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Alderman v. Iditarod Properties, Inc. (12/30/2004) sp-5856
Alderman v. Iditarod Properties, Inc. (12/30/2004) sp-5856
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
CALEB ALDERMAN; BARBARA )
ALDERMAN; ALASKA )
GUESTOURS, INC., dba FOURTH )
Supre
me
Court
No. S-
10975
AVENUE THEATER TROLLEY )
TOURS, )
Superior Court Nos.
) 3AN-98-7297 CI
Appellants, ) 3AN-02-3896 CI
)
v. ) O P I N I O N
)
IDITAROD PROPERTIES, INC., ) [No. 5856 - December 30,
2004]
dba FOURTH AVENUE THEATRE, )
)
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Morgan Christen, Judge.
Appearances: Robert C. Erwin, Erwin & Erwin,
LLC, Anchorage, for Appellants. Walter T.
Featherly and Teresa S. Ridle, Patton Boggs
LLP, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
This appeal arises out of a failed business venture
between Iditarod Properties and the Aldermans. In 2001 we
affirmed a judgment for trademark infringement against the
Aldermans, but we vacated the portion of the judgment allowing
Iditarod to recover unpaid rent. Iditarod subsequently brought
suit against the Aldermans in superior court seeking to recover
the unpaid rent, and it prevailed on its claim following a bench
trial. The Aldermans appeal the decision of the superior court
granting Iditarod recovery for unpaid rent, attorneys fees, and
prejudgment interest. We affirm the judgment and the award of
prejudgment interest, but we reverse the award of enhanced
attorneys fees.
II. FACTS1 AND PROCEEDINGS
Robert Gottstein, the sole shareholder of Iditarod
Properties (Iditarod), is the owner of the Fourth Avenue Theatre,
an historic building in downtown Anchorage. In 1995 the
Aldermans2 obtained a permit to park their trolley in front of
the Fourth Avenue Theatre, and they entered into an oral
agreement with Gottstein under which Iditarod employees sold
trolley tour tickets in the theaters gift shop and the Aldermans
rented the theater ticket booth and office space in the theaters
basement. The arrangement survived until 1997 when numerous
conflicts between Iditarod and the Aldermans resulted in the
Aldermans moving to an office space next door to the theater.
After moving, the Aldermans registered and operated their trolley
tour under the name Fourth Avenue Theater Trolley Tours, which
prompted Iditarod to file suit against the Aldermans for trade
name infringement.
Jury trial began in May 1999. After the close of
evidence Superior Court Judge Brian C. Shortell granted Iditarods
motion to amend its pleading to add a cause of action for breach
of the oral lease agreement. The jury found that Iditarod owned
the trade name Fourth Avenue Theatre, that the Aldermans had
infringed on that trade name, that the Aldermans violated the
rental agreement by failing to pay Iditarod fifteen percent of
the revenues from the trolley tickets sold at the theater, and
that the Aldermans owed Iditarod $13,924.05 for unpaid rent.
We decided Alderman v. Iditarod Properties, Inc. in
2001.3 We affirmed the trial courts judgment that the Aldermans
infringed on Iditarods trade name, Fourth Avenue Theatre, and its
award of enhanced attorneys fees to Iditarod.4 However, we
vacated the judgment for unpaid rent because we found that the
Aldermans had suffered substantial prejudice because Iditarod
unduly delayed pleading the breach of contract claim until after
the close of evidence.5 On January 14, 2002 Iditarod filed a new
complaint against the Aldermans seeking damages for the breach of
the agreement to pay rent.
The Aldermans moved for summary judgment, arguing that
Iditarods claim was barred by res judicata and the applicable
statute of limitations. The superior court denied the motion,
ruling that Iditarods claim was not barred by res judicata
because our 2001 decision was not a ruling on the merits and
because the action for rent was fundamentally different from the
action for trademark infringement. The court found that the
cause of action arose prior to August 7, 1997, and that the
action was therefore timely because the applicable statute of
limitations was six years under the former AS 09.10.053.6
Trial commenced on November 15, 2002. Iditarod offered
into evidence the testimony of Robert Gottstein and the prior
sworn testimony of Caleb Alderman, Barbara Alderman, and Francis
Gallela, the last over the Aldermans objection. The Aldermans
offered into evidence the testimony of Caleb Alderman, the
corporate income tax returns of Alaska Guestours,7 and receipts
of trolley ticket purchases.
