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Mundt v. Northwest Explorations, Inc. (8/14/98), 963 P 2d 265

     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.


VALERIE V. MUNDT,             )
                              )    Supreme Court No. S-8494
               Petitioner,    )
                              )    Superior Court No.
          v.                  )    4FA-89-1978 CI
and RICHARD DEAN,             )
               Respondents.   )    [No. 5022 - August 14, 1998]

          Petition for Hearing from the Superior Court
of the State of Alaska, Fourth Judicial District, Fairbanks,
                    Ralph R. Beistline, Judge.

          Appearances: Valerie V. Mundt, pro se,
Fairbanks.  Elliot T. Dennis, Pletcher, Weinig, Moser & Merriner,
Anchorage, for Respondent Northwest Explorations, Inc.  No
appearance by Respondent Richard Dean. 

          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.

          PER CURIAM.

          Valerie Mundt petitioned this court to review the
superior court's refusal to let her peremptorily change the judge
assigned to this case.  She tried to do so after intervening in the
case to challenge a quiet-title order.  The order implemented a
judgment enforcing a settlement agreement between Northwest
Explorations, Inc. and a third party.  Mundt claims that the order
invalidates her title to properties outside the scope of the
settlement agreement.  We granted her petition.  For largely the
same reasons that we recently held that Mundt had a right to
intervene in the case, we reverse the order denying her peremptory
challenge, and remand for further proceedings.
          We briefly recounted this litigation's history in Mundt
v. Northwest Explorations, Inc., 947 P.2d 827 (Alaska 1997) (Mundt
I), the third chapter of that history that we have written.  See
also Ashbrook v. Northwest Explor., Inc., Mem. Op. & J. No. 776
(Alaska, May 10, 1995); Ashbrook v. Northwest Explor., Inc., Mem.
Op. & J. No. 726 (Alaska, June 22, 1994) (Ashbrook I).  We recount
the facts even more briefly for this opinion -- chapter three, part
          In 1989 Daniel Ashbrook and Northwest began litigating
over some parcels of land, some of which Ashbrook later deeded to
Mundt.  Ashbrook and Northwest agreed to a settlement requiring
Ashbrook to convey various parcels to Northwest.  We affirmed a
judgment enforcing the agreement over Ashbrook's objections.  See
Ashbrook I.  When the superior court entered an order quieting
title to the parcels that Ashbrook had agreed to give Northwest, it
voided the deeds conveying land from Ashbrook to Mundt.  At this
point, Mundt sought to intervene as of right in the case, arguing
that the quiet-title order divested her not only of parcels to
which the settlement entitled Northwest, but of parcels to which it
had no right.  The superior court denied her motion to intervene;
we reversed.  See Mundt I, 947 P.2d at 831.
          On remand, Mundt filed a timely notice of change of judge
under Alaska Civil Rule 42(c), which prescribes procedures for
exercising the right to peremptorily change judges created by
AS 22.20.022.  See Tunley v. Municipality of Anchorage Sch. Dist.,
631 P.2d 67, 70 71 (Alaska 1981).  Northwest opposed the change,
and the superior court denied it without comment.  The court also
summarily denied Mundt's motion to reconsider.  She petitioned this
court for review.
     A.   Reviewing the Superior Court's Decision Now Will Avoid
Unnecessary Delay and Expense for the Parties and Court.

          Because the superior court's refusal to change judges is
not a final judgment, we will review it only if the reasons to do
so outweigh "the sound policy behind the rule requiring appeals to
be taken only from final judgments."  Alaska R. App. P. 402(b). 
Northwest concedes that, if Mundt is indeed entitled to a
peremptory change of judge, it will spare the parties and the court
system delay and expense to determine that now, rather than learn
on appeal that the superior court should have changed judges, and
have to retry the case before a new judge.  This implicates the
first ground for granting interlocutory review under Appellate Rule
402.  See Alaska R. App. P. 402(b)(1) ("Postponement of review
until appeal may be taken from a final judgment will result in
injustice because of . . . unnecessary delay, expense, hardship or
other related factors[.]").  Given Northwest's sensible concurrence
on this point, [Fn. 1] we granted Mundt's petition.
     B.   The Superior Court Erred in Declining to Change Judges
          While the superior court gave no reasons for ruling that
Civil Rule 42(c) did not afford Mundt a right to a change of judge,
[Fn. 2] Northwest articulated three reasons for such a ruling in
opposing Mundt's notice of change of judge, and in responding to
her petition for review. [Fn. 3]  We address them in turn.
          1.   Ashbrook and Mundt are not on the same side of this

