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Legge v. Greig (7/29/94), 880 P 2d 606
NOTICE: This opinion 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
PATRICIA LEGGE, ) Supreme Court No. S-5787
Appellant, ) Superior Court
) No. 4FA-91-175 CI
) O P I N I O N
ALBINA E. GREIG, )
) [No. 4106 - July 29, 1994]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Ralph R. Beistline, Judge
Appearances: Thomas R. Wickwire,
Fairbanks, for Appellant. Blake H. Call,
Guess & Rudd, Fairbanks, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton, Justices, and
Bryner, Justice, pro tem.*
BRYNER, Justice, pro tem.
MATTHEWS, Justice, with whom RABINOWITZ,
Justice, joins, dissenting.
Patricia Legge appeals the trial court's order denying
her motion to confirm a settlement agreement in a civil action.
Albina Greig responds that Legge has no right to appeal the
issue, because Legge voluntarily dismissed her case. We find
that Legge has failed to adequately brief the voluntary dismissal
issue and accordingly conclude that she has waived her right to
Patricia Legge (Legge) joined her husband, Earl, and
their son, James, in a suit seeking compensation from Albina
Greig for personal injuries Earl and James sustained in an
automobile accident with Greig and for the resulting loss of
consortium to Legge. Greig offered to settle the claims in
December 1992. Earl and James Legge made no attempt to accept
the settlement offer; Legge did. Greig, however, refused to
honor Legge's attempted acceptance and withdrew the offer.
Legge then moved for confirmation of the settlement.
Superior Court Judge Ralph R. Beistline denied Legge's motion,
stating, "It does not appear that there was a 'meeting of the
minds' sufficient to confirm settlement."
After the court denied her motion to confirm the
settlement, Legge filed a "Conditional Dismissal of Patricia
Legge's Claim,"wherein she purported to dismiss her claim while
reserving "the right to appeal the Order Denying Motion to
Confirm Settlement." Greig objected, pointing out that, under
Alaska Civil Rule 41(a),1 Legge had no right to dismiss her case
without obtaining either a stipulation from Greig, Civil Rule
41(a)(1), or approval of the court subject to "such terms and
conditions as the court deems proper." Alaska R. Civ. P.
Greig expressly refused to stipulate to a dismissal
under Civil Rule 41(a)(1). Greig further argued that a voluntary
dismissal amounted to a waiver of the right to an appeal and
that, for this reason, if the court ordered dismissal pursuant to
Civil Rule 41(a)(2), the dismissal should not be conditioned on
allowing Legge to appeal. In reply, Legge refused to concede
that she had no right to dismiss her claim unilaterally, that is,
without stipulation or court approval; Legge nevertheless asked
that "her Notice of Dismissal be treated as a motion in order to
satisfy Rule [41(a)(2)], assuming it applies, but disagrees that
At a subsequent hearing, the trial court informed Legge
that it would dismiss her claim with prejudice. However, the
court expressly declined to approve Legge's attempt to reserve
the right to appeal, indicating that the propriety of her right
to appeal was an issue for the appellate courts. For the record,
Legge stated that she was not "waiving [her] point earlier which
[was] dismissal with reserv[ation of] the right to appeal," but
otherwise did not object to the court's proposal to enter an
order of dismissal with prejudice. In response to Legge's
statement for the record, the court stated: "I understand you
are not waiving it, but . . . I'm not saying you're right or
wrong in that regard."
Thereafter, the superior court dismissed Legge's case
with prejudice. Upon concluding the proceedings involving the
remaining plaintiffs, the court entered judgment against Legge
and awarded Greig costs and attorney's fees in the amount of
$8,840. Legge appeals, seeking review of the superior court's
order denying her motion to confirm the settlement. Greig
opposes, asserting waiver.
One who acquiesces to a dismissal with prejudice waives
the right to an appeal. See Singh v. State Farm Mut. Auto. Ins.
Co., 860 P.2d 1193, 1197 (Alaska 1993); Harold's Trucking v.
Kelsey, 584 P.2d 1128, 1129-30 & n.3 (Alaska 1978). This is the
usual rule. Legge does not dispute it.
Legge plainly acquiesced to the superior court's
dismissal of her claim with prejudice and expressed her
willingness to litigate, on appeal, the propriety of her
reservation of the right to challenge the court's ruling on the
issue of settlement. There can be no question of Legge's having
been misled by her opponent or the court in choosing this course
of action. Greig expressly declined to stipulate to a dismissal
conditioned on Legge's reservation of appellate rights,
specifically arguing that Legge was seeking "to preserve a
'right' [she did] not possess through a pleading which has no
basis in the Civil Rules." The superior court informed Legge in
unmistakable terms that it would dismiss her case with prejudice
but was unwilling to condition the dismissal on her unilateral
reservation of appellate rights. The court repeatedly stated
that the propriety of Legge's purported reservation would be a
matter for the appellate courts. Legge plainly accepted
dismissal on these terms.2
In agreeing to the unconditional dismissal of her case,
Legge necessarily undertook the burden of establishing on appeal
her basis for claiming an exception to the general rule that a
voluntary dismissal amounts to a waiver of the right to appeal.
