Silvers v. Silvers, No. S-8631.

• Court: Supreme Court of Alaska (US)
• Writing for the Court: MATTHEWS, Chief Justice.
• Citation: 999 P.2d 786
• Decision Date: 14 April 2000
• Docket Number: No. S-8631.
• Parties: Michael G. SILVERS, Appellant, v. Irene L. SILVERS, Appellee.

999 P.2d 786

Michael G. SILVERS, Appellant,
v.
Irene L. SILVERS, Appellee

No. S-8631.

Supreme Court of Alaska.

April 14, 2000.

999 P.2d 788

Danny W. Burton, Wasilla, for Appellant

William K. Walker, Anchorage, for Appellee.

Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

OPINION

MATTHEWS, Chief Justice.

I. INTRODUCTION

Michael Silvers appeals the superior court's entry of judgment against him for both conversion of personal property and liability on a series of loans from his mother, Irene Silvers. We reverse and remand.

II. FACTS AND PROCEEDINGS

Irene L. Silvers advanced money to her son, Michael G. Silvers, several times between March 7, 1983, and October 22, 1991. Michael repaid Irene only partially for these advances.

Over time, Irene and her domestic companion, Garfield Funnell, also stored several items of personal property at Michael's Wasilla residence. Funnell died intestate in 1993. Michael eventually sold his house and directed Irene to remove her possessions from the premises. Under Michael's observation, Irene retrieved various items. A subsequent inventory of the personal property revealed that numerous items belonging to Irene had disappeared.

On August 9, 1996, Irene recorded a notice of right to lien against Michael's Wasilla residence to secure repayment of her loans. In response, Michael filed a complaint against Irene on August 19, 1996, seeking to expunge the notice of lien. Irene's answer asserted counterclaims for repayment of the advanced funds and conversion of her missing personal property. The superior court granted a preliminary injunction expunging Irene's claim of lien, leaving only her counterclaims at issue for trial.

At trial, Irene appeared pro se. Michael, who had relocated to Washington state, did not appear.

The superior court issued its findings of fact and conclusions of law, ruling in relevant part that (1) Irene's monetary advancements to Michael constituted an open-ended "family loan," under which Michael had assumed a good faith obligation to repay the funds when able; (2) due to the nature and context of the loan, the applicable statute of limitations did not bar Irene's claim for repayment; and (3)

999 P.2d 789

Michael had converted several items belonging to Irene. The court established Michael's combined liability for both the loan and the conversion at $27,410.01 and entered judgment for Irene in this amount

Michael moved for relief from judgment or alternatively to amend judgment. The court amended its findings and conclusions to clarify its previous ruling, but ultimately denied Michael's motion. Michael appeals.

III. JURISDICTION

Irene challenges the court's jurisdiction to hear this appeal because the appeal was not filed within thirty days of judgment.¹ Irene contends that Michael's motion for relief from judgment was filed under Alaska Civil Rule 60(b) and therefore did not terminate the time for filing appeals in civil cases. But we conclude that Michael's motion was also a Civil Rule 59(f) motion to alter or amend a judgment, thus terminating the time for appeal.² Accordingly, Michael's notice of appeal, filed within thirty days of the superior court's ruling on the motion, was timely.

IV. DISCUSSION

A. Did the Superior Court Abuse Its Discretion by Refusing to Allow Michael and His Witness to Appear Telephonically?

We first consider whether the superior court committed reversible error by rejecting Michael's request to appear at trial telephonically. We review the trial court's ruling on this question for abuse of discretion.³ Reversal is warranted only if we are left with a definite and firm conviction, after reviewing the entire record, that a mistake has been made.⁴

Michael had relocated to Washington state before the trial began. He submitted a motion under Civil Rule 99 requesting permission for himself and his witness Alice Beals to testify telephonically at trial. The superior court had previously granted Irene's request to permit the telephonic appearance of her witnesses, and Irene herself agreed to permit Michael's telephonic testimony. The superior court denied Michael's motion, however, explaining that evaluating Michael's credibility required in-court observation. Michael elected not to attend the trial and thus did not participate personally in the proceedings below.⁵ He now argues that the court abused its discretion by rejecting his request to appear telephonically.

