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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wagner v. Wagner (04/17/2009) sp-6365
Notice: This opinion is subject to 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,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| RICHARD WAGNER, | ) |
| ) Supreme Court No. S- 12666 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 4FA-03-00181 CI |
| ) | |
| GREGORY WAGNER, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6365 - April 17, 2009 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Mark I. Wood, Judge.
Appearances: S. Jason Crawford, Crawford Law
Offices, LLC, Fairbanks, for Appellant. John
J. Connors, Law Office of John J. Connors,
P.C., Fairbanks, for Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice not participating.]
CARPENETI, Justice.
I. INTRODUCTION
In 2005 the trial court awarded a judgment for specific
performance to a son against his father on a contract entered
into by father and son in which the son helped the father obtain
a bank loan. The father appealed that judgment to this court in
2006, but we dismissed that appeal for lack of prosecution. The
father did not pay, and in 2007 the trial court issued a writ of
execution against him. The father now appeals from that writ of
execution. The father raises three questions on appeal: (1) Did
the trial court err in its 2005 judgment by ordering specific
performance based on the royalties from certain of the fathers
oil and gas leases that were not part of the security for the
loan? (2) Did the trial court err in awarding specific
performance rather than a lump sum judgment? and (3) Did the
trial court erroneously stray from the formula in the 2005
judgment when it calculated the amount due to the son in the writ
of execution?
Of these three questions raised, we reach only the
third. We decline to decide the first and second issues because
they are both time-barred and barred by our dismissal of the
fathers appeal from the 2005 judgment for failure to prosecute.
The fathers first and second questions challenge the 2005 order
and judgment, and he cannot make those challenges now. And we
conclude the third challenge cannot succeed. What the father
claims was error is, in fact, the correct calculation ordered by
the trial court in 2005. Accordingly, we affirm the judgment of
the superior court.
II. FACTS AND PROCEEDINGS
A. Facts
Richard Wagner filed for bankruptcy in 1988.1 Richards
assets included royalties from oil and gas leases he possessed.
Richards creditors included Key Bank, whom Richard owed $2.5
million. The bankruptcy court issued Richards final bankruptcy
plan in 1994. The plan divided Richards oil and gas lease
royalties among his creditors. In 2001 Key Bank offered to
settle Richards $2.5 million debt for $1 million if Richard paid
by December 31, 2001. Richard was unable to raise the money; he
therefore asked his son Gregory Wagner to help him get a loan.
Gregory agreed to co-sign a $1,025,000 loan from
Northrim Bank with Richard. Gregory and his wife put up their
home as collateral and put their personal credit at risk. In
exchange for Gregorys co-signature on the loan, Richard and
Gregory entered into an oral agreement, which they later reduced
to writing.
The written agreement provided that income from
Richards royalties that had secured the Key Bank loan would first
pay the Northrim loan. Any remaining royalty income would be
divided as follows: Gregory would get the first $2,500 per month,
Richard would get the next $7,500 per month, and they would
divide any remaining royalty income equally between them. The
agreement did not take into account the portions of royalty
income to be paid to other creditors under the bankruptcy plan.
B. Proceedings
In 2002 Richard defaulted in his payments to Gregory,
and Gregory sued in 2003. The case went to trial in August 2005.
At the end of trial, the jury returned the following answers to
the following special interrogatories:
[Q:] Prior to the time the Wagners signed the
loan documents at Northrim Bank on December
24, 2005, had they entered into an oral
agreement? [A:] Yes.
[Q:] If yes, what were the terms of that
agreement? [A:] In exchange for getting a
$1,025,000 loan from Northrim bank to repay
Richard Wagners debt at Key Bank, Greg Wagner
will receive a share of profits from Richard
Wagners oil royalties.
