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Fred Meyer of Alaska, Inc. v. Bailey (11/05/2004) sp-5840
Fred Meyer of Alaska, Inc. v. Bailey (11/05/2004) sp-5840
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
FRED MEYER OF ALASKA, INC., )
) Supreme Court Nos. S-
10958/10968
Appellant/ )
Cross-Appellee, ) Superior Court No.
) 3AN-98-05471 CI
v. )
) O P I N I O N
RON BAILEY, )
) [No. 5840 - November 5, 2004]
Appellee/ )
Cross-Appellant. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Dan A. Hensley, Judge.
Appearances: Peter Gruenstein, Gruenstein &
Hickey, Anchorage, and James R. Dickens,
Miller Nash LLP, Seattle, Washington, for
Appellant/Cross-Appellee. John E. Casperson,
Holmes, Weddle & Barcott, Anchorage, for
Appellee/Cross-Appellant.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
This appeal arises out of Fred Meyers classification of
manager Ron Bailey as an exempt employee and therefore ineligible
for overtime pay under the Alaska Wage and Hour Act (AWHA).
Bailey opted out of a class action for overtime pay because of a
threat by his store manager. Within two years of being told by a
different manager that participation in a court action would not
jeopardize his job, Bailey filed a lawsuit claiming overtime
compensation. Fred Meyer appeals the superior courts finding
that Bailey was not exempt, as well as the superior courts
allowance of claims not within the statute of limitations. It
also challenges the superior courts admission of an expert report
and its finding that Fred Meyer did not show by clear and
convincing evidence that it acted in good faith. Bailey appeals
the superior courts failure to award prejudgment interest.
Because the superior court did not err when it found that Bailey
was not exempt, we affirm that ruling. We also conclude that the
superior court did not err in its determination that Fred Meyer
failed to show by clear and convincing evidence that it acted in
good faith. Because Bailey claims that he was not notified of
the entry of judgment, we remand so that he may be provided an
opportunity to submit his calculation of prejudgment interest and
his cost bill.
II. FACTS AND PROCEEDINGS
A. Factual History
Ron Bailey began working at the Anchorage Fred Meyer on
Dimond in June 1985. He was transferred to the home electronics
department in late 1985 and remained in home electronics until he
left Fred Meyer in 1997. Bailey was promoted to manager of the
department in August 1989 and was transferred to the Fred Meyer
in Juneau in March 1990 as the manager of the home electronics
department. Although Bailey received a weekly salary with
bonuses, he did not receive any overtime compensation. In May
1996 Bailey transferred to the Anchorage Fred Meyer on Northern
Lights.
In May 1991, while Bailey was working at the Juneau
store, a class action complaint in a suit entitled Adams v. Fred
Meyer claiming overtime violations under the Alaska Wage and Hour
Act was filed against Fred Meyer.1 The manager of the Juneau
store, Keith Flynn, told all department managers that if they
stayed in the lawsuit, they would not be promoted. All of the
managers, including Bailey, excluded themselves from the class.
Bailey signed his request for exclusion in May 1996. After
Bailey moved to the Northern Lights store, his new store manager,
Nancy Carey, contradicted Flynn and assured Bailey that there
would be no retaliation if he participated in the class action.
B. Procedural History
Bailey filed this lawsuit against Fred Meyer on April
15, 1998. Fred Meyer moved to exclude as time barred evidence of
overtime claims prior to April 15, 1996. The superior court
denied Fred Meyers motion.
A bench trial took place on October 23 and 24, 2000,
and Superior Court Judge Dan A. Hensley issued his oral decision
on November 22, 2000. The superior court determined that Bailey
was not an exempt employee and was thus entitled to overtime
compensation. Fred Meyer sought amendment of the judgment and
reconsideration, arguing that the superior court incorrectly
tolled Baileys claim and erroneously found that Bailey was not
exempt. The superior court denied Fred Meyers motion.
