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Jackinsky v. Jackinsky (5/12/95), 894 P 2d 650
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
SARA L. JACKINSKY, and )
TIMOTHY JACKINSKY, ) Supreme Court No. S-6081
) Superior Court No.
v. ) 3HO-92-21 CI
EDWARD JACKINSKY, ) O P I N I O N
WADE C. JACKINSKY, )
GARY W. JACKINSKY, )
JOANN JACKINSKY, )
BENJAMIN JACKINSKY, and )
MARY S. JACKINSKY, )
Appellees. ) [No. 4202 - May 12, 1995]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Charles K. Cranston,
Appearances: Daniel Westerburg, Homer,
Attorney for Appellants. Tucker S. Thompson,
Soldotna, Attorney for Appellees Mary S.
Jackinsky, Joann Jackinsky, and Benjamin
Jackinsky. Michael Hough, Homer, Attorney
for Appellees Edward Jackinsky and Gary
Jackinsky. Robert Molloy, Kenai, Guardian Ad
Litem for Appellee Wade Jackinsky.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Sara Jackinsky (Sara) and Timothy Jackinsky (Timothy)
sought a declaration that certain shore fishery leases, issued in
the individual names of Edward Jackinsky, Benjamin Jackinsky and
Joann Jackinsky, be declared to be held in trust for the entire
Jackinsky Family. Wade Jackinsky, Gary Jackinsky and Mary
Jackinsky later joined the suit as defendants. Sara and Timothy
assert that all of the parties are participants in a Family
partnership, which holds the leases as assets. Sara and Timothy
allege that the leases are held in trust as partnership assets by
the titular leaseholders for the benefit of all of the Jackinskys
who participated in the fishing partnership. The superior court
dismissed Sara and Timothy's suit on a motion for summary
judgment. The court reasoned that Sara and Timothy's suit was
barred under the doctrine of res judicata, because the underlying
claim in their suit is the same as, and transactionally related
to, a claim extinguished by a stipulation to dismiss an earlier
suit. We reverse and remand the case for a trial on the merits.
II. FACTS AND PROCEEDINGS
A. Factual Background
This dispute centers around eight setnet fishing sites
located on the east side of Cook Inlet, near the mouth of the
Kasilof River. Edward, his wife Wade, and their children, Gary,
Joann, Mary Sue, Benjamin, Sara, and Timothy, have continuously
fished these sites since 1950. However, the sites have been
utilized by the Jackinsky family since 1936.
Prior to 1985 the Jackinsky setnet sites were fished
without state shore fishery leases. To protect the sites from
encroachment by non-family members, the Jackinskys had the sites
surveyed. They submitted lease applications to the Department of
Natural Resources (DNR) in 1984, pursuant to a shore lease
program established by AS 38.05.082 and administered under 11
Alaska Administrative Code (AAC) Chapter 64. The leases were
granted in late 1984. The Family had divided the sites into
three separate lease areas. The three lease areas were
registered in the names of three different family members.1
Sara and Timothy claim that the leases were placed in
the names of particular family members because DNR refused to
allow more than one name on each lease. They assert that the
Family had attempted to put each lease in more than one person's
name, but was prohibited from doing so by DNR. They further
allege that the selection of whose names should go on the leases
was largely arbitrary.2
In 1985, following an altercation with the Family,
Timothy left Alaska. He offered to sell his lease and entry
permit to the other Jackinskys for $125,000. He informed the
Family that if they did not purchase the lease from him, he
intended to sell it on the open market. The Jackinskys (Edward,
Wade, Gary, Sara, Joann, Benjamin and Mary) filed suit against
Timothy to enjoin him from selling the lease. They alleged that
Timothy, by agreement, held his lease in trust for all the
Jackinskys who participated in the fishing partnership. This
suit was settled by an order entitled "Stipulation to Dismiss"
entered by the superior court. The order included three
provisions: (1) Edward and Wade agreed to pay Timothy $50,000
for his interest in certain real property; (2) Timothy retained
all his right and title to limited entry setnet permit number
S04H62232C; and (3) Timothy transferred to Joann the shore lease
which was the subject of the complaint. The order suggests that
no consideration was paid for the transfer of the lease to Joann.