The jury found breach by Richard and awarded Gregory past damages
of $139,180.39.2
In November 2005 the superior court concluded that
specific performance was an appropriate remedy and ordered
Gregory to prepare a judgment for specific performance. The
court held, contrary to Richards argument, that the jurys failure
to specify the terms of the oral agreement did not prevent
specific performance. The court reasoned that the jury must have
used the terms of the written agreement to calculate its award of
past damages, and therefore that the jury must have found the
terms of the oral agreement consistent with the terms of the
written agreement. The court wrote:
Applying the formula of the [written]
agreement mechanically to the testimony of .
. . [a witness] and the other evidence of the
oil revenues from Richards shares of his oil
leases introduced at trial, the past damages
would be calculated at $141,124.00. That is
within $2000.00 of what the jury actually
awarded [$139,180.39]. The jury did not
receive a lot of help from counsel in
calculating past damages and their award to
Greg is within reasonable mathematical error
if they performed the calculations under the
agreement themselves . . . . The difference
could also be explained by the jurys
determination that there were insufficient
royalties to meet the complete payout of the
agreement on one or more months.
The trial court said it would order Richard to pay
Gregory according to the formula in the written agreement. The
trial court also said it would calculate Gregorys payments
without deducting amounts owed to creditors other than Northrim
Bank, including the Weeks Foundation. In December 2005 the
superior court entered judgment for specific performance against
Richard.
In his earlier appeal which we ultimately dismissed
for lack of prosecution Richard challenged a number of the
superior courts conclusions of fact and law. He generally did
not state any legal grounds for those challenges, merely stating
that the superior court erred in entering them. He challenged
the superior courts conclusion of law that [t]he contract between
Richard and Greg is sufficiently clear and definite that the
Court is able to enforce it without having to supply essential
terms that the parties did not agree to. He also challenged the
superior courts decision to order specific performance into the
future, as well as the superior courts order that all Richards
royalty income be paid directly into an escrow account and
directly disbursed from the escrow account, without ever passing
through Richards control.
In March 2007 the superior court issued a writ of
execution against Richard for arrearages owed to Gregory under
the December 2005 specific performance judgment. Richard appeals
from this writ of execution.
III. STANDARD OF REVIEW
We review questions of law de novo and questions of
fact for clear error.3 We review awards of specific performance
for abuse of discretion.4 We will not upset a jury verdict if
there is a logical theory that reconciles apparent
inconsistencies in the jury verdict.5
IV. DISCUSSION
A. Two of Richards Points Are Barred.
We decline to resolve two of Richards issues because
they challenge the 2005 judgment, from which Richard already
appealed. We dismissed that appeal because Richard failed to
prosecute it.6 Alaska Statute 22.05.010 establishes that a party
has only one appeal as of right. Richard used that appeal from
the 2005 orders in 2006. His points on appeal in 2006, listed
above, appear to cover his current arguments that the trial court
deviated from the jury award by calculating specific performance
based on too many of Richards leases and that the trial court
erred by awarding specific performance.7
Even if Richards previous appeal did not cover these
arguments, any challenges to the 2005 judgment are also time-
barred. Alaska Appellate Rule 204 requires a party to appeal
within thirty days of entry of a final order or judgment.
Appellate Rule 202 provides that a party may appeal a final
judgment entered by the superior court.8 We have defined final
judgment as one that ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.9 In this
case, litigation on the merits ended with the November and
December 2005 orders. As our definition of final judgment
indicates, execution comes after final judgment. Execution does
not give a party a second chance to appeal the merits more than
thirty days after the entry of final judgment.
Thus, we will reach only the merits of Richards claim
that the trial court incorrectly calculated the amount awarded in
the writ of execution.
B. The Trial Court Did Not Err in Its Writ of Execution by
Calculating Amounts Due Gregory Without Deducting
Amounts Owed to Richards Bankruptcy Creditors.
Richard argues that the trial court erred in its March
2007 writ of execution by calculating the amount due Gregory
without deducting amounts owed to Richards bankruptcy creditors,
particularly the Weeks Foundation. But we conclude that cannot
be error because that calculation mirrored the jurys findings and
because the trial court plainly stated, in both its November and
December 2005 orders, that it would calculate amounts due Gregory
without regard for the Weeks Foundations claims. Richard points
to no evidence in the record that the trial courts writ of
execution strayed from the formula laid out in detail in both the
November and December 2005 orders.