The superior court entered judgment in favor of
Iditarod on November 21, 2002. The court found that the
Aldermans had entered into an oral contract with Gottstein
whereby they agreed to pay fifteen percent of Alaska Guestours
gross revenue to Iditarod Properties and/or Gottstein. In
determining how rent was calculated, the court relied on the
Aldermans prior sworn testimony, the prior sworn testimony of
Francis Gallela, and the Aldermans tax returns. The court found
that the Aldermans were obligated to pay $24,920.55 in rent, but
it offset this amount by $11,817 which was retained by Gottstein
from ticket sales from the 1997 season. Accordingly, it ordered
the Aldermans to pay Gottstein the balance of $13,103.55.
Iditarod sought to recover its full attorneys fees
accruing from the date of the 1999 superior court judgment.
Iditarod claimed that it had incurred $61,266.25 in attorneys
fees, an amount which included fees for all work after the first
trial, including appellate work. The Aldermans opposed this
motion. The court awarded Iditarod $18,170 in attorneys fees
under Alaska Civil Rule 82, an amount which represented fifty
percent of Iditarods actual fees for the 2002 trial, excluding
the post-1999 appellate work. The court enhanced the fee award
because the Aldermans had appealed the 1999 judgment on the
grounds that they were denied the opportunity to present evidence
in their defense but then failed to introduce any new evidence at
the 2002 trial; because Iditarod made an offer of judgment that
the Aldermans rejected; and because the Aldermans defenses were
generally weak. The Aldermans motion for reconsideration on this
issue was denied.
The court ordered the Aldermans to pay $18,170 in
attorneys fees, $582.29 in costs, and $1,235.34 for the remainder
owed for unpaid rent,8 for a total judgment of $19,987.63. The
Aldermans appeal on several grounds. They claim that the
superior court erred in denying their motion for summary judgment
on the grounds that Iditarods suit was barred by res judicata and
the applicable statute of limitations, in admitting the prior
sworn testimony of Francis Gallela, in awarding enhanced
attorneys fees, and in calculating the amount of prejudgment
interest.
III. STANDARD OF REVIEW
A trial courts determinations whether an action is
barred by res judicata or the applicable statue of limitations
present questions of law, which we review de novo.9 The
determination of the date on which a cause of action accrued is a
factual finding.10 Such factual findings are reviewed for clear
error.11
A determination regarding the admissibility of evidence
is a matter within the discretion of the trial court, and its
rulings will not be disturbed absent an abuse of discretion.12
If the admissibility of evidence turns on whether the trial court
applied the correct legal standard, we review the courts decision
using our independent judgment.13
We review an award of attorneys fees for an abuse of
discretion, which we will find only if, after a review of the
entire record, we are left with a definite and firm conviction
that the trial court erred in its ruling.14 If the award of
attorneys fees requires interpretation of the Alaska Civil Rules,
we apply our independent judgment.15 The date when prejudgment
interest begins to accrue is a question of law which we review de
novo.16
IV. DISCUSSION
A. The Action To Recover Rent Is Not Barred by Res Judicata.
A. The Aldermans argue that Iditarods action to recover rent is
barred by res judicata because Iditarod should have raised the
claim at the first trial but did not properly do so.17 The
doctrine of res judicata prevents a party from suing on a claim
which has been previously litigated to a final judgment by that
party. 18 And, as we stated in Plumber v. University of Alaska,
Anchorage,19 res judicata bars not only relitigation of the same
cause of action, but also new claims arising from the same
transactions as those in the first suit.20 When determining
whether two claims are part of the same cause of action, we look
to the transaction out of which the claims arose, not the legal
theories asserted.21 We exercise pragmatism in making this
determination and consider whether the facts are related in time,
space, origin, or motivation, whether they form a convenient
trial unit, and whether their treatment as a unit conforms to the
parties expectations or business understanding or usage.22
The actions for trademark infringement and breach of an
oral rental contract are separate and distinct causes of action.