          Rule 42(c) provides that "each side [in an action] is
entitled as a matter of right to a change of one judge. . . . Two
or more parties aligned on the same side of an action, whether or
not consolidated, shall be treated as one side for purposes of the
right to a change of judge . . . ."  Alaska R. Civ. P. 42(c)(1). 
Ashbrook peremptorily changed the judge in this case in 1990. 
Given that Ashbrook and Mundt are "aligned on the same side"of
this action, Northwest argues, their "side"has thus already
exhausted its right to a change of judge.
          In reversing the superior court's determination that
Mundt had no right to intervene, we held that "Ashbrook's interests
were not coextensive with those of Mundt, since he would receive
title to the parcels in question if the deeds conveying them to her
were invalidated."  Mundt I, 927 P.2d at 831.  It is thus the law
of the case that Mundt's and Ashbrook's interests differ.  Mundt
also notes that the court could invalidate her title to property
that she claims is rightly hers and is unaffected by the Northwest-
Ashbrook dispute.  If the court uses that property to satisfy
Ashbrook's obligation to Northwest, it will give Ashbrook the
windfall of having both sold the property to Mundt and then gotten
part of it back, without compensating her, to meet his duty to
Northwest.  "Far from being co-extensive,"she concludes, her
"'side' and Ashbrook's 'side' are actually opposed."
          Northwest offers no reason why Mundt's and Ashbrook's
interests differ enough that Mundt has a right to intervene, but
not enough for them to be on different "sides."  Northwest quotes
a test for whether parties are "on the same side"of an action for
purposes of federal diversity jurisdiction.  See 13B Charles A.
Wright et al., Federal Practice and Procedure: Civil sec. 3607
(describing test as "whether the parties [share] the same 'ultimate
interests' in the outcome of the action").  This test only provides
a new verbal formula for the same inquiry into the parties'
interests; it cannot change the fact that Ashbrook simply does not
share Mundt's "ultimate interest"in undoing the invalidation of
the deeds conveying the disputed parcels from him to her. 
Northwest stresses that Mundt originally acquired her now-imperiled
interests from Ashbrook, but that does not mean that his and her
interests are currently the same.  This is not a case where parties
have potentially divergent interests but are still "on the same
side"of the issue or issues currently in dispute.  Mundt's and
Ashbrook's interests, as we recently held, have already diverged. 
We thus make explicit what was implicit in our prior holding: they
are no longer on the same "side."[Fn. 4]
          2.   Nothing in AS 22.20.022 or Rule 42(c) prevents an
intervenor who enters a case after an initial judgment and appeal
from exercising the right to peremptorily change judges.

          A peremptory change of judge is a matter of right.  We
have approvingly quoted the following commentary: 
          Once an application for leave to intervene has
been granted, the intervenors are parties to the litigation and as
such entitled to all rights enjoyed by parties . . . including,
according to the doctrine upheld by several decisions, the right to
apply for disqualification of the judge.

P.A. Agabin, Annotation, Intervenor's Right to Disqualify Judge, 92
A.L.R.2d 1110, 1112 (1963) (quoted in Tunley, 631 P.2d at 73 n.11). 
          Northwest challenges Mundt's reliance on that comment by
noting that we have never established a "bright-line rule"that an
intervenor can change judges "when the case is in a post-judgment
and post-appeal collection stage."  That is true, for Tunley did
not involve such a situation, [Fn. 5] but Northwest's argument begs
the question of whether there is any reason to find that the
straightforward rule we quoted in Tunley should not apply when a
party intervenes after judgment, instead of before judgment.  To
argue that it should not, Northwest notes that the annotation we
cited in Tunley also says that
          [i]n some instances the right of an actual
intervenor to apply for disqualification of a judge has been denied
. . . [based on] the general doctrine that an intervenor must take
the case as he finds it, or on such specific circumstances as that
some aspects of the litigation were judicially heard [before]

Agabin, supra, at 1114.
          Northwest claims that, given the judgment against
Ashbrook, this case is in a ministerial "judgment-enforcement
stage"and not truly "pending"and "before trial"within the spirit
of Rule 42(c).  It further claims that, because Mundt knew of the
litigation long before she intervened, she should have done so
sooner to protect her interests, and now must take the case as she
finds it. [Fn. 6]
          Northwest does not, however, cite any authority for its
theory that intervenors should not be able to change judges if they
enter a case in a post-judgment stage.  To the extent that it
suggests a general rule of law that an intervenor's right to change
judges depends on the stage of litigation, its claim is unfounded. 
To the extent it asks us to apply the annotation's comment, whose
validity we doubt, [Fn. 7] and find that Mundt's "specific
circumstances"disentitle her to change judges, its argument is
          Mundt stresses that she 
          does not seek to relitigate [matters decided]
by Judge Savell. [Her] interest in intervening was triggered by the
[1995] post-judgment Order . . . [which] went outside the scope of
the [1992] judgment [finding the settlement agreement between
Ashbrook and Northwest enforceable] inasmuch as it divested Mundt
of title to property in which Northwest has no interest and to
. . . property not within the scope of the litigation.