Yet Legge has made no meaningful effort to meet this burden.
Legge addresses the issue only in her reply brief; there, her
discussion consists of three short paragraphs of conclusory
argument and one paragraph containing a cursory discussion of
Cooksey v. State, 524 P.2d 1251 (Alaska 1974) -- the only
authority Legge cites or addresses.
Cooksey permitted a defendant in a criminal case to
enter a plea of no contest to an indictment while reserving the
right to appeal a potentially dispositive pretrial ruling. Id.
at 1255-57. The case is inapposite in the context of a civil
case, particularly one in which the attempted reservation of
appellate rights is by the plaintiff, the party who is vested
with the affirmative duty to proceed and who presumably exercises
ultimate control over the litigation, rather than by the
defendant, who is in a defensive posture and who, particularly in
a criminal case, has virtually no ability to control the destiny
of the case. Moreover, even if the rule adopted in Cooksey
were applied to Legge's case, it would not justify Legge's
purported reservation of the right to appeal. In Cooksey, the
defendant expressly made his plea of no contest contingent on his
ability to preserve his right to an appeal. The parties
negotiated the entry of the conditional plea, and the trial court
approved the procedure, accepting the plea subject to the
contingency of the defendants' being allowed to appeal. Id. at
1254-55. On its face, Cooksey would appear to require agreement
by the state and approval by the court. Here, by contrast, Legge
claims an absolute right to reserve her appellate remedy
unilaterally -- without agreement by her opponent or approval by
the court. Because Legge's dismissal was entered with neither
the stipulation of Greig nor the approval of the court, it would
not satisfy the Cooksey requirements.3
"Appellate briefs should be crafted to serve their
primary purpose 'which is to bring together the relevant facts
and law in a clear and concise manner so that the court is fully
informed.'" Kiester v. Humana Hosp. of Alaska, Inc., 843 P.2d
1219, 1227 n.8 (Alaska 1992) (quoting Dickerson v. Geiermann, 386
P.2d 217, 218 (Alaska 1962)). An issue given only cursory
treatment in a brief will be treated as abandoned. Petersen v.
Mutual Life Ins. Co., 803 P.2d 406, 410 (Alaska 1990). Legge's
cursory briefing of a significant and potentially difficult
jurisdictional issue leaves this court virtually no informed
basis for meaningful appellate review. We conclude that Legge
must be deemed to have abandoned the argument that her right to
appeal survived the dismissal with prejudice entered below.
The judgment is AFFIRMED.
MATTHEWS, Justice, with whom RABINOWITZ, Justice, joins,
The rule of law that should govern this case is that a
judgment resulting from a voluntary dismissal is appealable where
the dismissal was solicited in order to expedite review of a
prior order which disposed of the only claims that the appellant
wishes to pursue. This is the rule of law employed in the
federal courts. Empire Volkswagen, Inc. v. World-wide Volkswagen
Corp., 814 F.2d 90, 94-95 (2nd Cir. 1987); Studstill v. Borg
Warner Leasing, 806 F.2d 1005 (11th Cir. 1985). See 9 James W.
Moore, et al., Moore's Federal Practice 110.13, at 153
(1986). The policy on which this rule is based is that it is
wasteful to require a party to go to trial on claims the party is
willing to concede in order to preserve the party's right to
appeal claims which have already been decided. This rule should
apply to this case because the only claim Legge wished to pursue
when she solicited the dismissal was her claim to enforce the
terms of the settlement.
In my view Legge's briefing is not so cursory as to
justify this court's refusal to apply the foregoing rule.
Legge's failure to address the appealability issue in her opening
brief is understandable as the trial court had not made an
adverse ruling on it. Legge's discussion in her reply brief
refers to the approach taken by this court in criminal law cases.
That analogy is not exact, but it is reasonable as the policy
reasons for a "Cooksey"4 plea in a criminal case are similar to
those underlying the voluntary dismissal-appeal procedure
discussed above. As we stated in Cooksey, "it would be wasteful
of legal resources"to require the defendant to "undergo a full
trial for the mere sake of preserving the right to appeal" the
trial court's earlier ruling on the defendant's motion to
dismiss. 524 P.2d at 1256. We also noted a reluctance "to
establish a rigid rule requiring a defendant to undergo the
costly and futile ordeal of a complete trial"to preserve the
right to appeal a ruling on a pre-trial motion. Id. at 1255-56.
Similarly, Legge argues that "there are no efficiency or fairness
arguments favoring Greig's position that, after the trial court
denied Patricia's motion to confirm, she should have been
required to go to trial solely to preserve her appeal right."
