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Sykes v. Melba Creek Mining, Inc. (1/30/98), 952 P 2d 1164
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.
THE SUPREME COURT OF THE STATE OF ALASKA
DWANE J. SYKES, )
) Supreme Court No. S-6759
) Superior Court No.
v. ) 4FA-92-1280 CI
MELBA CREEK MINING, INC., and ) O P I N I O N
FAIRBANKS GOLD MINING, INC., )
Appellees. ) [No. 4938 - January 30, 1998]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Niesje J. Steinkruger, Judge.
Appearances: Dwane J. Sykes, Orem, Utah, prose.
George R. Lyle, Guess & Rudd, Anchorage, for Appellees.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
Melba Creek Mining, Inc., and Fairbanks Gold Mining,
Inc., (collectively MCM) filed a superior court action against
Dwane Sykes (Sykes), claiming that Sykes had failed to perform on
a contract to convey to MCM his mineral rights to a parcel of land
near Fairbanks. Following a non-jury trial, Superior Court Judge
Niesje J. Steinkruger entered judgment for MCM in the amount of
$159,259.16. On appeal, Sykes challenges the trial court's grant
of partial summary judgment to MCM, claims that the court erred in
entering an order precluding him from calling witnesses at trial,
and contests the award of damages. We affirm the partial summary
judgment order, reverse the order precluding Sykes from calling
witnesses at trial, and remand for further proceedings; we also
conclude that if the superior court enters a verdict in MCM's favor
on remand, the court must reconsider its original award of
compensatory damages and prevailing party attorney's fees.
I. FACTS AND PROCEEDINGS
In 1992, MCM planned to excavate and develop a parcel of
land near Fairbanks; Sykes, a Utah resident, owned mineral rights
to the land. On June 3, 1992, Robert Tsigonis, an environmental
engineer/land coordinator for MCM in Fairbanks, telephoned Sykes in
Utah to negotiate MCM's purchase of Sykes's mineral rights. A
series of calls ensued, culminating on June 30 in Sykes's verbal
agreement to deed the mineral estate to MCM for $10,000.
Two days later, Tsigonis faxed a written agreement to
Sykes. That same day, Tsigonis offered to fly to Utah to deliver
a $10,000 check in exchange for Sykes's deed. In response to this
offer, Sykes confirmed his willingness to accept $10,000 for the
deed but suggested having MCM fly him to Fairbanks, so that he
could conduct other business there. Tsigonis agreed to this
arrangement. Sykes signed and returned to Tsigonis the faxed
agreement. Tsigonis purchased an airline ticket for Sykes, and, on
July 13, Sykes flew to Fairbanks. Following his arrival, however,
Sykes avoided Tsigonis, failed to claim his $10,000 check, and
never delivered the promised deed.
On July 16, Sykes wrote Tsigonis a letter disclaiming any
intent to sell MCM the mineral rights. In the letter, Sykes
claimed that he had "no recollection of signing or sending
anything, or if so, no idea what I may have been signing or doing
on July 3, 1992, or thereabout." Sykes wrote that he "thought it
was simply a preliminary document"and that the parties would
"negotiate further at a later date." Sykes further explained:
As you undoubtedly recall from our phone
conversations, my emotional state was and remains quite delicate.
At the time we were discussing these matters, as I then told you,
I was heavily medicated with prozac, anafranil, lithium, and other
drugs, under orders of my psychiatrist and physician. Hence I did
not know what I was doing.
The following day, July 17, Sykes quitclaimed his mineral
rights to Max Ferre, a Utah resident, purportedly in exchange for
Ferre's payment to Sykes of $51,000. Several days later, on July
21, Tsigonis received Sykes's July 16 letter disclaiming the
agreement to sell the mineral rights to MCM.
On July 24, MCM filed suit against Sykes for specific
performance and to enjoin him from transferring his mineral rights
to the disputed land. In early September, MCM's amended complaint
named Max Ferre as a codefendant and adding various claims,
including misrepresentation and intentional failure to perform on
Sykes's part. The amended complaint demanded an award of punitive
damages and requested full compensation for all expenses MCM might
incur in recovering the disputed mineral rights.