The parties appear to agree that until 1991 the Family
fished the sites cooperatively, pooling their resources and
labor. For example, the operation utilized a collective checking
account entitled "E. Jackinsky Fish,"from which joint business
expenses were paid. Until 1991 those who received full shares of
the profits, including non-leaseholders, took business deductions
on their income tax returns for proportionate shares of the
operation's business expenses for the year. The fishing
equipment, including boats, gear, nets, and nearby real property,
was used communally.
However, the parties disagree on whether the issuance
of the leases to specified family members influenced the manner
in which the Family fished the sites and divided the revenues.
Sara and Timothy claim that the annual profit distributions in
the years following the acquisition of the leases did not depend
upon whose name appeared on the leases. They assert that profit
distribution was determined by who worked on the sites.
Conversely, the Family argues that the majority of profits were
split between the named lease holders. They contend that although
the factors determining profit distribution were numerous--who
showed up in the spring before the season to get the sites ready,
who worked during the season, and the effort each contributed--
who held the permits was especially important in the
apportionment of the revenues.
In 1991 Gary and Edward promulgated "Operational
Guidelines"which, for the first time, limited the recipients of
the net revenues to the three leaseholders. This distribution
plan excluded Sara, which led her to file this suit.
B. Procedural Background
On January 24, 1992, Sara and Timothy filed suit in
superior court against their father, Edward, their incapacitated
mother, Wade, and their four siblings, Gary, Joann, Benjamin and
Mary. Sara and Timothy claimed an interest in (1) the shore
lease sites held by Edward, Joann and Benjamin, (2) their limited
entry permits, and (3) associated real property and equipment.
Sara and Timothy later abandoned their claims to the limited
entry permits. They continue to claim interests in the shore
fishery leases and the real property and equipment.
Sara and Timothy sought and were granted in part a
preliminary injunction. The injunction prohibited the Family
from conveying the various components of the setnet operation
while the suit was pending. However, the superior court refused
to require the Family to permit Sara and Timothy access to the
sites during this time. The court held that Sara and Timothy had
an adequate remedy at law because they could claim a share of the
profits for any seasons lost as a result of the Operational
The court appointed a Guardian Ad Litem (GAL) for Wade.
On March 13, 1993, the GAL filed a motion for summary judgment,
which the rest of the Family joined. The GAL's principal
argument was that under the doctrine of res judicata, the instant
suit was barred by the stipulation to dismiss the 1985 suit
against Timothy. Sara and Timothy filed a cross-motion for
partial summary judgment requesting, among other things, a ruling
in their favor on the res judicata issue. The parties disagree
about the issues which were discharged in the 1985 suit.
The court granted the GAL's motion, ruling that Sara
and Timothy's suit was barred under the doctrine of res judicata.
In a clarifying order the superior court confirmed that its
ruling encompassed all of the claims raised by Sara and Timothy
in their amended complaint. Final judgment was entered. The
court awarded partial attorneys' fees to the Family. Ordinarily
under Alaska Civil Rule 82(b)(2), the Family would have been
entitled to 20% of their actual attorneys' fees and expenses.
However, they were awarded enhanced attorneys' fees under Rule
82(b)(3).3 Sara and Timothy appeal both the grant of summary
judgment and the award of enhanced attorneys' fees.
A. Standard of Review
"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." Wright v. State, 824 P.2d
718, 720 (Alaska 1992). The court reviews de novo an order
granting summary judgment. Tongass Sport Fishing Ass'n v. State,
866 P.2d 1314, 1317 n.7 (Alaska 1994). This court may consider
any argument ascertainable from the record, even if the superior
court did not rule on it, when reviewing the summary judgment
order. See Wright, 824 P.2d at 720; Moore v. State, 553 P.2d 8,
21 (Alaska 1976).
B. The Superior Court Erred in Ruling That the
Stipulation to Dismiss Filed in Earlier Litigation
Between These Parties Bars the Current Action.
Neither the doctrine of res judicata nor the doctrine
of collateral estoppel (claim preclusion) bars Sara and Timothy's
suit. The superior court relied on Tolstrup v. Miller, 726 P.2d
1304 (Alaska 1986), to dismiss on summary judgment Sara and
Timothy's suit, holding that it was barred by res judicata. We
Res judicata holds that a final judgment will bar any
subsequent suit on the same claim or demand, between the same
parties or their privies. Tolstrup, 726 P.2d at 1306; Calhoun v.