I would proceed to review this case on the merits of
the question whether the court erred in not enforcing the
settlement contract. On the merits I think a remand is in order
so that the court can hold an evidentiary hearing on factual
issues pertaining to whether Greig's offer was conditional on
acceptance by all three plaintiffs.
* Sitting by assignment made under article IV, section 16
of the Alaska Constitution.
1 Civil Rule 41 provides:
(a) Voluntary Dismissal -- Effect
(1) By Plaintiff -- By Stipulation.
[A]n action may be dismissed by the plaintiff
without an order of the court: [a] by filing
a notice of dismissal at any time before
service by the adverse party of an answer or
of a motion for summary judgment, whichever
first occurs; or [b] by filing a stipulation
of dismissal signed by all parties who have
appeared in the action. Unless otherwise
stated in the notice of dismissal or
stipulation, the dismissal is without
prejudice, except that a notice of dismissal
operates as an adjudication upon the merits
when filed by a plaintiff who has once
dismissed in any court of this state, or of
any other state, or in any court of the
United States, an action based on or
including the same claim.
(2) By Order of Court. Except as
provided in paragraph (1) of this subdivision
of this rule, an action shall not be
dismissed at the plaintiff's instance save
upon order of the court and upon such terms
and conditions as the court deems
proper. . . . Unless otherwise specified in
the order, a dismissal under this paragraph
is without prejudice.
2 The superior court certainly would have had no
authority to enter a voluntary dismissal against Legge under
Civil Rule 41(a)(2) if Legge's motion to dismiss had been
conditioned on the trial court's approval of her proposal to
reserve her right to appeal. But Legge's statements and actions
below make it apparent that her motion to dismiss was not so
conditioned. Although the transcript of the hearing in which
discussion of this issue occurred is hardly a model of clarity,
we think it clear beyond cavil that Legge's counsel fully
understood the court's position -- that the court was willing to
dismiss Legge's case but would not pass on the propriety of her
unilateral reservation of the right to appeal, an issue the court
deemed appropriate for decision by the appellate courts -- and
that Judge Beistline fully understood Legge's position -- that
she insisted she did have the right to reserve her appellate
rights unilaterally and was willing to take her chances at
convincing the appellate courts on the issue.
At no point in the proceeding did the court indicate
any intent to dismiss Legge's claim without her acquiescence.
Nor did Legge argue at any point that she had a right, as a
precondition of dismissal, to have the trial court pass on the
propriety of her reservation of appellate rights. Legge voiced
no objection whatsoever to the trial court's unconditional
dismissal of her claim; and the record reveals no basis for Legge
to have concluded that an objection would have been futile had
she disagreed with the court's proposal to order dismissal
without passing on the propriety of reserving appellate rights.
Neither on appeal nor below has Legge questioned the
validity of the order dismissing her case. Indeed, Legge does
not even acknowledge that her case was dismissed by an order of
the trial court. In both of her briefs on appeal, Legge
expressly describes the dismissal of her cases as having resulted
from her own action rather than as a result of the court's order
of dismissal. Thus, in her opening brief, Legge states that "she
[Legge] dismissed her claim . . . specifically reserving this
issue;" and in her reply brief, Legge argues that, "[b]y
dismissing her claim with prejudice . . . then appealing the
final judgment based on the dismissal, Patricia [Legge] used the
correct means available to appeal the denial of her motion to
confirm the settlement." Legge's characterization of her
dismissal is fully in keeping with her original assertion below
that she had the unilateral right not only to reserve the right
to appeal but also to dismiss her own case without either
stipulation or court approval, as well as with her grudging
request for the court to order her case dismissed pursuant to
Civil Rule 41(a)(2) if the court disagreed with that position.
Given the totality of the record, we think it fair to conclude
that Legge acquiesced to the unconditional dismissal.
3 In terms of the reasoning we employed in Cooksey, these
differences are potentially crucial. In allowing the defendant
in Cooksey to pursue his appeal, we reasoned that, given the
conditional nature of the no contest plea, the state's agreement
to the conditional plea, and the court's approval of it, a
refusal by this court to honor the defendant's reservation of his
right to appeal would necessarily have rendered his plea
involuntary. Cooksey, 524 P.2d at 1255. No similar reasoning
could conceivably apply here, for Legge accepted dismissal
unconditionally, over express opposition by Greig and fully
understanding that the trial court did not approve her purported
reservation of the right to appeal. Under the circumstances,
denial of the right could have no effect on the voluntariness of
the tactical decision Legge made in procuring the dismissal of
4 So named because Cooksey v. State, 524 P.2d 1251
(Alaska 1974), was the first in a line of cases allowing criminal
defendants to appeal trial court rulings after entering nolo
contendere pleas. See C. Pengilly, Post-Plea Appeal of "Disposi
tive"Issues, 5 Alaska L. Rev. 221 (1988).