author: FABE, Chief Justice.

text:
    Vicky Ravijojla POWELL, Petitioner, v. Laura H. TANNER; Harcourt Brace & Company; and The Hertz Corporation, Respondents.
    Nos. S-10254, S-10264.
    Supreme Court of Alaska.
    Nov. 22, 2002.

      John R. White, The Law Offices of Jody Brion, Anchorage, for Petitioner.
    Donald C. Thomas, Delaney, Wiles, Hayes, Gerety, Ellis & Young, Inc., Anchorage, for Respondents.
    Before: FABE, Chief Justice, MATTHEWS, and BRYNER, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

These consolidated petitions for review arise out of an automobile accident which occurred when Laura H. Tanner changed lanes and her automobile collided with Vicky Ravijojla Powell's automobile. Tanner was driving a Hertz rental car and was working for Harcourt Brace & Co. at the time of the accident. The trial court granted summary judgment dismissing Powell's vicarious liability claims against Harcourt. The trial court also struck thirty-seven witnesses from Powell's final witness list who had not been named as witnesses until after the close of discovery. Because there is a genuine issue of material fact regarding whether Tanner is a Harcourt employee, making Harcourt potentially vicariously liable for Tanner's actions, summary judgment was improperly granted in favor of Harcourt. In addition, because any immediacy which required striking thirty-seven of Powell's witnesses no longer exists, we need not address whether the order striking Powell's witnesses was an abuse of discretion.

II. FACTUAL HISTORY

Tanner began working for Harcourt, a publishing company that publishes and sells educational materials, after responding to an advertisement placed by Harcourt stating "educational publisher needs teacher." Tanner worked for Harcourt from the summer of 1996 to the summer of 1998. On March 1, 1997, Tanner signed Harcourt's "Per Diem Agreement for Independent Contractors" which specified that Tanner had been "engaged, on a per diem basis [at $125 per day], for no more than 16 days ... [to] sell[ ] all Harcourt Brace School Publishers programs in the state of Hawai."

In August 1997 Tanner came to Anchorage to conduct demonstrations of educational materials for Harcourt at an Anchorage School District in-service for teachers. Tanner arrived in Anchorage on August 20, 1997, the day of the accident, and checked into her hotel. Tanner picked up a rental car from Hertz and drove to a storage facility to retrieve the Harcourt materials she needed for her presentation the following day. While driving back to the hotel, Tanner attempted to change lanes and Powell and Tanner's vehicles collided, allegedly causing injuries to Powell's person and automobile.

IIL DISCUSSION

A. The Superior Court Erred in Granting Partial Summary Judgment to Harcourt.

1. Procedural history relating to summary judgment

Powell brought suit against Tanner, Hare-ourt, and Hertz, alleging that Harcourt and Hertz "are vicariously responsible for defendant Tanner's acts and omissions under the "theories of respondeat superior, agency, joint enterprise, negligence, negligent entrustment, and negligent supervision." - Powell further alleged in the complaint that the accident caused severe injuries to her neck, head, back, arms, knees, bladder, abdomen, ribs, and face, as well as damage to her vehicle. In the answer, Harcourt admitted that "Tanner was in the course and scope of her contract with Harcourt at the time of the accident, and that Harcourt paid for the rental of the vehicle Tanner was driving."

Harcourt and Hertz moved for partial summary judgment, seeking to dismiss all claims against them. Harcourt argued that Tanner was an independent contractor at the time of the accident and so Harcourt could not be vicariously liable for Tanner's actions under the "independent contractor rule."

After considering the motion for summary judgment and Powell's opposition, the superi- or court summarily granted the motion for summary judgment in favor of Harcourt and Hertz, dismissing all claims against them. The superior court subsequently denied Powell's motion to reconsider. Powell petitioned this court to review the summary judgment order. She did not seek review of the court's order dismissing all of Powell's claims against Hertz. We granted Powell's petition.