Each action required proof of different facts,
arose out of a separate and distinct injury, and caused a
separate and distinct harm. The cause of action for trademark
infringement arose when the Aldermans began using Iditarods trade
name, Fourth Avenue Theatre, in their trolley tours,23 while the
cause of action for unpaid rent arose when the Aldermans failed
to pay rent as agreed. Although both causes of action were
precipitated by the breakdown in the parties business
relationship, either cause of action could have been brought had
the factual circumstances underlying the other cause of action
never occurred. Because the two causes of action arose out of
separate transactions, we find that Iditarods action to recover
rent was not barred by res judicata.
B. The Action Is Not Barred by the Statute of Limitations.
A. The Aldermans also argue that Iditarods 2002 suit to recover
rent was barred by the statute of limitations. They contend
that, because the cause of action accrued after August 7, 1997,
it was subject to a three-year statute of limitations rather than
the six-year period used by the superior court.24 Iditarod
contends that the cause of action accrued in June or July 1997
because the Aldermans failed to pay rent for those months.
Accordingly, they argue that the action is governed by the six-
year statute of limitations period applicable under former AS
09.10.050. Iditarod argues in the alternative that, even if the
cause of action was subject to a three-year statute of
limitations, the action is saved by Alaskas statutory savings
clause. Because we find that Alaskas statutory savings clause
applies, we need not review the superior courts factual findings
regarding when the cause of action accrued.
Alaskas statutory savings clause, codified in AS
09.10.240, provides that, if a judgment on a particular cause of
action is reversed or dismissed on appeal, and the cause of
action was originally commenced within the time prescribed, the
losing party may commence a new action on the same grounds within
one year of the reversal or dismissal. Alaska Statute 09.10.240
applies to all actions that are dismissed at the trial or
appellate level other than those dismissed on their merits.25
Iditarods action to recover rent was originally filed
as an amendment to a complaint for trademark infringement in May
1998, making it timely under either the three-year or six-year
statute of limitations. We did not dismiss the judgment for rent
on its merits, but because we were concerned that allowing
Iditarod to amend the complaint after the close of evidence might
have caused prejudice to the Aldermans.26 Because Iditarods
original action was timely, and because we did not vacate the
judgment on the merits, we conclude that AS 09.10.240 applies.27
Iditarods second action to recover rent, filed less than one year
after the judgment was vacated, was timely under AS 09.10.240.
The action was not barred by the statute of limitations.
C. Any Error in Admitting the Prior Sworn Testimony of Francis
Gallela Was Harmless.
At the 1999 trial, the Aldermans called Francis Gallela
as an expert witness to prove the economic damages suffered by
the Aldermans due to Iditarods alleged interference with their
business. At the 2002 trial, Judge Christen allowed Iditarod to
read into evidence Gallelas prior sworn testimony that had been
given as part of an offer of proof. In the portion of testimony
that was offered into evidence, Gallella stated that Caleb
Alderman had told Gallela that the rental agreement required the
Aldermans to provide Iditarod with fifteen percent of Alaska
Guestourss gross receipts, a statement that contradicted the
Aldermans position at the 2002 trial. At that trial, the
Aldermans maintained that their rent agreement called for them to
pay only fifteen percent of their ticket sales from locations on
the Gottstein property, not fifteen percent of their gross
revenues.
The Aldermans argue that the trial court erred in
admitting Gallelas prior sworn testimony because it was hearsay
and did not fall within an exception to the hearsay rule. Under
Alaska Evidence Rule 801(c), hearsay is a statement, other than
one made by the declarant while testifying at the trial or
hearing, offered into evidence to prove the truth of the matter
asserted. A statement is not considered hearsay if it is an
admission by a party and is offered against that party.28
Iditarod urges this court to hold that when a party puts a
witness on the stand to prove a particular fact and the witness
does so, the witnesss testimony constitutes an adoptive admission
by that party and is therefore not hearsay.
We need not reach this issue because, even if Gallelas
testimony was admitted in error, it was harmless. The admission
of evidence, even if erroneous, is harmless when there is no
reasonable likelihood that the admitted evidence had an
appreciable effect on the courts decision.29 When determining
whether an allegedly erroneous admission of evidence was
harmless, we do our best to put ourselves in the position of the
trier of fact.30 In this case, there is no reasonable likelihood
that admission of Gallelas testimony would have had an
appreciable effect on a reasonable trier of fact (here, the court
was the trier of fact) because the financial records presented at
the second trial,31 the testimony of Robert Gottstein,32 and
substantial testimony from the Aldermans themselves at the first
trial all supported the courts decision33 and all were in conflict
with the testimony of the Aldermans at the second trial.
