# Opposition Brief — Alaska Trams Corp. v. Alaska Electric Light & Power

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 905

## Text

9) bron Cut
4

No. 87-1129 FFR 3 1988

CLERK
In The

Supreme Court of the United § States

October Term, 1987

sy
ww

ALASKA TRAMS CORPORATION,
a/k/a ALASKA TRAMS, INC.,

Petitioner,
VS.

ALASKA ELECTRIC LIGHT & POWER COMPANY,
an Alaska Corporation; WILLIAM A. CORBUS; DOES

I-XX; and an aerial right-of-way, an easement 1300
linear feet in length, more or less,

Respondents.

, ——— rons
Vv

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF ALASKA

ty.
!

RESPONDENTS’ BRIEF IN OPPOSITION

ty
Vv

Joun F. Cioven, II

FauLKNER, BanFiecp, Doocan
& HoLmeEs

302 Gold Street
Juneau, Alaska 99801
(907) 586-2210

Counsel for Respondenits

COCKLE LAW BRIEF PRINTING CO.. (800) 2225-6964
or call collect (402) 342-2831

~

QUESTIONS PRESENTED FOR REVIEW

I. Does this Court have jurisdiction over issues that
were never raised, argued or decided in the lower courts?

II. Does the dismissal of petitioner’s case for willful
refusal to comply with the trial court’s numerous discovery
orders constitute a denial of due process?

III. Does this Court have jurisdiction over matters
of exclusively state law?

PARTIES TO THE PROCEEDING

The parties to the proceeding are:

Alaska Trams Corporation

Alaska Electric Light and Power Company
William A. Corbus

Does I-XX

An aerial right-of-way, an easement 1300 linear
feet in length, more or less.

Pr Pe

So far as is known to respondents, Alaska Trams Cor-
poration has no parent corporations, subsidiaries, or af-
filiates.

Alaska Electric Light and Power Company has the
following subsidiaries :

1. Alaska Electric Light and Power Company of
Juneau

Haines Light and Power Company
Alaska Land and Pier Company
AJT Mining Properties, Inc.

ee

ili

TABLE OF CONTENTS

Page(s)
QUESTIONS PRESENTED FOR REVIEW ... i
PARTIES TO THE PROCEEDING ii
TABLE OF CONTENTS iii
TABLE OF AUTHORITIES iv
STATEMENT OF JURISDICTION 1

STATEMENT OF THE CASE
REASONS FOR DENYING THE WRIT

I. THIS COURT DOES NOT HAVE JURISDIC-
TION OVER ISSUES THAT WERE NEVER
RAISED OR ARGUED IN THE COURTS
BELOW 3

Il. PETITIONER WAS AFFORDED DUE PRO-
CESS OF LAW BY THE COURTS OF THE
STATE OF ALASKA ..._..

Ill. CONCLUSION

IV. APPENDIX
Alaska Trams Corporation, a/k/a Alaska Trams,
Ine. v. Alaska Electric Light & Power, et al.,
No. 3229 slip op. (Alaska Supreme Court, Oct.
yO ES ORB ieee ee App. 1

Alaska Trans Corporation, a/k/a Alaska Trams,
Ine. v. Alaska Electric Light & Power, et al.
No. 1JU-84-1469 (Alaska Superior Court, Nov.
6, 1985) (Memorandum Decision and Order) App. 14

iv

TABLE OF AUTHORITIES

CasEs

Beck v. Washington, 369 U.S. 541 (1962)

Cardinale v. Louisiana, 394 U.S. 437 (1969) ............
Crowell v. Randell, 35 U.S. (10 Pet.) 368 (1836) .

Dade v. State, 725 P.2d 706 (Alaska 1986)

Hammond Packing Co. v. Arkansas, 212 U.S. 322
(1909)

Hawes Firearms Co. v. Edwards, 634 P.2d 377 —

(Alaska 1981)

National Hockey League v. Metropolitan Hockey
Club, Inc., 427 U.S. 639 (1976) ...................

4,7

Oceanview Homeowner’s Ass’n. v. Quadrant Con-
struction and Engineering, 680 P.2d 793 ae
1984) .

Stone v. Powell, 428 U.S. 465 (1976) ......

Wvle v. R.J. Reynolds Industries, Inc., 709 F.2d

585 (9th Cir. 1983) ......

STATUTES

28 U.S.C. § 1257(3) .........

1, 3,5

STATEMENT OF JURISDICTION

This Court has no jurisdiction over the issues sought
to be raised by the petitioner. As discussed infra, in the
argument on Reasons for Denying the Writ, no federal
question was argued or decided in the state court below.
Both the statute governing the jurisdiction of this Court
on writ of certiorari and this Court’s own rules prevent
petitioner’s case from being heard. See 28 U.S.C. § 1257(3) ;
Supreme Court Rules 17.1(b) and (c) and 21.2(h).

°

STATEMENT OF THE CASE

For a number of years, petitioner Alaska Trams Cor-
poration, a/k/a Alaska Trams, Inc., has talked about con-
structing a hotel/resort and tramway project utilizing the
top of Mt. Juneau in Juneau, Alaska. In furtherance of
these plans, Alaska Trams representatives approached
respondent Alaska Electric Light and Power Company
(hereinafter ‘‘AELP’’) concerning the purchase of AELP
property near downtown Juneau to serve as a hotel site
and lower terminus for the tramway. Alaska Trams also
desired to obtain an extensive aerial easement across other
property belonging to AELP, to permit the passage of the
proposed tram.

During 1975 and 1976, representatives of Alaska
Trams and AELP conducted extensive negotiations con-
cerning these properties (R. 196-199). Although the par-
ties were able to agree on the terms for the sale of the
parcel, they were unable to reach agreement upon the terms

of the separate aerial easement (R. 197-199). Notwith-
standing this lack of agreement, Alaska Trams went ahead
with the purchase of the parcel (R. 23-29, 197-99, 335-37).

In November 1976, the parties entered into a contract
of sale whereby Alaska Trams agreed to purchase a two
and one-half acre parcel of real property from AELP
(R. 23-29). The contract contained a specific description
of the property AELP agreed to sell, which included nei-
ther a description nor a reference to any aerial easements.
AELP delivered a warranty deed to the real property to
a closing agent in December of 1976 (R. 23, 28). At no
time did the parties ever enter into any transaction which
purported to convey the aerial easement.

Over the course of the next eight years, Alaska Trams
made a number of demands that AELP convey an aerial
easement to the company for no additional consideration.
AELP declined to accede to Alaska Tram’s demands. Fi-
nally, Alaska Trams filed suit on August 6, 1984, claiming
breach of the 1976 contract, seeking conveyance of the
easement and claiming damages in excess of one billion
dollars. Each of Alaska Trams’ thirteen causes of action
was dismissed through the grant of summary judgment
motions in AELP’s favor. The trial court also dismissed
Alaska Trams’ suit with prejudice pursuant to Alaska
Civil Rule 37(b)(2), as a sanction for Alaska Trams’
willful and inexcusable refusal to comply with at least
four separate discovery orders.

