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Smith v. Kofstad

Supreme Court of Alaska

April 24, 2009

Mike SMITH d/b/a Wasilla Concrete, Petitioner,
v.
Raymond KOFSTAD, individually and d/b/a Busch Concrete, and Marguerite Kofstad, Respondents.

Page 442

Sarah J. Tugman, Anchorage, for Petitioner.

Patricia Hefferan, Wasilla, for Respondents.

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

OPINION

WINFREE, Justice.

I. INTRODUCTION

Alaska Statute 09.35.020 provides that a judgment creditor must obtain court permission to execute on a judgment if more than five years have elapsed after entry and no previous execution has been issued.[1] Permission

Page 443

will be granted if there are " just and sufficient reasons" for failure to previously execute on the judgment. In this case judgment was issued in 1995, but the judgment creditor did not attempt to execute on it for nearly ten years. He explained the delay by alleging that the judgment debtor, who died in 2001, lacked assets sufficient to satisfy the judgment during that time. The district court denied permission to execute, finding the judgment creditor had made no effort to verify whether assets did in fact exist. The judgment creditor appealed and the superior court affirmed the district court's decision.

We accepted the judgment creditor's petition for hearing and now affirm on an alternative ground: because ownership of the property upon which the judgment creditor sought execution passed by operation of law to the judgment debtor's spouse upon the judgment debtor's death, the effort to execute is futile.

II. FACTS AND PROCEEDINGS

Mike Smith, d/b/a Wasilla Concrete, sued Raymond Kofstad, d/b/a Busch Concrete, over nonpayment for construction materials and supplies. Smith obtained a default judgment against Raymond [2] for $41,589.41 in September 1995. The judgment was recorded the next month in the Palmer Recording District,[3] where Raymond and Marguerite owned a home as tenants by the entirety. Raymond died in January 2001.

Smith first sought a writ of execution in August 2005, almost ten years after entry of judgment and more than four years after Raymond died. Smith filed a motion in the district court requesting leave to execute on the Kofstad home pursuant to Alaska Rule of Civil Procedure 69(d).[4] The motion was accompanied by an affidavit explaining that Smith had not previously obtained a writ of execution because he " did not believe that the judgment debtor had assets with net value capable of satisfying a portion of the judgment." [5] He further stated: " I also became aware that the defendant was deceased during the Fall of 2000[sic]. I checked property records and discovered that a number of IRS liens had been recorded, which would have made execution ...


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