to award damages on theories of waiver or estoppel. The superior court explained: Derr proved that Tew did fail to fully meet the 24 feet requirements, at least at several points in each of the roads as credibly measured by Derr. Derr did not prove with sufficient certainty any precise number of such places, though, or what a reasonable cost to repair the width problem would have been at the time.... Moreover, the occasional failure to meet this requirement never was complained of by Derr to Tew. . Derr also has not shown by [al] preponderance of the evidence the number of length of road feet where the width of 24 feet was not achieved, nor how much it would have cost in the fall of 2006 to fix each linear foot. Thus, the superior court did not mention or discuss waiver or estoppel, but in context explained that its reason for not awarding damages was because Derr failed to prove them. We conclude the superior court did not erroneously rely on theories of waiver or estoppel. K. The Superior Court Did Not Abuse Its Discretion By Considering Derr's Duty To Notify And Provide An Opportunity For Cure After The Evidence Had Closed. During closing arguments the superior court requested supplemental briefing from both parties on whether Derr had a duty to give Tew notice and opportunity to cure. Derr argues that this was an abuse of discretion. - We have recognized that Alaska courts have " 'inherent discretionary authority' to decide a case on a legal theory not presented in the pleadings. We have acknowledged that the power should be "sparingly exercised. In particular it should only be used when the new theory applies to the transaction in issue, is related to the theories presented by the parties, and is necessary for a proper and just disposition of the case. In First National Bank we determined that the superior court had the authority to examine a new legal theory but erred in "failing to give the parties notice that it would do so along with an opportunity to adjust their cases accordingly. In addition "we have held that when both parties address the substantive merits of an issue at trial, the parties have impliedly consented to try it. "Although mere failure to object to the introduction of evidence potentially relating to a new claim does not amount to implied consent to try that claim," directly questioning, presenting evidence, not objecting, and testifying on the matter all support a conclusion of implied consent. The issues of notice and cure were tied to Derr's theory of the case through the doe-trine of good faith and fair dealing. In addition, "[the duty to mitigate damages is a well-recognized rule of contract law in Alaska. Derr was aware of the notice and duty to mitigate issues. Attorneys for both parties questioned Derr and Tew about providing notice of incomplete work. Derr's attorney addressed the issue of mitigation during his cross-examination of Tew. The parties were given the opportunity to submit post-trial briefing on these issues. Derr never requested that the superior court reopen the case to take further evidence on either issue. Tew requested that the superior court amend his answer to include failure to mitigate in accordance with the evidence presented at trial. Under these cireumstances it is clear that the parties addressed the substantive merits of mitigation and damages and notice (or lack thereof) to Tew regarding Derr's allegations of deficient work, and the parties were given an opportunity to brief the legal significance of this evidence. The superior court properly used its inherent discretionary authority to order supplemental briefing. L. The Superior Court Did Not Err In Finding That Derr Had An Obligation To Provide Tew With Notice And An Opportunity To Cure. The superior court discussed notice and the opportunity to cure in the context of Derrt's claim that Tew failed to construct the road to a uniform 24-foot width. The court's discussion of the failure of notice and opportunity to cure followed its related discussion concerning Derr's failure to mitigate his damages regarding the three inch minus gravel issue. In context, the court's findings and conclusions on these related issues focused on Derr's failures to take reasonable steps to "fix" or mitigate his damages, and to permit Tew to "fix" or eure the minor incomplete items remaining on the punch list when they could have been resolved at relatively low cost to Derr, or at Tew's cost. Discussed above, the court found that Tew had substantially complied with his contractual obligations in constructing the road. The superior court explained: Derr acted in bad faith in failing to mitigate his damages. The opportunity to pay Northern [Dame] to provide and use screened gravel, and the relatively small amount of money asked for by Steppers to sereen the gravel while Tew still was on the job both were ignored. The minimal "fixes" his own engineer, Whaley, told him were necessary in February 2007 . also went ignored. During these periods of time, Derr had not yet paid Tew the final $50,000, so Derr should have had this much money to use to mitigate his damages if in fact he had been damaged by Tew. [Derr] has not proved [Tew] breached the contract except as to the required 24 foot road widths and perhaps in one instance the required 22 foot road width on Foothills. [Derr] has not proven his damages to any degree of certainty as to any such breach, however. Also, [Derr] accepted this breach until it was too late. Moreover, [Derr] did not give [Tew] any reasonable opportunity to cure any such breach at [Tew's] own expense. [Derr] therefore is not entitled to any recovery from [Tew] for this claimed deficiency. In accordance with the substantial performance doctrine, Tew should pay Derr the following to cure the deficiencies left from when Tew achieved substantial completion by working down to the last minute of the season: 1. $800 for the culvert deficiencies ., 2. $5,000 for the cost of the slope cover deficiencies . that were Tew's responsibility to eure, and 3. $5,000 for the angle deficiencies. No greater sum than $10,800 for these deficiencies was proved with reasonable certainty. Thus, the superior court awarded damages to Derr under the substantial performance doe-trine, in part based on Derr's failure to provide Tew notice and an opportunity to cure. Derr argues that no obligation exists under the duty of good faith and fair dealing or under the obligation to mitigate damages that required him to provide Tew with notice of or an opportunity to cure deficiencies in the work. Derr argues that the superior court misapplied Davis v. McCall because the court in that case found that the contractors had notice of the defects But in Davis we never stated that there was no duty to provide notice or an opportunity to cure. We held that the McCalls provided adequate notice of the deficiencies and that it was not necessary to provide "notice of every one of the twenty-four separate defects. Davis also does not stand for the proposition that an opportunity to cure is unnecessary. We held that after an initial opportunity to cure there was no need for "additional opportunities to make repairs. But the initial opportunity to eure still existed. A party in Derr's position who believes that a contractor has not properly completed his contractual obligations acts at his peril if he fails to give the contractor timely notice of the perceived deficiencies and a reasonable opportunity to cure the deficiencies. It is not disputed that Derr did not provide Tew with notice of the deficiencies. Even after the two Borough inspections, Tew was not provided notice of the deficiencies or the opportunity to cure. Tew was not provided the punch list or copies of the correspondence with the inspectors. He was never provided an opportunity to fix the minor items identified on the punch list. The superior court determined that Tew had substantially complied with his contractual obligations, but that in three relatively minor respects Tew had left several deficien-cles for which he must pay Derr damages. The superior court's findings are not clearly erroneous and it did not err in considering Derr's failure to provide notice and an opportunity to cure in assessing what damages Tew was responsible for paying. M. Derr's Claim To Incidental Costs For Removing The Lien Recorded By Tew Was Waived Because Derr Failed To Raise The Claim In The Superior Court. Derr also claims that he is entitled to recover $3,000 in incidental costs he in curred in removing the lien recorded by Tew. This claim for damages by Derr on appeal was not made in the superior court and will not be considered on appeal. Even if we were to consider Derr's argument, it is without merit. The superior court found Tew did not act in bad faith by filing a lien. The superior court also found that Derr had problems accepting or paying bills to Tew. Derr's failure to pay left Tew with few options. Tew was statutorily required to file the lien within 120 days of finishing work on the project or the lien would not be enforeeable. We have strictly construed statutory lien deadlines. Tew's lien was filed in a timely manner. Tew took the legally required steps in obtaining the lien and Derr is not entitled to recover the incidental costs of removing it. v. CONCLUSION We AFFIRM the findings and judgment of the superior court in every respect. CHRISTEN, Justice, not participating. . "Three inch minus" describes gravel that will pass through a sieve with three-inch by three-inch square openings. See Araska Dep't or Transp. & Pus. Araska Fretp Guip® ror Som Crassr-rication 1-2 (2003), available at hitp://www.dot. state. ak. us/stwddes/desmaterials/mat_geology/ assets/pdf/geotechman/soilguide.pdf. . The Borough requires three inch minus gravel for the top six inches. . Northern Dame submitted a second proposal to complete the road projects on October 7, 2008. . Kennerson submitted a second proposal to complete the road projects on November 1, 2007. . Punch lists are commonly used in the construction industry to indicate a list of tasks or items requiring completion. . AS 34.35.074(b) states: A claimant who gives a stop-lending notice or has a claim of lien recorded under AS 34.35.075 and who fails to promptly revoke the stop-lending notice or remove the claim of lien from the record upon receiving payment in full on the claim or discovering that the stop-lending notice or claim of lien is in error, unjust, premature, or excessive is liable for actual and consequential damages caused by giving the stop-lending notice or improperly recorded claim of lien plus costs, including reasonable attorney fees. . Soules v. Ramstack, 95 P.3d 933, 936-37 (Alaska 2004) (citations omitted). . Id. at 936. . N. Pac. Processors, Inc. v. City & Borough of Yakutat, 113 P.3d 575, 579 (Alaska 2005) (citation omitted). . Josephine B. v. State, Dep't of Health & Social Servs., Office of Children's Servs., 174 P.3d 217, 222 (Alaska 2007). . N.W. Cruiseship Ass'n of Alaska, Inc. v. State, Office of Lieutenant Governor, Div. of Elections, 145 P.3d 573, 576 (Alaska 2006) (citing Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)). . Romero v. Cox, 166 P.3d 4, 8 (Alaska 2007) (citing N. Pac. Processors, Inc., 113 P.3d at 579). . Derr argues that the contract was fully integrated and thai examining extrinsic evidence to determine the meaning of the contract was inappropriate. The August 14, 2006 agreement was not integrated making this argument inapplicable. . 666 P.2d 33 (Alaska 1983). . 535 P.2d 1188 (Alaska 1975). . Alaska N. Development, 666 P.2d at 39 (holding as a general rule of contract law: "If no other meaning is reasonable, the court shall rule as a matter of law that the meaning is established."). . Lewis, 535 P.2d at 1197. . Id. . Courts may always examine extrinsic evidence in determining what a contract means. Froines v. Valdez Fisheries Dev. Ass'n, Inc., 75 P.3d 83, 87 (Alaska 2003); W. Pioneer, Inc. v. Harbor Enters., Inc., 818 P.2d 654, 657 (Alaska 1991). . Kupka v. Morey, 541 P.2d 740, 749-50 (Alaska 1975). . Fletcher v. Trademark Const., Inc., 80 P.3d 725, 731 (Alaska 2003). . Alaska N. Dev. v. Alyeska Pipeline Co., 666 P.2d 33, 40 (Alaska 1983) (citation omitted). . Alyeska Pipeline Serv. Co., 645 P.2d at 771 n. 1. . W. Pioneer, Inc. v. Harbor Enters., Inc., 818 P.2d 654, 657 (Alaska 1991). . Kingik v. State, Dep't of Admin., Div. of Ret. & Benefits, 239 P.3d 1243, 1251 (Alaska 2010) (citing Howarth v. First Nat'l Bank of Anchorage, 596 P.2d 1164, 1167 (Alaska 1979). . Josephine B. v. State, Dep't of Health & Social Servs., Office of Children's Servs., 174 P.3d 217, 222 (Alaska 2007). . The superior court determined that Tew was responsible for some of the culvert cover deficiencies, unrelated to the three inch minus gravel, on the private driveway off of Foothills Boulevard and assessed $800 in damages to Derr to cure the deficiencies. . Ben Lomond, Inc. v. Schwartz, 915 P.2d 632, 636 (Alaska 1996). . Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 154-55 (Alaska 1992) (quoting Dowling Supply & Equip., Inc. v. City of Anchorage, 490 P.2d 907, 909 (Alaska 1971)). . Breck v. Moore, 910 P.2d 599, 606 (Alaska 1996). . Alaska Prot. Servs., Inc. v. Frontier Colorcable, Inc., 680 P.2d 1119, 1124 (Alaska 1984) (quoting State v. First Nat'l Bank of Anchorage, 660 P.2d 406, 422 (Alaska 1982)). . Id. (quoting First Nat'l Bank, 660 P.2d at 423). . First Nat'l Bank, 660 P.2d at 423. . Asher v. Alkan Shelter, LLC, 212 P.3d 772, 779 (Alaska 2009) (citing Oaksmith v. Brusich, 774 P.2d 191, 199 (Alaska 1989)). . Id. (citing Belluomini v. Fred Meyer of Alaska, Inc., 993 P.2d 1009, 1015-16 (Alaska 1999)). . Id. . Guin v. Ha, 591 P.2d 1281, 1291 (Alaska 1979). . Alaska Children's Servs., Inc. v. Smart, 677 P.2d 899 (Alaska 1984) (citing Anchorage Indep. School Dist. v. Stephens, 370 P.2d 531, 533 (Alaska 1962)). . The request to amend pleadings was made in the conclusion of Tew's reply brief on the issue of notice and opportunity to cure. The superior court did not rule on the request for an amendment of the pleadings. . 568 P.2d 956, 958 (Alaska 1977). . Id. . Id. . Brandon v. Corrs. Corp. of America, 28 P.3d 269, 280 (Alaska 2001) ("A party may not raise an issue for the first time on appeal."). . AS 34.35.068(c). . See, e.g., Frontier Rock & Sand, Inc. v. Heritage Ventures, Inc., 607 P.2d 364, 367 (Alaska 1980); H.A.M.S. Co. v. Elec. Contractors of Alaska, Inc., 563 P.2d 258, 262-64 (Alaska 1977).