The visual demeanor of a witness can be a factor in evaluating the witness's credibility. But, in a variety of circumstances, the court will dispense with visual demeanor. For example, under exceptions to the hearsay rule, the court will admit a declarant's statement without the declarant's presence, making do without any visual demeanor.⁶ Similarly, under Civil Rule 32, a witness's deposition can be introduced in court. Particularly relevant here is Civil Rule 32(a)(3)(B), which provides that the deposition of a witness—including a party witness—may be used for any purpose at trial if the witness is more than 100 miles from the place of trial or is out of state. Thus, Michael could have presented his testimony by deposition (without visual demeanor) and the superior court would have had no discretion to exclude Michael's deposition testimony.⁷

999 P.2d 790

Civil Rule 99 provides that "[t]he court may allow one or more parties ... to participate telephonically in any hearing or deposition for good cause and in the absence of substantial prejudice to opposing parties."⁸ Although the rule allows the trial court some discretion, in Carvalho v. Carvalho,⁹ we voiced our preference for a liberal application of Rule 99. Carvalho involved a mother's collection action for child support arrearage.¹⁰ The trial court denied the father's request to appear telephonically at an evidentiary hearing and entered judgment for the mother without accepting any evidence from the father.¹¹ We reversed the trial court's ruling, holding that the court's refusal to permit the father to testify or present other evidence regarding contested facts had violated his due process right to a meaningful opportunity to be heard.¹² We thus concluded that, because of both the father's availability to testify and the desirability of allowing him to present his defenses, the trial court had abused its discretion by failing to permit his telephonic testimony.¹³

Similarly, in the present case, we believe that the superior court should have allowed Michael's requested telephonic appearance. Michael was residing in Washington state at the time of trial and would have incurred significant expense in returning to Alaska to testify. Since the circumstances justified presenting Michael's testimony by deposition without visual demeanor, and since Irene agreed to his participation by telephone, it was an abuse of discretion to deny Michael's request for telephonic appearance. The trial court could also have advised Michael that if there were credibility issues for which his demeanor was truly critical, those issues might be resolved against him.

For these reasons, we remand this case for a new trial in which Michael can participate by telephone if he so chooses.

We also address the parties' other contentions since, in light of our remand, the superior court may again face them.

B. Could Irene Recover on the Loans?

Irene advanced funds to Michael periodically from March 1983 until October 1991. She filed her counterclaim against Michael for repayment of the loans on September 9, 1996. Michael argues that the loan contract failed for indefiniteness and that the applicable six-year statute of limitations¹⁴ barred Irene's recovery of those funds advanced before September 1990. We address each of these contentions in turn.

1. Does the contract fail for indefiniteness?

Michael first argues that his contract with Irene was impermissibly indefinite. He contends that the absence of a specific time of repayment term in Irene's loan agreement caused the entire contract to fail. Because contract interpretation involves questions of law, we review this issue de novo.¹⁵

Michael's argument lacks merit. A pledge to repay money when the borrower becomes financially able merely represents a conditional promise and is legally enforceable upon satisfaction of the condition.¹⁶ Such

999 P.2d 791

contracts do not fail for indefiniteness.¹⁷ Accordingly, the limitations period began to run only after Michael actually achieved the ability to repay Irene.¹⁸

2. Does the statute of limitations bar Irene's claims?

In its findings and conclusions, the superior court addressed the statute of limitations issue as follows:

A contract was entered into between the parties in the context of a family loan, and as such, should be interpreted within the circumstances of a loan from a mother to a son.

It was expected and anticipated by the Defendant and Plaintiff understood that he was to repay the loan when he was in a position to do so; therefore, the statute of limitations did not apply, and the parties were expecting to be operating in good faith.

The superior court also found that "[e]vidence was presented during trial that Plaintiff did not repay said loan even though he has been in a position to do so, throughout the period of the loans."

Michael subsequently moved for relief from judgment or alternatively to amend judgment, arguing that the superior court erred by refusing to apply the statute of limitations to Irene's claim. In response, the court explained its previous finding:

[L]oans must be interpreted in their full context. The context here was a set of loans from mother to son, with an understanding that the loans would be repaid when the son was able to do so. The "due date" therefore was not a set date, but it also was not undefined: the loans were due when the son could pay them, which is a time which can be determined objectively.

As such, the statute of

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