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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hikita v. Nichiro Gyogyo Kaisha, Ltd. (02/20/2004) sp-5780

Hikita v. Nichiro Gyogyo Kaisha, Ltd. (02/20/2004) sp-5780

     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


TAKEHIRO HIKITA and ALASKA    )
FOODS, INC.,                  )    Supreme Court No. S-10612
                                               )
               Appellants,         )    Superior Court Nos.  3AN-
75-2340 CI
                              )        and     3AN-77-7492     CI
(Consolidated)
     v.                       )
                              )
NICHIRO GYOGYO KAISHA,            )     O P I N I O N
LTD., and NICHIRO PACIFIC, LTD.,   )
                                                )   [No.  5780  -
February 20, 2004]
               Appellees.          )
________________________________)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:   Douglas  C.  Perkins,   Hartig
          Rhodes Hoge and Lekisch, P.C., Anchorage, for
          Appellants.    John   S.  Hedland,   Hedland,
          Brennan,  Heideman and Cooke, Anchorage,  for
          Appellees.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh,  and  Carpeneti, Justices.   [Fabe,
          Justice, not participating.]

          PER CURIAM.

I.   INTRODUCTION

          The  superior court imposed litigation-ending sanctions

against  Alaska  Foods, Inc., and Takehiro  Hikita  (collectively

Alaska  Foods)  for  failing to produce pretrial  discovery.   We

reversed the sanctions order because the superior court  did  not

explicitly   consider   lesser  alternative   sanctions.    After

considering  and  rejecting lesser alternatives  on  remand,  the

superior  court  reimposed  its  original  sanctions  order.   We

affirm,  concluding that the superior court  did  not  abuse  its

discretion.

II.  FACTS AND PROCEEDINGS

          This  is  the fourth time this case has come before  us

and  the seventh time we have addressed aspects of the underlying

dispute.1   Our  most recent decision, Hikita v.  Nichiro  Gyogyo

Kaisha, Ltd. (Hikita II), described  the cases lengthy procedural

history,  a  story we need not retell here.2   In  Hikita  II  we

reversed a superior court summary judgment order entered in  1991

that  dismissed Alaska Foodss claims against Nichiro  for several

alternative reasons: on the ground of issue preclusion, for  lack

of substantive merit, and as a sanction for Alaska Foodss failure

to provide Nichiro with timely discovery.3

          In  appealing  the 1991 order, Alaska Foods  challenged

the  superior courts use of dismissal as a discovery sanction  on

two  separate  theories.  Alaska Foods argued  initially  that  a

discovery  sanction  was  unwarranted because  Alaska  Foods  had

adequately  responded to Nichiros discovery  requests.4   Second,

Alaska  Foods argued that the superior court lacked authority  to

impose  a discovery sanction because Nichiro had never moved  for

an  order  compelling  discovery.5  Our  decision  in  Hikita  II

rejected both these arguments.6  We nonetheless observed  that  a

trial  court  may  not issue litigation-ending sanctions  without

first   exploring   possible  and  meaningful   alternatives   to

dismissal.  7   Because  the superior court  had  not  explicitly

considered   lesser   alternatives,  we  remanded   for   further

consideration  of this point.8  In remanding the issue,  however,

we  stressed that [o]ur decision does not preclude the court from

reinstating   the   original  sanctions  order   if   a   careful

consideration of lesser alternative sanctions convinces  it  that

no  sanction short of dismissal was appropriate and if the  court

fully explains its reasons for reaching this conclusion.9

          On  remand,  after carefully considering and  rejecting

          the possibility of imposing lesser sanctions, the superior court

renewed its dismissal order:

          [M]onetary  sanctions against [Alaska  Foods]
          would  be  of  no  value  in  bringing  about
          compliance  with the discovery  requirements.
          [Alaska   Foods]   and  its  primary   owner,
          Takehiro  Hikita,  are  already  subject   to
          judgments  in favor of defendants  which,  at
          the time of the dismissal order in 1991, were
          in the amount of millions of dollars, and had
          not  been paid.  Mr. Hikita had been held  in
          contempt of court for failing to appear at  a
          court  ordered  judgment debtor  examination.
          Accordingly,  the  imposition  of  additional
          monetary  sanctions  or a  contempt  citation
          against  [Alaska Foods] and/or  Hikita  would
          not  result  in  compliance with  the  order.
          Additionally, an order compelling  compliance
          would have been of no effect.  [Alaska Foods]
          had repeatedly ignored its obligation to make
          discovery,  and had deliberately  disregarded
          its  own  promises to do so. .  .  .  Finally
          Alaska Foods failure to provide discovery  in
          the  over nine month period since the Supreme
          Courts opinion of November 17, 2000 reaffirms
          this courts conviction that no sanction other
          than dismissal is sufficient.
          
          Alaska Foods again appeals.

III. DISCUSSION

          The  superior  court has broad authority  to  determine

appropriate sanctions for discovery violations, and its decisions

in   this   area  are  subject  only  to  review  for  abuse   of

discretion.10   We  have  nevertheless  recognized  that,  before

ordering  a  litigation-ending sanction,  the  trial  court  must

expressly  consider  possible  and  meaningful  alternatives   to

dismissal.11   We have also pointed out that a court  considering

this  issue  should  be mindful that the sanction  it  ultimately

chooses must be sufficiently related to the violation it seeks to

punish.12

          Alaska Foods accuses the superior court of disregarding

these  principles in several ways.  It first argues that, by  the

time  the  superior  court considered  the  issue  on  remand,  a

discovery  sanction was no longer warranted because our  decision

          in Hikita II made Nichiros outstanding discovery requests

superfluous.    Alaska  Foods  posits  that  Nichiros   discovery

requests  merely sought information to support its  defense  that

Alaska  Foodss  claims  were barred  by  the  doctrine  of  issue

preclusion; because Hikita II found as a matter of law that issue

preclusion  did not bar these claims, Alaska Foods  reasons  that

the  discovery  requests are now moot.  In  Alaska  Foodss  view,

then,  dismissal  as  a  sanction for  failure  to  produce  this

information   has  no  substantial  relation  to  the   discovery

violation allegedly committed.

          But  this  argument relies on a mistaken premise:  that

the only reason for propounding any of the requests . . . was  to

find support for Nichiros planned summary judgment motion on  the

issues  of  res  judicata/collateral estoppel.  Here,  since  the

record supports Nichiros position that its requests for discovery

sought  information relating to the independent issues of damages

and  issue preclusion, Hikita IIs ruling on the latter issue  did

not  make Nichiros requests for discovery superfluous.  Moreover,

in    reversing    the   superior   courts   finding    of    res

judicata/collateral  estoppel,  Hikita  II  relied  on   Nichiros

failure  to  show that Alaska Foods had any incentive  to  pursue

earlier  litigation resulting in a judgment against  Adak  Alaska

Processors, Inc.  its original joint venture with Nichiro   after

Nichiro  abandoned  the venture.13  As Nichiro  correctly  points

out,  a  response to its discovery requests might  have  produced

information  enabling Nichiro to present the record  evidence  of

incentives  that Hikita II specifically found to  be  lacking  to

support a finding of issue preclusion on summary judgment.