6986464

Zebuleon WHITNEY, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee

Whitney v. State Farm Mutual Automobile Insurance Co.

2011-08-19

No. S-13942

113

118

258 P.3d 113

258

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

Before: CARPENETI, Chief Justice, FABE, WINFREE, CHRISTEN, and STOWERS, Justices.

Zebuleon WHITNEY, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.

Zebuleon WHITNEY, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. No. S-13942. Supreme Court of Alaska. Aug. 19, 2011. Mark A. Sandberg and Peter A. Sandberg, Wuestenfeld & Corey, Anchorage, for Appellant. James K. Wilkens, Bliss, Wilkens & Clayton, Anchorage, for Appellee. Before: CARPENETI, Chief Justice, FABE, WINFREE, CHRISTEN, and STOWERS, Justices.

2872

17559

OPINION CARPENETI, Chief Justice. I. INTRODUCTION The driver of a pickup truck collided with a bicyclist, seriously injuring the bicyclist. The bicyclist sought a settlement agreement in excess of the maximum coverage of the driver's insurance policy. The insurance company responded with an offer to tender policy limits, which the bicyclist refused. After a series of court proceedings in both state and federal court, the driver sued his insurance company, complaining in part that his insurance company had breached its duty to settle. The insurance company moved for partial summary judgment on a portion of the duty to settle claims. The superior court granted the motion. The parties then entered a stipulation by which the driver dismissed all remaining claims, preserving his right to appeal, and final judgment was entered in the insurance company's favor. Because the insurance company's rejection of the bicyclist's settlement demand and its responsive tender of a policy limits offer was not a breach of the duty to settle, we affirm the superior court's grant of summary judgment to that extent. But because the superi- or court's order exceeded the seope of the insurance company's motion for partial summary judgment, we reverse the superior court's order to the extent it exceeded the narrow issue upon which summary judgment was appropriate. We remand for further proceedings concerning the surviving duty to settle claims. II. FACTS AND PROCEEDINGS On July 6, 2006, Zebuleon Whitney was leaving a gas station in his Dodge Ram pickup. He pulled out in front of a bicyclist, Michael Giannechini, whom he had seen coming down the road to Whitney's left. The vehicles collided and Gannechini was seriously injured. The parties do not dispute that Whitney was the primary cause of the accident. Whitney's Dodge was insured by an automobile lability policy issued by State Farm, which had a policy limit of $100,000 for injury to a single person, and $300,000 per occurrence. However, a family may have multiple State Farm insurance policies, as State Farm issues separate policies for each vehicle. CGiannechini's counsel, Daniel Libbey, knew that Whitney's parents owned several vehicles, and that Whitney had a brother who was part of the same household. On April 5, 2007, Libbey sent a letter entitled "Settlement Offer" to State Farm counsel John Burns, who had been retained by State Farm to represent Whitney. The letter acknowledged receiving copies of the insurance policies for the Whitney family's other vehicles, and requested a copy of an expired policy on one such vehicle. The letter also stated Lib-bey's understanding that State Farm issues a separate policy on each vehicle it insures, and that "i)f Zebuleon is not a named insured on these policies, then he is defined as a covered insured (as a resident relative) and entitled to stacking of additional coverage for his liability for this accident." Libbey offered no legal basis for this conclusion. The letter offered to settle "any and all liability claims" against Whitney "for disbursal of policy limits . for each and every applicable policy of insurance." It gave State Farm 80 days in which to respond. The letter also stated that "[ilf this offer is rejected or lapses, no further offers to settle for policy limits will be made or accepted." While the offer was open, State Farm did not tell Whitney of the settlement offer. On May 2, 2007, a State Farm claim representative responded to Libbey's letter. The letter stated that "[the State Farm policy does not allow for the stacking of liability coverages," and "[If an insured has more than one State Farm policy, the greater of the liability limits will apply." State Farm offered to settle for the policy limit of $100,000, plus applicable interest and attorney's fees through May 4, for an estimated total of $120,918.77. CGiannechini did not accept State Farm's policy limits offer. In September 2007, Gian-nechini filed suit against Whitney. State Farm wrote to Whitney to inform him he had been sued and that State Farm had retained Burns to defend him. It also advised him that the lawsuit could exceed the policy limits of State Farm's policies. State Farm evaluated the claim as being worth between $375,000 and $475,000. In October 2008, the parties reached a settlement agreement. Whitney allowed entry of judgment of $950,000 against himself in exchange for Giannechini's agreement not to execute on the judgment against Whitney. Whitney also assigned rights to Gannechini to pursue State Farm for any claims arising out of the motor vehicle accident. In the meantime, State Farm had filed a federal declaratory relief action in September 2008, asking the federal court to declare that no policy except the Dodge Ram policy provided coverage for the accident. State Farm then filed a motion for summary judgment in the declaratory relief action. Realizing by then that State Farm's position was correct, Libbey did not contest the declaratory relief sought. In November 2008, the federal court entered final declaratory judgment in favor of State Farm. State Farm paid CGHiannechini $130,951.37 in November 2008. In March 2009, CGiannechini reassigned to Whitney the right to bring a lawsuit. Whitney filed the present lawsuit in May 2009. He alleged that State Farm had acted in bad faith, and that individual adjusters within State Farm had breached their duty of care to him. State Farm filed a motion for partial summary judgment on a portion of Whitney's bad faith claim, asking for a dismissal of "Plaintiffs claims alleging State Farm breached its duty to settle." Specifically, State Farm argued that it had satisfied its duty to tender policy limits in response to a policy limits demand, as required by Jackson v. American Equity Insurance Co. Whitney opposed State Farm's motion, claiming other breaches of the duty to settle such as failure to promptly attempt settlement, failure to inform Whitney of Libbey's offer, and failure to accept Libbey's offer. State Farm responded that "Whitney substantially misconstrues the breadth of the current motion for partial summary judgment." State Farm argued that Whitney's claims were irrelevant to the narrow issue in its motion, which was concerned only with whether, under Jackson, State Farm's May 2, 2007 letter had been an appropriate response to Libbey's letter. A hearing on the motion for partial summary judgment took place before Superior Court Judge Peter A. Michalski in February 2010. During the hearing, State Farm emphasized that its motion was confined to only a small subset of Whitney's bad faith claims, namely those addressed by Jackson and the related case Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin: I am not seeking a dismissal of the entirety of [Whitney's] breach of good faith obligation claims. I understand there are factual issues involved. But a core transaction in this case occurred in April and May of 2007. And one thing missing from [Whitney's] total argument here was any reference back to the Bohna case that said, in that exact ciream-stance, a policy limits offer, . what is an insurance company's obligation? It's to quantify and tender the amount of policy limits. I'm limiting my motion here to a request that the Court say that State Farm complied with that precise legal duty, as articulated in Jackson and Bohna. The rest of the claims of bad faith, in terms of what counsel did following that set of events, is still a question that needs to get addressed and resolved either on motion or at trial, but that's not before your Honor now. It's simply whether or not State Farm satisfied the Bohna/Jackson duty in terms of how to respond to a policy limits offer. The order that State Farm drafted, however, was broader in scope than the question in State Farm's motion, stating in part that "State Farm satisfied its duty to settle by its May 2, 2007 offer." On April 26, 2010, the superior court granted State Farm's motion, signing the draft order without modifying the language. The parties negotiated a stipulation whereby Whitney agreed to dismiss his remaining claims and allow entry of final judgment in favor of State Farm. However, if Whitney was able to overturn the partial summary judgment order on appeal, he could reinstate all of the liability claims voluntarily dismissed by the stipulation other than any claim for punitive damages. The parties jointly requested that the superior court enter final judgment. The court entered final judgment in favor of State Farm on June 16, 2010, dismissing all of Whitney's claims. Whitney