Alaska Trams appealed to the Alaska Supreme Court,
challenging the imposition of dismissal as a discovery
sanction, as well as the lower court’s unfavorable rulings
on several of Alaska Trams’ contract, tort, and condemna-

ee
. ee

3

tion claims. Alaska Trams also appealed the trial court
judge’s and an independent superior court judge’s refusal
to disqualify the trial court judge, Judge Pegues, for
cause. The Alaska Supreme Court upheld the lower court
judges’ refusal to disqualify the trial judge, and affirmed
the court’s imposition of dismissal as a discovery sanction.
Because the supreme court upheld the sanction of dis-
missal, it did not consider Alaska Trams’ other arguments.

REASONS FOR DENYING THE WRIT

I. THIS COURT DOES NOT HAVE JURISDIC.
TION OVER ISSUES THAT WERE NEVER
RAISED OR ARGUED IN THE COURTS BE-
LOW
This Court has jurisdiction to review the decisions of

the highest court of a state only under narrow circum-
stances. See 28 U.S.C. § 1257(3). The jurisdiction extends
only to the state court decisions in which substantial fed-
eral questions have been properly raised in the state
forum. Cardinale v. Louisiana, 394 U.S. 437, 439 (1969) ;
Crowell v. Randell, 35 U.S. (10 Pet.) 368 (1836).

As this Court explained in Cardinale, questions that
are not raised in state court are ‘‘those on which the ree-
ord is very likely to be inadequate, since it certainly was
not compiled with those questions in mind.’’ 394 U.S. at
439. That is exactly the situation here. Alaska Trams ad-
mits that the Alaska Supreme Court ‘‘did not address con-
stitutional due process.’’ (Pet. for Cert., p. 13). This is
not surprising, since the issue was not raised or argued

4

before that court. In the course of petitioner’s 74 page
brief to the Alaska Supreme Court, due process is men-
tioned just once, in the following discussion : |

There are several reasons for increased scrutiny in
review of a litigation ending sanction imposed pur-
suant to Rule 37(b). One reason is that an abuse of
discretion may involve a constitutional due process
violation.

_ _—— ao

(Appellant’s Brief at 61). Only a single citation was of-
fered as support of the statement. No analysis or sub-
stantive argument was presented. In its reply brief be-
fore the Alaska Supreme Court, Alaska Trams did not
mention the federal issue at all.' The Alaska Supreme
Court provided exactly one sentence dealing with due
process. It said:

Although sanctions which end litigation are generally
disfavored and may even constitute a denial of due
process, the imposition of such sanctions is justified
if the failure to comply with a discovery order is
willful.

(Appendix at 7). These equivocal references do not con- |
stitute an argument or an adjudication. |

The United States Supreme Court has no jurisdiction |
to review the action of a state court unless a federal issue |
is raised and decided in the lower court. This principle |
was stated clearly in Cardinale: ‘‘It was very early es-

'The argument was never even inferentially raised before
the trial court, within whose discretion the sanction power re-
sides. See Dade v. State, 725 P.2d 706, 708 (Alaska 1986); ac-
cord, National Hockey League v. Metropolitan Hockey Club,
427 U.S. 639, 642-43 (1976).

SS ee oe

tablished that the Court will not decide federal constitu-
tional issues raised here for the first time on review of
state court decisions,’’ 394 U.S. at 438. Even the petitioner
concedes that the federal issue it now seeks to create was
not addressed by the state court. There is therefore noth-
ing for this Court to review.

In addition, the issue was not raised in the Statement
of Points on Appeal required to be filed by every Alaskan
appellant. See Alaska Rule of Appellate Procedure 210(e).
The Alaska Supreme Court has held that matters not
raised in the Statement of Points on Appeal will not be
considered. Oceanview Homeowner’s Ass'n. v. Quadrant
Construction and Engineering, 680 P.2d 793, 797 (Alaska
1984). This Court has made the same point. In Beck v.
Washington, 369 U.S. 541, 553 (1962), this Court held
that the issue sought to be raised by the petitioner had
» been waived because it had not been raised in the assign-
ment of errors below, had not been argued in the peti-
tioner’s brief, and had been mentioned only once in the
petitioner’s 125 page brief before the lower court.

For the reasons given in Beck, and because of the
limitations imposed by the grant of jurisdiction in 28 U.S.C.
1257(3), this court should refuse to grant a review of pe-
titioner’s alleged federal claim.

II. PETITIONER WAS AFFORDED DUE PRO.
CESS OF LAW BY THE COURTS OF THE
STATE OF ALASKA
The Alaska Supreme Court’s decision is obviously

correct on the merits. Alaska Trams repeatedly refused

to produce materials related to its alleged damages, financ-

a

6

ing, ownership and tax liability despite four separate or-
ders that it do so. See Alaska Supreme Court’s detailed
history of discovery orders at Appendix 10-12. The trial
court’s final order required that Alaska Trams comply
fully with the court’s order to produce by August 27, 1985
or prove to the court its inability to comply. The court
warned that failure to heed its order would result in dis-
missal with prejudice of Alaska Trams’ complaint. Alaska
Trams nevertheless failed to produce the requested docu-
ments or to make any showing that it was unable to comply
with the court’s order. Appendix 11-12, 19. At this point
more than a year had passed since AENLP’s original re-
quest for the materials in question. AELP moved to dis-
miss Alaska Trams’ action on September 5th, 1985. Ap-
pendix 12.

~

Following AELP’s motion, Alaska Trams invited
counsel for AELP to attend a production session in an
unrelated case, at which many, but not all, of the requested

materials were finally produced? The trial court found
that this belated discovery did not preclude dismissal of
Alaska Trams’ complaint. It noted that

Alaska Trams willfully disobeyed orders of this court
and ultimate discovery was made only after the final
deadlines set in this case and then as a result of events
in an unrelated case....

Appendix 20. The court acknowledged that litigation-end-
ing sanctions should be employed sparingly, but found
that

2Contrary to the implications set forth at page 9 of the
Petition, the amount of withheld material was quite voluminous,
comprising most of three entire boxes of documents (R. 1427-
1442).

they are necessary here to deter just the kind of con-
duct that Alaska Trams has purposely decided to
employ.

Appendix 22. This Court has expressly recognized the
appropriateness of litigation-ending sanctions to deter par-
ties who would be inclined to ignore a court’s discovery
orders in the absence of such a deterrent. National Hockey
League v. Metropolitan Hockey Club, Inc., 427 U.S. 639
(1976).