          Alaska   Foods  also  argues  that  Nichiros  discovery

requests  were  superfluous  and that Alaska  Foodss  failure  to

respond  to them should therefore have been excused  because  the

parties   conducted   extensive  discovery  covering   the   same

information  at  an earlier stage of the litigation,  in  1977  -

1980.  Yet Alaska Foods failed to raise this issue in its earlier

          appeal challenging the superior courts  discovery sanction  the

appeal  we  addressed in Hikita II.  As already noted above,  the

only  arguments  Alaska  Foods raised  concerning  the  discovery

sanction in its earlier appeal were that it had submitted  proper

responses  to  Nichiros discovery requests and that the  superior

court  lacked  authority to impose a discovery  sanction  because

Nichiro  had never filed a motion to compel discovery.14   Hikita

II  rejected  these  arguments and  upheld  the  superior  courts

finding  of  an  unexcused  discovery  violation,  declaring  the

sanction  order  deficient  only  because  the  court   had   not

explicitly   considered  lesser  alternatives  before   selecting

dismissal  as the appropriate sanction.15  Hikita IIs  resolution

of  these  points is now binding and precludes Alaska Foods  from

advancing   a  new  theory  suggesting  that  Nichiros  discovery

requests were unjustified.16

          Alaska  Foods  additionally claims  that  the  superior

courts  refusal to find a meaningful lesser alternative  sanction

was  based  on the courts mistaken belief that Alaska Foods  owed

money to Nichiro under a previously entered final judgment.   The

procedural background for this claim is largely undisputed.

          In  1984  the  superior court entered a final  judgment

encompassing  all  claims between Alaska Foods and  Nichiro;  the

judgment  dismissed  all  claims asserted  by  Alaska  Foods  and

awarded Nichiro almost $700,000 on its counterclaims.  An  appeal

was  filed  challenging  the dismissal of  Alaska  Foodss  claims

against  Nichiro,  but  no appeal was filed  from  the  award  to

Nichiro on its counterclaims against Alaska Foods.17  In our 1986

decision in Hikita v. Nichiro Gyogyo Kaisha, Ltd. (Hikita I),  we

reversed  the dismissal of some of Alaska Foodss claims, affirmed

the  dismissal of its other claims, and remanded the case to  the

superior  court.18  Later that year, the superior court dismissed

Alaska  Foodss  reinstated  claims  and  again  entered  a  final

judgment.19  Alaska Foods appealed; the earlier award on Nichiros

counterclaims  again  remained  unchallenged.20   In   our   1989

          decision in Alaska Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd., we

reversed  the  1986 order of dismissal and remanded  for  further

proceedings.21   That remand led to a renewed  dismissal  of  the

restored  claims in 1990 and to a new final judgment  entered  in

1997,  which,  in  turn,  generated our  decision  in  Hikita  II

already   discussed   above.22          As  the   above-described

litigation  over  Alaska  Foodss claims proceeded,  Nichiro  made

unsuccessful efforts to collect on the uncontested 1984 award for

its  counterclaims.   Its efforts included repeated  attempts  to

hold  a  judgment  debtor  examination of  Alaska  Foodss  owner,

Hikita,   which   Hikita  opposed.   After  our   1989   decision

reinstating  Alaska  Foodss  claims, the  superior  court  stayed

Nichiros  further  efforts to execute on its 1984  award  pending

completion of the proceedings on remand.  Following the  superior

courts  renewed  dismissal of Alaska Foodss  claims  in  1990,  a

judgment  debtor examination was scheduled in 1991;  Hikita,  who

lives  in  Japan,  failed  to  appear  at  the  hearing  and  was

eventually  held  in contempt.  Almost a decade  later,  when  we

remanded   yet  again  in  Hikita  II,  the  award  on   Nichiros

counterclaims remained uncollected.

          In  entering its findings concerning the unavailability

of meaningful lesser sanctions after our remand in Hikita II, the

superior court relied in part on Alaska Foodss conduct after  the

court  entered its 1990 order dismissing the case as a  discovery

sanction. Specifically, the superior courts findings referred  to

Hikitas  contempt  citation, Nichiros inability  to  collect  the

award  on its counterclaims, and Alaska Foodss continuing failure

to provide discovery after our order remanding in Hikita II.