Greening, 636 P.2d 69, 71-72 (Alaska 1981).4 "A final judgment
extinguishes all claims 'with respect to all or any part of the
transaction, or series of connected transactions' out of which
the previous action arose." Tolstrup, 726 P.2d at 1306 (quoting
Restatement (Second) of Judgments 24 (1982)). Collateral
estoppel or issue preclusion bars the relitigation of an issue
where: (1) the party against whom the preclusion is employed was
a party to or in privity with a party to the first action; (2)
the issue precluded from relitigation is identical to the issue
decided in the first action; (3) the issue was resolved in the
first action by a final judgment on the merits; and (4) the
determination of the issue was essential to the final judgment.
Johnson v. Alaska State Dept. of Fish & Game, 836 P.2d 896, 906
Sara and Timothy's suit is not barred by res judicata
because the 1985 litigation did not declare their rights to the
leases, nor determine any issues relevant to the present
litigation. Similarly, collateral estoppel does not bar their
suit because none of the issues raised in their suit were
actually litigated or resolved in the 1985 suit.5
In the superior court the Family successfully argued
that the stipulation to dismiss filed in the 1985 declaratory
judgment suit barred litigation of the claims raised by Sara and
Timothy in the instant suit. The superior court incorrectly
applied res judicata to bar Sara and Timothy's suit. Although
the claims which Sara and Timothy are asserting against the
Family mirror the declarations sought by the Family in its 1985
suit against Timothy,6 the stipulation to dismiss which concluded
the 1985 suit only resolved the issue of Timothy's ownership of
lease numbered 215072 by having him transfer the lease to his
sister. It did not address whether Timothy held the lease in
trust for the Family or whether his successor, Joann, would hold
the lease in trust for the Family.
The 1985 action was brought to prevent the commission
of a perceived threatened harm. Timothy was threatening to sell
the shore fishery lease in his name to someone outside of the
Family. The plaintiffs claimed that Timothy held the lease for
the use of the Family as a trustee, and therefore, lacked the
authority to sell it to the general public. They requested a two
part declaration as relief: (1) that Timothy "be ordered to
transfer" the lease to Joann; (2) that the lease "is held in
trust for the Jackinsky family." However, the threatened wrong
never became more than a threat as the case was settled and the
lease was transferred to Joann.
Section 33 of the Restatement (Second) of Judgments
expresses the rule governing the preclusive effect of an action
designed to prevent the commission of a threatened wrong.
A valid and final judgment in an action
brought to declare rights or other legal
relations of the parties is conclusive in a
subsequent action between them as to the
matters declared, and in accordance with the
rules of issue preclusion, as to any issues
actually litigated by them and determined in
Restatement (Second) of Judgments 33 (1982).
As noted, no declarations were made in the 1985 suit,
as it was settled. The settlement prevented any issues from
actually being litigated or determined. Section 27 of the
Restatement (Second) of Judgments, cross-referenced by Section
33, provides that the determination of actually litigated issues
will have preclusive effect in later litigation. It states:
When an issue of fact or law is actually
litigated and determined by a valid and final
judgment, and the determination is essential
to the judgment, the determination is
conclusive in a subsequent action between the
parties, whether on the same or a different
Restatement (Second) of Judgments 27 (1982).
The commentary to this section of the Restatement
indicates that an issue is actually litigated when it is raised
and submitted for determination. Id. cmt. d. Although cases
which are resolved by settlement or consent or confession of
judgment do not involve actual litigation of an issue of fact or
law, they can have claim preclusive effects.
In the case of a judgment entered by
confession, consent, or default, none of the
issues is actually litigated. Therefore, the
rule of this Section does not apply with
respect to any issue in a subsequent action.
The judgment may be conclusive, however, with
respect to one or more issues, if the parties
have entered an agreement manifesting such an
Restatement (Second) of Judgments 27 cmt. e (1982). The
stipulation to dismiss the 1985 suit did not manifest an the
intent to resolve any of this issues presented by the present
litigation. The only issues addressed by the stipulation to
dismiss are Timothy's transference of his lease and his rights to
certain property held by the Family. As there was neither a
determination of any relevant issues nor a manifestation of
intent to resolve any relevant issues, the 1985 case cannot bar
the present action.