The parties filed supplemental pleadings on two issues:
the regular hourly rate applicable to Bailey and Fred Meyers good
faith defense. Fred Meyer objected to the trial court receiving
a report that was prepared by a defense expert in Adams and
appended to Baileys supplemental pleading, but the trial court
considered the defense experts advice to Fred Meyer that the home
electronics managers should not be considered exempt. In its
supplemental filing, Fred Meyer also addressed the issue of
prejudgment interest, although the court had not directed the
parties to do so. The court limited Baileys award of prejudgment
interest under AS 09.30.070(b) and although Bailey sought
reconsideration on this issue, this relief was denied.
On December 22, 2002, the trial court entered final
judgment for Bailey in the amount of $254,056.34, half of this
being liquidated damages, and awarded him $70,087.50 in attorneys
fees. It also gave Bailey fifteen days to submit his proposed
calculation of prejudgment interest. Baileys counsel claims that
he did not receive a copy of the judgment and did not learn of it
until he received Fred Meyers notice of appeal. Although Bailey
promptly moved to file a late calculation of prejudgment
interest, the superior court did not act on Baileys motion and
Bailey cross-appeals on this issue.
III. DISCUSSION
A. Standards of Review
We set aside a lower courts factual findings only when
they are clearly erroneous.2 We determine that factual findings
are clearly erroneous when, after a review of the record as a
whole, we are left with a definite and firm conviction that a
mistake has been made.3 In a mixed question of law and fact, we
review the legal question separately, applying our independent
judgment to adopt the legal rule that is most persuasive in light
of precedent, reason, and policy.4
B. The Superior Court Did Not Err when It Found that
Bailey Was Not Exempt.
Fred Meyer appeals the superior courts finding that
Bailey was not an executive employee who was exempt from payment
of overtime under the AWHA. Fred Meyer relies principally on the
argument that Baileys tasks were directly and closely related to
management duties.5
Under the AWHA, employees who work more than eight
hours in a day or forty hours in a week are entitled to overtime
pay6 unless an exemption applies.7 One of the exemptions
excludes an individual employed in a bona fide executive,
administrative, or professional capacity.8 The Alaska
Administrative Code defines an exempt executive employee9 and
considers the amount of time that such an employee can spend on
nonmanagerial tasks. An exempt executive employee in a retail
establishment is one who does not devote more than 40 percent of
the employees weekly hours to activities that are not directly
and closely related to the work described in this paragraph.10
The burden is on the employer to prove beyond a reasonable doubt
that the employee is exempt.11 And we have determined that
[e]xemptions are to be narrowly construed against the employer.12
Neither the AWHA nor the Alaska Administrative Code
defines the term directly or closely related, but the definitions
section of the AWHA does provide that any terms not defined in
the AWHA or in the regulations shall be defined as they are
defined in the federal Fair Labor Standards Act of 1938, as
amended, or the regulations adopted under it.13 The Code of
Federal Regulations describes and illustrates the phrase work
directly or closely related.14 29 C.F.R. 541.108(e) provides
that certain activities on the sales floor are not closely
related to management work, except when they are done to train or
demonstrate. A supervisors actual participation, except for
supervisory training or demonstration purposes, in such
activities as making sales to customers, replenishing stocks of
merchandise on the sales floor, removing merchandise from fitting
rooms and returning to stock or shelves, however, is not
[directly and closely related to managerial and supervisory
functions].15
The federal regulations note that it is one of the
objectives of [the regulation] to exclude from the definition [of
executive] foremen who hold dual or combination jobs,16
distinguishing production work from true managerial functions.17
Tasks such as recordkeeping, setup work, inspecting, examining,
and observing actually may be production work when they take up a
large part of the employees time and are not a function directly
and closely related to the supervisory or managerial duties,
making the employee a combination foreman setup man, . . .
