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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wagner v. Wagner (04/17/2009) sp-6365

Wagner v. Wagner (04/17/2009) sp-6365

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
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     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 12666
Appellant, )
) Superior Court No.
v. ) 4FA-03-00181 CI
Appellee. ) No. 6365 - April 17, 2009
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Mark I. Wood, Judge.

          Appearances: S. Jason Crawford, Crawford  Law
          Offices, LLC, Fairbanks, for Appellant.  John
          J.  Connors,  Law Office of John J.  Connors,
          P.C., Fairbanks, for Appellee.

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

          CARPENETI, Justice.
          In 2005 the trial court awarded a judgment for specific
performance  to  a  son against his father on a contract  entered
into  by father and son in which the son helped the father obtain
a  bank loan.  The father appealed that judgment to this court in
2006, but we dismissed that appeal for lack of prosecution.   The
father did not pay, and in 2007 the trial court issued a writ  of
execution against him.  The father now appeals from that writ  of
execution.  The father raises three questions on appeal: (1)  Did
the  trial  court  err in its 2005 judgment by ordering  specific
performance  based on the royalties from certain of  the  fathers
oil  and  gas leases that were not part of the security  for  the
loan?   (2)  Did  the  trial  court  err  in  awarding   specific
performance  rather than a lump sum judgment?  and  (3)  Did  the
trial  court  erroneously  stray from the  formula  in  the  2005
judgment when it calculated the amount due to the son in the writ
of execution?
          Of  these  three  questions raised, we reach  only  the
third.   We decline to decide the first and second issues because
they  are  both  time-barred and barred by our dismissal  of  the
fathers  appeal from the 2005 judgment for failure to  prosecute.
The  fathers first and second questions challenge the 2005  order
and  judgment, and he cannot make those challenges now.   And  we
conclude  the  third challenge cannot succeed.  What  the  father
claims was error is, in fact, the correct calculation ordered  by
the trial court in 2005.  Accordingly, we affirm the judgment  of
the superior court.
     A.   Facts
          Richard Wagner filed for bankruptcy in 1988.1  Richards
assets  included royalties from oil and gas leases he  possessed.
Richards  creditors  included Key Bank, whom  Richard  owed  $2.5
million.   The bankruptcy court issued Richards final  bankruptcy
plan  in  1994.   The  plan divided Richards oil  and  gas  lease
royalties  among  his  creditors.  In 2001 Key  Bank  offered  to
settle Richards $2.5 million debt for $1 million if Richard  paid
by  December 31, 2001.  Richard was unable to raise the money; he
therefore asked his son Gregory Wagner to help him get a loan.
          Gregory  agreed  to  co-sign  a  $1,025,000  loan  from
Northrim  Bank with Richard.  Gregory and his wife put  up  their
home  as  collateral and put their personal credit at  risk.   In
exchange  for  Gregorys  co-signature on the  loan,  Richard  and
Gregory  entered into an oral agreement, which they later reduced
to writing.
          The   written  agreement  provided  that  income   from
Richards royalties that had secured the Key Bank loan would first
pay  the  Northrim loan.  Any remaining royalty income  would  be
divided as follows: Gregory would get the first $2,500 per month,
Richard  would  get  the next $7,500 per month,  and  they  would
divide  any remaining royalty income equally between  them.   The
agreement  did  not  take into account the  portions  of  royalty
income to be paid to other creditors under the bankruptcy plan.
     B.   Proceedings
          In  2002  Richard defaulted in his payments to Gregory,
and Gregory sued in 2003.  The case went to trial in August 2005.
At  the end of trial, the jury returned the following answers  to
the following special interrogatories:
          [Q:] Prior to the time the Wagners signed the
          loan  documents at Northrim Bank on  December
          24,  2005,  had  they entered  into  an  oral
          agreement? [A:] Yes.
          [Q:]  If  yes,  what were the terms  of  that
          agreement?  [A:] In exchange  for  getting  a
          $1,025,000 loan from Northrim bank  to  repay
          Richard Wagners debt at Key Bank, Greg Wagner
          will  receive a share of profits from Richard
          Wagners oil royalties.
The jury found breach by Richard and awarded Gregory past damages
of $139,180.39.2
          In  November  2005  the superior court  concluded  that
specific  performance  was  an  appropriate  remedy  and  ordered
Gregory  to  prepare  a judgment for specific  performance.   The
court held, contrary to Richards argument, that the jurys failure
to  specify  the  terms  of the oral agreement  did  not  prevent
specific performance.  The court reasoned that the jury must have
used the terms of the written agreement to calculate its award of
past  damages,  and therefore that the jury must have  found  the
terms  of  the  oral agreement consistent with the terms  of  the
written agreement.  The court wrote:
          Applying   the   formula  of  the   [written]
          agreement mechanically to the testimony of  .
          . . [a witness] and the other evidence of the
          oil  revenues from Richards shares of his oil
          leases  introduced at trial, the past damages
          would be calculated at $141,124.00.  That  is
          within  $2000.00  of what the  jury  actually
          awarded  [$139,180.39].   The  jury  did  not
          receive  a  lot  of  help  from  counsel   in
          calculating past damages and their  award  to
          Greg  is within reasonable mathematical error
          if  they performed the calculations under the
          agreement  themselves . . . .  The difference
          could   also  be  explained  by   the   jurys
          determination  that there  were  insufficient
          royalties to meet the complete payout of  the
          agreement on one or more months.
          The  trial  court said it would order  Richard  to  pay
Gregory  according to the formula in the written agreement.   The
trial  court  also  said  it  would calculate  Gregorys  payments
without  deducting amounts owed to creditors other than  Northrim