Sykes's answer generally denied the complaint's
allegations and advanced several defenses, including an allegation
that MCM had engaged in misrepresentation [Fn. 1] and a claim that
Sykes had been mentally incapable of entering into the alleged
MCM eventually negotiated a settlement with Ferre,
acquiring the disputed mineral rights from him in exchange for
$10,000 and his dismissal from the lawsuit. Ferre was dismissed as
a defendant in October 1993.
MCM thereafter moved for summary judgment against Sykes,
contending that there was no genuine issue of material fact as to
the formation of the alleged contract or Sykes's subsequent breach
of it by the sale to Ferre. Sykes opposed the motion and cross-
moved for summary judgment.
The superior court denied Sykes's cross-motion and
granted partial summary judgment to MCM, ruling from the bench that
Sykes had entered into a valid contract to sell MCM the mineral
rights and that he had subsequently breached this contract.
Confusion subsequently arose as to the scope of the superior
court's oral summary judgment order. As a result, on April 18,
1994, the court issued a written order clarifying that Sykes's
defenses of misrepresentation and mental incapacity had not been
foreclosed by the summary judgment order and that Sykes remained
free to litigate these issues at trial.
Prior to trial, Sykes missed the deadlines for filing
expert and non-expert witness lists, as set in the superior court's
pretrial order. Sykes eventually submitted late witness lists and
moved for leave to allow their untimely filing. He claimed that he
had recently gone through a period of depression that had precluded
him from meeting the original deadlines. The superior court denied
Sykes's motion, ruling that he had failed to establish manifest
injustice warranting departure from the pretrial order. The court
concluded that Sykes "shall not be allowed to call any lay or
expert witnesses in this trial"apart from witnesses already named
on MCM's witness lists.
After a five-day bench trial, the superior court issued
a decision in MCM's favor, resolving "all material facts . . .
against [Sykes]." Specifically, the court found that Sykes's
testimony had been consistently untruthful. It rejected Sykes's
defenses of misrepresentation and mental incapacity and found that
he had intentionally breached his contract with MCM. The court
further found that Sykes's breach forced MCM to incur substantial
legal expenses before it managed to acquire the disputed mineral
rights from Max Ferre. Based on these findings, the court declared
Sykes liable to MCM for punitive damages and for all attorney's
fees and costs paid by MCM through mid-October of 1993 -- the date
of its settlement with Ferre. The court entered judgment against
Sykes in the total amount of $159,259.16. [Fn. 2]
A. Summary Judgment
Sykes initially claims that the superior court erred in
granting partial summary judgment to MCM. [Fn. 3] In granting
summary judgment, the court found no genuine issue of fact as to
the formation of a valid contract or as to Sykes's later breach of
that contract. Sykes contends that there was ample evidence to
preclude summary judgment as to formation of a contract and breach.
The elements of an express contract consist of an offer
encompassing the agreement's essential terms, an unequivocal
acceptance, consideration, and a mutual intent to be bound. Young
v. Hobbs, 916 P.2d 485, 488 (Alaska 1996). The intent of the
parties when entering into a contract is a question of fact.
Alaska Continental, Inc. v. Trickey, 933 P.2d 528, 534 (Alaska
Below, Sykes raised two issues implicating the fourth
element of contract formation -- intent to be bound. Sykes
contended that, despite his execution of a written agreement to
sell mineral rights to MCM, no binding contract was ever formed,
because he was mentally incapable of entering into a contract and
because Tsigonis misrepresented MCM's planned use of the property.
Sykes presented various affidavits and his own deposition testimony
to support these contentions.
By claiming incapacity and misrepresentation and
presenting evidence to support these claims, Sykes raised genuine
issues of material fact as to the formation of a contract. We have
previously recognized that summary judgment is not proper when the
evidence before the superior court establishes a factual dispute as
to the intent of contracting parties. Martech Const. Co., Inc. v.
Ogden Environmental Services, Inc., 852 P.2d 1146, 1149 (Alaska
As our earlier recitation of facts made clear, however,
although the superior court initially indicated in an oral ruling
that it had granted summary judgment as to the formation of a
contract and its subsequent breach by Sykes, the court later issued
a written order expressly informing the parties that Sykes was not
foreclosed from asserting his claims of misrepresentation and
incapacity: "[T]he court did not consider [incapacity or
misrepresentation] in summary judgment. The court found, as a
matter of law, [that] defendant entered into the contract with
plaintiffs. Misrepresentation or incapacity may entitle defendant
to [rescission] or other remedy and may be presented at trial."