2. Standard of review relating to motion for summary judgment

We review a grant of summary judgment de novo and adopt the rule of law that is most persuasive in light of precedent, reason, and policy. To obtain summary judgment, the moving party must prove the absence of a genuine factual dispute and its entitlement to judgment as a matter of law. All reasonable inferences of fact are drawn in favor of the nonmoving party.

Because characterization of the relationship between Harcourt and Tanner is ordinarily an issue for the trier of fact, the burden is initially on Harcourt to affirmatively demonstrate that Tanner was an independent contractor rather than an employee. If Harcourt makes this prima facie showing, Powell must then establish facts from which it reasonably may be inferred that Tanner was an employee. In other words, Powell must prove that a genuine issue of fact exists by showing that she can produce admissible evidence reasonably tending to dispute Hare-ourt's evidence.

3. There is a factual dispute regarding whether Tanner was Harc-ourt's servant or its independent contractor.

"Under the doctrine of respondeat superior, an employer is liable for the negligent acts or omissions of his employee committed within the seope of his employment." Harcourt has admitted that "Tanner was in the course and seope of her contract with Harcourt at the time of the accident, and that Harcourt paid for the rental of the vehicle Tanner was driving." However, the parties dispute whether Tanner was an independent contractor or an employee. Under the "independent contractor rule" the doe-trine of respondeat superior does not apply to acts of independent contractors: "Because such an employer normally does not control the work of the independent contractor, he is not held liable for the torts of the contractor and its employees."

An independent contractor is "any person who does work for another under conditions which are not sufficient to make him a servant of the other. We have employed the Restatement (Second) of Agency § 220(2) (1958) factors defining a servant to determine the nature of the relationship between a worker and an employer:

(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control.
(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
() whether or not the parties believe they are creating the relation of master and servant; and
(J) whether the principal is or is not in business.[]

We have used the language of comment c to the Restatement (Second) of Agency § 220 to describe the degree of control required under Restatement (Second) of Agency § 220(2)(a) to impose vicarious liability:

It is not enough that [the employer] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.[]

Harcourt exercised control over some aspects of Tanner's work. But because the evidence leads to no clear conclusion whether Tanner is, or is not, an employee of Harcourt, it is for the jury to decide the nature of their employment relationship.

On one hand, Harcourt controlled where Tanner held her in-service demonstrations and the type of administrative work that she performed. Harcourt paid for Tanner to attend a training session on its materials and suggested that she dress professionally for the job. Harcourt provided Tanner with the names of the schools where she was to make in-service presentations, and provided her with specific material for use at her presentations, including training outlines. Sasha He-dona, a Harcourt sales representative, scheduled some of the in-services where Tanner made presentations, while other times Tanner would call and schedule in-services for times which were convenient for her. Hedo-na attended some, but not all, of the in-service demonstrations that Tanner performed in Anchorage, but Tanner often did not know which demonstrations Hedona would be attending. Harcourt also directed Tanner to reserve her flight to Alaska through Harcourt's travel agent and Harc-ourt directly paid for Tanner's flight and car rental.

On the other hand, in her affidavit, Tanner indicated that for her work in Anchorage, she "re-worked an outline and determined how to present the Harcourt Brace training material to the teachers [she] instructed." In making presentations, Tanner used her own overheads or used ones she received from other people and there were no seripts which she was required to follow. She testified that "hlow I presented [Harcourt's]l materials was up to me." She could refuse assignments she felt were outside of her expertise, and she could reschedule presentations. Tanner stated in her deposition that Hedona "wasn't a supervisor in the traditional sense.... [She wasn't always aware of exactly what I was doing. She didn't totally keep tabs on every detail...." In sum, there is a factual dispute as to whether Harcourt exercised sufficient control over Tanner's work to make Tanner a servant.

