Kodiak Island Borough v. Large, 4661
| Decision Date | 23 January 1981 |
| Docket Number | No. 4661,4661 |
| Citation | 622 P.2d 440 |
| Parties | KODIAK ISLAND BOROUGH, Appellant, v. Royal LARGE, Appellee. |
| Court | Alaska Supreme Court |
Michael W. Sharon, Cole, Hartig, Rhodes, Norman & Mahoney, Anchorage, for appellant.
Robert C. Erwin, Hagans, Smith, Brown, Erwin & Gibbs, Anchorage, for appellee.
Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.
Royal Large first became interested in a certain parcel of land (hereinafter referred to as the 4.22 acres), which included a warehouse, located in Kodiak in 1953. Large sought to purchase the property, but it was part of a military reservation, and therefore was not obtainable. Subsequently the land was transferred to the State, and then to the Kodiak Island Borough. In 1969 Large negotiated a renewable 5-year borrow-site lease with the Borough for 6.4 acres, inclusive of the 4.22 acres and warehouse, the terms of which enabled him to remove gravel from the land.
In 1970, Large began to use the warehouse after having made some improvements on it. The warehouse had been built by the military in 1943, but had not been maintained, and by 1969, when Large's lease commenced, the warehouse was quite dilapidated. At that time, at Large's request, a Borough assessor appraised the warehouse, which was approximately 9,300 square feet, at $5,140.00.
In 1971 Large terminated the borrow-site lease and negotiated a renewable 5-year industrial ground lease for 12.88 acres, inclusive of the same area. He then requested to alter the term of his lease from 5 years to 55 years, but withdrew his request upon determining that a lease of that duration must be put to public bid. He wanted to avoid the risk of losing the warehouse after having made numerous expenditures to improve it; also, he was advised that if he waited until the Alaska Native Claims Settlement Act became effective, he would probably get a better deal.
In 1973, Large requested a negotiated sale of the 4.22 acres, but the Borough did not authorize it. The next year, Large renewed his request, and in February 1975, the Borough agreed. The borough assembly directed the borough assessor to appraise the property. He valued the property at $29,270.00, $9,280.00 of which was the land and $20,440.00 of which was the warehouse. Large thought this was too high because the enhanced value of the building was due to his own labor; he also thought that he would be unable to purchase the property at that price because a state statute precluded negotiated sales for property valued at over $25,000.00.
In August, Large offered to purchase the 4.22 acres and warehouse for $4,798.00. The Borough took no action on that offer. In September, the Borough assembly voted to sell the property to Large for just the appraised value of the land. A reappraisal was required, and the land was valued at $10,550.00. On September 15, 1975, the Borough mayor wrote Large a letter stating that he had been authorized by the assembly to negotiate a sale of the 4.22 acres and warehouse for $10,550.00, and directing Large to respond within ten days if he wished to accept. On September 24, Large sent a letter of acceptance which proposed a down payment of 10% with the balance to be paid over 10 years at 6% interest. These were the standard contract terms utilized by the Borough. On December 23, 1975, Large submitted a check for $1,550.00 to the Borough as a down payment. The next day this check was returned and Large was informed by the Borough that his check would not be accepted until a written contract was executed. A written contract embracing the payment terms reflected in Large's letter of acceptance was prepared by the borough attorney and a copy was given to Large. However, a newly elected borough assembly decided not to complete the transaction. On January 16, 1976, Large tendered $10,550.00 and an unexecuted quitclaim deed to the Borough. This was refused and returned to him. Large then filed this suit in Kodiak.
Judge Roy Madsen granted summary judgment to Large and ordered the Borough to specifically perform the land sale contract. The Borough appeals from the denial of its peremptory challenge of Judge Madsen, the denial of its motion for summary judgment, and the granting of summary judgment to Large.
The Borough received notice of the assignment of Judge Madsen to this case on June 17, 1977, and on June 21 the Borough sought to peremptorily challenge Judge Madsen by filing a "Notice of Change of Judge" under Alaska Rule of Civil Procedure 42(c). Presiding Judge Moody denied the Borough's peremptory challenge on October 27. The Borough claims that its exercise of its right to peremptorily challenge Judge Madsen was timely, and that it was wrongfully denied.