The Family cites a trio of cases for the proposition
that declaratory judgment actions in which there was no "actual
litigation of the issues"nonetheless may have res judicata
effect. See Dale v. Greater Anchorage Area Borough, 439 P.2d 790
(Alaska 1968); Jefferson v. Greater Anchorage Area Borough, 451
P.2d 730 (Alaska 1969); Jefferson v. Asplund, 458 P.2d 995
(Alaska 1969) (Jefferson II). In Dale, the plaintiff challenged
an election conducted by the Borough on a number of grounds. The
superior court dismissed her complaint on the grounds she had not
complied with a Borough ordinance which required one seeking to
challenge an election to file a notice of contest with the
Borough Assembly. We affirmed holding:
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. The reason for this, as
expressed by one court, is that public policy
demands that election results have stability
Dale, 439 P.2d at 792 (citations omitted). In the second case,
Jefferson v. Greater Anchorage Area Borough, Jefferson sought to
challenge the same election. We held that Jefferson's claim,
although it contained an allegation of illegality not present in
the Dale complaint, was barred by the doctrine of res judicata
and properly dismissed. Jefferson, 451 P.2d at 733. In reaching
this conclusion, we noted that according to the Borough's clerk
no one had filed a notice of election contest. Id. at 733, n.10.
In the third case, Jefferson II, Jefferson again attempted to
challenge aspects of the same election, and again his complaint
was dismissed on res judicata grounds. Jefferson II, 458 P.2d
Contrary to the Family's argument, these cases do not
stand for the proposition that declaratory judgments have res
judicata effect as to issues not actually litigated. What was
litigated in the first case was the question of whether an
election contestant had to file a notice of election contest
before filing suit. In terms of the Restatement (Second) of
Judgments sections 33 and 27, this was an actually litigated
issue upon which it was appropriate to predicate issue preclusion
in the second and third cases assuming the other requirements of
res judicata were met. These cases therefore do not serve as
precedent upon which to base an argument that res judicata can
bar issues not previously litigated.
The superior court relied on Tolstrup v. Miller, 726
P.2d 1304 (Alaska 1986), to conclude that this case was barred by
the doctrine of res judicata. However, Tolstrup is
distinguishable. It involved a violation of the rule prohibiting
splitting a cause of action. In Tolstrup the claim in the
subsequent suit was "part of the same transaction" as the
counterclaim in the prior suit which was extinguished by a
settlement. Id. at 1307. By contrast, the controversy giving
rise to the case at bar was not born until after the 1985
litigation was concluded. In 1985 there was no controversy
surrounding the ownership of leases number 215070 and 215071.
Although the 1985 suit sought declarations regarding the rights
of all of the named leaseholders, under the plain language of AS
22.10.020, as interpreted by Jefferson v. Asplund, 458 P.2d 995
(Alaska 1969), the claim relating to Timothy's lease was the only
actual controversy which could have been resolved in the
stipulation to dismiss. Thus, the only resolvable controversy in
the 1985 suit was whether Timothy could sell the shore lease,
registered in his name, to someone outside the Family.
Res judicata does not act as a bar when the conduct
giving rise to the later suit post-dates the conclusion of the
first suit. Restatement (Second) of Judgments 24 cmt. f
(1982);7 See Pankratz v. State, Dep't. of Highways, 652 P.2d 68,
73-74 (Alaska 1982). All of the claims in the instant suit
concern conduct which arose after the 1985 suit. First, Joann
and Benjamin did not claim that the leases in their names were
their own personal property until 1991. Second, Edward did not
claim ownership until his answer to Sara and Timothy's complaint.
Third, the transaction by which Joann allegedly violated the
earlier settlement did not arise until after the 1985 suit.
Additionally, res judicata does not bar Sara and
Timothy's suit because the doctrine does not apply where a party
did not have a fair opportunity to litigate the matter at issue
in the earlier suit. Ferguson v. State, Dep't. of Corrections,
816 P.2d 134, 138 (Alaska 1991). The declarations sought in the
1985 suit were not addressed by the stipulation to dismiss.
