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Pride v. Harris and Suburban Propane (8/23/94), 882 P 2d 381
NOTICE: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
RICHARD L. PRIDE, )
) Supreme Court No. S-5602
) Superior Court No.
v. ) 3AN-90-10263 CI
BRETT W. HARRIS; SUBURBAN )
PROPANE GAS CORPORATION of )
QUANTUM CHEMICAL CORPORATION, )
a Virginia corporation, ) O P I N I O N
Appellees. ) [No. 4121 - September 23,
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Mark C. Rowland,
Appearances: Richard L. Harren,
Wasilla, for Appellant. Kenneth M. Gutsch,
Hughes, Thorsness, Gantz, Powell & Brundin,
Anchorage, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
and Bryner, Justice, pro tem.*
This case involves property damage and personal injury
arising from an automobile accident. Pride obtained a judgment
in the district court for property damage. He cashed a check
tendered by Harris in satisfaction of the judgment. He then sued
in superior court for personal injury. The superior court held
that Pride's personal injury claim was barred by accord and
satisfaction. On appeal, Pride argues that (1) there was no
consideration for or intent to enter into an accord, and (2)
there was bias on the part of the trial judge. Harris and
Suburban Propane argue that Pride's suit is barred by res
judicata. We affirm in part and reverse in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
Richard Pride was driving a borrowed vehicle1 through
the snow on Post Road in Anchorage in October 1989. Brett Harris
was driving behind Pride in a tanker truck owned by Suburban
Propane Gas Corp. When Harris attempted to overtake Pride there
was a collision. The car driven by Pride was damaged and Pride
allegedly suffered personal injuries.
Pride filed suit in the district (small claims) court
against Harris seeking $1400.00 in property damage. Pride v.
Harris, No. 3AN-90-128 SC (Jan. 4, 1990). In March 1990 the
district court awarded Pride a judgment of $629.00 in property
damage.2 In April Harris' insurer tendered a check payable
jointly to Pride and Theresa McKenzie. Pride refused the check
and requested a check payable to him personally. In August the
district court ordered that Pride receive a check payable to him
personally, but required him to sign an agreement indemnifying
the insurer for all claims by other persons with an interest in
the vehicle. In September Pride acknowledged satisfaction of the
judgment, signed the indemnity agreement, and received a check
payable to him personally in the amount of $662.30.3 This check
stated that it was "For Full & Final Settlement of all claims."
Pride contends that he cashed the check in the belief that he was
settling claims relating only to property damage.
In June 1990 Pride had indicated that he might file a
personal injury claim. Harris responded by letter that such a
suit would be barred by res judicata. Pride did not respond to
this letter; however, in December he filed in superior court a
personal injury action against Harris and Suburban Propane.4
Harris and Suburban Propane filed a motion to dismiss
based on res judicata. They then filed a motion for summary
judgment based on accord and satisfaction. In February 1992 the
superior court granted summary judgment for Harris and Suburban
Propane based on the res judicata effect of the district court
In the interim, Pride moved for relief from the
district court judgment in order to preclude the res judicata bar
against his personal injury claim. Alaska R. Civ. P. 60(b). The
district court denied the motion. However, on appeal the
superior court reversed the district court and entered an order
which instructed the district court to vacate judgment. It also
allowed joinder of the property and personal injury claims in the
pending superior court case. This occurred in March 1992, after
the superior court had granted summary judgment based on res
Pride then sought reconsideration of the summary
judgment based on res judicata. The superior court vacated its
ruling of res judicata. However, the following day it granted
summary judgment to Harris and Suburban Propane on the basis of
accord and satisfaction. Pride appeals. AS 22.05.010; Alaska R.
App. P. 202(a).