D. The Superior Court Erred in Awarding Enhanced Attorneys Fees
to Iditarod.
The court awarded Iditarod $18,170 in attorneys fees,
an amount which represented an enhanced fee award of fifty
percent of Iditarods actual attorneys fees. The court enhanced
the award because the Aldermans failed to present new evidence on
the issue of rent, they rejected Iditarods reasonable settlement
offers,34 and they presented a weak defense. The Aldermans argue
that this was an abuse of discretion.
Under Alaska Rule of Civil Procedure 82(b)(1), if an
issue is contested and goes to trial, a prevailing plaintiff is
entitled to recover as attorneys fees twenty percent of a
judgment up to $25,000. The trial court has discretion to vary a
fee award if it determines that variation is warranted because
of, among other factors, the attorneys efforts to minimize fees,35
the reasonableness of claims and defenses pursued by each side,36
vexatious or bad faith conduct,37 and any other relevant equitable
factors.38 We reverse the award of attorneys fees because we find
that the court erred in considering Iditarods offers of judgment
when awarding enhanced fees and because the findings that the
Aldermans claims were either unreasonable or brought in bad faith
are not supported by the record.
1. Iditarods offers of judgment were not relevant under Civil
Rule 82.
The superior court awarded Iditarod enhanced atttorneys
fees in part based on its finding that Iditarod had attempted to
minimize its attorneys fees through pre-trial offers of judgment.
On October 17, 2002 Iditarod offered the Aldermans and Alaska
Guestours $900 to settle the case. The settlement offer was not
accepted, and Iditarod subsequently incurred at least $9,000 in
attorneys fees. The settlement offer did not lead to an award of
attorneys fees under Rule 68, because the court found that the
parties did not set a deadline for initial disclosures, a finding
that Iditarod does not challenge on appeal.
Although the offers of judgment were reasonable
attempts by Iditarod to minimize the attorneys fees of both
parties, we have consistently held that it is error for a
superior court to consider past settlement negotiations when
awarding enhanced fees under Rule 82.39 The only method by which
fees may be enhanced for failure to accept an offer of judgment
is found in Civil Rule 68.40 If an offer of judgment fails due to
a procedural defect, as is the case here, the superior court may
not then penalize the offeree by awarding enhanced fees under
Rule 82.41 We reverse the award of enhanced fees because the
award was at least partially based on Iditarods offers of
judgment under Rule 68.42
2. The Aldermans defenses were not unreasonable.
The superior court also awarded Iditarod enhanced
attorneys fees because it felt that the Aldermans defenses were
weak. When a party has taken a legitimate position, it has not
acted unreasonably for the purposes of Rule 82.43 This case
centered on the terms of an oral contract, about which neither
party was able to produce definitive evidence. Caleb Alderman
testified that the oral contract was for fifteen percent of sales
generated at the Fourth Avenue Theatre and not fifteen percent of
Alaska Guestourss gross receipts, although his testimony at the
first trial had been inconsistent on this point. The prior
testimony of Barbara Alderman, which was read into evidence, was
somewhat less clear but tended to support the claim that the
contract was for fifteen percent of sales made at the theater.
Gottstein claimed that the contract was for fifteen percent of
the gross receipts from the trolley tours.
Considering the conflicting testimony presented at
trial, we cannot say that the Aldermans defense was unreasonable.
The superior courts finding appears to be based on Judge
Shortells characterization of the Aldermans claims and defenses
during the 1999 trial, and does not support enhancement pursuant
to Rule 82(b)(3)(F), which requires a finding that a partys
defense was unreasonable.
3. There is no factual basis to support a finding that the
Aldermans acted in bad faith or made misrepresentations to the
court during the current litigation.
Finally, the court stated that it awarded enhanced fees
because the Aldermans appealed the 1999 judgment on the grounds
that they were not given the opportunity to present new evidence
but then failed to present any new evidence at the 2002 trial.