          Alaska  Foods disputes the superior courts reliance  on

this  post-dismissal  conduct,  insisting  that  its  conduct  is

irrelevant to the issue of sanctions because Alaska Foods had  no

obligation  to  pay  the  1984 award  on  Nichiros  counterclaim.

Alaska  Foods theorizes that the original 1984 judgment in  favor

of  Nichiro  was vacated in 1989, when we issued our decision  in

          Alaska Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd., which reversed

the  superior  courts  1986 dismissal of  Alaska  Foodss  claims.

According to Alaska Foods, our decision in Alaska Foods  had  the

effect  of  vacating the entire 1984 final judgment, causing  its

unchallenged award to Nichiro on its counterclaims  to  become  a

non-final  order  that  Nichiro could not enforce  without  first

obtaining a judgment under Civil Rule 54(b).  Hence, Alaska Foods

insists, it did no wrong by refusing to honor Nichiros award  and

resisting its efforts to execute.

          But Alaska Foodss theory of lost finality fails for two

independent  reasons.  First, Alaska Foods neglected to  preserve

the  issue  below.  In resisting Nichiros efforts  to  conduct  a

judgment  debtor  examination, Alaska Foods  urged  the  superior

court,  as a matter of discretion, to stay execution on  Nichiros

judgment  because Alaska Foods expected to win  an  even  larger,

offsetting  judgment when it prevailed on its reinstated  claims.

Alaska  Foods  cites  no point in the record  before  we  decided

Hikita II when it claimed that Nichiros judgment was non-final as

a  matter  of  law  and  that Nichiro was therefore  barred  from

collecting  it.   Had  Alaska  Foods  advanced  this  theory   in

opposition  to  Nichiros efforts to conduct the  judgment  debtor

examination,  it  seems reasonable to expect Nichiro  might  have

done  precisely  what Alaska Foods now accuses it of  inexcusably

failing to do  reduce its award to a formal judgment under  Civil

Rule  54(b).   Given  these circumstances,  Alaska  Foods  cannot

plausibly  assert  its  freshly conceived theory  to  excuse  its

conduct.

          More  important, Alaska Foodss theory of finality  runs

counter   to  settled  law.   Nichiro  cites  a  body  of   cases

recognizing  that  any  part  of a  judgment  not  appealed  from

continues in effect, regardless of the reversal of other parts of

the  judgment.23   As the Delaware Supreme Court recently  stated

the  proposition, unappealed portions of [a judgment] are  deemed

final,  and  thus due, when the appeal period expires.24   Alaska

          Foods cites no contrary authority and makes no attempt to

distinguish  or even acknowledge  the cases advanced by  Nichiro.

The  rule espoused by these cases is sensible and appears  to  be

uniformly followed.  Thus, even if Alaska Foods had preserved the

point, its theory would lack legal merit.25

          Alaska Foods last argues that the superior court  erred

in basing its findings concerning lesser alternative sanctions on

conduct  occurring  after the sanction of dismissal  had  already

been  imposed.   But  in  our  view,  the  superior  court  could

reasonably  construe Hikita IIs mandate as requiring a  realistic

appraisal   of   potentially  meaningful  alternative   sanctions

existing at the time of the remand.  Moreover, our review of  the

superior  courts findings convinces us that the court  relied  on

post-1990  events  primarily to confirm its  original  impression

that   no  meaningful  lesser  alternatives  to  dismissal   were

available  when the litigation-ending sanction was  ordered.   We

thus  find no error in the superior courts consideration of post-

1990 events.26

IV.  CONCLUSION

          Our decision in Hikita II authorized the superior court

to   reinstate  its  original  sanctions  order  if   a   careful

consideration of lesser alternative sanctions convinces  it  that

no  sanction short of dismissal was appropriate and if the  court

fully  explains  its reasons for reaching this conclusion.27   On

remand  the superior court complied with this mandate, issuing  a

careful  explanation  of  its  reasons  for  concluding  that  no

meaningful  lesser sanctions remained available.  Because  Alaska

Foods  has failed to establish that the superior court  erred  in

reaching this conclusion, we AFFIRM the judgment of dismissal.