The net effect of the court's written order was to narrow
its earlier summary judgment ruling by construing it to find, as
uncontroverted fact, the first three elements of contract formation
-- offer, acceptance, and consideration -- while leaving open the
fourth element -- intent. The order also in effect found it
uncontroverted that Sykes had failed to convey his mineral rights
to MCM, as called for in his written agreement with Tsigonis; yet
in reserving judgment on Sykes's claims of incapacity and
misrepresentation, the order necessarily left open the ultimate
issue of actionable breach.
There was in fact no genuine dispute as to any of the
issues the superior court ultimately found uncontroverted; the
disputes in the case centered on the areas that the court's
written order left open to litigation. Because the written order
made it clear that Sykes remained free to litigate fully the issues
of misrepresentation and mental incapacity, we find no error in the
court's decision to grant partial summary judgment to MCM. [Fn. 4]
B. Witness Preclusion
Sykes next claims that the superior court erred in
precluding him from calling witnesses to support his defense at
trial. The challenged preclusion order resulted from Sykes's
failure to file timely witness and expert witness lists.
In a pretrial order issued April 9, 1993, the superior
court directed the parties to submit expert witness lists by
December 27, 1993, and non-expert witness lists by January 18,
1994. The pretrial order also called for the parties to file case
management memoranda by October 25, 1993. Sykes failed to file a
case management memorandum by the October 25 deadline. On November
2, 1993, the court issued a sua sponte order directing Sykes to
file the memorandum within fifteen days; in the same order, the
court directed Sykes to "comply with all dates and required acts
set forth in the Pretrial Order filed April 9, 1993, without
further intervention of this court."
Sykes thereafter missed the December 27, 1993, and
January 18, 1994, deadlines for filing expert and non-expert
witness lists. On February 28, 1994, Sykes submitted untimely
lists, together with a "Motion to Accept Late Filings"in which he
claimed that his "deteriorated mental state"had prevented him from
submitting the lists earlier. Specifically, Sykes asserted that
his depressed condition had prevented him "even from opening his
mail"when the filings were due. Sykes submitted information
purporting to document his assertions. [Fn. 5]
The superior court denied Sykes's motion to accept the
late witness lists, finding that Sykes had failed to establish
"good cause and manifest injustice for this court to grant him
relief from the Pretrial Order." Although the court indicated that
Sykes could "call any witness listed on the plaintiffs' witness
list,"it declared that he "shall not be allowed to call any lay or
expert witnesses"who had not been so listed. The court went on to
note that it "repeatedly . . . has advised Mr. Sykes throughout
these proceedings that the Pretrial Order deadlines provide him
with plenty of notice and that the order would not be varied."
The case proceeded to trial; as a result of the
preclusion order, Sykes was unable to call any of the persons named
in his expert witness list, because none of them had been listed as
MCM witnesses. All had been designated by Sykes to testify about
his claim of mental incapacity. [Fn. 6] Sykes attempted to prove
this claim through his own testimony and the testimony of his wife.
In rendering judgment against Sykes, the trial court rejected his
mental incapacity defense as wholly incredible. Sykes now
challenges the preclusion order as erroneous.
According to Alaska Civil Rule 16(e), pretrial orders
setting filing dates and other deadlines "shall control the
subsequent course of the action unless modified by a subsequent
order." Id. The order may be modified to prevent "manifest
injustice." Id. The discretion to modify a pretrial order rests
in the trial court. City of Kotzebue v. McLean, 702 P.2d 1309,
1316 (Alaska 1985). The burden is on the party seeking
modification to show manifest injustice. Johnson v. State, 636
P.2d 47, 58 (Alaska 1981).
For present purposes, we may assume that the trial court
did not abuse its discretion in finding that Sykes had failed to
show manifest injustice warranting modification of the pretrial
order. This assumption, however, does not resolve the controversy.