This appears to be another way of saying that the Aldermans
appeal was brought in bad faith or that the Aldermans made
misrepresentations to this court.
In the first appeal, we held that the Aldermans were
prejudiced when Judge Shortell allowed Iditarod to assert a cause
of action for unpaid rent after the close of evidence.44 The
Aldermans argued that the late addition of this claim prevented
them from presenting evidence concerning the terms of the parties
oral rent agreement.45
At the second trial, the Aldermans submitted tax
returns for Alaska Guestours for the years 1995-1997, as well as
assorted receipts. The tax returns specified Alaska Guestours
gross receipts and rent expenditures for each year. Caleb
Alderman testified that some of the rent expenses on Alaska
Guestours tax returns were related to the company trolley and
van. He also testified that the parties oral agreement specified
that the Aldermans would pay Iditarod fifteen percent of ticket
sales made at the theater and not, as Iditarod claimed, fifteen
percent of all gross receipts generated from the trolley.
Clearly the Aldermans presented some new evidence, both
testimonial and documentary, at the 2002 trial.
The superior court also stated that the Aldermans may
have acted in bad faith due to evidence that they had delayed the
case by attempting to evade process, an apparent reference to the
Aldermans attempt to avoid Iditarods judgment in the 1999 action.
But conduct undertaken in bad faith for the purposes of Rule 82
must relate to conduct during the litigation, and not to actions
taken during the underlying transaction or other litigation
between the parties.46 It was thus inappropriate to consider the
Aldermans alleged attempts to avoid judgment in another cause of
action.
We conclude that the superior court erred in awarding
Iditarod enhanced attorneys fees and remand this issue for
imposition of Rule 82 attorneys fees without enhancement.
E. The Superior Court Correctly Calculated Prejudgment
Interest.
A. The superior court awarded Iditarod prejudgment interest at
a rate of 10.5% per annum to accrue from August 1, 1997, but
excluding the period during which Iditarod was in possession of
the judgment for unpaid rent. The right to prejudgment interest
in an action for breach of contract accrues from the date of
contractual breach.47 The purpose of awarding prejudgment
interest is to compensate [a] plaintiff for the loss of use of
the money from the date of injury until the date of judgment. 48
The Aldermans argue that the courts award of prejudgment interest
gave Iditarod a double recovery and that Iditarods right to
interest accrued after August 1, 1997, claims which, if true,
would both reduce the amount of interest owed as well as change
the rate at which interest would be calculated.49 For the
following reasons, we reject these arguments and affirm the award
of prejudgment interest.
1. The award of prejudgment interest did not give
Iditarod a double recovery.
The Aldermans argue that Judge Christens award of
prejudgment interest for the period of August 1, 1997 to May 10,
2000 granted Iditarod a double recovery because the Aldermans had
already paid prejudgment interest for that period in accordance
with Judge Shortells order. The Aldermans correctly argue that
prejudgment interest may not be awarded to the extent that it
would give the plaintiff a double recovery.50 However, Judge
Christen correctly credited the Aldermans not only with the
amount paid on the earlier judgment, but also the interest that
they paid on the judgment. In addition, the Aldermans did not
have to pay interest during the period of time that Iditarod had
possession of the judgment. Thus, Iditarod did not receive a
double recovery.
2. The Aldermans have waived all other claims concerning the
computation of prejudgment interest.
The Aldermans also argue that the superior court erred
in ruling that Iditarod was entitled to receive prejudgment
interest beginning on August 1, 1997. The Aldermans raise this
issue for the first time on appeal.
Absent plain error, we generally will not consider
issues raised for the first time on appeal.51 We may make
exceptions for issues that are (1) not dependent on any new or
controverted facts, (2) closely related to the appellants trial
court arguments; and (3) could have been gleaned from the
pleadings.52 Because the Aldermans claim rests on a controverted
fact the date on which the cause of action accrued and because
there was no plain error in calculating the date from which
prejudgment interest accrued, this argument has been waived.
Finally, the Aldermans argument that a different statutory rate
of interest applies, an issue raised in the Aldermans points on
appeal but not argued before the trial court or in their opening
brief before this court, is deemed abandoned.53
V. CONCLUSION
We AFFIRM the superior courts award of past-due rent
and prejudgment interest in favor of Iditarod, but we REVERSE the
award of enhanced attorneys fees and
REMAND to the superior court to issue an award of attorneys fees
in accordance with this opinion.