_______________________________
     1     Hikita  v. Nichiro Gyogyo Kaisha, Ltd., 12 P.3d  1169,
1171-74 (Alaska 2000) (Hikita II).

     2    Id.

     3    Id. at 1180.

     4    Id. at 1175.

     5    Id.

     6    Id. at 1175-76.

     7     Id. at 1176 (quoting Underwriters at Lloyds London  v.
The Narrows, 846 P.2d 118, 119 (Alaska 1993)).

     8    Id.

     9    Id. at n.21.

10    Id.  at  1175 (quoting Sykes v. Melba Creek  Mining,  Inc.,
952 P.2d 1164, 1169 (Alaska 1998)).

     11   Id. at 1176 (quoting Underwriters at Lloyds London, 846
P.2d at 119).

     12   Underwriters at Lloyds London, 846 P.2d at 119.

13   See Hikita II, 12 P.3d at 1177.

14   Hikita II, 12 P.3d at 1175.

     15   Id. at 1176.

     16    We reject Alaska Foodss contention that its failure to
raise this argument before we decided Hikita II should be excused
because  its current attorney was new to the case in  1997,  when
the  appeal that we decided in Hikita II was filed.  Alaska Foods
points  to  nothing in the record indicating that it  raised  the
existence of previous discovery as a basis for opposing  Nichiros
motion for discovery sanctions in the superior court before  that
court  initially ordered dismissal as a sanction in 1990.   Since
the  attorney who then represented Alaska Foods failed  to  raise
the  point  before  the superior court, Alaska  Foods  failed  to
preserve  the  point,  even  assuming that  its  current  counsel
excusably  neglected to spot it before filing the 1997 appeal  in
Hikita II.

     17    See  Hikita v. Nichiro Gyogyo Kaisha, Ltd.,  713  P.2d
1197 (Alaska 1986).

     18   Id.

     19    See Alaska Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd.,
768 P.2d 117 (Alaska 1989).

     20   Id.

21   Id.

     22    Hikita  v. Nichiro Gyogyo Kaisha, Ltd., 12 P.3d  1169,
1171-74 (Alaska 2000) (Hikita II).

23    Calistro  v.  Spokane Valley Irr. Dist. No.  10,  472  P.2d
539, 540 (Wash. 1970) (en banc); see also Blue Hen Lines, Inc. v.
Turbitt,  787  A.2d 74 (Del. Supr. 2001); Edmison v.  Clarke,  61
S.W.3d 302 (Mo. App. 2001); State ex rel. Horridge v. Pratt,  563
S.W.3d 168, 170 (Mo. App. 1978); Triton Coal Co. v. Husman, Inc.,
846 P.2d 664, 669 (Wyo. 1993); Smith v. West, United States Court
of  Appeals for Veterans Claims, April 14, 1999, 1999 WL  314092;
see generally 5 Am. Jur. 2d Appellate Rev.  861 (1995).

     24   Blue Hen, 787 A.2d at 78.

     25    Our  conclusions  on  Nichiros  primary  points   that
Nichiros   requests  for  discovery  called  for  production   of
potentially important information concerning damages, that Alaska
Foods  failed  to  preserve its claim that this  information  had
already  been  provided in prior discovery,  and  that  the  1984
judgment on Nichiros counterclaims remained final and enforceable
make  it  unnecessary to separately discuss Alaska Foodss wrap-up
argument  that the extreme sanction of dismissal was  unwarranted
because  any  discovery  violation  committed  by  Alaska   Foods
pertained  only  to  moot/improper areas, to discovery  that  had
previously   been  provided,  or  to  issues  that  were   merely
collateral.

     26   Hikita II, 12 P.3d at 1176.

     27   Id. at n.21.