For although the trial court did not expressly say so, its order
rejecting the untimely lists in their entirety and precluding Sykes
from calling witnesses at trial amounted to a sanction for Sykes's
violation of the pretrial order. The appropriateness of the
preclusion order must be considered under the ground rules
Under Civil Rule 16(f), a party's violation of a pretrial
order empowers the court to "make such orders with regard thereto
as are just, and among others any of the orders provided in Rule
37(b)(2)(B),(C),(D)." Wasserman v. Bartholomew, 923 P.2d 806, 811
(Alaska 1996). [Fn. 7] One sanction enumerated in Rule 37(b)(2)
for violation of a pretrial order is "[a]n order refusing to allow
the disobedient party to support or oppose designated claims or
defenses, or prohibiting that party from introducing designated
matters in evidence." Alaska R. Civ. P. 37(b)(2)(B). The trial
court's order precluding Sykes from calling expert witnesses falls
squarely within this language.
Ordinarily, the choice of a particular sanction for a
discovery violation is a matter committed to the broad discretion
of the trial court, subject only to review for abuse of discretion.
Hughes v. Bobich, 875 P.2d 749, 752 (Alaska 1994). However, we
have repeatedly held that the trial court's discretion is limited
when the effect of the sanction it selects is to impose liability
on the offending party, establish the outcome of or preclude
evidence on a central issue, or end the litigation entirely. [Fn.
8] Before extreme sanctions of this kind may properly be imposed,
[t]here must be 'willful noncompliance' with
court orders, or 'extreme circumstances,' or 'gross violations' of
the Rules. The record must also 'clearly indicate a reasonable
exploration of possible and meaningful alternatives to dismissal.'
. . . If meaningful alternative sanctions are available, the trial
court must ordinarily impose these lesser sanctions . . . .
Arbelovsky, 922 P.2d at 227 (citation and footnotes omitted). [Fn.
This court has recently amended Civil Rule 37(b) to
include an express statement of these principles. In its present
form, the rule specifically provides that a court "shall not make
an order that has the effect of establishing or dismissing a claim
or defense or determining a central issue in the litigation unless
the court finds that the party acted willfully."[Fn. 10] Although
this provision was not in effect when the trial court entered the
disputed order precluding Sykes from calling expert witnesses, its
language summarizes the requirements then applicable under existing
For the present case, there seems to be little question
that the preclusion order issued against Sykes "ha[d] the effect of
. . . determining a central issue in the litigation[.]"Civil Rule
37(b)(3). Apart from questions relating to damages, the primary
issues surviving the superior court's summary judgment order were
Sykes's claims of mental incapacity and misrepresentation. While
the order precluding Sykes from calling witnesses seemingly had
little direct effect on his claim of misrepresentation, [Fn. 11] it
had extreme consequence for his mental incapacity defense: all of
the witnesses named by Sykes as experts were slated to testify
about Sykes's condition at the time the contract was formed. None
of these experts appeared on MCM's witness lists. Hence, to
establish his mental incapacity defense at trial, Sykes was left
with little but his own testimony -- readily impeachable as self-
serving [Fn. 12] -- and the testimony of his wife -- equally
vulnerable to attack as biased. Given the absence of ostensibly
neutral expert testimony, the trial court's rejection of Sykes's
incapacity defense as incredible hardly seems surprising.
Even though the witness preclusion order appears to have
had the effect of determining the central issue of mental
incapacity, the superior court did not make any finding as to
whether Sykes had wilfully violated the pretrial order; [Fn. 13]
indeed, the court did not expressly reject Sykes's explanation for
his failure to file timely witness lists -- his depressed emotional
Nor did the court specifically address the discovery
violation's impact on MCM's case. The record provides little
indication that accepting Sykes's untimely lists would have caused
MCM serious prejudice: Sykes's claim of mental incapacity and the
basic nature of that claim were known to MCM from the outset of the
case. The witnesses named by Sykes to support this claim were
health care professionals who had provided ongoing treatment to
Sykes; their identities, and a number of their reports, were
available to MCM in other pleadings. Although the untimely lists
were filed after discovery had closed, the tardiness posed no
obvious obstacle to MCM's ability to prepare for trial; to the
contrary, the record reveals that the originally scheduled trial
date was eventually postponed to accommodate the parties' mutual
request for a supplemental deposition of another witness.
Moreover, before entering its witness preclusion order,
the trial court evidently failed to consider any less drastic
sanctions. At the time Sykes missed the deadlines for filing his
witness lists, no discovery sanctions had been imposed or
threatened. [Fn. 14] The record discloses no basis for concluding
that a sanction less extreme than wholesale preclusion would not
have been effective.