Bank,  including  the  Weeks Foundation.  In  December  2005  the
superior court entered judgment for specific performance  against
          In  his  earlier appeal  which we ultimately  dismissed
for  lack  of  prosecution  Richard challenged a  number  of  the
superior  courts conclusions of fact and law.  He  generally  did
not  state any legal grounds for those challenges, merely stating
that  the  superior court erred in entering them.  He  challenged
the superior courts conclusion of law that [t]he contract between
Richard  and  Greg  is sufficiently clear and definite  that  the
Court  is  able to enforce it without having to supply  essential
terms that the parties did not agree to.  He also challenged  the
superior  courts decision to order specific performance into  the
future,  as  well as the superior courts order that all  Richards
royalty  income  be  paid directly into  an  escrow  account  and
directly disbursed from the escrow account, without ever  passing
through Richards control.
          In  March  2007  the superior court issued  a  writ  of
execution  against Richard for arrearages owed to  Gregory  under
the December 2005 specific performance judgment.  Richard appeals
          from this writ of execution.
          We  review  questions of law de novo and  questions  of
fact  for clear error.3  We review awards of specific performance
for  abuse  of discretion.4  We will not upset a jury verdict  if
there    is   a   logical   theory   that   reconciles   apparent
inconsistencies in the jury verdict.5
     A.   Two of Richards Points Are Barred.
          We  decline  to resolve two of Richards issues  because
they  challenge  the  2005 judgment, from which  Richard  already
appealed.   We  dismissed that appeal because Richard  failed  to
prosecute it.6  Alaska Statute 22.05.010 establishes that a party
has  only one appeal as of right.  Richard used that appeal  from
the  2005  orders in 2006.  His points on appeal in 2006,  listed
above, appear to cover his current arguments that the trial court
deviated  from the jury award by calculating specific performance
based  on  too many of Richards leases and that the  trial  court
erred by awarding specific performance.7
          Even  if  Richards previous appeal did not cover  these
arguments,  any  challenges to the 2005 judgment are  also  time-
barred.   Alaska  Appellate Rule 204 requires a party  to  appeal
within  thirty  days  of  entry of a  final  order  or  judgment.
Appellate  Rule  202  provides that a party may  appeal  a  final
judgment  entered by the superior court.8  We have defined  final
judgment as one that ends the litigation on the merits and leaves
nothing  for the court to do but execute the judgment.9  In  this
case,  litigation  on  the merits ended  with  the  November  and
December  2005  orders.   As  our definition  of  final  judgment
indicates, execution comes after final judgment.  Execution  does
not  give a party a second chance to appeal the merits more  than
thirty days after the entry of final judgment.
          Thus,  we will reach only the merits of Richards  claim
that the trial court incorrectly calculated the amount awarded in
the writ of execution.
     B.   The Trial Court Did Not Err in Its Writ of Execution by
          Calculating  Amounts  Due  Gregory  Without   Deducting
          Amounts Owed to Richards Bankruptcy Creditors.
          Richard argues that the trial court erred in its  March
2007  writ  of  execution by calculating the amount  due  Gregory
without  deducting amounts owed to Richards bankruptcy creditors,
particularly the Weeks Foundation.  But we conclude  that  cannot
be error because that calculation mirrored the jurys findings and
because the trial court plainly stated, in both its November  and
December 2005 orders, that it would calculate amounts due Gregory
without regard for the Weeks Foundations claims.  Richard  points
to  no  evidence  in  the record that the trial  courts  writ  of
execution strayed from the formula laid out in detail in both the
November and December 2005 orders.
          First,   in   its  November  2005  order  on   specific
performance, the trial court made the following finding of  fact:
The Wagners agreement makes no provision for payments to Weeks[,]
and  Gregorys  share  of  royalties  is  determined  without  any
deduction for the payments Richard was required to make to Weeks.
          The trial court then concluded:
          The  calculation  of  amounts  allocated   to
          Gregory  . . . should be made each  month  by
          taking   the   gross  royalties,  subtracting
          amounts  paid  to  Northrim  Bank,  and  then
          allocating to Gregory $2,500 plus 50% of  the
          balance   over   $10,000;   the   amount   so
          allocated,  even  though  actually  paid   to
          Weeks  or  to tax and escrow costs,  will  be
          part of the delinquent amounts to be paid  to
          Gregory . . . .
          The  formula in the trial courts December 2005 judgment
is  consistent  with  its  November order.   The  December  order
          [T]he  amount  to  be  allocated  to  Gregory
          Wagner  shall  be determined  by  taking  the
          total  royalties received each month and  (I)
          first,  subtracting the amounts paid  on  the
          obligation  to  Northrim Bank;  (ii)  second,
          allocating to Gregory $2,500 or the remaining
          amount,  whichever is less; (iii)  third,  if
          the difference between the royalties received
          and  the amounts paid to Northrim Bank exceed
          $10,000,  allocating to Gregory  50%  of  the
          difference in excess of $10,000.
          In its writ of execution, the trial court properly used
the  same methodology that it had used in its November 2005 order
on specific performance and in its December 2005 judgment.
          Because Richards first and second issues on appeal  are
not  properly before us, we decline to reach them.   Because,  in
regard  to  the third issue, the superior court did  not  err  in
calculating  the amount of the writ of execution, we  AFFIRM  the
decision of the superior court in all respects.
     1    We outlined many of these facts in our first opinion in
this  case, Wagner v. Wagner, 183 P.3d 1265, 1266 (Alaska  2008).
In that case we affirmed the trial courts award of attorneys fees
to Gregory, which Gregory had appealed.  Richard filed a separate
appeal  in  that case, but we dismissed his appeal  for  lack  of

