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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.