Given the totality of these circumstances, "we [are] left
with the definite and firm conviction on the record that the judge
. . . made a mistake"[Fn. 15] in striking all of the expert
witnesses named in Sykes's untimely expert witness list. The
preclusion order's harsh effect on Sykes's defense of mental
incapacity rendered this sanction disproportionate to the severity
of the violation for which it was imposed. The trial court abused
its discretion in imposing the sanction.
This error requires that the judgment entered below be
vacated and that this case be remanded for further proceedings.
Because the case was tried to the court without a jury, however, a
new trial will not be necessary. Instead, the trial court may
reconsider its original decision after receiving supplemental
testimony from Sykes's designated experts and from any additional
witnesses MCM chooses to present in response to the new evidence.
C. Attorney's Fees as Compensatory Damages
Sykes additionally challenges the trial court's decision
to award attorney's fees, both as compensatory damages for Sykes's
breach and under Alaska Civil Rule 82. MCM correctly points out
that Sykes has failed to include this issue in his points on
appeal. Accordingly, the point is not properly preserved. [Fn. 17]
Moreover, Sykes's conclusory briefing of the point would warrant a
finding of abandonment. [Fn. 18] While these considerations
dissuade us from attempting to resolve Sykes's arguments, some
brief comments on the attorney's fees issue are in order, both in
the interest of justice [Fn. 19] and to provide guidance to the
trial court on remand.
As we have already explained, Sykes signed a written
agreement to sell MCM his mineral rights for $10,000; his refusal
to follow through on the agreement led MCM to file suit against
him, alleging, among other things, that he had intentionally failed
to honor the contract. After learning that Sykes conveyed the
rights to Ferre, MCM joined Ferre as Sykes's codefendant. MCM
later agreed to acquire the rights from Ferre for $10,000 -- the
same price previously agreed upon with Sykes; upon receiving a deed
from Ferre, MCM dismissed its suit against him but persisted in its
claims against Sykes.
In continuing to press its action against Sykes, MCM
claimed that Sykes should be held responsible for all costs MCM had
incurred as a result of Sykes's breach -- including the full costs
of MCM's litigation, through settlement with Ferre. Upon
conclusion of trial, the superior court ruled in favor of MCM on
this issue, declaring that MCM was "entitled to recover these legal
expenses from Mr. Sykes as contractual and tort damages for his
intentional breach of the Agreement and his misrepresentation and
fraud." These fees, incurred before the MCM/Ferre settlement,
totaled slightly more than $105,000. [Fn. 20]
After receiving the favorable verdict, MCM moved for an
award of prevailing party attorney's fees to cover legal services
rendered after the MCM/Ferre settlement. Emphasizing the
intentional nature of Sykes's breach, MCM argued for an award of
full fees, from the settlement date through trial. [Fn. 21] The
trial court denied MCM's request for full compensation but awarded
partial attorney's fees "computed pursuant to Civil Rule 82(b)(1)"
-- that is, calculated as a percentage of MCM's judgment, which
already included full compensation for pre-settlement legal fees
We have previously held that attorney's fees generally
cannot be awarded as damages -- that fee awards are instead
controlled by Civil Rule 82. Ehredt v. DeHavilland Aircraft Co. of
Canada, 705 P.2d 446, 452 n.8 (Alaska 1985). In Curt's Trucking
Company v. City of Anchorage, 578 P.2d 975 (Alaska 1978), we
concluded that costs of protecting one's legal claim are
unrecoverable as damages. Id. at 981. Likewise, in Alaska Pacific
Assurance Company v. Collins, 794 P.2d 936 (Alaska 1990), we stated
that "[o]ur trial courts are precluded from awarding fees other
than those allowed by 'rule or order.'"Id. at 949 (quoting AS
09.60.010) (footnote omitted). [Fn. 22] We thus found error in the
superior court's allowance of an award of legal fees as
compensatory damages on a tort claim involving bad faith failure to
provide insurance coverage. Id.