floorman-salesperson, . . . rather than a bona fide executive.18
The question before the trial court in this case was
whether Bailey devoted more than forty percent of his time to
work that was not directly and closely related to management
work.19 In its oral findings, the superior court explained that
because directly or closely related is not defined in Alaska law,
it looked to federal law as guidance. The superior court, citing
29 C.F.R. 541.108(g), accurately characterized the test to be
applied:
[The] federal regulations explain that a
working supervisor in a large retail
establishment who actually participates in
sales, stocking and those kind of floor
activities, that those kind of floor
activities are not closely related to
managerial functions as distinguished from a
working supervisor who observes his employees
on the floor, spot checks in order to
evaluate the employees conduct.
In its oral findings, the superior court focused on testimony by
Fred Meyers employees that it is important to have a supervisor
on the floor to provide service to the customers, . . . to act as
a role model so that other sales personnel do a good job and
. . . so that customers can ask the manager questions and that
Baileys strongest point as . . . a manager, was his customer
service skills. The superior court found that Bailey worked
substantially more than 40 percent of his time and actually
approached 60 percent performing nonmanagement tasks, making it
clear that Mr. Bailey is not exempt. And while the superior
court acknowledged that Baileys floor activities provided a model
to his employees, it concluded that Bailey was performing dual
roles; thus, pursuant to the federal regulations, Bailey was not
exempt.
Fred Meyer relies on our decision in American
Restaurant Group v. Clark to argue that the superior court failed
to consider the nature of the employers business and the role of
management in the particular business when evaluating how much
time Bailey spent on nonmanagerial work.20 In American Restaurant
Group, we reversed summary judgment against the employer because
there was a factual issue as to how much time the employees spent
performing tasks that were not directly or closely related to
their executive duties.21 We announced that the question whether
the employees activities were closely and directly related to
their management duties is a factual question.22 Here, the
superior court conducted a trial, hearing testimony from Bailey
and both of his supervisors, Keith Flynn and Nancy Carey. It
heard substantial testimony that Bailey spent much of his time
doing nonmanagerial work, and it made an express finding that Mr.
Baileys actual time on the floor doing sales, restocking and
similar work approached 60 percent. Because the superior court
applied the correct law to the facts and because its factual
finding was not clearly erroneous, we conclude that the superior
court did not err when it found that Bailey was not an exempt
executive employee.
C. The Superior Court Did Not Err by Permitting Bailey To
Recover for All of His Overtime Hours.
Fred Meyer argues that Bailey should only have been
permitted to recover for those overtime claims arising during or
after the April 15, 1996 pay period. Fred Meyer relies on the
statute of limitations, arguing that the two-year limitation
period23 bars any of Baileys overtime claims that arose more than
two years prior to Baileys April 15, 1998 filing. Thus, it
contends the superior court erred by considering Baileys pre-1996
claims. But Bailey presented evidence, and the superior court
found, that Bailey opted out of the class action covering his pre-
1996 claims because of the threat of retaliation by Baileys store
manager, Keith Flynn. The superior court further found that in
May 1996, when his new store manager assured him that there would
be no retaliation for participation in the class action, Bailey
no longer had a reasonable basis to be concerned about the threat
and the court concluded that the statute of limitations began to
run in May 1996. Bailey brought his case in April 1998. The
superior court determined that Bailey had the full statutory
period to file once the threat was removed.
Fred Meyer contends that the superior court improperly
applied the doctrine of equitable tolling to Baileys situation,
arguing that equitable estoppel is the appropriate equitable
remedy. Bailey responds that the superior courts decision may be
sustained under equitable tolling principles.