As the trial court noted, the requested documents
were essential to Alaska Trams’ claims that it had changed
position in reliance on AELP’s alleged promises and had
incurred damages. They were also important to prove
or disprove AELP’s claim that Alaska Trams had never
secured financing fer the project because the project was
not economically feasible. Appendix 20-21. These issues
went to the heart of Alaska Trams’ case. In its opinion, the
Alaska Supreme Court explained that the existence of
damages is often of primary importance in litigation;
information concerning damages is essential in assessing
the strength of an opponent’s case, and thus in deter-
mining fundamental questions of trial strategy, such as
one’s position toward settlement. Appendix 9-10. Accord
Wyle v. RJ. Reynolds, Industries, Inc., 709 F.2d 5835,
591 (9th Cir. 1983).

The economic feasibility of the project was relevant
to Alaska Trams’ intent in entering the land purchase
contract with AELP; information Alaska Trams provided
to prospective financers, and the conditions on which any
financing was advanced, had bearing on whether Alaska
Trams’ project constituted a ‘‘ public use’’ under Alaska’s

eminent domain laws. The same information would have
yielded evidence as to whether ‘equitable relief was re-
quired to make Alaska Trams whole, and information con-

cerning ownership of the tramway company was relevant
to the issues of witness identification and potential bias,
among others.

Clearly, the requested information contained material
that was fundamental to every aspect of Alaska Trams’
claims. Alaska Trams’ refusal to produce materials that
would corroborate its assertions that the tramway project
was economically viable and that hundreds of millions of
dollars were at stake in the litigation, together with its
failure to offer any reasonable justification for its refusal
to do so, suggested strongly that such evidence did not
exist or that the requested materials would tend to disprove
Alaska Trams’ claims. Therefore, the superior court con-
cluded it was

reasonable for this court to infer that Alaska Trams
has no case—or at best a very weak case—on the
merits.

Appendix 21. Consequently, the discovery sanction im-
posed was not ‘‘mere punishment,’’ but recognized Alaska
Trams’ failure to produce documents essential to its case
as ‘‘an admission of the want of merit’’ of its asserted
claims. Hammond Packing Co. v. Arkansas, 212 U.S. 322,
351 (1909).

There is no federal question for this Court to decide.
The Alaska Superior Court dismissed Alaska Trams’ suit
because of violations of discovery orders issued pursuant to
Rule 37(b)(2)(C) of the Alaska Rules of Civil Procedure.
Alaska Trams failed to produce documents after explicit

warnings that dismissal would result if Alaska Trams
continued to defy the court’s orders. As a result of Alas-
ka Trams’ ‘‘willful noncompliance’’ with court orders,
and in accordance with the Alaska law set out in Hawes
Firearms Co. v. Edwards, 634 P.2d 377, 378 (Alaska 1981),
the trial court imposed the sanction of dismissal.

The real issue in this suit is purely one of state law.
The state courts must be permitted to interpret the state
rules of civil discovery in accordance with state law.
Where they do so with full appreciation and deference
to federal due process standards, their decisions should
not be disturbed. Cf. Stone v. Powell, 428 U.S. 465, 493
n. 35 (1976). Because the state courts here have inter-
preted and applied the state rules properly, and have
not raised any implicit or explicit due process concerns,
no important federal question can be at issue.

III. CONCLUSION

One of the dominant features of this litigation, from
its very inception, has been the petitioner’s flagrant dis-
regard of both the substantive and procedural legal doc-
trines which govern Alaska Trams’ extravagant claim.
Just as Alaska Trams ignored the numerous reasonable
discovery orders of the trial court, so has it now ignored
the requirements for jurisdiction in this Court. In its
petition, Alaska Trams has raised and argued issues which
have not previously been the subject of briefing, argu-
ment or even serious consideration before the Alaska
courts. On that basis alone, this Court should refuse to
entertain Alaska Trams’ petition.

10

For Alaska Trams to argue that the Superior Court’s
sanction constituted a denial of due process is ludicrous.
In three carefully crafted opinions totalling 68 pages the
trial court considered the merits of each one of Alaska
Trams’ causes of action. None was sufficient to withstand
summary judgment. Alaska Trams’ flagrant disregard of
the court’s orders and willful abuse of the discovery pro-
cess constituted an independent justification for the dis-
missal of its case. The Alaska Supreme Court affirmed
the lower court’s determination that Alaska Trams’ be-
havior fully justified the imposition of a litigation-ending
sanction under Alaska law. The courts of Alaska have
not denied Alaska Trams due process. Alaska Trams’
problems are clearly of its own making, and do not war-
rant the intercession of the United States Supreme Court.

RESPECTFULLY SUBMITTED this 3rd day of
February, 1988.

FauLkKner, BANFIELD, Doocan
& Ho_mEs

Joun F. Cioven, II

302 Gold Street

Juneau, Alaska 99801 ~

(907) 586-2210

Attorneys for Respondents

App. 1

APPENDIX

NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are re-
quested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.

THE SUPREME COURT OF THE
STATE OF ALASKA

ALASKA TRAMS
CORPORATION, a/k/a
ALASKA TRAMS, INC., File No. S-1360
Appellant,
OPINION
v.

ALASKA ELECTRIC LIGHT &
POWER, an Alaska Corporation;
WILLIAM A. CORBUS; DOES
I-XX; and an AERIAL RIGHT-
OF-WAY, an Easement 1300 Linear
Feet in Length, More or Less,

[ No. 3229 - October
2, 1987]

Appellees.

me ae a a a a a a a Ne ee ee Nee ee ae ee”

Appeal from the Superior Court of the State of Alas-
ka, First Judicial District, Juneau, Rodger W. Pegues
and Henry C. Keene, Jr., Judges.

Appearances: Bruce A. Moore and A. Lee Petersen,
Law Offices of A. Lee Petersen, Anchorage, for Ap-
pellant. John F. Clough, ITI, Leon T. Vance, and Ann
(i. Vance, Faulkner, Banfield, Doogan & Holmes,
Juneau, for Appellees. \

App. 2

Before: Rabinowitz, Chief Justice, Burke, Matthews,
Compton, and Moore, Justices.

BURKH, Justice.

This appeal arises from the dismissal of appellant
Alaska Trams’ action against appellees Alaska Electric
Light & Power, William A. Corbus, and certain real prop-
erty (hereinafter AELP, collectively) to secure an aerial
easement required for the construction of a tramway.’ Be-
cause we are unable to say that the trial court abused its
discretion in dismissing the action, the judgment of the
superior court is affirmed.

I

For several years, Alaska Trams had wanted to build
a tramway between the City of Juneau and the top of Mt.
Juneau as part of a resort/hotel complex. In prepara-
tion for the anticipated construction, Alaska Trams con-
tacted AELP to purchase certain real property to be used
as a base for the tram terminal and hotel. Alaska Trams
also wanted to obtain an aerial easement to permit the
tramway to cross AELP’s adjacent property.