In his treatise on contracts, Professor Corbin recognizes
an exception to the general rule against attorney's fees that
permits reasonable expenditures for litigation to be awarded when
a defendant's breach of contract results in litigation between the
plaintiff and a third party. See Arthur L. Corbin, 5 Corbin on
Contracts sec. 1037, at 225-26, 234 (1964). Yet Corbin emphasizes
that this exception to what he calls "the American rule against
recovery of attorneys' fees"is a limited one:
This treatise has always supported recovery of
attorneys' fees incurred at another time, incurred in another
place, and incurred in another lawsuit than the action in which
indemnity has been sought. It is another matter entirely to say
that . . . claims against different people in the same lawsuit, in
the same place, and capable of being heard at the same time, should
be treated as different lawsuits for the purpose of invoking that
exception to the American rule.
Id. sec. 1037, at 86-87 (Supp. 1997) (emphasis in the original).
MCM evidently called none of these authorities to the
superior court's attention; and the superior court cited no
authority supporting its treatment of attorney's fees as
compensatory damages. Given the serious legal question surrounding
the propriety of this award, we conclude that, on remand, if the
superior court again finds that Sykes should be held liable for
misrepresentation and breach, the court should reconsider its
compensatory damage award; and if the court again finds that
attorney's fees should be treated as compensatory damages, it
should fully explain the legal basis for its finding. [Fn. 23]
D. Other Issues
Sykes argues two other issues, which require only brief
mention. Sykes argues that the trial court repeatedly erred in
admitting "irrelevant, prejudicial, hearsay testimony." Sykes's
arguments, however, are conclusory; moreover, his failure to have
any portion of the trial transcribed precludes meaningful appellate
review of the issue. [Fn. 24] We decline to consider the point.
Sykes also argues that the trial court erred in failing
to "partition"damages between himself and Ferre. Sykes briefs
this issue cursorily and cites no supporting authority for his
position. We deem the argument abandoned. Braun v. Alaska
Commercial Fishing & Agric. Bank, 816 P.2d 140, 145 (Alaska 1991).
We conclude that the superior court abused its discretion
in precluding Sykes from calling witnesses listed on his expert
witness list. We thus REVERSE the preclusion order, VACATE
judgment entered below, and REMAND for further proceedings as
1 Sykes alleged that Tsigonis promised him that MCM wanted
to acquire the mineral rights solely to aid in the development of
scientific data for an environmental impact statement required for
a mining project. Sykes asserted that MCM's actual intention was
to build a water reservoir, a dam, pumps, pipelines, power lines,
The judgment consisted of compensatory damages of $105,508.55
(including attorney's fees and costs of $104,476.55 MCM had paid
through the date of its settlement with Ferre), prejudgment
interest of $10,303.25, punitive damages of $20,000, a discovery
sanction of $250.00, costs of $7,116.18, and additional prevailing
party attorney's fees of $16,081.18 calculated in accordance with
Civil Rule 82(b)(1).
We review summary judgment rulings de novo. Mount Juneau
Enterprises, Inc. v. City of Juneau, 923 P.2d 768, 772-73 (Alaska
1996). Our review is governed by the same rules that apply to
summary judgment at the trial court level: we view all evidence and
reasonable inferences therefrom in the light most favorable to the
non-moving party, Foster v. City of Fairbanks, 929 P.2d 658, 660
n.4 (Alaska 1996); we make no attempt to weigh the evidence or
evaluate the credibility of witnesses, Gudenau & Co., Inc. v.
Sweeney Ins., Inc., 736 P.2d 763, 765 (Alaska 1987); and we assume
that all facts set forth in the non-movant's affidavits are true
and capable of proof. Id. See also Broderick v. King's Way
Assembly of God Church, 808 P.2d 1211, 1216 (Alaska 1991).
In connection with his summary judgment argument, Sykes also
maintains that the trial court erred in considering the issue of
breach, since, in Sykes's view, "breach of contract"was "never
plead"and was "not even an issue in this suit." It is true that
MCM's complaint did not expressly state a cause of action for
breach. However, Alaska is a notice pleading state. Alaska R.
Civ. P. 8(a); see also Great Western Savings Bank v. George W.