As we evaluate Baileys situation, we take note of the
general principles relating to the statute of limitations
defense. In Fred Meyer v. Adams, we observed that we look upon
the defense of statute of limitations with disfavor and will
strain neither the law nor the facts in its aid.24 In Adams, we
also described the purposes of limitations periods: to provide
defendants with notice of the nature of adverse claims and to bar
plaintiffs who have slept on their rights.25
The doctrine of equitable tolling relieve[s] a
plaintiff from the bar of the statute of limitations when he has
more than one legal remedy available to him26 so that after the
plaintiff adopts a single course of action which is dismissed or
otherwise fails, courts generally allow the plaintiff to pursue a
second remedy based on the same right or claim.27 The statute of
limitations is thus tolled during the pendency of the initial
defective action, giving the plaintiff the full statutory period
to file once tolling ceases.28 In such circumstances, the statute
is equitably tolled if (1) pursuit of the initial remedy gives
defendant notice of plaintiffs claim, (2) defendants ability to
gather evidence is not prejudiced by the delay, and (3) plaintiff
acted reasonably and in good faith.29
In Baileys case the superior court found that Fred
Meyer, through its coercive conduct, forced Bailey out of the
existing class action. Generally, equitable tolling applies when
the plaintiff files an action in court after an administrative
proceeding or initial court action is dismissed or proves
unavailing.30 But this principle applies to Baileys situation as
well. The class action was Baileys initial remedy: Once Bailey
was forced to opt out of the class action, this initial remedy
proved unavailing. As the superior court found, the threat
existed and Mr. Baileys failure to file a lawsuit was reasonable.
The statute of limitations began to run when the threat abated in
May 1996 and Bailey was free to pursue his second legal remedy,
an individual action. Because of Fred Meyers coercive conduct,
Bailey was foreclosed from participating in the initial remedy
available to him; he only later discovered that he could pursue
an individual claim against Fred Meyer without fear of
retaliation. Thus, under equitable tolling principles, Bailey
had the full statutory period to file his claim.
The three additional requirements for equitable tolling
notice to the defendant of the plaintiffs claim, lack of
prejudice to the defendant, and reasonable, good faith conduct on
the part of the plaintiff are satisfied here. Baileys initial
inclusion in the class claiming unpaid overtime provided Fred
Meyer with notice of Baileys legal claim.31 For the same reason,
equitable tollings second requirement, that the defendants
ability to gather evidence not be prejudiced by the delay,32 is
satisfied. Fred Meyers defense of the class action provided
ample opportunity to gather evidence on the issue of unpaid
overtime for electronics managers, and there is nothing to
indicate that it could not furnish evidence on Baileys specific
claim for unpaid overtime hours. Tolling also requires that the
plaintiff act reasonably and in good faith.33 This third element,
too, is satisfied: Bailey filed his individual suit within the
two-year limitations period after the disability abated. And in
Dayhoff v. Temsco Helicopters, we concluded that an employee is
entitled to the benefit of the full statutory period after the
circumstances which justify equitable tolling abate, rejecting
the defendants claim that the plaintiffs failed to exercise due
diligence as a matter of law because they failed to file suit
immediately after the initial remedy proved unavailing.34
Accordingly, we affirm the superior courts finding that Bailey
can recover for all of his overtime hours.
D. The Superior Court Did Not Err in Finding that Fred
Meyers Classification of Bailey as Exempt Was Not in
Good Faith.
Fred Meyer also appeals the superior courts finding
that Fred Meyer failed to produce clear and convincing evidence
that it acted in good faith when it classified Bailey as an
exempt employee, resulting in Fred Meyers liability for
liquidated damages and reasonable attorneys fees. Fred Meyer
contends that it met its burden of demonstrating good faith by
clear and convincing evidence through testimony from former
senior vice president for human resources, Keith W. Lovett, as
well as evidence of Fred Meyers prompt evaluation of remaining
salaried positions. And Fred Meyer challenges the superior
courts admission of and reliance on a report prepared by defense
counsels expert in the earlier Adams overtime case against Fred
Meyer which concluded that photo electronics managerial
positions should not be classified as exempt.