Negotiations were consummated in November 1976
when Alaska Trams and AELP signed a contract for the
sale of 2.5 acres near downtown Juneau. The sale was
closed in December 1976. The contract did not mention
an aerial easement over adjacent AELP property. It is
this omission which forms the basis of this appeal.

Roughly nine months later, in August 1977, Alaska
Trams sent a letter to AELP in which Alaska Trams indi-

1. William A. Corbus and Does I-XX are employees or
agents of AELP.

App. 3

cated that it was aware that the contract did not contain
explicit mention of the easement in question. The letter also
indicated, however, that it was Alaska Trams’ belief that
‘*this was just an oversight in typing.’’ This letter was the
opening salvo: between 1977 and 1984, Alaska Trams sent
AELP no fewer than twelve letters, all threatening legal
action if AELP did not immediately convey the aerial ease-
ment. AELP did not convey the easement; Alaska Trams
finally filed suit on August 6, 1984 seeking conveyance of
the easement or damages.

In January 1985, Alaska Trams filed a motion to dis-
qualify Judge Pegues for cause. Judge Pegues denied the
motion. The motion was referred to an independent judge,
Judge Keene, for a ruling pursuant to AS 22.20.020(c).?
Judge Keene also denied the motion.

Ultimately, all of Alaska Trams’ causes of action were
dismissed on AELP’s various summary judgment motions.
In addition, the trial court dismissed Alaska Trams’ action
with prejudice as a sanction under Civil Rule 37(b) (2)? for

2. AS 22.20.020(c) provides in part:

If a judicial officer denies disqualification the question
shall be heard and determined by another judge assigned
for the purpose by the presiding judge of the next higher
level of courts or, if none, by the other members of the
supreme court.

3. Alaska R. Civ. P. 37(b)(2) provides in part:

If a party or an officer, director, or managing agent of a
party . . . fails to obey an order to provide or permit dis-
covery, . . . the court in which the action is pending may
make such orders in regard to the failure as are just, and
among others the following:

(C) An order . .. dismissing the action or proceeding
or any part thereof, or rendering a judgment by default
against the disobedient party ....

App. 4

what the trial court termed Alaska Trams’ unexcused and
willful refusal to comply with discovery orders. This ap-
peal followed.

Il

The first issue we address concerns Judge Pegues’ and
Keene’s refusal to disqualify Judge Pegues after he was
challenged for cause. Alaska Trams argues that both
Judge Pegues and Judge Keene based their determinations
solely upon AS 22.20.020(a)(6),* rather than upon the re-
cusal considerations discussed in Alaska Code of Judicial
Conduct Canon 3(C)(1)(a).5 Alaska Trams asserts that,
had Canon 3(C) been considered, Judge Pegues would have
been disqualified because of the reasonable inference that
Judge Pegues was biased against Alaska Trams. This ar-
gument is supported by citation to a number of instances
of alleged bias, including counsel’s generalized feelings of

4. AS 22.20.020(a)(6) provides:

A judicial officer may not act as such in a court of which
the judicial officer is a member in an action in which....

(6) the judicial officer feels that, for any reason, a fair
and impartial decision cannot be given.

Subsections (1)-(5) of AS 22.20.020(a) involve objective measures
of cause for disqualification, such as personal involvement in
a case, as opposed to the subjective measure relevant here.

5. Alaska Code of Judicial Conduct Canon 3(C)(1) provides:

A judge should disqualify himself in a proceeding in which
his impartiality might reasonably be questioned, including
but not limited to instances where:

(a) he has a personal bias or prejudice concerning
a party, or personal knowledge of disputed evidentiary
facts concerning the proceedings; ...

App. 5

unfair treatment, Judge Pegues’ past involvement in en-
vironmental protection movements, unspecified sarcastic
comments made by Judge Pegues in another proceeding,
and a comment contained in a memorandum opinion in
which Judge Pegues denied Alaska Trams’ motion for
preliminary injunction.®

In making this argument, Alaska Trams misses an im-
portant point: the trial court explicitly considered the re-
cusal standard found in Canon 3(C) and determined that
recusal under that standard was inappropriate. Thus,
Alaska Trams’ argument alleging that the judge failed to
consider the ethical canon is without merit.’

The remaining question is whether Judges Pegues’
and Keene’s refusal to disqualify Judge Pegues consti-
tuted an abuse of discretion. Amidon v. State, 604 P.2d
575, 577 (Alaska 1979). Such a refusal is to be accorded
great weight and will be reversed on appeal only when it
is evident that reasonable persons could not rationally

6. In the order denying the preliminary injunction, Judge
Pegues referred to ‘Alaska Trams’ imminent, alleged irreparable
injury.” He then noted that: :

The court uses the modifier “alleged” for a reason. There
is something about Alaska Trams’ proposal that invokes the
memory of Catherine the Great’s Potemkin villages.

The court later explained this comment as an attempt at “ju-
dicial humor.’

7. The recusal provision found in Canon 3(C)(1)(a) and the
reasons requiring disqualification set forth in AS 22.20.020(a) (6)
are related, but somewhat different. We have said that where
a judge’s refusal to disqualify himself is “patently unreasonable,”
we will reverse, but that in cases “[w]here only the appearance
of partiality is involved” we will require a “greater showing”
for reversal. Amidon v. State, 604 P.2d 575, 577 (Alaska 1979).

App. 6

come to the same conclusion on the basis of known facts.
Blake v. Gilbert, 702 P.2d 631, 640 (Alaska 1985). In this
regard, ‘‘[i]t should be kept in mind that a judge has as
great an obligation not to disqualify himself, when there is
no occasion to do so, as he has to do so in the presence of
valid reasons.’’ Amidon 604 P.2d at 577.

Applying these principles to the present action, we are
unable to say that the refusal to disqualify Judge Pegues
was an abuse of discretion. A review of the record as a
whole fails to reveal any unfairness in the conduct of the
trial and the alleged instances of bias, considered either
collectively or individually, fail to demonstrate any specific
bias or generalized pattern of bias. We, therefore, affirm
Judges Pegues’ and Keene’s refusal to disqualify Judge
Pegues for cause. |

Ill

In its memorandum opinion, the trial court dismissed
Alaska 'l'rams’ complaint with prejudice pursuant to Civil
Rule 37(b) for failure to comply with discovery orders.
The court stated, in part:

The court previously issued orders on April 11, 1985,
and May 3, 1985, requiring Alaska Trams to make dis-
covery as requested by [AELP]. On July 8, 19835,
this court ordered Alaska Trams to make discovery by
August 27, 1985, of the documents to be requested by
[AELP] by July 28, 1985. The court granted this ad-
ditional time in order for [AELP] to restate its dis-
covery requests with still greater specificity to avoid
any further claims of confusion by Alaska Trams.
Alaska Trams was expressly warned that failure to
comply with the order or to show to the court its in-
ability to comply by August 27, 1985, would result in
the complaint being dismissed with prejudice.