Thus, the instant suit resembles a suit in which the issue raised
in a later case is not barred because the issue was not addressed
in an earlier case, since it was either moot or not ripe. See
Vertecs Corp. v. Richold Chems., Inc., 671 P.2d 1273, 1276
(Alaska 1983) (holding that the doctrine of res judicata did not
apply where the superior court had refused, in an earlier suit,
to consider certain issues which it believed were not ripe for
adjudication); Ostrow v. Higgins, 722 P.2d 936, 938-39 (Alaska
1986) (holding that the fact that an earlier suit was dismissed
as moot did not act as a bar to later suits generally concerning
the transaction involved in the mooted suit).
C. Attorneys' Fees
Since we reverse the superior court's grant of summary
judgment, the award of attorneys' fees must also be reversed.
The superior court's dismissal of this suit based on
the doctrine of res judicata is REVERSED and this case is
REMANDED for a trial on its merits. The superior court's grant
of attorneys' fees is also REVERSED pending a determination of a
trial on the merits.
IN THE SUPREME COURT OF THE STATE OF ALASKA
SARA L. JACKINSKY, and )
TIMOTHY JACKINSKY, ) Supreme Court No. S-6081
Appellants, ) Superior Court No.
) O R D E R*
EDWARD JACKINSKY, )
WADE C. JACKINSKY, )
GARY W. JACKINSKY, )
JOANN JACKINSKY )
BENJAMIN JACKINSKY, and )
MARY S. JACKINSKY, )
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton, and Eastaugh, Justices.
IT IS ORDERED:
1. The question of whether or not the preliminary
injunction, which was reinstated by order of Justice Compton on
April 13, 1995, should be continued is REMANDED to the Superior
Court. The preliminary injunction shall remain in effect pending
the Superior Court's determination whether or not to continue the
2. The Superior Court may proceed with the hearing
concerning the preliminary injunction before the expiration of
the ten-day period for filing a petition for rehearing or before
this court rules on any petition for rehearing which may be
Entered by direction of the court at Anchorage, Alaska
on May 12, 1995.
CLERK OF THE SUPREME COURT
*The court's opinion deciding this appeal is issued today
and is attached hereto.
1 Benjamin was issued shore fishery lease ADL No. 215070,
Edward ADL No. 215071, and Timothy ADL No. 215072.
2 With the exception of Timothy's affidavit, the segments
of the record cited by Sara and Timothy to support these
allegations neither confirm nor deny them.
3 As a consequence, defendants Joann, Benjamin and Mary
Sue were awarded $11,000, approximately 42% of their actual fees;
Gary and Edward $5,000, approximately 52% of the actual fees; and
Wade $6,000, approximately 41% of her actual expenses.
4 It is not disputed that all of the current parties were
involved in the 1985 suit which ended in a stipulation to
5 The other elements of these doctrines are not at issue.
In Tolstrup this court held that a stipulation to dismiss claims
with prejudice operates just as an adjudication on the merits for
res judicata purposes. Tolstrup, 726 P.2d 1304, 1306 (Alaska
1986). This dismissal has the same res judicata effect as a final
judgment after trial on the merits. Id. All of the parties to
this suit were parties to the 1985 suit, and therefore, the party
against whom issue preclusion is being asserted was a party to
the initial suit.
6 In the 1985 suit the Family claimed that the lease
which Timothy was threatening to sell was held by him in trust
for the Family. "ADL No. 215072 was placed in the name of
Timothy Edward Jackinsky with the express understanding and
agreement that the lease was being held for the entire Jackinsky
family." The requested relief was not limited to a declaration
about only Timothy's permit. The complaint in the 1985 suit also
alleged that "[t]here was an agreement amongst all of the
Jackinskys that any family member whose name was on the shore
fishery lease agreements would hold the lease as a trustee for
the family and not for anyone's individual benefit."
Compare this with the instant case where Sara and
Timothy allege that the leases were assigned to the titular
leaseholder "with the express understanding and agreement that
the leases were being held for the entire Jackinsky family."
Their complaint goes on to allege that "[p]laintiffs believe that
the leases in the names of Edward, Joann and Benjamin Jackinsky
are held by them as trustees for the entire Jackinsky family."
7 The Restatement provides:
Change of Circumstances. Material
operative facts occurring after the decision
of an action with respect to the same subject
matter may in themselves, or taken in
conjunction with the antecedent facts,
comprise a transaction which may be made the
basis of a second action not precluded by the
Restatement (Second) of Judgments 24 cmt. f (1982).