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Wagner v. Wagner

Supreme Court of Alaska

April 17, 2009

Richard WAGNER, Appellant,
v.
Gregory WAGNER, Appellee.

Page 307

S. Jason Crawford, Crawford Law Offices, LLC, Fairbanks, for Appellant.

John J. Connors, Law Office of John J. Connors, P.C., Fairbanks, for Appellee.

Before : FABE, Chief Justice, EASTAUGH, CARPENETI, and WINFREE, Justices.

OPINION

CARPENETI, Justice.

I. INTRODUCTION

In 2005 the trial court awarded a judgment for specific performance to a son against his father on a contract entered into by father and son in which the son helped the father obtain a bank loan. The father appealed that judgment to this court in 2006, but we dismissed that appeal for lack of prosecution. The father did not pay, and in 2007 the trial court issued a writ of execution against him. The father now appeals from that writ of execution. The father raises three questions on appeal: (1) Did the trial court err in its 2005 judgment by ordering specific performance based on the royalties from certain of the father's oil and gas leases that were not part of the security for the loan? (2) Did the trial court err in awarding specific performance rather than a lump sum judgment? and (3) Did the trial court erroneously stray from the formula in the 2005 judgment when it calculated the amount due to the son in the writ of execution?

Of these three questions raised, we reach only the third. We decline to decide the first and second issues because they are both time-barred and barred by our dismissal of the father's appeal from the 2005 judgment for failure to prosecute. The father's first and second questions challenge the 2005 order and judgment, and he cannot make those challenges now. And we conclude the third

Page 308

challenge cannot succeed. What the father claims was error is, in fact, the correct calculation ordered by the trial court in 2005. Accordingly, we affirm the judgment of the superior court.

II. FACTS AND PROCEEDINGS

A. Facts

Richard Wagner filed for bankruptcy in 1988.[1] Richard's assets included royalties from oil and gas leases he possessed. Richard's creditors included Key Bank, whom Richard owed $2.5 million. The bankruptcy court issued Richard's final bankruptcy plan in 1994. The plan divided Richard's oil and gas lease royalties among his creditors. In 2001 Key Bank offered to settle Richard's $2.5 million debt for $1 million if Richard paid by December 31, 2001. Richard was unable to raise the money; he therefore asked his son Gregory Wagner to help him get a loan.

Gregory agreed to co-sign a $1,025,000 loan from Northrim Bank with Richard. Gregory and his wife put up their home as collateral and put their personal credit at risk. In exchange for Gregory's co-signature on the loan, Richard and Gregory ...


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