.
2

App. 7

This court finds, ... that Alaska Trams willfully
and inexcusably failed to comply with this court’s
order after being warned of the dire consequences.
While litigation-ending sanctions should be imposed
sparingly, they are necessary here to deter just the
kind of conduct that Alaska Trams has purposely de-
cided to employ. Accordingly, [AELP’s] motion to
dismiss with prejudice is granted.

Alaska Trams argues that the dismissal sanction was im-
proper because the court erroneously concluded that Alaska
Trams willfully failed to comply with its discovery orders
and because the sanction was excessive in light of the ma-

terial actually withheld.®

Civil Rule 37(b) authorizes the trial court to impose
a wide range of sanctions on a party who fails to comply
with discovery orders. Dade v. State, Child Support En-
forcement Division ex rel. Lovett, 725 P.2d 706, 708 (Alas-
ka 1986). The purpose of the sanctions is to encourage
discovery and deter noncompliance by allowing trial judges
to enforce their discovery orders, and to ensure that parties
will not profit from their own willful failure to comply
with such orders. Hawes Firearms v. Edwards, 634 P.2d
377, 378 (Alaska 1981). Although sanctions which end
litigation are generally disfavored and may even constitute
a denial of due process, the imposition of such sanctions
is justified if the failure to comply with a discovery order
is willful. Hawes Firearms, 634 P.2d at 378. ‘‘Willful-

8. Alaska Trams also argues that the court’s discovery
orders were “unlawful,” but it does not explain why and we
are unable to perceive a basis for the allegation. Consequently,
we do not consider this part of Alaska Trams’ argument. F.g.,
Forquer v. State, Commercial Fisheries Entry Comm’‘n, 677 P.2d
1236, 1238 n.2 (Alaska 1984); Craig Taylor Equipment v. Petti-
bone Corp., 659 P.2d 594, 596 n.1 (Alaska 1983); State v. O’Neill
Investigations, 609 P.2d 620, 628 (Alaska 1980).

J

App. 8

ness’’ is defined as a conscious intent to impede discovery.
Dade, 725 P.2d at 708; Hawes Firearms, 634 P.2d at 378.
Once noncompliance is shown, the burden is upon the non-
complying party to prove that its failure to provide dis-
covery was not willful. Dade, 725 P.2d at 708; Hawes Fire-
arms, 634 P.2d at 378. The choice of a particular sanction
is committed to the broad discretion of the trial court and
will not be set aside absent an abuse of discretion. Dade,
725 P.2d at 708; Hawes Firearms, 634 P.2d at 378.

While Alaska Trams admits that it did not fully com-
ply with the discovery order in this case, it appears to ar-
gue that the imposition of any sanction was improper be-
cause there was substantial compliance before the discovery
deadline, full compliance was obtained after the deadline
had passed, and its noncompliance was not willful. The
trial court considered and rejected these arguments, stat-
ing:

Alaska Trams admits that some accounting and bank-
ing records requested by [AELP] were not produced
until September 11 or 12. Alaska Trams argues that
any prior nonproduction of materials previously in
existence was inadvertent, not willful, and ‘‘was due~
to confusion resulting from volume and from the fact
that the great majority of the records of Alaska Trams
were already in the custody of the court.’’ ... While
it is possible, although just barely, that counsel for
Alaska Trams was himself personally unaware of the
existence and location of the additional materials, it
is totally ineredible under the circumstances that his
client, Chuck Keen, was unaware of them. The only
reasonable conclusion, in the absence of a credible ex-
planation—and none has been offered—is that Keen
willfully withheld the materials until their discovery
was compelled by the events in an unrelated case.

App. 9

We agree. Because Alaska Trams admits that it did not
fully comply with the trial court’s discovery orders by the
stated deadline, it bore the burden of demonstrating to the
court that its noncompliance was not willful. This it clear-
ly has failed to do. Nor will the fact that Alaska Trams
ultimately produced the requested materials remove the
taint of its willful disregard of the trial court’s production
orders. See Dade, 725 P.2d at 707 n.1. We, thus, find no
abuse of discretion in the trial court’s imposition of a Civil
Rule 37(b) sanction.

Alaska Trams also argues that the sanction actually
imposed was excessive in light of the nature of the docu-
ments withheld and the issues to which they did or did
not relate. In brief, we understand Alaska Trams to be
arguing that because the materials withheld related pri-
marily to damages issues on only certain of its tort claims,
dismissal of the entire case was excessive; the sanction
should have been limited to those claims actually involved.

While there certainly may be cases where outright dis-
missal would be an inappropriate sanction because of the
trivial or incidental nature of the materials in relation
to the overall action, we do not believe this to be a case
of trivial noncompliance. The fact that an action_includes
issues other than damage issues does not mean that dam.
ages are not important; indeed, they are often of primary
importance. Withholding materials relating to a party’s
damages may seriously prejudice the adverse party by
making it difficult or impossible to adequately assess the
strength of the opponent’s case, thereby leaving the oppo-
nent in a weakened position for settlement negotiations
or other purposes. Thus, far from being incidental, the

App. 10

withheld materials in this case could be viewed as essential
to the formulation of AELP’s overall trial strategy. In
such a case, where the noncompliance relates to substan-
tial, as opposed to incidental, materials our inquiry must
focus upon the sanctioned party’s behavior. Cf., Diapulse
Corp. of America v. Curtis Publishing, 374 F.2d 442, 446-47
(2d Cir. 1967) (dismissal of libel complaint justified where
sanctioned plaintiff exhibited flagrant disregard for rules
of discovery even though withheld material related only
to issue of truth).

AELP’s first formal request for production was
served on Alaska Trams on October 12, 1984. AELP con-
tended that the materials produced by Alaska ‘Tiams in
response to this request were not complete because they
included no materials relating to the ownership or financ-
ing of the tramway, no corporate or banking records, and
no expenditure or tax information. Alaska Trams ob-
jected to these requests on the grounds that they were
‘foverly broad,’’ ‘‘burdensome,’’ and ‘‘irrelevant.’’ Alaska
Trams also indicated that it could not be compelled to
produce information pertaining to the financing of the
tramway.

On December 14, 1984, AELP moved to compel pro-
duction of the requested materials. This motion was
granted on April 11, 1985. In granting the motion, the
trial court specifically indicated that Alaska Trams was
free to move for a protective order if it had justifiable
concerns pertaining to the wrongful use of the financial
information. However, the trial court warned Alaska
Trams that it could interpose no further delay in making
discovery. Alaska Trams did not move for a protective

App. 11

order but it did inform AELP that it would not provide
the requested financial information.