_______________________________
1 These facts are taken from Alderman v. Iditarod Props.,
Inc., 32 P.3d 373 (Alaska 2001).
2 The Aldermans, and their counsel, have variously
spelled their name Alderman and Aldeman throughout this
litigation. We use the former spelling, which represents that
used in our earlier published opinion in this case.
3 32 P.3d 373 (Alaska 2001).
4 Id. at 398.
5 Id. at 394-97.
6 The former statute, AS 09.10.050, was amended effective
August 7, 1997 when AS 09.10.053 was enacted. Ch. 26, 3-4, SLA
1997.
7 Alaska Guestours is the name of the Aldermans trolley
business.
8 The amount owing for rent was so low because the
Aldermans had previously paid to Iditarod $13,924.05 in rent and
$1,766.45 in accrued interest, and this sum was subsequently
deposited with the court pending the outcome of trial.
9 See State, Dept of Commerce & Econ. Dev., Div. of Ins.
v. Schnell, 8 P.3d 351, 359 (Alaska 2000) (determination of
whether action is barred by res judicata is question of law);
Jenkins v. Daniels, 751 P.2d 19, 21 (Alaska 1988) (determination
of which statute of limitations applies is question of law).
10 Johns Heating Serv. v. Lamb, 46 P.3d 1024, 1031 (Alaska
2002).
11 Dodson v. Dodson, 955 P.2d 902, 905 (Alaska 1998).
12 Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).
13 Landers v. Municipality of Anchorage, 915 P.2d 614, 616
n.1 (Alaska 1996).
14 Alderman v. Iditarod Props., Inc., 32 P.3d 373, 380
(Alaska 2001).
15 Id.
16 Liimatta v. Vest, 45 P.3d 310, 313 (Alaska 2002).
17 At oral argument, Iditarod argued that the Aldermans
waived this argument because it was not listed in their statement
of points on appeal. However, the Aldermans did raise this claim
before the trial court, they fully briefed the issue to this
court, and we may effectively address it without the need to
review untranscribed portions of the electronic record.
Accordingly, we find that the Aldermans failure to include the
issue in the statement of points on appeal does not bar
consideration of the issue. See Alaska R. App. P. 204(e) (The
appellate court will only consider points included in the
statement [of points on which the appellant intends to rely in
the appeal], and points that the court can address effectively
without reviewing untranscribed portions of the electronic
record.). See also Native Vill. of Eklutna v. Bd. of Adjustment
for Municipality of Anchorage, 995 P.2d 641, 646 (Alaska 2000)
(review of issue on appeal was not precluded when all relevant
portions of electronic record were transcribed, appellant raised
issue before superior court, and issue was fully briefed on
appeal).
18 Dixon v. Pouncy, 979 P.2d 520, 523 (Alaska 1999)
(quoting Moores Federal Practice 131.10[1][a] (3d ed. 1997)).
19 936 P.2d 163 (Alaska 1997).
20 Id. at 166.
21 Tope v. Christianson, 959 P.2d 1240, 1244 (Alaska
1998).
22 McElron v. Kennedy, 74 P.3d 903, 908 (Alaska 2003); see
also Restatement (Second) of Judgments 24 (1982).
23 Alderman v. Iditarod Props., Inc., 32 P.3d 373, 379
(Alaska 2001).
24 For causes of action accruing on or after August 7,
1997, the statute of limitations for breach of contract is three
years. AS 09.10.053. If the cause of action accrued before
August 7, 1997, the statute of limitations is six years. Former
AS 09.10.050. See ch. 26, 3-4, SLA 1997.
25 Smith v. Stratton, 835 P.2d 1162, 1165 (Alaska 1992).
26 Alderman, 32 P.3d at 395-96.
27 We read AS 09.10.240 to apply to judgments that have
been vacated as well as those that have been dismissed. As with
an action that has been dismissed on grounds not related to its
merits, when a judgment is vacated it is as if the judgment had
never been entered and the parties are put in the same position
they were in before the entry of judgment. See, e.g.,
Earthmovers of Fairbanks, Inc. v. State, Dept of Transp. & Pub.