Civil Rule 42(c) provides, in part:
(c) Change of Judge as a Matter of Right. In all courts of the state, a judge or master may be peremptorily challenged as follows:
(1) Nature of Proceeding. In an action pending in the Superior or District Courts, each side is entitled as a matter of right to a change of one judge and one master.... A party wishing to exercise his right to change of judge shall file a pleading entitled "Notice of Change of Judge." ...
(3) Timeliness. Failure to file a timely notice precludes change of judge as a matter of right. Notice of change of judge is timely if filed before commencement of trial and within five days after notice that the case has been assigned to a specific judge. In a court location having a single resident judge of the level of court in which the case is filed, the case shall be assigned to that judge when it is at issue upon a question of fact and the clerk shall immediately notify the parties in writing of such assignment....
(4) Waiver. A party waives his right to change a particular judge as a matter of right when he knowingly participates before that judge in:
(i) Any judicial proceeding which concerns the merits of the action and involves the consideration of evidence or of affidavits; ...
Large does not dispute the Borough's claim of timeliness, 1 but contends that the Borough waived its right by presenting two Civil Rule 12(b)(6) motions 2 before Judge Madsen, since those motions concerned the merits of the case and involved the consideration of evidence. 3 We agree that, at least for purposes of a Rule 42(c) change of judge, a 12(b)(6) motion concerns the merits of the case 4 and may constitute a waiver.
However, in Tunley v. Municipality of Anchorage, 617 P.2d 490 (Alaska 1980), we held that a "knowing" waiver is required by Rule 42(c)(4), and that this "can be found only where the requisite participation occurs after the party is informed that the judge before whom he or she is appearing is the judge permanently assigned to hear the case or is assigned for trial." Id. at 495. The effect of this rule is to preclude a finding of waiver when a party participates before a judge in matters involving the merits of the case but does so prior to that judge's assignment to the case for purposes of trial. This is because it would be neither fair nor conducive to an effective exercise of the right to require a party to challenge a judge before whom he does not know whether he will appear.
In this case, the two 12(b)(6) motions were presented before Judge Madsen before the Borough had received notice that Judge Madsen was assigned to the case for trial. Civil Rule 42(c)(3) provides in part:
In a court location having a single resident judge of the level of court in which the case is filed, the case shall be assigned to that judge when it is at issue upon a question of fact and the clerk shall immediately notify the parties in writing of such assignment.... (Emphasis added).
In Channel Flying, Inc. v. Bernhardt, 451 P.2d 570 (Alaska 1969), we held that a case is at issue upon a question of fact when the parties to an action, through their pleadings, have raised some disputed question of fact, alleged to be a fact on one side and denied on the other, upon which the parties seek to obtain the decision of the court or jury. Id. at 573 (footnote omitted). This case was at issue upon a question of fact when the Borough filed its answer denying various factual allegations of the complaint, and thus the case was assigned to Judge Madsen at that time.
The only remaining question is whether the clerk's failure to immediately notify the Borough of the assignment precludes a finding that their participation in the 12(b)(6) motions before Judge Madsen was "knowing" participation. We do not think it does. Although the clerk here was less than diligent in notifying the parties, since Kodiak is a single-judge district, the parties knew that Judge Madsen would be the trial judge unless he was disqualified. 5 To hold otherwise would create a situation which is susceptible to the practice of "judge-shopping," where a party could take advantage of the clerk's tardiness in formally giving notification by sampling the judge's rulings on motions presented before that time, and then availing itself of the right to peremptorily challenge the judge if the rulings are not to its liking. Under these circumstances, we find that the Borough waived its right to peremptorily challenge Judge Madsen when it made the 12(b)(6) motions before him.
The Borough claims that the court erred in denying its motion for summary judgment. Under Alaska Rule of Civil Procedure 56(c), a prerequisite to a grant of summary judgment is the determination by the court that there is no genuine issue as to any material fact. For the purposes of its own motion, the Borough assumed that a contract existed between itself and Large, but argued that the contract was unenforceable as a matter of law. Thus, for the purposes of its own motion, the Borough conceded the absence of disputed material facts. Large failed to file a timely statement of genuine issues as required by Civil Rule 56(e) 6 and thereby failed to sustain...
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