On April 25, AELP moved for sanctions for nonpro-
duction. ANLP sought an order establishing the fact that
Alaska Trams had no financing for the tram project be-
cause of the project’s inherent defects. Alaska Trams filed
no opposition. ‘Ihe trial court did not, however, grant the
motion, but instead, on May 3, issued a second production
order to be satisfied on or before May 13.

Alaska Trams responded to this order by delivering
several documents to AELP. On May 9, it filed a motion
for a protective order relieving it of the obligation to pro-
duce any financial information until 90 days prior to trial.
On June 18, the trial court denied Alaska Trams’ ‘‘ overly
broad motion for [a] protective order,’’ but it did pro-
vide Alaska Trams some limited protection and ordered
Alaska Trams to comply with discovery requests on or be-
fore June 28.

Alaska ‘i'rams had still not complied with the dis-
covery requests by July 8, and the trial court imposed
limited sanctions, indicating that:

[Alaska Trams] has until the close of business on
August 27, 1985, to comply fully with this order [to
produce] or to prove to this court that it does not have
the ability to comply. [AELP] shall by July 28, 1985,
furnish [Alaska Trams] specifics on the discovery
which [Alaska Trams] has failed to make, and if
[Alaska Trams] fails to make that discovery by Aug-
ust 27, 1985, its complaint shall be dismissed with pre-
judice.

AELP complied with the court order in a timely manner.
Despite this order, however, Alaska Trams still refused

App. 12

to produce requested materials pertaining to the financial
aspects and ownership interests of the tramway project.
These materials had been requested more than a year pre-
viously; Alaska Trams did not file any valid objections
to production or make any showing that it could not com-
ply by the specified deadline.

On September 5, AELP moved to dismiss Alaska
Trams’ action for failure to comply with the trial court’s
July 8 production order. On September 11, Alaska Trams j
invited AELP’s counsel to attend a production of docu-
ment session the next day in an unrelated case, Craine v.

Keen, No. 13-U-83-354 Civ., and at that time most of the
materials requested for the present action were finally
produced. The trial court dismissed the complaint on No-

vember 6.

Thus, in this case, the trial court issued four separate
production orders regarding the same materials over the
course of fourteen months, imposed non-litigation ending
sanctions, and warned Alaska Trams that continued failure
to produce would result in-dismissal. Even after this ex-
plicit Warning, however, Alaska Trams refused to produce
the requested materials and provided no credible explana- ©
tion for its recalcitrance. In the face of such obstinate and
flagrant disregard for the court’s orders and the rules
of discovery, we are unable to say that the trial court’s dis-
missal was unjustified or without reason. Accordingly, the
trial court’s order dismissing Alaska Trams’ action with
prejudice cannot be considered an abuse of discretion and
is affirmed.

Ce

App. 13

IV

Because of the disposition above, we need not consider
Alaska Trams’ other arguments.2 The judgment of the
trial court is AFFIRMED.

9. Alaska Trams also appealed the trial court’s summary
judgments in favor of AELP on its contract based claims, its
equitable claims, its tort claims, and its condemnation claim.

App. 14

IN THE SUPERIOR COURT FOR
THE STATE OF ALASKA
FIRST JUDICIAL DISTRICT AT JUNEAU

ALASKA TRAMS
CORPORATION, a/k/a ALASKA
TRAMS, INC.,

Plaintiff,

No. 1J U-84-1469
Civil

Vv.

ALASKA ELECTRIC LIGHT &
POWER COMPANY, an Alaska
corporation; WILLIAM A.
CORBUS; DOES I THROUGH
XX; and an AERIAL RIGHT-OF-
WAY AND EASEMENT 1300
LINEAR FEET IN LENGTH,
MORE OR LESS, PURSUANT TO
PARAGRAPH 59 BELOW,

Defendants.

ee ee ee ae ee ee ee ee ee a

(P)

MEMORANDUM DECISION AND ORDER
(Filed November 6, 1985)

I. Motion for Summary Judgment.

AEL&P has moved for summary judgment on the five
remaining causes of action in this case. The causes of ac-
tion are for: (1) specific performance based on AEL&P’s
contract breach; (2) reformation of contract based on mis-
take; (3) reformation of contract based on fraud; (4) re-
formation of deed based on mutual mistake; and (5)
reformation of deed based on fraud. AEKL&P contends all
five of these claims are barred by the defense of laches.

App. 15

Alaska Trams disputes the applicability of the doctrine
of laches to this case.

A defendant must show two independent elements for
the doctrine of laches to apply. First, the plaintiff must
have unreasonably delayed in bringing the action. Second,
this unreasonable delay must have caused the defendant
prejudice or undue harm. City and Borough of Juneau v.
Betty Breck, — P.2d — (Alaska Sup. Ct. Op. No. 2982,
Sept. 20, 1985), p. 6-7. AEL&P alleges that Alaska Trams
did delay unreasonably in bringing this action. This court
has already determined that the delay in filing this action
was unreasonable, Mem. Dec., Aug. 28 1985, p. 42, but
refused to apply the defense of laches at that time, how-
ever, because AEL&P had not alleged any resulting preju-
dice. AEL&P now alleges that the unreasonable delay has
resulted in prejudice in the form of key witnesses who have
died or had their memories fade.

The most significant prejudice to AEL&P is the loss
of a key witness, former AKL&P President Franz Nagel,
who died in March of 1981. Mr. Nagel was intimately in-
volved in the negotiations at issue in this case and, in fact,
executed the warranty deed delivered to Mr. Keen in 1976.
Mr. Keen has stated that he dealt equally with Bill Corbus
and Franz Nagel in the negotiation process and that ‘‘this
dispute would be resolved immediately’’ if Mr. Nagel were
still alive. Declaration of Chuck D. Keen in Opposition to
Motion for Summary Judgment dated February 14, 1985.
Mr. Nagel died well over four years after the land sale
contract was entered into. If suit had been brought in a
reasonable period of time, Mr. Nagel would still have been
alive and available as a witness. Another potential wit-

App. 16

ness, Ruedi Kuenzler, a former business associate of Mr.
Keen’s, also died before this action was brought. Loss of
a witness through death can be sufficient to demonstrate
prejudice. Hanns v. Hanns, 423 P.2d 499, 513 (Ore. 1967).
The party claiming it has been prejudiced does not have
to show that the unavailable witness’s testimony would
have been favorable to his or her position. Gerhard v.
Stephens, 442 P.2d 692, 723 n. 44 (Cal. 1968) ; cf., Boone v.
Mechanical Specialties Co., 609 F.2d 956 (9th Cir. 1979)
(severe prejudice demonstrated by a showing that possible
witnesses were unavailable.