Facilities, 765 P.2d 1360, 1363 (Alaska 1988) (effect of reversal
is vacation of that judgment, putting case back in same position
as before judgment).
28 Alaska R. Evid. 801(d)(2).
29 Crosby v. Hummell, 63 P.3d 1022, 1028 (Alaska 2003).
30 See Dobos v. Ingersoll, 9 P.3d 1020, 1024 (Alaska 2000)
(under harmless error test, we will put ourselves in position of
jury to determine if reasonable people would have been affected
by improperly admitted evidence in rendering verdict).
31 The evidence showed that the Aldermans paid fifteen
percent of gross revenues for 1995 and 1996, their first two
seasons of operation, and the superior court reasonably found
that this strongly supported the conclusion that fifteen percent
of gross revenues reflected the amount that the parties had
agreed upon.
32 Mr. Gottstein testified that his agreement with the
Aldermans was that they would pay him fifteen percent of the
gross proceeds of the tour business as rent.
33 For example, while their testimony at the first trial
was inconsistent, both Aldermans referred to fifteen percent of
gross receipts at least once. Caleb Alderman testified at the
first trial that he paid Gottstein fifteen percent of gross
[receipts]. Barbara Alderman testified that Gottstein proposed
increasing the rent to thirty percent of gross receipts rather
than the fifteen percent he had been receiving under their prior
agreement.
34 Fees were not awarded under Civil Rule 68 because the
parties did not set a deadline for the exchange of initial
disclosures. Neither party raises this issue on appeal.
35 Alaska R. Civ. P. 82(b)(3)(E).
36 Alaska R. Civ. P. 82(b)(3)(F).
37 Alaska R. Civ. P. 82(b)(3)(G).
38 Alaska R. Civ. P. 82(b)(3)(K).
39 Van Dort v. Culliton, 797 P.2d 642, 645 (Alaska 1990);
Doyle v. Peabody, 781 P.2d 957, 962 (Alaska 1989); Day v. Moore,
771 P.2d 436, 438-39 (Alaska 1989); Myers v. Snow White Cleaners
& Linen Supply, Inc., 770 P.2d 750, 752-53 (Alaska 1989).
40 Doyle, 781 P.2d at 962; Day, 771 P.2d at 438-39; Myers,
770 P.2d at 752.
41 Day, 771 P.2d at 438.
42 See Van Dort, 797 P.2d at 645 (we have consistently
reversed awards of attorneys fees based in whole or in part on
improper consideration of past settlement negotiations).
43 Marathon Oil Co. v. ARCO Alaska, Inc., 972 P.2d 595,
605 (Alaska 1999).
44 Alderman v. Iditarod Props., Inc., 32 P.3d 373, 395
(Alaska 2001).
45 Id. at 394-95.
46 Cole v. Bartels, 4 P.3d 956, 961 n.24 (Alaska 2000).
47 K&K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702,
724 (Alaska 2003) (prejudgment interest runs from date claim
accrues).
48 Liimatta v. Vest, 45 P.3d 310, 321 (Alaska 2002)
(quoting Am. Natl Watermattress Corp. v. Manville, 642 P.2d 1330,
1343 (Alaska 1982)).
49 The former AS 09.30.070, which applies to causes of
action accruing before August 7, 1997, provided for a 10.5% rate
of interest. Under the current AS 09.30.070, the statutory
interest rate is three percentage points above the 12th Federal
Reserve District discount rate in effect on January 2 of the year
judgment is entered. See ch. 26, 18, SLA 1997.
50 See, e.g, Liimatta, 45 P.3d at 321 (holding that
prejudgment interest cannot be awarded if it would amount to
double recovery).
51 Hoffman Constr. Co. of Alaska v. U.S. Fabrication &
Erection, Inc., 32 P.3d 346, 355 (Alaska 2001).
52 Id.
53 See In the Matter of H.C., 956 P.2d 477, 480 n.7
(Alaska 1998) (citing Kodiak Elec. Assn, Inc. v. DeLaval Turbine,
Inc., 694 P.2d 150, 153 n.4 (Alaska 1984) (issues raised in
partys statement of points on appeal, but not adequately briefed,
are considered abandoned)).