There is also a factual dispute as to whether the other Restatement § 220(2) factors indicate that Tanner is an employee or an independent contractor. For example, a jury could reasonably conclude that Tanner generally works as a teacher, which is distinct from Harcourt's educational publishing business. Tanner responded to an advertisement in the education section of the newspaper that said "educational publisher needs teacher," and Powell acknowledges that Tanner is a teacher by profession. However, a jury also could reasonably conclude that Tanner's work in demonstrating Harcourt's educational materials to teachers is not sufficiently distinct from Harcourt's principal business of selling educational materials, since Tanner's demonstrations could be considered essential to achieving sales. Indeed, the per diem contract between the parties indicates that Tanner was hired to "sell[ ] all Harcourt Brace School Publishers programs...."

A jury also could reasonably conclude that, although Tanner reworked some of her outlines, Harcourt "supplies the instrumentalities [and] tools" for Tanner by providing her with its sample educational materials, which she was required to show to the teachers at her presentations, and with outlines which she could use for her presentations. In addition, Tanner's per diem contract indicates that "Harcourt Brace will own any materials or other contributions prepared by you, including copyright throughout the world, as work-made-for-hire." In addition, Harcourt arguably provided Tanner with "the place of work" by telling her which schools needed in-service presentations.

There is also a factual dispute as to whether Tanner was paid "by the time" rather than "by the job." She earned $125 per day for her work in Anchorage. But Harcourt argues that "the facts clearly suggest that a demonstration would not take more than a day. In effect, Tanner was paid per demonstration." Whether the facts do, in fact, indicate that Harcourt effectively paid Tanner by the job is an issue for the jury. The jury may also consider the evidence that Tanner did not receive a W 2 form from Harcourt. Rather, she received an IRS 1099 form and paid self-employment tax on the $9,000 to $10,000 she earned from her work for Harcourt in 1997. How much weight to give the method-of-payment factor against other factors also is an issue for the factfin-der.

The record indicates that there is a factual dispute over whether Tanner and Harcourt "believe[d] they [were] creating the relation of master and servant." The only employment contract in the record is the independent contractor contract, and Tanner has repeatedly asserted that she considered herself to be an independent contractor when she did work for Harcourt. She also states that although she was representing Harcourt when making presentations, she "didn't have authority to speak for the company." But Powell argues that Harcourt's and Tanner's statements that she "was doing work for Harcourt Brace" and that she was acting within "the scope of her employment" at the time of the accident indicate that she believed she was an employee of Harcourt. However, the fact that Tanner admitted to working for Harcourt says nothing about the nature of their working relationship.

More relevant is Powell's argument that the independent contractor per diem contract does not apply to Tanner's work in Alaska. Tanner's March 1, 1997 "Per Diem Agreement for Independent Contractors" provided that Tanner had been "engaged, on a per diem basis [at $125 per hour], for no more than 16 days ... [to] sell[] all Harcourt Brace School Publishers programs in the state of Hawaii." The plain language of this contract covers only sales of Harcourt programs in Hawaii. Thus, a jury reasonably could infer that the contract does not cover the in-service presentations that Tanner conducted in Alaska.

In sum, the application of Restatement § 22002) factors (a), (b), (e), (g), and (1) to the facts of this case does not permit the court to resolve on summary judgment whether there is, or is not, a master and servant relation. Harcourt offered prima facie evidence that it exercised insufficient control over Tanner to create an employer-employee relationship and that the other Restatement factors indicate that Tanner was an independent contractor. Powell also satisfied her burden that there is a genuine issue of material fact by providing evidence from which a jury reasonably could infer that Tanner was an employee. Therefore, we reverse the trial court's partial summary judgment in favor of Harcourt. On remand, the jury must consider the evidence relating to each of the factors and decide how to weigh the factors in determining the nature of the working relationship between Harcourt and Tanner.

B. The Striking of Thirty Seven of Powell's Witnesses

1. Procedural history relating to motion to strike witnesses

On March 8, 2000, the parties held a planning meeting and agreed on a scheduling order setting trial for June 4, 2001. They agreed to provide each other with preliminary witness lists by June 8, 2000, to complete discovery by February 28, 2001, and to exchange final witness lists by April 4, 2001.