Easley Co., 778 P.2d 569, 577 (Alaska 1989). Civil Rule 8(a)
requires only a "short and plain statement of the claim"that will
give the defendant fair notice of the claim and the grounds upon
which it rests. Great Western, 778 P.2d at 577. Pleadings must be
liberally construed, with the goal of achieving substantial
justice. Alaska R. Civ. P. 8(f); see also Gamble v. Northstore
Partnership, 907 P.2d 477, 482 (Alaska 1995). A cause of action is
sufficiently pled if it provides the defendant with fair notice of
the nature of the claim. See id. Under these standards, the
amended complaint in this case sufficed to state a claim for
Sykes filed a packet of medical reports and other documents
from the Wasatch Mental Health Clinic in Utah, where he was a
patient. The packet included a February 3, 1994, affidavit of
David Kohler, a Clinic social worker. Kohler confirmed that Sykes
suffered from "various mental disorders"for which he had received
treatment and been prescribed various medications. Kohler went on
to state that a prior psychological evaluation of Sykes (a copy of
which was attached) had noted that Sykes's involvement in
litigation generated anxiety "so traumatic as to prevent him from
opening mail for months." Kohler claimed that "I too have
personally observed this high anxiety concerning mail[.] . . . This
was especially true in his December and January failure to open
important mail on his Alaska case."
In contrast, given that Sykes was not precluded from calling
persons named on MCM's witness lists, all but one of the lay
witnesses included in Sykes's lay witness list actually testified
at trial. The only non-testifying lay witness named on Sykes's
list was the original owner of the disputed property; the record
provides no indication that her proposed testimony would have been
relevant to Sykes's claims of incapacity or misrepresentation.
Civil Rule 37(b)(2) itself allows the court to impose
sanctions when a party "fails to obey an order to provide or permit
discovery[.]" This provision is sufficiently broad to cover a
party's failure to obey witness list deadlines established in a
pretrial order issued pursuant to Civil Rule 16. We note that the
current version of Civil Rule 37(b)(2), which was promulgated after
this case was tried, see Alaska Supreme Court Order No. 1172
(effective July 15, 1995), expressly provides that sanctions under
Rule 37(b)(2) may be imposed "if a party fails to obey an order
entered under Rule 16(e)[.]" The current version of the rule thus
allows the trial court to impose Civil Rule 37(b)(2) sanctions for
a party's failure to obey any provision of a pretrial order,
regardless of whether the provision relates to discovery
See, e.g., Arbelovsky v. Ebasco Services, Inc., 922 P.2d 225,
227 (Alaska 1996); White Mountain Mining Partners v. Ptarmigan Co.,
Inc., 906 P.2d 1357, 1362-64 (Alaska 1995); Spenard Action Comm. v.
Lot 3, Block 1, Evergreen Subdivision, 902 P.2d 766, 776 (Alaska
1995); McGilvary v. Hansen, 897 P.2d 605, 607 (Alaska 1995);
Fairbanks N. Star Bor. v. Lakeview Enter., 897 P.2d 47, 58 (Alaska
1995); Hughes v. Bobich, 875 P.2d at 752; Underwriters at Lloyd's
London v. The Narrows, 846 P.2d 118, 120-22 (Alaska 1993).
These limitations apply regardless of whether the sanction is
imposed under Civil Rule 37 or for violation of another rule.
Arbelovsky, 922 P.2d at 227.
See Civil Rule 37(b)(3), adopted by Alaska Supreme Court
Order No. 1172 (effective July 15, 1995). Subparagraph (b)(3) now
(3) Standard for Imposition of Sanctions.
Prior to making an order under sections (A), (B), or (C) of
subparagraph (b)(2) the court shall consider
(A) the nature of the violation,
including the willfulness of the conduct and
the materiality of the information that the
party failed to disclose;
(B) the prejudice to the opposing party;
(C) the relationship between the informa-
tion the party failed to disclose and the
(D) whether a lesser sanction would
adequately protect the opposing party and deter other discovery
(E) other factors deemed appropriate by
the court or required by law.
The court shall not make an order that
has the effect of establishing or dismissing a claim or defense or
determining a central issue in the litigation unless the court
finds that the party acted willfully.
See footnote 6, above. To the extent that the preclusion
order disarmed Sykes's mental incapacity defense, however, it had
an indirect impact on the misrepresentation claim as well, since
that claim was based in part on Sykes's assertion that his
emotional state made him particularly vulnerable to Tsigonis's
repeated contacts concerning acquisition of Sykes's mineral rights.
As we have observed in other contexts, there is little
probative value to be found in self-serving testimony by parties
concerning their subjective intent upon entering into a contract.