Alaska Statute 23.10.110(d) gives discretion to the
court to decline to award liquidated damages if the defendant
shows by clear and convincing evidence that the defendant acted
in good faith.35 In cases where the plaintiff prevails, AS
23.10.110(e) mandates that the court award attorneys fees unless
the defendant shows by clear and convincing evidence that the
defendant acted in good faith.36
In its findings rejecting Fred Meyers claim of good
faith, the superior court recognized Fred Meyers argument that it
had reviewed its pay structures in order to comply with the AWHA
and its submission of a January 6, 1997 memorandum describing the
changes undertaken in an effort to comply with the statute. But
the superior court relied on the opinion of Stan Owings, Fred
Meyers own expert in Adams, who informed Fred Meyer in 1995 that
the position of photo electronics manager should not be
classified as exempt. The superior court concluded that Fred
Meyer ignored Owingss determination.
Fred Meyer contends that the superior court erred in
admitting an expert report by Owings that was prepared for
defense counsel in Adams. Specifically, the report described
Owingss review of Fred Meyers various department manager
positions and concluded that while most of the positions were
properly classified as exempt under the AWHA, the photo
electronics manager did not meet the AWHA requirements for exempt
status because the photo electronics manager spent more than
forty percent of his or her time on non-exempt job duties. In
Adams, Owings testified for Fred Meyer after being deposed and
having his report produced. In this case, Owings was not listed
as an expert witness for Fred Meyer; instead, he was included in
Baileys amended list of lay witnesses. Although Owings did not
testify at Baileys trial on the question of whether Bailey was
exempt, in the post-trial proceedings Bailey submitted an
affidavit from Owings, as well as Owingss Adams report, in
support of Baileys contention that Fred Meyer did not act in good
faith.
Fred Meyer argues that Alaska Civil Rule 26(b)(4)(B),37
the rule limiting access to non-testifying experts except upon a
showing of exceptional circumstances, should have prevented
Baileys use of Owingss report. Fred Meyer claims that because
Bailey did not show exceptional circumstances to justify access
to Owingss report, the report was improperly admitted. But as
Bailey correctly notes, Civil Rule 26(b)(4)(B) does not apply
because Owings was not an expert witness for either Fred Meyer or
Bailey; instead, his report was used to demonstrate that Fred
Meyer was notified that Baileys position should not be classified
as exempt and failed to take corrective action.
Fred Meyer also contends that as a lay witness, Owings
possessed limited personal knowledge of the facts surrounding
managerial duties. But Owingss report was not offered to support
Baileys contention that he was not an exempt manager; it was
offered solely to demonstrate Fred Meyers state of mind and to
show Fred Meyers lack of good faith and lack of reasonable
efforts to comply with Alaska law. Fred Meyer also argues that
the report should have been excluded as hearsay under Alaska Rule
of Evidence 802.38 But Bailey did not offer the report for the
truth of the matters stated;39 rather he offered it to show that
Fred Meyer had notice of its potential violations of Alaska law.
Fred Meyer also points to the declaration of Keith W.
Lovett which described the actions that Fred Meyer took during
and after the Adams litigation. But the court found that Lovett
offered differing recollections of the companys efforts to comply
with the AWHA; Lovett testified that he reviewed the salaried
positions around January 1997 but in a 1997 deposition Lovett
testified that, to his knowledge, the company had never hired a
consultant or studied whether the company was complying with
Alaska law. The court concluded that the contradictory testimony
did not amount to clear and convincing evidence of Fred Meyers
good faith.
In finding that Fred Meyer did not act in good faith,
the superior court properly relied on Owingss report and found
that Fred Meyers primary witness, Lovett, was not credible. We
affirm the superior courts award of attorneys fees and liquidated
damages because the superior courts determination that Fred Meyer
failed to produce clear and convincing evidence of good faith was
not clearly erroneous.
E. Bailey Should Be Permitted To Seek Prejudgment Interest
and Costs.