In Powell's initial disclosures dated November 25, 1999, she provided the factual basis for her claims against Tanner, and identified twenty-three witnesses, including eighteen witnesses who would "testify as to the nature of the injury, its relation to the accident, that it may cause permanent problems, and that it will limit Ms. Powell's activities, work, and his [or her} treatment of the same." In her response to interrogatories on March 31, 2000, Powell listed medical bills from more than twenty medical centers and doctors, and stated that future medical bills would be incurred for problems relating to her knee and bladder.

On June 7, 2000, Powell timely filed her preliminary witness list, naming twenty-five witnesses. On March 14, 2001, Powell supplemented her preliminary witness list with one additional witness. In her final witness list, timely filed on April 4, 2001, Powell listed sixty-eight witnesses, including thirty-eight witnesses who had not been named in her preliminary witness list or initial disclosures.

On April 9, 2001, Harcourt moved to strike the new witnesses, arguing that Powell could have identified them at the moment the lawsuit was filed, and that Harcourt would be prejudiced by the addition of these new witnesses because it did not have time to interview them in the two months before trial. Powell responded that the new witnesses were necessary to rebut allegations that Powell was not injured in the accident and that her hotel project, for which she claims financial loss, was not fully in effect at the time of the accident. She further argued that the names of all of the new witnesses were revealed to Harcourt through discovery. On May 31, 2001, the trial court summarily granted Harcourt's motion and struck thirty-eight of Powell's new witnesses.

Powell filed a motion for reconsideration, describing the nature of the testimony to be given by each witness and how their identities were disclosed to Harcourt in discovery. The trial court denied reconsideration in part, ruling that Powell may only "supplement her witness [list] with Dr. Leon Chandler, whom she has identified as her current treating physician."

Powell petitioned for review of the trial court's orders striking certain of her witnesses and entering partial summary judgment against her. We granted this petition as well as the petition challenging summary judgment and consolidated them.

2. Standard of review relating to order striking witnesses

Powell argues that the trial court erred in striking her witnesses because there is no evidence of " 'willful noncompliance' with court orders, or 'extreme cireum-stances," or 'gross violations.' " The choice of a particular sanction for a discovery violation generally is a matter committed to the broad discretion of the trial court, subject only to review for abuse of discretion. Because the court's striking of thirty-seven of Powell's witnesses does not establish the outcome of this case or end the litigation, we need not determine whether the order was justified because of "willful noncompliance" with court orders, "extreme cireumstances," or "gross violations" of the Rules, nor must we determine whether the trial court explored alternatives to the sanction.

3. We need not decide whether the trial court abused its discretion by striking witnesses because Pow-elt's failure to supplement her disclosure no longer prejudices Hare-ourt and Tanner.

Powell argues that because there was no "evidence of prejudice, noncompliance with a court order, or bad faith, it was error for the trial court to strike 37 witnesses from Powell's final witness list. Harcourt argues that Powell violated the court's pre-trial order for the parties to file preliminary witness lists and to supplement their initial disclosures every thirty days until discovery closed.

Alaska Rule of Civil Procedure 26(a)8)(A) requires parties to identify "cach witness, separately identifying those whom the party expects to present and those whom the party may call if the need arises." Alaska Rule of Civil Procedure 26(e)(1) provides that after making initial disclosures under Rule 26(a)

[al party ... is under a duty to supplement or correct the disclosure or response to include information thereafter acquired if ordered by the court or ... if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.

Sanctions for noncompliance with these provisions are governed by Alaska Rule of Civil Procedure 37(c)(1):

A party that without substantial justification fails to disclose information required by Rule 26(a), 26(e)(1), or 26.1(b) shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.

Powell complied with Rule 26(a) by providing initial disclosures and she complied with the scheduling order's deadlines for filing preliminary and final witness lists. Complicating this case is an anomalous provision in the scheduling order requiring the parties to file their final witness lists after discovery closed. The scheduling order's sequencing of deadlines created a potential conflict over an opposing party's inability to depose witnesses identified for the first time in the final witness list without violating the close of discovery deadline. Nothing in the scheduling order limited the number of witnesses the parties could call or otherwise addressed how to resolve this foreseeable dispute.