Pride asserts another point on appeal. In November
1992 Pride asked Superior Court Judge Mark C. Rowland to recuse
himself on the basis of actual or apparent bias. Pride based
this request on the fact that Judge Rowland had previously
presided over a child custody proceeding between Pride and his
companion at the time, Carla Fazio, in which Fazio was awarded
custody of their child. See Fazio v. Pride, No. 3AN-88-2881 CI
(April 20, 1989). Pride alleged that Judge Rowland's
participation in Fazio v. Pride biased his consideration of the
case at bar. Pride's motion for a change of judge was denied by
Judge Rowland, reviewed by Superior Court Judge Rene J. Gonzalez,
and again denied.5
A. The Issue of Res Judicata is Not Properly
Before This Court.
Harris and Suburban Propane argue that we should affirm
summary judgment on the basis of res judicata. We disagree. At
the outset, we note that the district court judgment has been
vacated. Because it is not a "final judgment,"it cannot have
res judicata effect. Restatement (Second) of Judgments 13 cmt.
f (1982) ("The judgment ceases to be final if it is in fact set
aside by the trial court."); see also Tolstrup v. Miller, 726
P.2d 1304, 1306 (Alaska 1986).
Moreover, Harris and Suburban Propane have not properly
preserved this issue for appeal in this proceeding. In the
separate appeal from the district court, Pride v. Harris, No. 3AN-
90-128 SC, the superior court reversed the district court
judgment and allowed consolidation of the district court case
with the pending personal injury case.6 The district court
judgment was then vacated. The superior court then vacated its
prior summary judgment based on res judicata. However, Harris
and Suburban Propane did not appeal any of these actions.7
Accordingly, the issue of res judicata is not before this court.8
B. The Superior Court Erred in Granting Summary
Judgment for Harris and Suburban Propane on
the Basis of Accord and Satisfaction.
The standard of review applicable to summary judgments
is de novo. Farmer v. State, 788 P.2d 43, 46 n.8 (Alaska 1990).
In reviewing a summary judgment "[a]ll reasonable inferences of
fact . . . must be drawn against the moving party . . . and in
favor of the non-moving party." Sea Lion Corp. v. Air Logistics
of Alaska, Inc., 787 P.2d 109, 116 (Alaska 1990).
Harris successfully argued below that when Pride cashed
the check tendered by Harris' insurer "For Full and Final
Settlement of all claims"in September 1990, Pride executed an
accord and satisfaction of any personal injury claims, as well as
his claims for vehicular damage. Pride responds that any alleged
accord lacked the requisite intent and consideration.
We restated the law regarding accord and satisfaction
in National Bank of Alaska v. Warfle, 835 P.2d 1167 (Alaska
1992). We held that the enforceability of an accord is governed
by general contract principles and thus requires an intent to
enter into an accord, as well as an offer, an acceptance and
consideration. Id. at 1170; see also Martech Constr. Co. v.
Ogden Envtl. Servs., Inc., 852 P.2d 1146, 1149 (Alaska 1993)
(holding that release requires intent).
Drawing all inferences of fact in favor of Pride, we
conclude that the superior court erred. Any alleged accord was
not supported by consideration. Consideration for an accord
exists where parties settle a good-faith dispute. Phillips v.
Mukluk Freight Lines, Inc., 721 P.2d 1143, 1144 (Alaska 1986).
However, "payment by a debtor . . . of a sum which is conceded by
the debtor to be due and payable, or as to which there is no
dispute or controversy, furnishes no consideration for the
discharge of a disputed claim for an additional and distinct
amount or item of liability." 1 C.J.S. Accord and Satisfaction
37, at 510-11. By virtue of the judgment in the district court,
Harris was indebted to Pride in the sum of $629.00. There was no
controversy as to (1) the amount, or (2) the fact that this
amount represented the district court judgment for property
damage. There was thus no consideration for an accord. Indeed,
where there are two or more claims, the
payment of the amount of one of them may
reasonably be taken by the creditor as
intended to settle that one claim alone; it
will not operate as a satisfaction of both
claims unless the debtor, when paying,
clearly expresses to the claimant an
intention that it shall so operate.