Bailey argues that he is entitled to prejudgment
interest and costs even though he did not file for either within
the permissible time.40 Bailey claims that his untimely filing
resulted from the fact that he never received the superior courts
final judgment.41
Fred Meyer argues that a motion to alter or amend a
judgment must be made in a timely fashion, after which the
judgment cannot be disturbed.42 While the general rule is
certainly to leave final judgments undisturbed, in this case
Bailey apparently had no opportunity to comply with the courts
request for submission of interest or with Rule 79s allowance for
submission of a cost bill and moved for relief upon receiving
the judgment. If the superior court finds this to be the case,
it is appropriate to permit Bailey to file his prejudgment
interest and costs.43
Because Bailey claims that his motion for
reconsideration was not untimely and because Bailey was
previously denied an opportunity to brief the issue, we remand so
that the superior court can consider whether Bailey was, in fact,
improperly denied the opportunity to comply with the courts
requested submission and with Civil Rule 79, and can then choose
the correct date for interest to begin to accrue based on
briefing by both parties.
IV. CONCLUSION
Because the superior court did not err when it found
that Bailey was exempt or when it permitted Bailey to recover for
all of his overtime claims, we AFFIRM the determinations.
Because the superior courts finding that Fred Meyer had not shown
by clear and convincing evidence that it acted in good faith was
not clearly erroneous, we AFFIRM the finding. Because Bailey
claims he was not notified of the entry of judgment and the need
to file prejudgment interest calculations and his cost bill, we
REMAND for the superior court to determine whether Bailey should
be provided with an opportunity to seek such costs.
_______________________________
1 Alaska Superior Court Case No. 3AN-90-10286 Civil.
2 Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000).
3 Id. (citation and internal quotations omitted).
4 Wyller v. Madsen, 69 P.3d 482, 485 (Alaska 2003).
5 See Am. Rest. Group v. Clark, 889 P.2d 595, 597 (Alaska
1995).
6 AS 23.10.060.
7 AS 23.10.055.
8 AS 23.10.055(9).
9 8 AAC 15.910(7).
10 8 AAC 15.910(7)(E). The paragraph describes duties
such as: management of the enterprise or a branch thereof (8 AAC
15.910(7)(A)); directing the work of two or more employees (8 AAC
15.910(7)(B)); the authority to hire and fire employees (8 AAC
15.910(7)(C)); and the exercise of discretionary authority (8 AAC
15.910(7)(D)).
11 Dayhoff v. Temsco Helicopters, Inc., 848 P.2d 1367,
1371-72 (Alaska 1993). Contrary to the explicit language in
Dayhoff, Fred Meyer argues that the AWHA requires proof only by a
preponderance of the evidence.
12 Id. at 1372 (citation and internal quotations omitted).
13 AS 23.10.145; see Whitesides v. U-Haul Co. of Alaska,
16 P.3d 729, 732 (Alaska 2001) (noting that AWHA provides that
terms not defined in the AWHA or in regulations adopted under it
shall be defined as they are defined in the FLSA or the
regulations adopted under it).
14 29 C.F.R. 541.108.
15 29 C.F.R. 541.108(e).
16 29 C.F.R. 541.108(g).
17 Id.
18 Id.
19 8 AAC 15.910(7)(E).
20 889 P.2d 595, 599 (Alaska 1995).
21 Id. at 597.
22 Id. at 598-99.
23 AS 23.10.130 provides:
An action for unpaid minimum wages, unpaid
overtime compensation, or liquidated damages
under AS 23.10.050 23.10.150 is forever
barred unless it is started within two years
after the cause of action accrues. For the
purposes of this section an action is
considered to be started on the date when the
complaint is filed.
24 963 P.2d 1025, 1027 n.6 (Alaska 1998).
25 Id. at 1028.
26 Dayhoff v. Temsco Helicopters, Inc., 772 P.2d 1085,
1087 (Alaska 1989) (citing Gudenau & Co. v. Sweeney Ins., 736
P.2d 763, 768 (Alaska 1987)).