Peterson v. Wirum, 625 P.2d 866, 870 (Alaska 1981); see also Day v.
A & G Const. Co., Inc., 528 P.2d 440, 444 (Alaska 1974).
Wilfulness, in this context, requires a "conscious intent to
impede discovery, and not mere delay, inability or good faith
resistance." Spenard Action Comm., 902 P.2d at 776 (quoting
Underwriters, 846 P.2d at 119).
Before Sykes missed these deadlines, the court did issue, in
response to Sykes's earlier failure to file a timely case
management memorandum, an order directing his ongoing compliance
with the deadlines established in the pretrial order.
Additionally, also before the witness lists fell due, MCM filed a
motion to compel discovery and impose sanctions; this motion
stemmed from a matter unrelated to the witness lists -- Sykes's
refusal to answer certain questions in his own deposition and his
objections to certain questions in the deposition of another
witness -- and eventually led the court to impose a $250 sanction
and to warn Sykes of the potential for litigation-ending sanctions
in the event of additional discovery violations. The warning and
sanctions, however, occurred after the witness list deadlines had
City of Kotzebue v. McLean, 702 P.2d 1309, 1316 (Alaska 1985)
(quoting Bertram v. Harris, 423 P.2d 909, 917 (Alaska 1967)).
The parties should of course be given time to conduct
additional discovery, as necessary, to prepare for the supplemental
proceedings on remand.
"Generally, we will consider nothing but the points in an
appellant's statement of points on appeal." Johnson v. Johnson,
836 P.2d 930, 935 (Alaska 1992); see also Alaska Appellate Rule
204(e); Braun v. Alaska Commercial Fishing & Agric. Bank, 816 P.2d
140, 145 (Alaska 1991); Wetzler v. Wetzler, 570 P.2d 741, 742 n.2
See Hitt v. J.B. Coghill, Inc., 641 P.2d 211, 213 n.4 (Alaska
1982); see also Legge v. Greig, 880 P.2d 606, 609 (Alaska 1994).
Cf. Winn v. Mannhalter, 708 P.2d 444, 449 (Alaska 1985);
Mullen v. Christiansen, 642 P.2d 1345, 1351 (Alaska 1982)
(Matthews, J., concurring); Miller v. City of Fairbanks, 509 P.2d
826, 829 (Alaska 1973); Orbeck v. Wheeler Constr. Co., 394 P.2d
781, 783 (Alaska 1964) (all indicating that relaxation of the
appellate rules is appropriate when called for in the interest of
In reference to the amount of the fees, the court stated,
Although these fees are a large amount, the
court finds that in light of the actions taken by Mr. Sykes to
avoid performing the contract he entered into with the plaintiffs
to sell the Mineral Estate and the actions he took in the course of
this litigation with [MCM], the fees are not unreasonable and are
compensatory damages which flow directly from Sykes' breach of
In its motion, MCM argued that "Rule 82(b)(3) authorizes
the court to vary an attorney's fees award which would have
otherwise been calculated pursuant to the percentages set forth in
Rule 82(b)(1), by considering, among other things, the
reasonableness of the claims and defenses pursued by each side[.]"
Although in Collins we did recognize the existence of certain
"exceptions to the general principle that attorney's fees are to be
governed by Rule 82,"794 P.2d at 949 n.15, none of the exceptions
we described would be applicable here. Id.
Because the court included pre-settlement attorney's fees in
the compensatory damages award, its decision to award partial
attorney's fees in accordance with the Civil Rule 82(b)(1) schedule
also had the effect of doubly compensating MCM for the pre-
settlement fees. At the same time, this approach left MCM's post-
settlement fees essentially uncompensated. In the event the court
decides again on remand to treat pre-settlement attorney's fees as
compensatory damages, it should reconsider its approach to Rule 82
prevailing party fees and fully explain any resulting award.
"[A] party's failure to designate portions of the record that
are necessary to allow the determination of a point on appeal will
amount to a waiver or abandonment of that point." Miscovich v.
Tryck, 875 P.2d 1293, 1304 (Alaska 1994); see also Adrian v.
Adrian, 838 P.2d 808, 811 (Alaska 1992) ("[F]ailure to designate
the trial transcript as part of the record makes it impossible for
us to review this issue as there is no way to know the quality or
quantity of the testimonial evidence presented at trial.").