6 Arthur L. Corbin, Corbin on Contracts 1277, at 122 (1962).
We therefore disagree with the contention made by Harris and
Suburban Propane that the district court judgment was "only a
liquidated portion of a larger, unliquidated unitary claim for
all damages arising out of the October 23, 1989 accident."
We conclude that, as a matter of law, Harris and
Suburban Propane are not entitled to summary judgment
based on accord and satisfaction, since the accord was
not supported by considerations. C.The Superior Court
Did Not Err in Refusing to
Disqualify Judge Rowland on the Basis of Bias.
We review a trial court's decision regarding
disqualification or recusal on the grounds of bias for abuse of
discretion. Perotti v. State, 806 P.2d 325, 327 (Alaska App.
1991). Accordingly, a decision regarding disqualification
"deserves great deference." Id. at 328.
A judicial officer should recuse herself where, under
the totality of the circumstances, her participation in
proceedings creates the appearance of partiality. Id. at 327;
see AS 22.20.020 (a)(9) ("A judicial officer may not act in a
manner in which . . . the judicial officer feels that, for any
reason, a fair and impartial decision cannot be given."); Alaska
Code of Judicial Conduct, Canon 3(C)(1)(a).9
Pride contends that Judge Rowland was biased because he
had previously presided over Fazio v. Pride, No. 3AN-88-2881 CI
(April 20, 1989). In that case Judge Rowland awarded custody of
Pride's and Carla Fazio's child to Fazio. In making this
determination, Judge Rowland reached some negative conclusions
regarding Pride's fitness as a parent.10 Pride notes that in a
personal injury action such as this his "overall condition,
lifestyle and activities will be a central issue." He argues
that by having presided over Fazio v. Pride, Judge Rowland
necessarily prejudged "Pride's character and credibility . . . to
be significantly deficient."
We disagree. There is no rule requiring recusal or
disqualification of a judge who previously has presided over a
case involving the party seeking disqualification or recusal.
Indeed, "every judge, when he hears a case or writes an opinion
must form an opinion on the merits and . . . [often] an opinion
relative to the parties involved. But this does not mean that
the judge has a 'personal bias or prejudice.'" State v. City of
Anchorage, 513 P.2d 1104, 1113 (Alaska 1973) (quoting Tucker v.
Kerner, 186 F.2d 79, 84 (7th Cir. 1950)). Accordingly, Judge
Gonzalez concluded: "The fact that Mr. Pride may feel that Judge
Rowland is biased against him is not sufficient to lead this
Court to conclude that there is, in fact, an appearance of . . .
partiality on the part of Judge Rowland." This decision did not
constitute an abuse of discretion.
Pride alleges that there is evidence from these
proceedings that Judge Rowland had "negative attitudes toward
Pride." This is based on adverse rulings and allegations of
delay in the present proceeding as well as an inference arising
from the factual findings and result in the prior custody
proceeding. He admits that "none of the above circumstances are
objective proof of actual bias on the part of Judge Rowland." We
conclude that Pride has not made a sufficient showing of actual
or apparent bias. Disqualification "was never intended to enable
a discontented litigant to oust a judge because of adverse
rulings made." City of Anchorage, 513 P.2d at 1112 (quoting Ex
parte American Steel Barrel Co., 230 U.S. 35, 43-44 (1913)).
The issue of res judicata is not before this court. We
conclude that the alleged accord was not supported by
consideration. Warfle, 835 P.2d at 1170. This precludes summary
judgment on the basis of accord and satisfaction. Further, we
conclude that the superior court did not abuse its discretion in
refusing to disqualify Judge Rowland on the basis of bias.
AFFIRMED in part and REVERSED in part, REMANDED for
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1 Theresa McKenzie was the registered owner of the
vehicle. Pride had contracted to purchase the vehicle in the
event that it was damaged.