27 Gudenau, 736 P.2d at 768.
28 Id.
29 Dayhoff, 772 P.2d at 1087.
30 E.g., id. at 1087-88 (determining that Department of
Labor proceedings are alternative administrative remedy that may
toll statute of limitations); Hosogai v. Kadota, 700 P.2d 1327,
1331-33 (Ariz. 1985) (superseded by statute, see Jepson v. New,
792 P.2d 728 (Ariz. 1990)); Addison v. State of California, 578
P.2d 941, 943 (Cal. 1978); Collier v. City of Pasadena, 191 Cal.
Rptr. 681, 684-85 (Cal. App. 1983).
31 Cf. Gudenau, 736 P.2d at 768.
32 Id.
33 Id.
34 Dayhoff, 772 P.2d at 1088 n.6.
35 Alaska Statute 23.10.110(d) provides:
In an action under (a) of this section to
recover unpaid overtime compensation or
liquidated damages for unpaid overtime, if
the defendant shows by clear and convincing
evidence that the act or omission giving rise
to the action was made in good faith and that
the employer had reasonable grounds for
believing that the act or omission was not in
violation of AS 23.10.060, the court may
decline to award liquidated damages or may
award an amount of liquidated damages less
than the amount set out in (a) of this
section.
36 Alaska Statute 23.10.110(e) provides in relevant part:
If the plaintiff prevails in an action for
unpaid overtime compensation under (a) of
this section, the court shall award
reasonable attorney fees to the plaintiff
unless the defendant shows by clear and
convincing evidence that the act or omission
giving rise to the action was made in good
faith and that the defendant had reasonable
grounds for believing that the act or
omission was not in violation of AS 23.10.060
. . . .
37 Civil Rule 26(b)(4)(B) provides in relevant part:
A party may, through interrogatories or by
deposition, discover facts known or opinions
held by an expert who has been retained or
specially employed by another party in
anticipation of litigation or preparation for
trial and who is not expected to be called as
a witness at trial, only as provided in Rule
35(b) or upon a showing of exceptional
circumstances under which it is impracticable
for the party seeking discovery to obtain
facts or opinions on the same subject by
other means.
38 Alaska Rule of Evidence 802 states: Hearsay is not
admissible except as provided by these rules, by other rules
prescribed by the Alaska Supreme Court, or by enactment of the
Alaska Legislature.
39 Alaska Rule of Evidence 801(c) defines hearsay as a
statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.
40 The trial court provided fifteen days for Bailey to
submit the prejudgment interest calculation and Civil Rule 79
gives counsel ten days to seek costs. Rule 79(b) provides in
part:
To recover costs, the prevailing party must
file and serve an itemized and verified cost
bill, showing the date costs were incurred,
within 10 days after the date shown in the
clerks certificate of distribution on the
judgment. Failure of a party to file and
serve a cost bill within 10 days, or such
additional time as the court may allow, will
be construed as a waiver of the partys right
to recover costs.
41 The superior courts inaction on this issue may have
been because it thought that it had no jurisdiction to consider
the issue once it was up on appeal.
42 Fred Meyer cites to several rules in support of its
contention: Civil Rule 52(b) provides that a motion to amend may
be made not later than 10 days after the date shown in the clerks
certificate of distribution on the judgment. Civil Rule 59(f)
says that a motion to alter or amend the judgment shall be served
not later than 10 days after the entry of the judgment. Civil
Rule 58.1(c)(3) makes the date of notice of judgment the date
shown in the clerks certificate of distribution of the written
judgment.
43 Because we are remanding for consideration of
prejudgment interest and because the parties never had an
opportunity to present formal briefing on that topic, the trial
court will need to consider two related issues: the proper
prejudgment interest rate to use in its calculation and the
correct date for prejudgment interest to begin to accrue.