appeals the partial summary judgment order. III. STANDARD OF REVIEW We review summary judgment orders de novo, "drawing all reasonable inferences in the nonmovants' favor and viewing all facts in the light most favoring them." A grant of summary judgment will be affirmed if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. If there are no genuine disputes of material fact, the existence and scope of a legal duty are questions of law which we review de novo. IV. DISCUSSION A. The Superior Court's Order Exceeded The Scope Of State Farm's Motion For Partial Summary Judgment. Every insurance contract contains within it the implied covenant of good faith and fair dealing, which requires the contracting parties to avoid behavior that will "injure the right of the other to receive the benefits of the agreement. As part of its duty to act in good faith, an insurer has a duty to settle-that is, an "obligation[ ] under a contract of liability insurance . to settle a claim that has been brought against the insured when it is appropriate to do so. An insurer must "investigate claims and inform the insured of all settlement offers and the possibility of exeess recovery by the injured claimant. In addition, when a plaintiff makes a policy limits demand, the insurer must "tender maximum policy limits to settle a plaintiff's demand when there is a substantial likelihood of an excess verdict against the insured. In such a situation, the insurance company is obligated to determine "the amount of a money judgment which might be rendered against its insured," and to tender in settlement its contractual share of the judgment. Should the insurer breach its duty to tender its full policy limits, the insured may sue for damages. In its motion for partial summary judgment, State Farm moved for judgment on one component of the duty to settle-an insurance company's duty under Jackson to tender policy limits in response to a policy limits demand. Confusingly, the motion could have been interpreted as asking for a dismissal of all of Whitney's duty to settle claims. However, State Farm's attorney subsequently clarified to the superior court that he was not seeking a dismissal of Whitney's bad faith claims altogether, but rather an acknowledgment that in the case of "a policy limits offer, . an insurance company's obligation [is] to quantify and tender the amount of policy limits." State Farm's attorney then confirmed that he was "limiting [the] motion here to a request that the Court say that State Farm complied with that precise legal duty." The superior court granted State Farm's motion. The order State Farm had drafted, however, used language much broader than the scope of its motion, stating that "State Farm satisfied its duty to settle by its May 2, 2007 offer," and dismissing all of Whitney's duty to settle claims. The superior court nevertheless signed the order as drafted, with no edits and with no explanation of the court's legal reasoning. In oral argument before us, State Farm conceded that its draft order was overly broad for the narrow question in its motion. Based on this concession, we reverse the superior court's grant of partial summary Judgment and remand for further proceedings. But on the narrow issue that was validly before the superior court-whether State Farm breached its duty to settle by failing to accept Libbey's April 2007 offer-we affirm, as discussed below. B. State Farm Did Not Breach The Duty To Settle By Refusing Libbey's April 2007 Offer. Whitney argues that a question of fact exists as to whether State Farm should have accepted Libbey's settlement offer. We disagree, and find that State Farm's response to Libbey's offer did not breach the duty to settle. An insurance company's implied covenant of good faith and fair dealing obligates it to "accept reasonable offers of settlement in a prompt fashion. Libbey's April 2007 letter, however, triggered no such obligation. First, the letter erroneously presumed that multiple policies applied to the accident, and that the vehicle policies of Whitney's family members could be stacked to give Whitney additional liability coverage. Second, Lib-bey's offer imposed a number of additional conditions-for instance, the requirement that State Farm produce "a certified copy of the declarations pages and related insurance policy(lies)" for "each and every policy that applies to protect [Whitney]" from an excess verdict. As State Farm argues, "State Farm had no responsibility, right or authority [over] (or even knowledge of) . the existence or production of insurance policies and records of any other insurance company." Finally, State Farm responded in 27 days to Libbey's letter with a policy limits offer-State Farm's May 2 letter. State Farm's response was safely within the 30-day deadline that Libbey had given State Farm to respond, and fulfilled its duty to tender policy limits in response to a policy limits demand under Jackson and Bohna. We conclude that State Farm did not breach its duty to settle by not accepting Libbey's April 2007 offer. C. The Balance Of Whitney's Claims Remain Open For Litigation. Whitney's complaint alleged a number of duty to settle claims outside the scope of State Farm's summary judgment motion: that State Farm failed to attempt settlement promptly, that State Farm breached the duty to settle by failing to inform Whitney of Libbey's settlement offer until it had expired, and that State Farm should have communicated other pieces of information to Whitney that the insurance company did not. These claims remain open for litigation. v. CONCLUSION Because State Farm timely offered policy limits in response to Libbey's April 2007 offer, we AFFIRM the superior court on the narrow question of whether State Farm breached its duty to settle by rejecting the offer. But because State Farm's draft order exceeded the seope of the issue presented in its motion, we REVERSE the superior court's grant of partial summary judgment to the extent it exceeded the narrow grounds set out above and REMAND for further proceedings. Whitney's remaining duty to settle claims remain open for litigation. . If the driver were able to overturn the partial summary judgment order on appeal, he would be able to reinstate most of the dismissed claims. . 90 P.3d 136 (Alaska 2004). . 828 P.2d 745 (Alaska 1992), superseded by statute on other grounds as recognized in Petrolane Inc. v. Robles, 154 P.3d 1014, 1019 (Alaska 2007). . Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002) (quoting Brady v. State, 965 P.2d 1, 8 (Alaska 1998)). . Olivit v. City & Borough of Juneau, 171 P.3d 1137, 1142 (Alaska 2007) (citing Norville v. Carr-Gottstein Foods, Co., 84 P.3d 996, 1000 n. 1 (Alaska 2004)); see Alaska R. Civ. P. 56(c). . Diblik v. Marcy, 166 P.3d 23, 25 (Alaska 2007) (citing Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956 P.2d 1199, 1204 (Alaska 1998)). . Guin v. Ha, 591 P.2d 1281, 1291 (Alaska 1979) (citing Crisci v. Sec. Ins. Co. of New Haven, 66 Cal.2d 425, 58 Cal.Rptr. 13, 426 P.2d 173, 176 (1967); Comunale v. Traders & Gen. Ins. Co., 50 Cal.2d 654, 328 P.2d 198, 200-01 (1958)). . Artax D. Wimpt, Insurances Crams anp Dispures § 5:01 (5th ed. 2007). . O.K. Lumber Co., Inc. v. Providence Wash. Ins. Co., 759 P.2d 523, 525 (Alaska 1988) (citing Kranzush v. Badger State Mut. Cas. Co., 103 Wis.2d 56, 307 N.W.2d 256, 259 (1981). . Jackson v. Am. Equity Ins. Co., 90 P.3d 136, 142 (Alaska 2004) (citing Schultz v. Travelers Indem. Co., 754 P.2d 265, 266-67 (Alaska 1988)). . Id. (quoting Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, 828 P.2d 745, 768 (Alaska 1992)) (internal quotation marks omitted). . See O.K. Lumber, 759 P.2d at 525 (citing Cont'l Ins. Co. v. Bayless & Roberts, Inc., 608 P.2d 281 (Alaska 1980); Guin, 591 P.2d at 1291). . Guin, 591 P.2d at 1291. . See Jackson, 90 P.3d at 142; Bohna, 828 P.2d at 768. . Whitney claims that he had retained an expert, who was prepared to testify that State Farm had an obligation to a) write an excess letter to advise Whitney that the value of the claim being made against him could exceed the policy limits of the policy or policies written by State Farm, b) advise Whitney to notify any excess carrier, c) advise Whitney of his right to separate counsel to protect his uninsured interests, d) advise Whitney that he was entitled [to] be notified of all settlement offers and demands, and e) advise Whitney of his right to participate in any settlement discussions.

6988061

Sandra RUSSELL, for and on behalf of J.N., a Minor Child, Appellant, v. Corporal Lee VIRG-IN and The City of Kotzebue, Appellees

Russell v. Virg-In

2011-07-22

No. S-13537

795

811

258 P.3d 795

258

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:05:19.546250+00:00

CAP

Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.

Sandra RUSSELL, for and on behalf of J.N., a Minor Child, Appellant, v. Corporal Lee VIRG-IN and The City of Kotzebue, Appellees.

Sandra RUSSELL, for and on behalf of J.N., a Minor Child, Appellant, v. Corporal Lee VIRG-IN and The City of Kotzebue, Appellees. No. S-13537. Supreme Court of Alaska. July 22, 2011. Ted Stepovich, Law Office of Ted Stepo-vich, Anchorage, for Appellant. Joseph W. Evans, Law Offices of Joseph W. Evans, Bremerton, Washington, for Ap-pellees. Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.