2 The sum was calculated as follows: $850.00 (the value
of the automobile) minus $250.00 (salvage value) plus $29.00
(costs plus pre-judgment interest).
3 The increase reflects additional post-judgment
4 Suburban Propane was joined on a theory of respondeat
5 Pride concedes that he failed to exercise his
peremptory right to recuse Judge Rowland. See Alaska R. Civ. P.
6 Pride made the motion for relief from judgment based on
Alaska Rule of Civil Procedure 60(b), which provides in part:
On motion and upon such terms as are
just, the court may relieve a party . . .
from a final judgment, order, or proceeding
for the following reasons:
(1) mistake, inadvertence,
surprise or excusable neglect;
. . . ;
(6) any other reason justifying
relief from the operation of the judgment.
Superior Court Judge Karen L. Hunt ruled that the
district court's failure to grant the Rule 60(b) motion was an
abuse of discretion. In an oral opinion Judge Hunt concluded
that "the following factors mitigate [sic] in favor of granting
the relief sought": (1) Pride did not have the benefit of counsel
in small claims court; (2) Pride, a layperson, was unaware of the
prohibition against splitting causes of action; (3) the small
claims manual was vague; (4) there was no showing that granting
the requested relief would be prejudicial to Harris or Suburban
Propane; and (5) there would be prejudice to Pride if the
requested relief were denied.
In doing so, Judge Hunt emphasized our admonition that
"the policy of finality underlying res judicata . . . must be
tempered by our paramount concern that a party be afforded his
day in court." Palfy v. First Bank of Valdez, 471 P.2d 379, 384
7 Presumably this is because the superior court granted
Harris' and Suburban Propane's motion for summary judgment based
on accord and satisfaction the following day. Nonetheless, when
Pride filed his notice of appeal regarding the accord and
satisfaction issue in this case on April 2, 1993, Harris did not
file a cross-appeal within 14 days. Alaska R. App. P. 204(a)(2).
8 Harris and Suburban Propane attempt to evade this
obstacle by arguing that "this court is free to independently
assess whether the District Court abused its discretion in
denying Mr. Pride's Rule 60(b) motion to vacate the District
Court judgment." In support of this argument, they rely on our
prior holdings that "[w]here the superior court acts as an
intermediate appellate court, this court owes no deference to its
decision, but, '[i]nstead, . . . independently scrutinize[s]
directly the merits of the administrative determination.'"
State, Dep't of Health & Social Servs. v. Hope Cottages, Inc.,
863 P.2d 246, 249 n.3 (Alaska 1993) (quoting Tesoro Alaska
Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska
1987)). However, this standard of review is applicable only to
determinations which are appealed from the superior court.
Tesoro, 746 P.2d at 902. Absent an appeal, we cannot review a
superior court's appellate resolution of a district court case.
9 The Alaska Code of Judicial Conduct, Canon 3(C)(1)(a),
provides in part:
(1) A judge should disqualify
himself in a proceeding in which his
impartiality might reasonably be questioned,
including but not limited to instances where:
(a) he has personal bias or
prejudice concerning a party, or personal
knowledge of disputed evidentiary facts
concerning the proceeding; . . .
10 Judge Rowland's findings of fact stated in part:
4. [Pride] is not employed and his
plans for his own economic future are not
well-formulated and are generally
unrealistic. His explanation for his present
unemployment is questionable.
5. The means by which [Pride]
presently supports himself is unclear.
Considering his recreational choices, his
explanation of how he supports himself is not
credible. . . .
8. Having been involved in the growing
of marijuana for sale and the marketing of
the product he grew out of his home, [Pride]
has demonstrated a disregard for law and the
lack of an acceptable value system to pass on
to the child. . . .
10. [Pride] is an angry, violent,
irresponsible, grossly immature individual
with a bizarre value system who, other than
loving the child, has little or no capacity
to meet the child's physical, emotional,
mental, religious or social needs.