Additionally, at least one important witness has stated
that his recollection has faded considerably in the more
than eight years since he was involved in the negotiations
at issue. Affidavit of Warren Wild, Aug. 16, 1985. Suf-
ficient prejudice to justify the application of laches can
result from a witness’s having ‘‘suffered impairment of
memory or mental faculties.’’ Jernigan v. Scott, 518 S.W.
2d 278, 283 (Tex. Civ. App. 1974).

This court finds that AEL&P has been prejudiced by
Alaska Trams’ unreasonable delay in bringing:this action.
Alaska Trams’ arguments against applying laches here
lack merit.

AEL&P’s motion for summary judgment against
Alaska Trams on the remaining five claims for equitable
relief is, therefore, granted.

Il. Motion to Dismiss.

AEL&P has also moved this court for an order dis-
missing this action with prejudice pursuant to the court’s

MAb toe

App. 17

order of July 8, 1985.' The court previously issued orders
on April 11, 1985, and May 3, 1985, requiring Alaska Trams
to make discovery as requested by AEL&P. On July 8,
1985, this court ordered Alaska Trams to make discovery
by August 27, 1985, of the documents to be requested by
AEL&P by July 28, 1985. The court granted this additional
time in order for AEL&P to restate its discovery requests
with still greater specificity to avoid any further claims of
confusion by Alaska Trams. Alaska Trams was expressly
warned that failure to comply with the order or to show
to the court its inability to comply by August 27, 1985,
would result in the complaint’s being dismissed with preju-
dice. AEL&P contends that Alaska Trams failed to com-
ply with the court’s order and the complaint should, there-
fore, be dismissed with prejudice.

AEL&P has adequately demonstrated that not all of
the specified materials were produced and that no showing
of inability was made by the prescribed date. AEL&P
contends that some of the specified material requested,
which it believes to be in existence, has still yet to be dis-
closed, e.g., loan applications. It is undisputed that a large
amount of the material that had been requested by AEL&P
was not made available until September 11 or 12, 1985, and
then only as an indirect result of an order issued in an-
other proceeding. On September 4, 1985, counsel for Alas-
ka Trams, Mr. Petersen, and counsel for AEL&P, Mr.
Clough, were both present in court at an evidentiary hear-

. Although it is arguable that this motion was rendered
moot by the granting of summary judgment, this court will still
consider and rule on the motion to dismiss so that, in the
event of an appeal, the appellate court will have before it this
court's rulings on both motions.

App. 18

ing in another civil case in which an out-of-state creditor
was trying to enforce a judgment against Mr. Keen, Craine
v. Keen, Case No. 1JU-83-554. Keen had been directed to
make production of financial information about Alaska
Trams at or before the evidentiary hearing. When Keen
failed to produce the financial information, Judge Car-
peneti continued the evidentiary hearing until September
12, 1985, and directed Keen to make the financial docu-
ments available at or before that time. Mr. Petersen sub-
sequently informed Mr. Clough of when and where Keen
would be making his financial records available to the
plaintiff in the Craine case and invited Mr. Clough to at-
tend. Mr. Clough attended the production session and, for
the first time, was given access to thousands of documents
on the financial operations of Alaska Trams. These docu-
ments had previously been requested by AEL&P but had
never been produced.

Imposing sanctions which end litigation without reach-
ing the merits is generally disfavored and such sanctions
should not be imposed merely to punish a failure to com-
ply with a court order. See Hammond Packing Co. v. Ar-
kansas, 212 U.S. 322, 350, 53 L.Ed. 530, 544-45 (1909). Liti-
gation ending sanctions are appropriate in some circum-
stances, however. In National Hockey League v. Metro-
politan Hockey Club, Inc., 427 U.S. 639, 643, 49 L. Ed. 2d
747, 751 (1976), the United States Supreme Court recog-
nized the appropriateness of using litigation ending sanc-
tions ‘‘to deter those who might be tempted to such con-
duct in the absence of such a deterrent.’’

For a litigation ending sanction to be imposed under
Civil Rule 37(b)(2), Alaska Trams must willfully have

App. 19

failed to make the ordered production. Hawes Firearms
Co. v. Edwards, 634 P.2d 377, 378 (Alaska 1981). Willfully
means ‘‘not mere delay, inability or good faith resistance.’’
Id. Once the court finds that the material available to
Alaska Trams was not produced as required by the court’s
order, Alaska Trams has the burden of proving such non-
production was not willful. Pew v. Foster, 660 P.2d 447,
449 n. 3 (Alaska 1983). Hawes Firearms Co. v. Edwards,
634 P.2d at 378 n. 2. Alaska Trams admits that some ac-
counting and banking records requested by AEL&P were
not produced until September 11 or 12. Alaska Trams ar-
gues that any prior nonproduction of materials previously
in existence was inadvertent, not willful, and ‘‘was due
to confusion resulting from volume and from the fact that
the great majority of the records of Alaska Trams were
already in the custody of the court.’’ Attorney for Alaska
Trams’ Certificate of Counsel, September 22, 1985. While
it is possible, although just barely, that counsel for Alaska
Trams was himself personally unaware of the existence and
location of the additional materials, it is totally incredible
under the circumstances that his client, Chuck Keen, was
unaware of them. The only reasonable conclusion, in the
absence of a credible explanation—and none has been of-
fered—is that Keen willfully withheld the materials until
their discovery was compelled by the events in an unre-
lated case.

The fact that discovery was ultimately made does not
preclude dismissing Alaska Trams’ complaint. In Hawes
Firearms Co., the Alaska Supreme Court reviewed the
trial court’s use of sanctions under Civil Rule 37(b). The
defendant had failed to comply with the trial court’s order
to answer interrogatories and make discovery. The trial

App. 20

court sanctioned the defendant by striking its defenses
which effectively decided the defendant’s liability and pre-
cluded consideration of any meritorious defense. The de-
fendant answered the interrogatories and made discovery
after sanctions were ordered. On appeal, the Alaska Su-
preme Court upheld the sanctions ordered by the trial court
and quoted the following with approval:

Final production is not determinative. The rule per-
mits a sanction when a party ‘‘fails to obey an order.’’
. .. The ultimate, and reluctant, production of docu-
ments, more than a year after a legitimate request does
not absolve [a party] of the charge that it willfully
failed to obey a valid court order.

634 P.2d at 380, quoting, State of Ohio v. Arthur Ander-
sen & Co., 570 F. 2d 1370, 1374 (10th Cir. 1977). cert. de-
nied, 439 U.S. 833, 58 L. Ed. 2d 129 (1978).