10422

63861

OPINION FABE, Justice. I. INTRODUCTION In July 2008 Officer Lee Virg-In used a taser two times on J.N., an 11-year-old girl. J.N. had been driving an ATV through the streets of Kotzebue with another young passenger. J.N. ran several stop signs and was otherwise driving dangerously, and Officer Virg-In used overhead lights and a siren to signal to J.N. to stop. J.N. refused to stop, first trying to escape on the ATV and later fleeing on foot. Officer Virg-In chased J.N. on foot and caught up with her. According to J.N., she was never aggressive or threatening towards Officer Virg-In, and she had already stopped running and was no longer attempting to flee when Officer Virg-In deployed his taser. He first shot the probes and caught them on J.N.'s jacket and then grabbed J.N. by the elbow and shocked J.N. on the shoulder with the taser as he held onto her elbow. Officer Virg-In then handcuffed J.N. and took her to the police station. J.N., through her mother Sandra Russell, filed a complaint against Officer Virg-In, alleging that his use of the taser constituted excessive force. J.N. also sued the City of Kotzebue, claiming improper and negligent supervision or training. Officer Virg-In defended the reasonableness of his actions and argued that he was immune from suit. On summary judgment, the superior court found that Officer Virg-In was entitled to qualified immunity because a reasonable officer might not have known that the use of a taser under the cireumstances would be an excessive use of force. The superior court also dismissed J.N.'s claims against the City based on Officer Virg-In's entitlement to qualified immunity. Finally, the superior court awarded attorney's fees and costs to Officer Virg-In and the City, assessing the fees and costs against Russell. We conclude that it was error to grant Officer Virg-In qualified immunity on summary judgment because if a police officer used a taser multiple times on an 1l1-year-old girl who was suspected of traffic violations, was compliant, and was not posing a threat to the officer or others, that conduct could be so egregious that any reasonable officer would have known that the conduct was an excessive use of force. We also reverse the grant of summary judgment dismissing J.N.'s improper and negligent training or supervision claims against the City of Kotzebue. II. FACTS AND PROCEEDINGS A. Factual History On the night of July 29, 2008, Kotze-bue police officer Corporal Lee Virg-In used an Advanced Taser (taser) while arresting 11-year-old J.N. The incident began earlier in the evening when, while driving in a marked police department vehicle, Officer Virg-In and his partner Officer Eric Swisher saw J.N. driving an ATV at approximately 30-85 m.p.h. through the streets of Kotzebue with a young female passenger. Officer Virg-In's incident report states that J.N. was five feet tall and weighed 100 pounds, which the report describes as a "slender" build. The officers saw J.N. run a stop sign and turned on their overhead lights and siren to signal to J.N. to stop. J.N.'s passenger turned and saw the police vehicle, but J.N. drove off, eluding the officers. About an hour later, the officers again spotted J.N. on the ATV, saw her go through a stop sign, and turned on their overhead lights and siren. J.N. again drove away from the officers, going an estimated 35-40 m.p.h. and failing to stop at two more stop signs. J.N. then drove the ATV off the street and through a field, emerging from behind a building and nearly hitting the officers' police vehicle head on-both vehicles veered around each other to prevent a collision. J.N. drove back onto the street, but her ATV stalled. Both girls left the ATV and started running away from Officer Virg-In on foot. Officer Virg-In got out of his vehicle, began chasing the girls, and yelled for them to stop. J.N. continued to run, and Officer Virg-In continued to chase her and yell for her to stop. According to J.N., she ran between three female teenagers on the street and was stopped by one of them. She testified that she "stopped right away" and was "face to face" with Officer Virg-In, "waiting] for him" as he came within two or three feet of her and deployed the taser's probes J.N. described the incident: I went around [the senior center buildings] and [another girl] grabbed me. I stopped. I was tired. Virg-In was right behind me. I turned around and I saw him. He pulled out his gun, and a whole-a couple of wires came out, you know, a couple strings. One caught my coat. The other-the other one caught my chest. I asked him what he did that for and then he shocked me. The first one happened so fast, but then the second time he put it to my shoulder. J.N.'s passenger confirmed in an affidavit that she saw Officer Virg-In "shoot" J.N. with the taser and then "walk up to [J.N.] and touch [tJaser [J.N.] again and she fell to the ground." The passenger agreed with J.N.'s testimony that J.N. was "not running away at the time that Officer Virg-In used the [tlaser on [J.N.]." Officer Virg-In acknowledged that when he used the taser the second time he was holding onto J.N.'s elbow and was also shocked by the current when he touch-tasered J.N. Officer Virg-In then handcuffed J.N. and took her to the Kotzebue police station. Another officer examined J.N. and noted that her coat had one taser probe still embedded in it and that there was a small red mark on J.N.'s upper right chest. J.N. was later adjudicated a delinquent minor for the misdemeanor offense of "failure to stop at the direction of a peace officer in the second degree." As to her injuries, J.N. testified that when the taser probes hit her she "got really stiff" and when Officer Virg-In touched her with the taser, she "collapsed." She stated that she was shocked with the taser "for a good minute . you could feel it . pulsing." J.N. described that after she was touched with the taser, "lilt burned at first" and then she "could see [her] vein come out. It was darker." She elaborated that she hurt for a "couple of days" and that she had trouble sleeping on the night of the incident because she woke up with nightmares. J.N. admitted that after a "couple" of days she was "okay" and that the pain "slowed down" and was gone after three or four days. But J.N. still had nightmares and trouble sleeping that occurred "once in a while" over the next three years. In these nightmares, J.N. testified, she would see "a guy in a uniform" who would chase her as she ran from him; sometimes the figure in the dream would handcuff her and leave her on the ground and once she dreamed that she was taken to jail. J.N. never took any medication for her sleeping issues and never saw a counselor or doctor for the problem. J.N. maintained that Officer Virg-In knew who she was and knew where she lived and thus "could have easily avoided the use of force by waiting and picking her up at home." She noted that "Kotzebue is a very small place, it is isolated." Moreover, J.N. argued that she was not "wanted because of a serious or violent felony crime." B. Proceedings On February 17, 2005, J.N.'s mother Sandra Russell filed a complaint "by and for" J.N. as a minor child. The complaint alleged that Officer Virg-In "apprehended and arrested [J.N.] using excessive unnecessary force, stunning [J.N.] twice with a stun gun with no justification for the use of such excessive force causing her injury and great pain." J.N. also alleged that the City "improperly and negligently supervised or trained" Officer Virg-In in the appropriate use of foree. J.N. sought damages against Officer Virg-In and the City, "jointly and severally for the same injury" plus costs, interest, and attorney's fees, and requested punitive damages against Officer Virg-In. Officer Virg-In and the City answered J.N.'s complaint, denying J.N.'s allegations and raising several defenses. Among other assertions, Officer Virg-In claimed that he had "a qualified privilege to use reasonable force in making an arrest . [and] immunity based upon objective reasonableness." On August 27, 2008, Officer Virg-In and the City moved to dismiss all of J.N.'s claims on summary judgment. Citing post-2003 case law, Officer Virg-In argued that "[t]he use of a [tlaser to subdue an unruly, fleeing juvenile is a proper use of force and does not constitute excessive force." In addition, Officer Virg-In contended that he was entitled to qualified immunity because "no cognizable legal precedent" would have put him "on notice that the use of a [taser in this situation was prohibited, unlawful conduct for a police officer." Officer Virg-In and the City also maintained that J.N.'s claim against the City should be dismissed based on Officer Virg-In's entitlement to qualified immunity and on the merits. J.N. opposed the summary judgment motion on September 29, 2008. She responded that "there is no requirement that there be a specific case on point that would have led Officer Virg-In to believe that use of a [tlaser in this situation was excessive." J.N. maintained that the law "was clearly established in July 2008" that "it would be [] excessive use of force to use a [tJaser on a juvenile that posed little or no threat to the Officer or third parties." J.N. also argued that there were issues of fact precluding summary judgment as to "whether the City failed to properly train Virg-In by having a written policy governing [taser use and reviewing that written policy with its officers" and also regarding "whether Virg-In violated plaintiff's constitutional right to be free from the unlawful use of excessive force." The superior court heard oral argument on December 5, 2008. On April 9, 2009, the superior court issued an order granting Officer Virg-In's and the City's motions for summary judgment. The superior court concluded that it was "undisputed that Officer Virg-In's effort to stop [J.N.] was within the seope of his discretionary authority." The court then considered: (1) the objective reasonableness of Officer Virg-In's actions; and (2) "whether 'clearly established' law existed to inform him of applicable constitutional standards for this situation." The superior court described the relevant circumstances, viewing the facts in J.N.'s favor: Officer Virg-In used a taser twice on an 11-year-old girl who had already stopped; who had ceased her attempt to escape; and who had not used any aggressive or threatening behavior to escape arrest. In these cireumstances, the superior court found "triable issues of fact as to the objective reasonableness of the officer's actions" and denied summary judgment on this point. Nonetheless, the superior court ultimately determined that Officer Virg-In was entitled to qualified immunity because no clearly established law in July 2008 would have put him on notice that his conduct was unlawful. The superior court first determined that the two Alaska statutes related to use of force were insufficient to notify Officer Virg-In that the use of a taser to arrest an 11-year-old suspect was unlawful. Looking to case law, the superior court found that the cases presented by J.N. were "quite distinguishable" and that it was " 'telling' that neither party could provide authority prior to July 20083 as to the use of [tlasers on young people." Taking note of J.N.'s "reckless[ ] behavior which resulted in hazards to the community" and her "previous determined efforts to escape," the superior court found that J.N. had "not shown that the law was clearly established that Officer Virg-In should have known that his two uses of the [tlaser during the incident would violate [J.N.'s] constitutional rights." The superior court then explained that even in the absence of clearly established law, "[ilf an officer's conduct is so extreme that any reasonable officer would know the force used was excessive, the officer cannot be shielded by qualified immunity." The superior court concluded, however, that Officer Virg-In's conduct in response to J.N.'s "reckless behavior" and previous "determined efforts to escape" was "not so egregious or lacking in common sense that he would have known [it was] excessive even without the guidance of prior law." Summary judgment was granted to Officer Virg-In. Turning to J.N.'s negligent training or supervision claim, the superior court concluded that "there would be a triable issue of fact as to the adequacy of training and supervision of Kotzebue police officers as to the use of [tlasers. But for qualified immunity, this issue would result in denial of the defendants' motion for summary judgment on these claims." But the superior court granted the City's motion for summary judgment on J.N.'s negligent training or supervision claim "based on the qualified immunity of the officer." Final judgment was entered on April 29, 2009. On June 4, 2009, Officer Virg-In and the City moved for attorney's fees under Alaska Civil Rule 82. J.N. opposed the fees motion, contending that the amount of fees should be modified for equitable factors under Rule 82(b)(8) and that Russell could not be personally liable for fees because she brought the claim as J.N.'s representative. The superior court held a hearing on attorney's fees on October 8, 2009, and requested additional briefing on certain issues. On January 8, 2010, the superior court ordered that the claimed fees and costs were reasonable and that Russell was personally Hable for the fees and costs awarded in the amount of $49,144.82. J.N. appeals both the superior court's final judgment granting Officer Virg-In and the City's motions for summary judgment and the award of attorney's fees and costs. III. STANDARD OF REVIEW "We review [a] grant of summary judgment de novo, reading the record in the light most favorable to the non-moving party and making all reasonable inferences in its favor." We "will affirm a grant of summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." "The applicability of both state and federal immunity are questions of law that are . subject to de novo review." Under the de novo standard of review, we will "apply our independent judgment to questions of law, adopting the rule of law most persuasive in light of precedent, reason, and policy. IV. DISCUSSION A. Qualified Immunity And Claims Of Excessive Force Qualified immunity shields public officials from civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The purpose of qualified immunity is to "balance[ ] two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. Whether officials perform their duties reasonably "is judged against the backdrop of the law at the time of the conduct" because "the focus is on whether the officer had fair notice that her conduct was unlawful. 4 Qualified immunity is intended to protect "all but the plainly incompetent or those who knowingly violate the law." Alaska statutes provide that a police officer "may not subject a person arrested to greater restraint than is necessary and proper for the arrest and detention of the person" and allows an officer to "use nondeadly force and [] threaten to use deadly foree when and to the extent the officer reasonably believes it necessary to make an arrest, to terminate an escape or attempted escape from custody, or to make a lawful stop. The use of excessive force is thus a statutory violation and may also run afoul of the Fourth Amendment to the United States Constitution and article I, section 14 of the Alaska Constitution, both of which grant citizens a right "to be secure in their persons" and protect against "unreasonable searches and seizures." Pursuant to federal law, whether a police officer uses excessive force in making an arrest depends on the gravity of the intrusion (the type and amount of force inflicted) balanced against the government's need for that intrusion (as measured by the severity of the crime, whether the suspect posed an immediate threat to the officer's or the public's safety, and whether the suspect was resisting arrest or attempting to escape). The standard for excessive force in Alaska is nearly identical-the three considerations that frame the exeessive force inquiry are the severity of the crime, whether the suspect immediately threatens the safety of the police or others, and whether the suspect is actively resisting or fleeing arrest. Police officers, like other public officials, are protected by qualified immunity when they exercise discretionary functions. Alaska Statute 09.65.070(d) provides for statutory immunity: An action for damages may not be brought against a municipality or any of its agents, officers, or employees if the claim . (2) is based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty by a municipality or its agents, officers, or employees. We have added that Alaska "usually follows federal case law in the area of qualified immunity." In 2001 the United States Supreme Court in Saucier v. Katz announced a new federal qualified immunity standard. The Court clarified that a decision on qualified immunity "should be made early in the proceedings" because it is "an entitlement not to stand trial or face the other burdens of litigation." Squcier set out a two-part test for determining entitlement to qualified immunity: (1) whether the facts alleged show that the officer's conduct violated a constitutional right; and (2) whether the right was "clearly established," meaning that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." A later United States Supreme Court decision held that courts have the discretion to address either of the Saucier prongs first. In 2008, partially in response to Saucier, we "reexamine[d] our previous decisions on qualified immunity and [] clariffied] the standard for granting immunity to police officers" accused of using excessive force. We held that an officer is entitled to qualified immunity if the officer's conduct was an objectively reasonable use of force or the officer reasonably believed that the conduct was lawful. We have explained that "[tlhis test recognizes that there may be behavior that is objectively unreasonable but that nonetheless an officer might have reasonably believed was reasonable. If this is the case, then the officer should be entitled to qualified immunity for his behavior. Under the second part of the inquiry, the reasonableness of an officer's belief that his conduct was lawful depends on whether a reasonable officer would have been "on notice" that his particular use of force would be unlawful4 An officer may be on notice that his particular use of force was unlawful either because closely analogous cases, laws, or regulations suggest that the conduct is unlawful, or because the conduct was so egregious that any reasonable officer would have known that it was unlawful. In considering whether an officer could have reasonably believed that his conduct was lawful because he was not on notice that his particular use of force was excessive, we have directed trial courts to "look to our own jurisdiction and other jurisdictions to see if there are any cases, laws, or regulations which would suggest that the type of action taken by the officer is considered unlawful." We explained in Sheldon that these cases, laws, and regulations must be relevant to "specific actions taken in specific cireum-stances, following the United States Supreme Court's direction in Saucier that the question whether a reasonable officer would have been on notice that his conduct was unlawful "must be undertaken in light of the specific context of the case, not as a broad general proposition." But we cautioned in Sheldon against extremes, directing that trial courts should neither rely solely on the broad, general use of force statutes nor require that prior case law, statutes, or regulations discuss the appropriate use of force in an identical factual scenario. We recognized that trial courts should not "go[ ] too far" by determining that "each situation, in its particularity, could not have been anticipated by any law or regulation, so an officer could never be on notice that this use of force in this set of cireamstances could be unlawful. We added in Sheldon that some conduct is "so egregious, so excessive" that any reasonable officer would have known that it was unlawful even in the absence of closely analogous case law. Cautioning that "[olne should not let the lack of explicit law in an area be a substitute for the reasonable officer's common sense," we explained that some conduct is so "shocking" that "the nature of the act [gives] sufficient warning that [the conduct is]} excessive. Federal courts have agreed that certain conduct is "so egregious that any reasonable person would have recognized a constitutional violation" and that "even if there is no closely analogous case law, a right can be clearly established on the basis of common sense. As stated by the Seventh Cireuit Court of Appeals, qualified immunity should be denied even "without identifying a closely analogous case if . the force used was so plainly excessive that the police officers should have been on notice that they were violating the Fourth Amendment" because "police officers should not be shielded from liability just because their excessive use of foree happens to be original," B. Officer Virg-In Is Not Entitled To Qualified Immunity On Summary Judgment. J.N.'s primary argument on appeal is that the superior court erroneously granted qualified immunity to Officer Virg-In on summary judgment. J.N. emphasizes that the superi- or court found triable issues of fact that would preclude summary judgment on the question whether Officer Virg-In acted reasonably during the taser incident. She contends that it was error for the superior court to grant Officer Virg-In qualified immunity both because existing law would have put Officer Virg-In on notice that his use of force was excessive and because his conduct was "so egregious that it would eliminate the need for clearly established law." Officer Virg-In defends the superior court's grant of qualified immunity, citing the "silence" in the case law prior to July 2003 and maintaining that "no cognizable legal precedent prior to July 29, 2003[] would have put [him] on notice that the use of a [tlaser in this situation was prohibited, unlawful conduct for a police officer." We have recognized the desirability of determining an officer's entitlement to qualified immunity early in a case, such as on summary judgment. In some cases, however, disputed material facts will prevent summary Judgment on qualified immunity grounds because a fact-finder must resolve these disputed facts. We conclude that this is such a case. The superior court's summary grant of qualified immunity cannot stand because an officer's multiple uses of a taser on a nonthreatening, compliant, 11-year-old girl suspected of traffic violations could be so egregious, such an obvious violation, that any reasonable officer would have known that the conduct was unlawful Here, there is a factual dispute whether, among other things, J.N. was fully compliant and had completely ceased her efforts to flee. This, and perhaps other disputed material facts, must be resolved at trial before the egregiousness of Officer Virg-In's conduct and his entitlement to qualified immunity can be determined. 1. As of July 2003, there was no law specifically governing the use of tasers in these circumstances that was sufficient to put Officer Virg-In on notice that his conduct was unlawful. J.N. urges that the lawful use of tasers was clearly established by July 2008 such that Officer Virg-In reasonably should have known that his conduct was unlawful. J.N. asserts that pre-2008 case law from other jurisdictions, although not specifically addressing tasers, established that "it was unlawful to use force on an individual who was being compliant and no longer resisting the officer." We conclude that as of July 2008 there was no closely analogous case law specifically regarding the use of tasers under these cireum-stances that was sufficient to put Officer Virg-In on notice that his conduct was unlawful. Here, as in Sheldon, "the lack of evidence from other jurisdictions that [the type of force at issue] would be unlawful is telling. As the Ninth Cireuit Court of Appeals recently observed, "[the [tJaser is a relatively new implement of force, and case law related to the [tlaser is developing. In that case, the cireuit court granted qualified immunity to an officer who used a taser to arrest a 21-year-old suspected of a seat-belt violation who was clearly unarmed, was not threatening, and did not attempt to flee, despite holding that the officer used unconstitutionally excessive force. Similarly, in Olson v. City of Hooper Bay, we recently affirmed the trial court's decision that existing case law addressing the use of tasers in December 2006 did not provide officers with notice that their multiple uses of a taser was excessive force, rejecting arguments that an unpublished summary judgment order, several unreported cases from outside of Alaska, or published case law on other types of force could provide the necessary notice. We recognize that there was not a complete dearth of case law on the use of tasers as of July 2003. As J.N. points out in her reply brief, our 2000 decision in Saman-tego v. City of Kodiak involved an excessive force claim and the use of a "stun gun." J.N. urges that as a result of this case, "the law in Alaska was clearly established as of July 2003." In Samaniego, officers applied a "stun gun" five times to a female arrestee's neck after she had been at least partially handcuffed; the officers also threw her against a car, causing her to strike her head on it, and brought her to the ground and kneeled on.her back and neck. We summa rized that (1) the arrestee had committed only minor erimes of disorderly conduct and resisting arrest; (2) she put up some resistance to arrest, but did not strike the officers or flee; and (8) there was no immediate threat to the officer's safety. Under these cireumstances, we determined that a reasonable jury could have found that the officer's use of force was excessive. But because we evaluated the claim of excessive force as comprising the totality of the officer's actions, which included multiple uses of other foree besides a "stun gun," Samaniego standing alone was insufficient to provide notice to Officer Virg-In that using a taser twice on J.N. was unlawful. 