In Mundt I, we held that Mundt had a right to intervene so that she
could, as her petition reiterates, protect her ownership interest
in the disputed parcels, not relitigate the judgment that enforces
the agreement allocating rights and duties between Ashbrook and
Northwest.  She could not have intervened to protect her interests
until after the superior court had entered a quiet-title order
that, if her version of the facts is true, exceeds the scope of the
1992 judgment and imperils those interests.  She is as much
entitled to challenge the judge who will resolve her claim, and
decide whether her version of the facts is indeed true, as is any
other litigant.
          3.   Mundt's right to change judges does not depend on
balancing her interests against those of Northwest or of the court
          Northwest's third argument overlaps its claim that the
"specific circumstances"of the case disentitle Mundt to change
judges.  It argues that the prejudice to it, and the loss to the
judicial system of Judge Savell's experience with the case,
outweigh Mundt's interest in a change of judge.  The right to
change judges, however, does not depend on an absence of prejudice
to other parties or the judicial system.  For a party like Mundt
who meets the requirements of Rule 42(c), the right is just that --
a right, not an interest subject to balancing. [Fn. 8]
          To the extent that Northwest fears having to relitigate
issues already decided, its recourse is to show the new judge that
Judge Savell has already decided any issues that Mundt tries to
reopen.  The court can readily dismiss any attempt to relitigate
issues as barred by the law of the case, or beyond the scope of
Mundt's intervention.  Any change of judge may cause delay as a new
judge learns a case, but the legislature and this court have
promulgated clear directives requiring that delay.  And any
party -- original or intervening -- may cause a prevailing party
like Northwest the delay and expense of having to show that an
adversary is trying to relitigate settled issues. [Fn. 9] 
Northwest suggests that the result of combining those two typical
risks -- i.e., the extra delay and expense of demonstrating to a
new judge that an adversary is trying to relitigate issues settled
by the prior judge -- requires an exception to Rule 42(c).  Its
arguments, however, do not convince us that a straightforward
application of the rule yields so extreme or absurd a result in
this case as to require us to bend the plain language of the rule.
          We REVERSE the superior court's order declining to change
judges and REMAND for proceedings consistent with this opinion.


Footnote 1:

     Northwest does urge us to deny review because Mundt's notice
of change of judge is a "delay tactic,"and because granting review
and requesting briefing could extend the litigation for months. 
Our conclusion that we can reverse the decision below without
having to request briefing, however, obviates that problem.

Footnote 2:

     The interpretation and application of Rule 42(c) poses a
question of law that we review de novo.  See Staso v. State, Dep't
of Transp., 895 P.2d 988, 990 (Alaska 1995).

Footnote 3:

     Northwest's response to Mundt's petition enumerates four
reasons, but two of them are basically the same. 

Footnote 4:

     We do not suggest that two litigants' interests must be
perfectly aligned before a court may treat them as one "side"under
Rule 42(c).  Mundt's late entry into this case, however, precluded
her from participating at all in the peremptory challenge  that
Ashbrook had exercised.  In such circumstances, even a relatively
minor divergence of interest makes it improper to treat two parties
as one "side."

Footnote 5:

     Tunley did not, in fact, involve an intervenor at all.  See
Tunley v. Municipality of Anchorage Sch. Dist., 631 P.2d 67,  69 70
(Alaska 1981).  A plaintiff in Tunley sought to change the judge to
whom his case had been assigned after it was consolidated with
another case.  We analogized that plaintiff to an intervenor,
noting the latter's right to change judges.  See id. at 73 n.11.

Footnote 6:

     Northwest contrasts Mundt with the intervenor whom we found
entitled to change judges in Barber v. Barber, 915 P.2d 1204, 1208
(Alaska 1996).  Northwest notes that, unlike Mundt, Barber had not
had notice of the litigation or tried to appear in it before he
intervened.  This argument is off-point, for we noted those facts
in Barber in regard to an issue not involved here -- to wit,
whether Barber had, under Civil Rule 42(c)(4), waived his right to
a change by knowingly appearing before the current judge. 

Footnote 7:

     The annotation cited but one relevant holding, and two
distinguishable ones, to support this comment.  See P.A. Agabin,
Annotation, Intervenor's Right to Disqualify Judge, 92 A.L.R.2d
1110, 1114 (1963) (citing Harms v. Coors, 167 P.2d 353 (N.M. 1946)
(holding that intervenors cannot change judge); Lane v. Ferguson,
156 P.2d 236 (Ariz. 1945) (holding that party seeking to intervene
cannot challenge judge before intervention granted); and State ex
rel. Lebeck v. Chavez, 113 P.2d 179 (N.M. 1941) (same as Lane)). 
Updates to the annotation, and our research, show that no court has
since cited Harms or otherwise held that an intervenor could not
change judges.  Nevada's Supreme Court expressly rejected Harms in
adopting a rule that an intervenor has the same right to disqualify
a judge as any other party.  See State ex rel. Moore v. Fourth
Jud'l Dist. Ct., 364 P.2d 1073, 1076-77 (Nev. 1961) (following City
of San Diego v. Andrews, 231 P. 726, 728 (Cal. 1924)).

Footnote 8:

     Rule 42(c)'s title, "Change of Judge as a Matter of Right,"
and its requirement that a party call its pleading a "notice"(not
a "motion") and "neither specify grounds nor [attach] an affidavit"
make clear that a change is automatic, not subject to a balancing
inquiry, if the rule's requirements are met.

Footnote 9:

     See, e.g., Ashbrook v. Northwest Explor., Inc., Mem. Op. & J.
No. 776 at 5 6 (Alaska, May 10, 1995) (involving original party
Ashbrook's attempt to relitigate issues).