You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Heppinstall v. Darnall Kemna & Co., Inc. (5/7/93), 851 P 2d 78
<![CDATA[
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
LESLIE HEPPINSTALL and MARK )
HEPPINSTALL, )
)
Appellants, ) File No. S-4853
)
v. ) 3AN 88 7722 CI
)
DARNALL KEMNA & CO., INC., ) O P I N I O N
a California corporation, )
)
Appellee. ) [No. 3952 - May 7, 1993]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Karen L. Hunt, Judge.
Appearances: William M. Bankston, Bankston
& McCollum, Anchorage, for Appellants. No
appearance by Appellee.
Before: Moore, Chief Justice, Rabinowitz,
Burke, Matthews and Compton, Justices.
BURKE, Justice.
I. FACTS & PROCEEDINGS
Leslie Heppinstall and Mark Heppinstall filed a lawsuit
against Darnall Kemna & Co., Inc. in 1988 for securities fraud.
Following a bench trial on damages, the superior court granted
partial summary judgment to the Heppinstalls on the issue of
liability and the case proceeded to a bench trial to determine
damages.
In December 1990 the superior court awarded the
Heppinstalls rescissionary damages in the amount of $106,177 plus
interest, costs, and attorney's fees. Darnall Kemna appealed
this judgment.
In May 1991 the Heppinstalls served interrogatories and
a request for production in aid of judgment on Darnall Kemna's
attorney. When Darnall Kemna failed to respond, the Heppinstalls
filed a motion to compel discovery with the superior court. The
superior court granted the unopposed motion and ordered Darnall
Kemna to respond to the discovery request within ten days.
Darnall Kemna did not respond within 10 days apparently taking
the position that the superior court had no jurisdiction to
compel post judgment discovery in this case.
The Heppinstalls then filed a motion for sanctions and
an order to show cause. Following a show cause hearing, the
superior court denied the Heppinstalls' motion, reasoning that it
did not have jurisdiction to sanction Darnall Kemna for its
failure to respond to the post judgment discovery request. The
Heppinstalls appeal. We reverse.
II. DISCUSSION
The question before us here is whether the superior
court has jurisdiction to order a judgment debtor to comply with
a judgment creditor's post-judgment discovery requests pending
appeal.1 We must also determine whether the trial court can
impose sanctions to enforce its order compelling post-judgment
discovery.2
As a threshold matter, we note that an appeal does not
necessarily operate to prevent execution on a judgment. Liberty
National Ins. v. Eberhart, 398 P.2d 997, 998 (Alaska 1965). If
an appellant seeks to stay enforcement pending appeal, he must
present a bond as security to the trial court. Alaska R. App. P.
204(d); Alaska R. Civ. P. 62(d). Failure to file a bond or
obtain a stay leaves the judgment debtor open to the trial
court's enforcement of the judgment against him. Liberty
National, 398 P.2d at 998. Because Darnall Kemna neither
presented the trial court with a bond nor applied for a stay, the
trial court may properly enforce the judgment against it. Id.3
Civil Rule 69(a) specifically provides that, to aid in
the execution of a judgment, the judgment creditor may obtain
discovery from the judgment debtor "in the manner provided in
these rules." Alaska R. Civ. P. 69(a). "[T]hese rules"include
Civil Rule 37, which enables a trial court to compel discovery,
and to sanction a party for disobeying an order to compel.
Alaska R. Civ. P. 37. Rule 37 does not distinguish between pre-
and post-judgment discovery. Indeed, a judgment creditor's right
to seek discovery under Rule 69(a) would be hollow if he were
unable to force an uncooperative judgment debtor to comply.
Rule 69(a) enables a party seeking discovery in aid of
execution of judgment to motion the superior court to compel the
judgment debtor to comply with its discovery requests.
Additionally, the superior court has jurisdiction to impose
sanctions if the judgment debtor does not comply with its order
to compel.4
III. CONCLUSION
The trial court has jurisdiction to enforce the
execution of its judgment pending Darnall Kemna's appeal because
Darnall Kemna has neither obtained a stay on appeal nor presented
a bond. Because it has the authority to supervise the execution
of its judgment, the trial court may compel Darnall Kemna to
answer the Heppinstalls' requests for discovery. If the trial
court determines that Darnall Kemna willfully failed to comply
with its order to compel, it may award sanctions.
This case is REVERSED and REMANDED to the superior
court for a determination on the merits of the Heppinstalls'
Motion for Sanctions and Order to Show Cause.
_______________________________
1. We review questions of law de novo. See Foss Alaska
Line, Inc. v. Northland Servs., Inc., 724 P.2d 523, 526 (Alaska
1986).
2. Darnall Kemna devotes 48 pages to argue that the
superior court lacked jurisdiction originally and that the
superior court failed to re-establish jurisdiction to enforce the
valid judgment. Both arguments are completely without merit
under Alaska law. Because Darnall Kemna answered and
counterclaimed without objecting to the court's jurisdiction, it
waived any challenge to personal jurisdiction. See Alaska R. Civ.
P. 12(h)(1).
3. In Blake v. Gilbert, 702 P.2d 631, 642 (Alaska 1985) we
stated:
The superior court has
jurisdiction, pending appeal, to expunge the
lis pendens. Alaska Appellate Rule 203
provides:
The supervision and
control of the proceedings on
appeal is in the appellate court
from the time the notice of appeal
is filed with the clerk of the
trial courts.
Rules such as this which divest the
trial court of jurisdiction pending appeal
apply only to "matters directly or
necessarily involved in the matter under
review, and [do] not preclude the trial court
from proceeding as to collateral or
independent matters." 4 Am. Jur. 2d Appeal
and Error 355, at 834 (1962); see also
Bullock v. Director of Patuxent Institution,
231 Md. 629, 190 A.2d 789 (Md. App. 1963);
Morrison v. Morrison, 93 N.J. Super. 96, 225
A.2d 19 (Ch. Div. 1966) (awarding attorney's
fees pending appeal). Expunging a lis
pendens is a collateral matter, and the trial
court has jurisdiction to do so pending
appeal.
4. Other courts have found that trial courts have
jurisdiction to compel compliance with post-judgment discovery
requests. See, e.g., National Services Indus. v. Vafla Corp.,
694 F.2d 246, 250 (11th Cir. 1982) (applying the federal
counterpart to Civil Rule 37). In addition to holding that the
trial court could compel discovery pending appeal, the court in
National Services affirmed the trial court's substantial sanction
for the defendant's non-compliance. Id.
]]>