2. Disputed material facts preclude a summary judgment determination on the question whether Officer VirgIn's conduct was so egregious that any reasonable officer would have known that it was an unlawful use of force. In some situations qualified immunity should be denied because the officer's particular use of force was so egregious, such an obvious violation, that any reasonable officer would have known that the conduct was unlawful. The superior court acknowledged this aspect of the qualified immunity analysis but found that Officer Virg-In's conduct was "not so egregious or lacking in common sense that he would have known [that it was] excessive even without the guidance of prior law." As stated by the superior court, when factual inferences are made in J.N.'s favor, "Officer Virg-In approached and used a [tlaser twice on an 11 year-old girl [] who had already been stopped had ceased her earlier extensive efforts to escape . and [] had not used aggressive or threatening behavior in her attempt to escape arrest." And it is undisputed that Officer Virg-In's second use of the taser in "direct contact stun mode" occurred when he had J.N. in hand-he was holding on to J.N.'s elbow as he tased her. Based on these facts, J.N. counters that "no authority is required to show that the use of a [tJaser on a 1[1}-year-old girl who was no longer resisting, was excessive and unnecessary" and that "the exceptional cireumstances of this case, which are the gratuitous use of foree on a child, eliminates the need for prior, clearly established law." 'Federal courts have found a variety of conduct sufficiently egregious and excessive to preclude qualified immunity even without closely analogous case law. Most relevant here is a 2006 case from the Eleventh Circuit Court of Appeals denying qualified immunity for an officer who handcuffed a nine-year-old girl who had initially disobeyed and verbally threatened to hit a teacher but then complied with the teacher's orders. The cireuit court reasoned that because the girl was not threatening the teacher or the officer, the act of handcuffing was "an attempt to punish" the girl and was "excessively intrusive given [the girl's] young age and the fact that it was not done to protect anyone's safety." The Eleventh Circuit stated that "(elven in the absence of factually similar case law, an official can have fair warning that his conduct is unconstitutional when the constitutional violation is obvious" and concluded that the officer's "conduct in handeuffing [] a compliant, nine-year-old girl for the sole purpose of punishing her was an obvious violation of [her] Fourth Amendment rights." In another case involving a child, the Seventh Circuit Court of Appeals held that, even in the absence of a factually similar case, an officer was not entitled to qualified immunity where he held a gun to the head of a nine-year-old child and threatened to pull the trigger when the child was not resisting arrest or trying to flee. Moreover, although we acknowledge that in July 2008 there was no case law specifically addressing the use of tasers sufficient to put Officer Virg-In on notice that his conduct was unlawful, other general principles regarding appropriate force certainly existed. As the United States Supreme Court has explained, while "the general proposition that use of force is [unconstitutional] if it is excessive under objective standards of reasonableness" is normally "not enough," in an "obvious case" this principle alone can give an officer notice that a particular use of force is excessive. There is no question that there is (and was in 2003) a clearly established right to be free from excessive force during arrest. Moreover, the use of force is least justified against nonviolent mis-demeanants who are not fleeing or actively resisting arrest and who do not "pose[ ] an immediate threat to the safety of the officers or others. And as the Ninth Circuit Court of Appeals explained in 2001, "[where there is no need for force, any force used is constitutionally unreasonable. Finally, J.N.'s young age contributes to the unreasonableness of Officer Virg-In's conduct, especially because tasers may cause increased harm to children. We agree with Officer Virg-In and the City that post-2008 cases indicate that the use of a taser on a juvenile is not always an excessive use of foree, but these cases do not support that an officer may use a taser on an 11-year-old girl charged with a traffic offense who is not resisting arrest and does not present a threat to the officers. We recognize that there are factual disputes regarding whether, for example, J.N. was fully non-resistant and compliant before Officer Virg-In first deployed the taser's probes. J.N. testified that she "stopped right away" after she was grabbed by another teenager on the street and was "face to face" with Officer Virg-In, "waiting] for him" when he first used his taser. Multiple uses of a taser on a non-threatening 11-year, old girl suspected of traffic violations, who was no longer resisting or attempting to flee, could be sufficiently egregious to put any reasonable officer on notice that the conduct was unlawful. Thus, the superior court's grant of qualified immunity on summary judgment cannot stand and the relevant disputed facts must be resolved at trial. C. The City Of Kotzebue Is Not Entitled To Summary Judgment. The superior court granted the City's summary judgment motion, dismissing J.N.'s claims for improper and negligent training or supervision, "based on [Officer Virg-In's] qualified immunity" and "the lack of a constitutional violation." We agree with the superior court that to the extent that J.N. sought to hold the City jointly and severally liable for Officer Virg-In's conduct, the City would be entitled to statutory immunity under Alaska law predicated on a determination that Officer Virg-In has qualified immunity. Because we reverse the summary judgment grant of qualified immunity to Officer Virg-In, dismissal of the City from a claim of joint and several liability must be reversed as well. However, J.N.'s claim of improper and negligent training or supervision, lodged solely against the City, should not have been dismissed because it is a separate claim charging the City with direct liability. As counsel for the City explained, "the claim against the city is a claim for improper and negligent supervision and training. This is a direct liability claim. Officer Virg-In's entitlement to qualified immunity would not provide the City with any type of "derivative" immunity from this separate, direct-liability claim. Finally, because it may affect the proceedings on remand, we wish to clarify that it is incorrect to equate a grant of qualified immunity with a finding of no constitutional violation. In City of Los Amgeles v. Heller, the United States Supreme Court explained that finding in favor of an officer sued for excessive force "was conclusive not only as to [the officer], but also as to the city," reasoning that "if the [officer] inflicted no constitutional injury on respondent, it is inconceivable that [the city] could be liable to respondent. But a careful distinction must be drawn between situations where an officer is found not liable because the conduct was not a constitutional violation and where an officer is granted immunity because it was reasonable for the officer to believe that his or her conduct was lawful. As summarized by one treatise: [The fact that a defendant official is found to be protected from personal liability by qualified immunity because she did not violate clearly established federal law does not protect the municipality from liability.... On the other hand, if the court finds that the individual officer is protected by qualified immunity because she did not violate plaintiff's federal right, this determination may lead to dismissal of the municipal liability claim. Here, the superior court determined that there were issues of material fact regarding whether Officer Virg-In's conduct was an excessive use of force. Thus, even if Officer Virg-In is found to be entitled to qualified immunity because he could have reasonably believed that his conduct was lawful, the City may still be liable on a failure to train claim. Because the City was not entitled to immunity, we remand to the superior court to determine whether the City is entitled to summary judgment on the merits of J.N.'s negligent training and supervision claim. D. Attorney's Fees and Costs Because we reverse the grants of summary judgment to Officer Virg-In and the City of Kotzebue the attorney's fees and costs award is vacated. We note, however, that the provisions applicable to any attorney's fees or costs award in this case, where Russell brought the action on behalf of her minor child as the child's guardian, are Alaska Civil Rule 17(c) and AS 09.60.030. V. CONCLUSION We REVERSE the superior court's summary judgment grant of qualified immunity to Officer Virg-In and REMAND for proceedings consistent with this opinion. We REVERSE the superior court's grant of summary judgment dismissing J.N.'s claims against the City of Kotzebue and REMAND for proceedings consistent with this opinion. We VACATE the attorney's fees and costs award. CHRISTEN, Justice, not participating. . We interpret the facts in the light most favorable to J.N. as the non-moving party and draw all reasonable inferences in her favor. See Sheldon v. City of Ambler, 178 P.3d 459, 461 (Alaska 2008) (citing Samaniego v. City of Kodiak, 2 P.3d 78, 82-83 (Alaska 2000)). . Appellant's brief and the superior court opinion state that the date of the taser incident was July 29, 2005, but the incident actually occurred on July 29, 2003. J.N. filed her complaint in February 2005. . Variously referred to as "probes," "darts," "wires," or "harpoons," these are "two metal probes [that] are propelled . from a replaceable cartridge"; they "have the appearance of small, straightened fish-hooks . [and are] connected to the weapon by a fine insulated wire." Operationally, "[when both probes contact the target, the device automatically delivers several seconds of electric current . designed to affect the motor nervous system and muscles, causing physical incapacitation." Deploying these probes is an alternative to using a taser in the "direct contact stun mode," which is a pain compliance technique. . The connection between the taser incident and J.N.'s emotional and mental injuries was highly contested in the superior court. For purposes of a summary judgment review, however, we view the facts relating to J.N.'s alleged injuries in the light most favorable to J.N. See supra note 1. . It is unclear whether J.N. intended to raise federal constitutional torts under 42 U.S.C. § 1983 along with state law tort claims. Like most courts, we do not require litigants to specify that they are suing under § 1983. See Fairbanks Corr. Ctr. Inmates v. Williamson, 600 P.2d 743, 747 (Alaska 1979) (concluding that a complaint stated a cause of action under § 1983 based on "Iclombining the broad purposes of 42 U.S.C. § 1983 to provide a cause of action upon allegations of facts constituting deprivation under col- or of state authority of federal constitutional rights with the liberal pleading provisions of Alaska Rule of Civil Procedure 8"). See generally Sworp anp Smretp Revistrep: A Pracricat Approack to Section 1983 122 (Mary Massaron Ross ed. 1998). At oral argument, counsel for J.N. stated the he did not believe that any § 1983 claims had originally been alleged, but added that he was not waiving such claims. . Before the motion for summary judgment was filed, the case had been substantially delayed due to the death of J.N.'s attorney in June 2006. . See AS 11.81.370(a) ("In addition to using force justified under other sections of this chapter, a peace officer may use nondeadly force and may threaten to use deadly force when and to the extent the officer reasonably believes it necessary to make an arrest, to terminate an escape or attempted escape from custody, or to make a lawful stop."); AS 12.25.070 ("A peace officer or private person may not subject a person arrested to greater restraint than is necessary and proper for the arrest and detention of the person."). . Schug v. Moore, 233 P.3d 1114, 1116 (Alaska 2010) (internal quotation marks omitted). . Id. . Smith v. Stafford, 189 P.3d 1065, 1070 (Alaska 2008). . Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 177 P.3d 1181, 1184 (Alaska 2008) (internal quotation marks omitted). . Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)); see also Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) ("Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted."). . Pearson, 129 S.Ct. at 815. . Brosseau, 543 U.S. at 198, 125 S.Ct. 596. . Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). . AS 12.25.070. . AS 11.81.370(a). . See, e.g., Espinosa v. City & County of San Francisco, 598 F.3d 528, 537 (9th Cir.2010) (citing Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)) (other internal citations omitted). . Samaniego v. City of Kodiak, 2 P.3d 78, 86 (Alaska 2000) (concluding that the federal framework from Grakam is "persuasive" and "adopt[ing] it as an elaboration of [Alaska's] common-law standard of reasonable force"), overruled in part by Sheldon v. City of Ambler, 178 P.3d 459 (Alaska 2008); see also Wasserman v. Bartholomew, 38 P.3d 1162, 1169-70 (Alaska 2002) (approving a trial court's use of Graham's "objective reasonableness" test in an excessive force case brought under state law). . Samaniego, 2 P.3d at 83 (defining "discretionary" actions as "those that require personal deliberation, decision and judgment"); accord Saucier v. Katz, 533 U.S. 194, 203, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (noting that "qualified immunity applie[s] in the Fourth Amendment context just as it would for any other claim of official misconduct"), overruled in part by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). . Sheldon, 178 P.3d at 463. . 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). . Id. at 200, 121 S.Ct. 2151. . Id. at 200, 121 S.Ct. 2151 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). . Id. at 201-02, 121 S.Ct. 2151; see also id. at 205, 121 S.Ct. 2151 (describing the inquiries as the "reasonableness of the officer's belief as to the appropriate level of force" and whether the officer made a "reasonable mistake[] . as to the legal constraints on particular police conduct"). . Pearson, 129 S.Ct. at 818. . Sheldon, 178 P.3d at 463. . Id. at 463-64 ("[The United States Supreme Court emphasized that in deciding whether an officer is eligible for qualified immunity one must not merely look to whether an officer's actions were objectively reasonable, but also to whether the officer might have reasonably believed that his actions were reasonable.") (citing Saucier, 533 U.S. at 205, 121 S.Ct. 2151); see also Olson v. City of Hooper Bay, 251 P.3d 1024, 1031 (Alaska 2011). . Sheldon, 178 P.3d at 463. . Id. at 463 (citing Saucier, 533 U.S. at 202, 121 S.CL 2151). . See id. at 463, 465-67. . Id. at 466. . Id. at 466 (citing Brosseau v. Haugen, 543 U.S. 194, 199-200, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). . Saucier, 533 U.S. at 201, 121 S.Ct. 2151; see also Ashcroft v. Al-Kidd, - U.S. -, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (describing the required case law necessary to put a government official on notice that particular conduct is unlawful as either "controlling authority'" or "a robust consensus of cases of persuasive authority") (internal quotation marks omitted). . Sheldon, 178 P.3d at 466; see also Olson v. City of Hooper Bay, 251 P.3d 1024, 1037 (Alaska 2011) ("General excessive force statutes are insufficient to provide this notice; cases that deal with the specific actions taken by police officers are persuasive."). . Sheldon, 178 P.3d at 466; see also Hope v. Pelzer, 536 U.S. 730, 739-41, 743-44, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (explaining that officials may be on notice that their conduct violates established law even in novel factual circumstances and that a relevant prior decision may provide adequate notice not only with its holding, but also by its reasoning, or when the "premise" of the case "has clear applicability" to a subsequent set of facts). . Sheldon, 178 P.3d at 467; see also Olson, 251 P.3d at 1040-41 (concluding that it was plain error for a superior court not to address "whether the nature of the officers' actions, alone, provides notice that the force they used became excessive at some point in the sequence of events"). . Sheldon, 178 P.3d at 467. . Backlund v. Barnhart, 778 F.2d 1386, 1390 (9th Cir.1985). . Giebel v. Sylvester, 244 F.3d 1182, 1189 (9th Cir.2001) (internal quotation marks omitted). . Rice v. Burks, 999 F.2d 1172, 1174 (7th Cir.1993) (internal citations omitted). . Crawford v. Kemp, 139 P.3d 1249, 1255 n. 11 (Alaska 2006) (stating that "ordinarily immunity questions should be decided long before trial" because "[o)fficial immunity shelters the state and government officials from all aspects of a lawsuit .; it is not solely a shelter from liability"). We have explained, however, that a defendant may "be deemed immune at the conclusion of trial" even where the defendant is not entitled to qualified immunity in a preliminary proceeding; at the trial immunity serves as a "mere defense to liability." Olson, 251 P.3d at 1031 n. 24 (citing Acevedo-Garcia v. Monroig, 351 F.3d 547, 562 n. 6 (1st Cir.2003)); see also Ortiz v. Jordan, - U.S. -, 131 S.Ct. 884, 889, 178 L.Ed.2d 703 (2011) ("A qualified immunity defense, of course, does not vanish when a [] court declines to rule on the plea summarily. The plea remains available to the defending officials at trial; but at that stage, the defense must be evaluated in light of the character and quality of the evidence received in court."). . See Crawford, 139 P.3d at 1256, 1258 ("Although we recognize the policy in favor of deciding immunity issues prior to trial in order to insulate officers from claims based on reasonable mistakes . [whether a reasonable officer could have believed that the arrest was lawful depends on the resolution of factual disputes as to what transpired."); see also Curley v. Klem, 499 F.3d 199, 208 (3d Cir.2007) (acknowledging that "the Supreme Court has instructed that immunity ordinarily should be decided by the court long before trial" and agreeing "[that is well and good when there are no factual issues in a case" but explaining that "often the facts are intensely disputed, and . such disputes must be resolved by a jury after a trial"). . Our decision does not preclude the availability of qualified immunity at some later stage in this litigation. See supra note 42. . In her opposition to summary judgment, J.N. brought to the attention of the superior court only one pre-2003 case related to the use of tasers. See Russo v. City of Cincinnati, 953 F.2d 1036, 1044-45 (6th Cir.1992) (finding that the use of a taser on a person holding knives and threatening to kill himself and officers was reasonable). . Sheldon v. City of Ambler, 178 P.3d 459, 466-67 (Alaska 2008) (finding it "persuasive" that 'there is no clear case or law or regulation from Alaska, or from anywhere else," saying that the officer's alleged conduct in the circumstances was excessive force). . Bryan v. MacPherson, 630 F.3d 805, 833 (9th Cir.2010) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 498 n. 5 (8th Cir.2009) and adding that two other Ninth Circuit panels have recently "concluded that the law regarding tasers is not sufficiently clearly established to warrant denying officers qualified immunity"). . Id. at 832-33. . 251 P.3d 1024, 1037-39 (Alaska 2011) (adding that both the plaintiff and the defendants "acknowledge that there was a lack of published case law on the objective reasonableness of taser usage prior to December 26, 2006" and agreeing with the superior court that "jurisprudence on claims of excessive force involving [tasers was either unclear or nonexistent at the time of [plaintiff's] arrest") (internal quotation marks omitted). . 2 P.3d 78 (Alaska 2000). , Id. at 81-82. . Id. at 86. . Id. at 86-87. . See Olson, 251 P.3d at 1039. . See supra Part IV.A. . When an officer uses multiple applications of nondeadly force and the question of excessive force turns on the number of times force is applied, a court may consider each sequential application of force. Olson, 251 P.3d at 1036 (citing Beaver v. City of Federal Way, 507 F.Supp.2d 1137, 1144-45 (W.D.Wash.2007)). Or, a court may evaluate all applications of force together to determine "whether the entirety of the force used was reasonable." Samaniego, 2 P.3d at 85-86. . E.g., Hope v. Pelzer, 536 U.S. 730, 738, 745, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (handcuffing a prisoner to a hitching post for seven hours without water or bathroom breaks); Asociacion de Periodistas de Puerto Rico v. Mueller, 529 F.3d 52, 60-61 (1st Cir.2008) (beating and pepper-spraying non-threatening people to force them to exit a private area); Jones v. City of Cincinnati, 521 F.3d 555, 559-60 (6th Cir.2008) (striking an unresisting suspect with a baton, putting pressure on his back, and using chemical irritants); Jennings v. Jones, 499 F.3d 2, 16-17 (Ist Cir.2007) (increasing force to the point of breaking an arrestees's ankle after the arrestee had been forcibly restrained and had stopped resisting arrest); Motley v. Parks, 432 F.3d 1072, 1088-89 (9th Cir.2005) (en banc) (holding an infant at gunpoint); Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1061-62 (9th Cir.2003) (kneeling on the back and neck of a compliant detainee after he complained that he was choking); Lee v. Ferraro, 284 F.3d 1188, 1198-99 (11th Cir.2002) (slamming an arrestee's head against the trunk of a car after arrestee was handcuffed); Priester v. City of Riviera Beach, 208 F.3d 919, 926-27 (11th Cir.2000) (allowing (or ordering) a dog to attack a non-resisting arrestee). . Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1306-08 (11th Cir.2006). . Id. at 1306. . Id. at 1306-07 (citing United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)). . . Id. at 1307; see also C.B. v. Sonora Sch. Dist., 691 F.Supp.2d 1170, 1184 (E.D.Cal.2010) (refusing to grant qualified immunity to officer who handcuffed a disabled student who had been disruptive but posed no danger to anyone and was no longer acting out of control when the officer arrived). . McDonald v. Haskins, 966 F.2d 292, 293-95 (7th Cir.1992) (elaborating that the fact that the boy was not under arrest, that the officer threatened to pull the gun's trigger, and that the boy was "only nine years old," were "the very ingredients relevant to an excessive force inquiry" and concluding that "[i]t should have been obvious to {the officer] that his threat of deadly force . was objectively unreasonable given . the fact that the victim, a child, was neither a suspect nor attempting to evade the officers or posing any other threat."). . While not available to inform Officer VirgIn's conduct, post-2003 excessive force cases involving tasers rely on these same principles to evaluate when an officer's use of a taser is reasonable. See Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir.2010) (stating that the most important issue in determining whether taser use is excessive force is whether the suspect was an "immediate threat to the safety of the officers or others"); Kijowski v. City of Niles, 372 Fed.Appx. 595, 601 (6th Cir.2010) (unpublished) (holding that "the right to be free from physical force when one is not resisting the police is a clearly established right" and "[algainst the backdrop of existing law, [the officer] could not reasonably have believed that use of a [taser on a nonresistant subject was lawful"); Cavanaugh v. Woods Cross City, 625 F.3d 661, 665-67 (10th Cir.2010) (denying an officer qualified immunity and holding that it was "clearly established" that the officer "could not use his [tfJaser on a nonviolent misdemeanant who did not pose a threat and was not resisting or evading arrest without first giving a warning"); Brown v. City of Golden Valley, 574 F.3d 491, 493, 499 (8th Cir.2009) (holding that the law was sufficiently clear as of October 2005 to inform a reasonable officer "'that it was unlawful to [taser a nonviolent, suspected misdemeanant who was not fleeing or resisting arrest, who posed little to no threat to anyone's safety, and whose only noncompliance with the officer's commands was to disobey two orders to end her phone call to a 911 operator"); Azevedo v. City of Fresno, No. 1:09-CV-375 AWI DLB, 2011 WL 284637, at *9 (E.D.Cal. Jan. 25, 2011) ("Given the nature of the use of force, something more than nonviolent misdemeanors must be at play to justify its use. While Azevedo was clearly in flight when [the officer] deployed the taser, the Court cannot say as a matter of law that Azevedo's flight made use of the taser reasonable."); Odom v. Matteo, 772 F.Supp.2d 377, 391 (D.Conn.2011) ("In sum, the use of a [taser is a significant use of force, and a reasonable jury could well find that its repeated deployment on an individual who is suspected of only minor traffic infractions, poses no immediate threat, is not aitempting to escape, and has indicated that she suffers from a brain injury constitutes an excessive and unreasonable use of force."). But see Draper v. Reynolds, 369 F.3d 1270, 1277-78 (11th Cir.2004) (deciding that the single tasering of an arrestee after a traffic stop was "reasonably proportionate to the difficult, tense and uncertain situation that [the officer] faced . [the arrestee] was hostile, belligerent, and uncooperative"). . Brosseau v. Haugen, 543 U.S. 194, 198-99, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). . Id. at 199, 125 S.Ct. 596; see also Hope v. Pelzer, 536 U.S. 730, 740-41, 745-46, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (reasoning that "general statements of the law are not inherently incapable of giving fair and clear warning" and adding that the "obvious cruelty inherent" in the practice of tying a prisoner to a post "should have provided respondents with some notice" that the conduct was an Eighth Amendment violation). . See Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). . See Graham v. Connor, 490 U.S. 386, 395-96, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). . Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir.1994). . Fontana v. Haskin, 262 F.3d 871, 880 (9th Cir.2001) (quotation marks omitted). . J.N. attached to her opposition to summary judgment a paper from the International Association of Chiefs of Police National Law Enforcement Policy Center, originally published in 1996, which notes that the model policy on tasers "includes in the population of 'susceptible' individuals . children . and persons of small stature, regardless of age." For such "susceptible" persons, "[aldded caution may be warranted when using [tasers] . just as added caution would normally be recommended when using OC [pepper] spray or similar nondeadly force weapons." . See RT v. Cincinnati Pub. Sch., No. 1:05cv605, 2006 WL 3833519, at *2 (S.D.Ohio Dec. 29, 2006) (finding use of a taser not excessive where a minor was kicking, screaming, jerking, biting and otherwise resisting arrest and was warned before being tased a single time); N.A. ex rel. Ainsworth v. Inabinett, No. 2:05-CV-740 DRB, 2006 WL 2709850, at *1, 5-6 (M.D.Ala. Sept. 20, 2006) (determining that using a taser one time to subdue a mentally unstable, suicidal, and otherwise violent and threatening 16-year-old minor after attempting alternative means and giving a warning was not excessive); Maiorano ex rel. Maiorano v. Santiago, No. 6:05-ev-107-Orl-19KRS, 2006 WL 2024951, at "2, 10 (M.D.Fla. July 15, 2006) (concluding that using a taser on fighting high school students in a school with suspected gang-related violence and possible weapons was not excessive); Johnson v. City of Lincoln Park, 434 F.Supp.2d 467, 469-70, 479-80 (E.D.Mich.2006) (finding it not excessive to taser a 14-year-old minor who was handcuffed but still resisting arrest, including trying to head butt and bite the officer, where the officer gave a warning and did not use the taser after the minor stopped struggling). But see Michaels v. City of Vermillion, 539 F.Supp.2d 975, 977-79, 989-90 (N.D.Ohio 2008) (holding that an officer was not entitled to qualified immunity from claims that he used a taser 25 times after placing a 17-year-old arrestee accused of vandalism in handcuffs and stating that "the right of people who pose no safety risk to the police to be free from gratuitous violence during arrest" was clearly established). . See Estate of Logusak v. City of Togiak, 185 P.3d 103, 109-10 (Alaska 2008) (holding that because city police officers "acted reasonably in performing [a] discretionary act' the city was "immune under discretionary function official immunity"); Sheldon v. City of Ambler, 178 P.3d 459, 461 (Alaska 2008) (equating the officer and the city for purposes of entitlement to qualified immunity when plaintiff sued both for excessive force in violation of Alaska statutes); see also Pauley v. Anchorage Sch. Dist., 31 P.3d 1284, 1285-86 (Alaska 2001) (granting qualified immunity to a school district after the school principal released a child to a non-custodial parent because the principal's act was discretionary and entitled to qualified immunity). Nor would the City have been liable on a respondeat superior theory had J.N. argued a § 1983 claim, though the City may have been directly liable if it inflict ed a constitutional injury. See Hildebrandt v. City of Fairbanks (Hildebrandt II), 957 P.2d 974, 977 (Alaska 1998) ("A municipality may be directly responsible under § 1983 when an employee executes a governmental policy or custom that inflicts constitutional injury.") (citing Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); see also Monell, 436 U.S. at 690-91, 98 S.Ct. 2018 (holding that "Congress did intend municipalities . to be included among those persons to whom § 1983 applies" but that "a municipality cannot be held liable under § 1983 on a respondeat superior theory"). . Again, it is unclear whether J.N. intended to plead a federal constitutional claim against the City. See supra note 5 and accompanying text. . Counsel for the City added, "[There [are] really two defendants and there are two issues that have been raised by the pleadings filed by the defendants. First is the issue of qualified immunity for Officer Virg-In, and second is the issue of summary judgment for the City of Kotze-bue on the separate issue of training and supervision. . See Sheldon, 178 P.3d at 467 (addressing plaintiff's state law failure to train claim against the city even after affirming a grant of qualified immunity to the officer, though not reaching the merits of the claim because the claim was waived); Prentzel v. State, Dep't of Pub. Safety (Prentzel II), 169 P.3d 573, 589-91 (Alaska 2007) (concluding that officers were entitled to statutory and common law qualified immunity on plaintiff's state law and § 1983 claims but still considering plaintiff's § 1983 and state law negligence claim against supervisors and the State for failure to train). Nor is the City likely entitled to statutory immunity on its own behalf under AS 09.65.070(d). Statutory immunity is available to municipalities for their "discretionary" acts, but the City does not have "discretion" to act negligently in training its officers. See Guerrero ex rel. Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d 966, 976 (Alaska 2005) (clarifying that "[olnuce the state has made a planning-level decision to undertake a project, it does not have discretion to implement that decision negligently"). In a § 1983 action, municipalities are simply not entitled to qualified immunity under federal law. Owen v. City of Independence, 445 U.S. 622, 650, 657, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) (rejecting "a construction of § 1983 that would accord municipalities a qualified immunity for their good-faith constitutional violations"). . 475 U.S. 796, 798-99, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986). . As we have stated, "a reasonable but mistaken belief can confer immunity on an officer even after it has been established that the officer violated a constitutional right by behaving unreasonably." Sheldon, 178 P.3d at 463. . 1A Martin A. Seawartz, Section 1983 Lirieationr Cramis amp Derewses § 7.13[A] (4th ed. 2003). . Moreover, a determination that an officer's conduct was not a constitutional violation will relieve a municipality from liability only in a suit under 42 U.S.C. § 1983. Hildebrandt v. City of Fairbanks (Hildebrandt II ), 957 P.2d 974, 977-78 (Alaska 1998) ("[Jloin[ing] the majority of the Courts of Appeals" and holding that "a 42 U.S.C. § 1983 claim based on a municipality's failure to train requires an underlying violation of constitutional rights."); see also City of Canton v. Harris, 489 U.S. 378, 380, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (deciding that a city may be liable under § 1983 for "constitutional violations resulting from its failure to train municipal employees"); Simmons v. Navajo Cnty. 609 F.3d 1011, 1021 (9th Cir.2010) ("Because we hold that there was no underlying constitutional violation, [plaintiff] cannot maintain a claim for municipal liability."). A federal constitutional violation is not a necessary element of a state law negligence claim for failure to train. See Prentzel II, 169 P.3d at 588-89 (evaluating the merits of plaintiff's state law negligent training and supervision claims after finding that the officer's conduct did not violate the Fourth Amendment); Hildebrandt II, 957 P.2d at 976 (dismissing plaintiffs 42 U.S.C. § 1983 failure to train claim because there was no constitutional violation by the officer but not disturbing the superior court's verdict holding the city liable pursuant to plaintiff's state law negligence claim). . The superior court stated: "[There would be a triable issue of fact as to the adequacy of training and supervision of Kotzebue police officers as to the use of [tJasers. But for the qualified immunity, this issue would result in denial of the defendants' motion for summary judgment on these claims." But because the superior court did not grant or deny the City's motion for summary judgment on the merits, we cannot consider the merits of the claim. . AS 09.15.010, which creates a separate, independent parental cause of action, does not apply here because it accounts for parents' losses resulting from injury or death to their child. Gillispie v. Beta Const. Co., 842 P.2d 1272, 1273 (Alaska 1992); see id. at 1273-74 (noting that the predecessor statute to AS 09.15.010 was "interpreted as pertaining to pecuniary loss of the parent," and concluding that AS 09.15.010 is "the appropriate vehicle for recognizing [parents' mental and emotional] loss" resulting from the death of their child). Russell did not assert any claims on her own behalf in this matter and so does not incur liability for attorney's fees and costs as a plaintiff. . Alaska Rule of Civil Procedure 17(c) provides in relevant part: "Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem." . AS 09.60.030 provides: "When costs or disbursements are adjudged against an infant plaintiff or incompetent, the guardian by whom the plaintiff appeared in the action is responsible for the payment, and payment may be enforced against the guardian as if the guardian were the actual plaintiff."

6988295

Brenda CLEVELAND, Appellant, v. STATE of Alaska, Appellee

Cleveland v. State

2011-06-17

No. A-10466

878

888

258 P.3d 878

258