The instant case is analogous to the factual situation
in Hawes Firearms Co. Alaska Trams willfully failed to
obey repeated orders for discovery just as the defendant
in Hawes Firearms Co. did. The fact that discovery was
not made in Hawes Firearms Co. until after sanctions were
imposed does not distinguish the two cases. Alaska Trams
willfully disobeyed orders of this court and ultimate dis-
covery was made only after the final deadlines set in this
case and then as a result of events in an unrelated case and
not to comply with the order in this case.

The documents which AEL&P finally received at the
production session for the Craine case involve the financial
status and operations of Alaska Trams. These documents
are essential to Alaska Trams’ claims that it expended

large amounis of money on the tramway project in reliance

App. 21

on AEL&P’s promises and, thus, incurred damages. These
documents are also essential to AEL&P’s claim that Alaska
Trams never possessed financing for the tramway project
because the project is not economically feasible. Given the
nature of the documents that Alaska Trams has been will-
fully refusing to disclose, it is reasonable for this court to
infer that Alaska Trams has no case—or at best a very
weak case—on the merits. In Hammond Packing Co. v.
Arkansas, the supreme court approved a presumption by
the trial court that a party’s failure to produce documents
essential to the case ‘‘was but an admission of the want
of merit in the asserted defense.’’ 212 U.S. at 351, 53 L. Ed.
at 545.

In light of Alaska Trams’ repeated willful noncom-
pliance with this court’s orders, including willful noncom-
pliance after being expressly warned that continued non-
compliance would result in the dismissal with prejudice
of the complaint, this court concludes that Alaska Trams’
ultimately making discovery after the deadline is irrele-
vant in determining the appropriateness of sanctions. As
already stated, discovery was finally made not in an effort
to comply with this court’s order but rather as a result of a
court proceeding in an unrelated case.

Additionally, AEL&P asserts that Alaska Trams has
also failed to make a complete and full written response
to the request for production as required by Civil Rule
34(b) and by the court’s July 8, 1985, order. In response,
Alaska Trams states that it fully complied by making writ-
ten responses to AEL&P on three occasions, the most re-
cent being August 27, 1985. The only evidence Alaska
Trams has offered in support of its position is a state-
ment by its counsel, A. Lee Petersen's Certificate of Coun-

lhiiaaeiataaincaa ciate ate

App. 22
sel, dated September 22, 1985, and a copy of a response
dated November 14, 1984. AEL&P contends that the re-
sponses which Alaska Trams did make were insufficient
and did not comply with Rule 34(b). This court concludes
that Alaska Trams’ response does not adequately support
its assertion that it has fully complied with this provision
of the July 8, 1985, court order.

This court finds, therefore, that Alaska Trams will-
fully and inexcusably failed to comply with this court’s
order after being warned of the dire consequences. While
litigation-ending sanctions should be imposed sparingly,
they are necessary here to deter just the kind of conduct
that Alaska Trams has purposely decided to employ. Ac-
cordingly, AEL&P’s motion to dismiss with prejudice is
granted.

III. Motion for Additional Attorney’s Fees.

AEL&P asks for an award of their attorney’s fees for
work incurred as a result of Alaska Trams’ noncompliance
with the court’s discovery orders. Alaska Trams does not
dispute the amount of AEL&P’s request but rather dis-
putes AEL&P’s entitlement to any award of attorney’s
fees.

Alaska Trams makes two arguments why attorney’s
fees should not be assessed against it. First, Alaska Trams
argues that it should not have to pay for work AEL&P’s
counsel would have to do in any event since, whether fur-
ther discovery motions were sought or not, AEL&P’s
counsel would still have to review every document dis-
closed in preparing its case. Further, if AEL&P only re-
quested the production of the materials so it could make

App. 23

further motions for discovery, then the discovery requests
could not have been in good faith. This argument would
be valid only if AEL&P had sought discovery in bad faith
merely to frustrate Alaska Trams’ case. This is not the
situation, however. AEL&P has repeatedly made showings
to this court that full discovery is necessary and essential
to the preparation of its case.

Second, Alaska Trams argues that sanctions are un-
justified and relies on A efchikan Cold Storage Co. v. State,
491 P.2d 1438, 148 (Alaska 1971), for the proposition that
a party refusing to make discovery can only be required
to pay the other party’s attorney’s fees when the refusal
is ‘‘without substantial justification.’’ In that opinion,
the court stated that the sanction of paying the opposing
party’s attorney’s fees for obtaining the discovery order
is appropriate when the refusing party had disregarded
the court’s discovery order, acted unreasonably, recalci-
trantly or captiously, but it is inappropriate to punish
an innocent party whose refusal to make discovery is rea-
sonable. /d., at 148-49. Alaska Trams asserts that it ‘‘has
not been recalcitrant. It has gone far beyond the require-
ments of the rules in its compliance.’’ Alaska Trams’
Memorandum in Opposition to Motion for Additional At-
torney’s Fees. The evidence is to the contrary.

Alaska Trams appears to argue that the requirement
in Ketchikan Cold Storage Co. that noncompliance be
‘‘without substantial justification’’ applies to all the at-
torney’s fees sought in this motion. This is not correct.
A noncomplying party must have acted ‘‘without substan-
tial justification’’ only to properly be ordered to pay the
opposing party’s costs im obtaining the discovery order.

App. 24

Id., at 148. Once discovery has been ordered, failure to
comply subjects the noncomplying party to the sanction
of paying the other party’s costs in attempting to enforce
the discovery order. Id., at 149. As the court stated in
Ketchikan Cold Storage Co., ‘‘costly tardiness and lack of
cooperation with the discovery process does justify the
imposition of sanctions under Rule 37(b).’’ Zd. It is not
required that the noncomplying party act in bad faith or
without substantial justification. The mere fact that the
party unexcusably failed to comply with the court’s dis-
covery order is sufficient to justify awarding the other
party’s attorney’s fees.

Accordingly, AEL&P’s motion for additional attor-
ney’s fees in the amount of $2,440.50 for work incurred as
a result of Alaska Trams’ noncompliance with the court’s
discovery order is granted.

CONCLUSION.

Summary judgment is granted in AEL&P’s favor on
all the remaining claims in this case. Additionally, this
action is dismissed with prejudice for Alaska Trams’ non-
compliance with this court’s order dated July 8, 1985.
AEL&P’s motion for additional attorney’s fees is granted.
Alaska Trams is ordered to pay to AEL&P $2,446.50 for
attorney’s fees.

iT IS SO ORDERED.
DATED this 6th day of November, 1985.

/s/ Rodger W. Pegues
Superior Court Judge

App. 25

CERTIFICATION

This is to certify that on the 6th day of November,
1985, I provided a true and correct copy of the above to:

A. Lee Petersen, Esq.
Ronald A. Clark, Esq.
Melvin M. Belli, Esq.
John F. Clough, Esq.

/s/ Sue E. Bailey
Secretary to the Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1178%3A2. Public record. Not legal advice.