     2    Wagner, 183 P.3d at 1266.

     3    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     4     See  Moran v. Holman, 501 P.2d 769, 771 (Alaska  1972)
([A]n  application for specific performance of a contract,  as  a
question of equity, is a matter addressed to the sound discretion
of  the  trial  court . . . . The trial courts decision  in  such
circumstances  will  not be set aside unless  against  the  clear
weight of the evidence.  (quoting Jameson v. Wurtz, 396 P.2d  68,
74 (Alaska 1964))).

     5     See McCubbins v. State, Dept of Natural Res., Div.  of
Parks & Recreation, 984 P.2d 501, 506 (Alaska 1999).

     6    See Alaska R. App. Pro. 511.5.

     7     Richards  argument  that  the  trial  court  erred  in
awarding specific performance is brief and unclear.  Although  it
seems  most  likely  that  he  challenges  the  underlying   2005
judgment,  it may be that he intended to challenge  the  writ  of
execution.  Even if we were to reach the merits on this point, we
would affirm the trial court. Richard argues that the trial court
should  have  awarded  Gregory a lump sum judgment,  rather  than
specific  performance,  based  on  AS  09.17.040.   That  statute
applies  only  to tort cases, not contract cases like  this  one.
The  statute requires that if a court awards damages for personal
injury,  the  court must award future damages as a  lump  sum  at
current  value.   The court in this case has not awarded  damages
for  personal injury, and the statute plainly does not  apply  to
contract  cases  such as this one.  We review a  superior  courts
order  of specific performance for contract damages for abuse  of
discretion.  See Moran, 510 P.2d at 771 (Alaska 1972).   We  find
no abuse of discretion in this case.

     8     Appellate  Rule 403 allows petitions for appeals  when
there is no appeal as of right, but those must be made within ten
days of the order.

     9     Greater  Anchorage Area Borough v. City of  Anchorage,
504  P.2d  1027,  1030 (Alaska 1972) (quoting  Catlin  v.  United
States, 324 U.S. 229, 233 (1944)), overruled on other grounds  by
City  &  Borough  of Juneau v. Thibodeau, 595  P.2d  626  (Alaska

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