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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bradley v Bradley (09/28/2001) sp-5476

Bradley v Bradley (09/28/2001) sp-5476

     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.



             THE SUPREME COURT OF THE STATE OF ALASKA


ROBERT BRADLEY,               )
                              )    Supreme Court No. S-9345
             Appellant,       )
                              )    Superior Court No.
     v.                       )    4FA-98-1575 CI
                              )
JAMES R. BRADLEY and          )    O P I N I O N
LESLIE BRADLEY,               )
                              )
             Appellees.       )    [No. 5476 - September 28, 2001]
______________________________)


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


          Appearances:  Terrence H. Thorgaard,
Fairbanks, for Appellant.  James E. McLain, The Law Offices of
James E. McLain, Fairbanks, for Appellees.


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


          MATTHEWS, Justice.


          Robert Bradley appeals from a partial money judgment
entered against him on which the court permitted writs of execution
to issue.  All parties agree that the judgment is partial because
not all of the claims and counterclaims have been adjudicated. 
Because the superior court has not certified pursuant to Civil Rule
54(b) that there is no just reason for delay, the partial judgment
is not final.  Because the judgment is not final and thus cannot be
appealed of right, [Fn. 1] we have treated Robert Bradley's appeal
as a petition for review. [Fn. 2]  We grant the petition and
conclude that the trial court erred in permitting execution on the
judgment.  The established rule in Alaska, and elsewhere, is that
executions may not issue on partial judgments until they become
final. [Fn. 3]
          Accordingly, the directive on the partial judgment of
August 24, 1999, that execution may issue, must be vacated.  This
case will be remanded to the superior court for further proceedings
which may include consideration of whether this case is an
appropriate one for entry of a Civil Rule 54(b) certificate. [Fn.
4]
          REMANDED with directions to VACATE the partial judgment's
directive that execution may issue, and for further proceedings
consistent with this opinion.


                            FOOTNOTES


Footnote 1:

     See Alaska R. App. P. 202(a).


Footnote 2:

     See Alaska R. App. P. 402(b)(1); see also Aleut Corp. v.
Rogers, 619 P.2d 472, 473 (Alaska 1980) (treating as petition for
review under Appellate Rule 402 appeal from nonfinal judgment
because writ of execution for attorney's fees authorized).


Footnote 3:

     See Aleut Corp., 619 P.2d at 473; Cohen v. Board of Trustees
of the Univ. of Med. & Dentistry of New Jersey, 867 F.2d 1455, 1463
(3d Cir. 1989) (order disposing of one claim but not others not
final judgment and could not be certified to permit execution and
appeal); Redding & Co. v. Russwine Constr. Corp., 417 F.2d 721, 727
(D.C. Cir. 1969) ("An execution ordinarily may issue only upon a
final judgment . . . unless and until [54(b) certification] is done
[prevailing party] has no judgment upon which an execution may
issue prior to the adjudication of the case in its entirety.");
Budget Rent-A-Car Systems, Inc. v. Salazar, 846 P.2d 901, 903 (Haw.
App. 1993) ("[Rule 54(b)] order makes a judgment final, both for
purposes of execution and appeal"); CIT Fin. Servs. v. Herb's
Indoor RV Ctr., 702 P.2d 858, 859 (Idaho App. 1985) (partial
summary judgment not certified under Rule 54(b) will not support
writ of execution); see also 10 Charles Alan Wright et al., Federal
Practice and Procedure sec. 2661 (3d ed. 1998) ("[Entry of judgment
under Rule 54(b)] enables a lien to be imposed on the judgment
debtor's property and a writ of execution to be issued to begin the
process of collecting any damage award . . . .").


Footnote 4:

     Consideration of this question is committed to the discretion
of the trial court, reviewable for abuse of discretion.  See
Johnson v. State, 577 P.2d 706 (Alaska 1978).  In deciding whether
a certificate should issue the court should consider whether there
is a good reason for using Civil Rule 54(b).  "The finding should
not be made simply because counsel request it.  There should be
some danger of actual hardship caused by delay in entry of final
judgment.  The court should weigh the general policy against
piecemeal appeals against the reasons advanced in favor of the
proposed finding." Id. at 710.  The general policy disfavoring
piecemeal appeals and thus supporting the rule that appeals may be
taken only after a final judgment was also addressed in Johnson: 

          This rule [prohibiting appeals until all
substantive issues are resolved] has at least two purposes.  First,
it is a rule of judicial economy.  Issues which seem important at
intermediate stages in litigation may become insignificant or moot
when the final judgment is entered.  Also, interlocutory review
often causes delay and needless expense.  Second, the rule is
designed to ensure that the questions presented on appeal have a
full factual and legal setting in which the practical effect of the
parties' contentions may be weighed.  Piecemeal adjudication of
some, but not all points of law governing a case carries the risk
that important considerations may be overlooked which would have
been perceived had the entire case been presented.

Id. at 709.