First, in its November 2005 order on specific
performance, the trial court made the following finding of fact:
The Wagners agreement makes no provision for payments to Weeks[,]
and Gregorys share of royalties is determined without any
deduction for the payments Richard was required to make to Weeks.
The trial court then concluded:
The calculation of amounts allocated to
Gregory . . . should be made each month by
taking the gross royalties, subtracting
amounts paid to Northrim Bank, and then
allocating to Gregory $2,500 plus 50% of the
balance over $10,000; the amount so
allocated, even though actually paid to
Weeks or to tax and escrow costs, will be
part of the delinquent amounts to be paid to
Gregory . . . .
The formula in the trial courts December 2005 judgment
is consistent with its November order. The December order
provided:
[T]he amount to be allocated to Gregory
Wagner shall be determined by taking the
total royalties received each month and (I)
first, subtracting the amounts paid on the
obligation to Northrim Bank; (ii) second,
allocating to Gregory $2,500 or the remaining
amount, whichever is less; (iii) third, if
the difference between the royalties received
and the amounts paid to Northrim Bank exceed
$10,000, allocating to Gregory 50% of the
difference in excess of $10,000.
In its writ of execution, the trial court properly used
the same methodology that it had used in its November 2005 order
on specific performance and in its December 2005 judgment.
V. CONCLUSION
Because Richards first and second issues on appeal are
not properly before us, we decline to reach them. Because, in
regard to the third issue, the superior court did not err in
calculating the amount of the writ of execution, we AFFIRM the
decision of the superior court in all respects.
_______________________________
1 We outlined many of these facts in our first opinion in
this case, Wagner v. Wagner, 183 P.3d 1265, 1266 (Alaska 2008).
In that case we affirmed the trial courts award of attorneys fees
to Gregory, which Gregory had appealed. Richard filed a separate
appeal in that case, but we dismissed his appeal for lack of
prosecution.
2 Wagner, 183 P.3d at 1266.
3 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
4 See Moran v. Holman, 501 P.2d 769, 771 (Alaska 1972)
([A]n application for specific performance of a contract, as a
question of equity, is a matter addressed to the sound discretion
of the trial court . . . . The trial courts decision in such
circumstances will not be set aside unless against the clear
weight of the evidence. (quoting Jameson v. Wurtz, 396 P.2d 68,
74 (Alaska 1964))).
5 See McCubbins v. State, Dept of Natural Res., Div. of
Parks & Recreation, 984 P.2d 501, 506 (Alaska 1999).
6 See Alaska R. App. Pro. 511.5.
7 Richards argument that the trial court erred in
awarding specific performance is brief and unclear. Although it
seems most likely that he challenges the underlying 2005
judgment, it may be that he intended to challenge the writ of
execution. Even if we were to reach the merits on this point, we
would affirm the trial court. Richard argues that the trial court
should have awarded Gregory a lump sum judgment, rather than
specific performance, based on AS 09.17.040. That statute
applies only to tort cases, not contract cases like this one.
The statute requires that if a court awards damages for personal
injury, the court must award future damages as a lump sum at
current value. The court in this case has not awarded damages
for personal injury, and the statute plainly does not apply to
contract cases such as this one. We review a superior courts
order of specific performance for contract damages for abuse of
discretion. See Moran, 510 P.2d at 771 (Alaska 1972). We find
no abuse of discretion in this case.
8 Appellate Rule 403 allows petitions for appeals when
there is no appeal as of right, but those must be made within ten
days of the order.
9 Greater Anchorage Area Borough v. City of Anchorage,
504 P.2d 1027, 1030 (Alaska 1972) (quoting Catlin v. United
States, 324 U.S. 229, 233 (1944)), overruled on other grounds by
City & Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska
1979).
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