On the other hand, Powell's failure to identify the thirty-seven additional witnesses before the close of discovery may have been prejudicial at the time, given the looming June 2001 trial date. However, because we reverse the trial court's order granting summary judgment, a new trial date must be set and discovery will likely be reopened. We therefore need not address whether the trial court abused its discretion because any time pressures that existed in spring 2001 no longer exist and Harcourt will now have time to depose Powell's additional witnesses. Powell's failure to supplement her disclosures will no longer prejudice Harcourt and Tanner.

IV. CONCLUSION

Reasonable minds could differ as to whether the Restatement (Second) of Agency § 220(2) factors indicate that Tanner was an employee or an independent contractor. Accordingly, we REVERSE the order granting Harcourt partial summary judgment. We also REVERSE the order striking thirty-seven of Powell's witnesses because Powell complied with the scheduling order deadline, and her failure to identify the additional witnesses will not prejudice Harcourt and Tanner in light of our decision to remand the case for trial.

EASTAUGH and CARPENETI Justices, not participating.

      . Tanner also had an hourly contract with Harc-ourt, entered into on May 1, 1997, under which she performed administrative work for Harcourt, such as contacting schools to see if they were interested in receiving samples of Harcourt's materials and setting up a database.

      . State v. Alaska Civil Liberties Union, 978 P.2d 597, 603 (Alaska 1999); Cool Homes, Inc. v. Fairbanks North Star Borough, 860 P.2d 1248, 1254 (Alaska 1993).

      . Alaska Civil Liberties Union, 978 P.2d at 603.

      . McGlothlin v. Municipality of Anchorage, 991 P.2d 1273, 1277 (Alaska 1999).

      . See Sterud v. Chugach Elec. Ass'n, 640 P.2d 823, 827 n. 8 (Alaska 1982).

      . See id.

      . See Lincoln v. Interior Reg'l Hous. Auth., 30 P.3d 582, 586 (Alaska 2001).

      . Luth v. Rogers & Babler Constr. Co., 507 P.2d 761, 762 (Alaska 1973); see also Prosser anp xee-Ton on Torts § 70, at 501-03 (5th ed.1984).

      . Parker Drilling Co. v. O'Neill, 674 P.2d 770, 775 (Alaska 1983). For purposes of determining whether Harcourt is vicariously liable under a theory of respondeat superior, we assume that Tanner was negligent. See Sterud, 640 P.2d at 825 ("For purposes of this [vicarious lfability/re-spondeat superior] theory, the negligence of Hansen or Smith is assumed.").

      . Restatement (SEconp) or Torts § 409 emt. a; see also Soderback v. Townsend, 57 Or.App. 366, 644 P.2d 640, 641 (1982) ("An independent contractor, as distinguished from a mere employee, is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work.") (citation omitted).

      . Sterud, 640 P.2d at 826.

      . See also Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) ('In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.") (citations omitted).

      . Hammond v. Bechtel, Inc., 606 P.2d 1269, 1275 (Alaska 1980); see also Restatement (Seconp) or Torts § 414 emi. a (1965) (""If the employer of an independent contractor retains control over the operative detail of doing any part of the work, he is subject to liability for the negligence of the employees of the contractor engaged therein, under the rules of that part of the law of Agency which deals with the relation of master and servant.").

      . See Sterud, 640 P.2d at 826 (quoting Restate. MENT or AcEncy § 220(1) cmt. c (1958)) (providing that while the existence or nonexistence of a master-servant relationship is ordinarily a jury question, "[i]{ the inference is clear that there is, or is not, a master and servant relation, it is made by the court").

      . See Restatement (Srconp) or Aczncy § 220(2)(b) (1958).

      . Restatement (Seconp) or Acmncy § 220(2)(e) (1958).

      . The fact that Harcourt owns the materials that Tanner creates would seem to indicate that she is Harcourt's servant. - See Restatement (Sec-onp) or AcEncy § 220(2) emt. k (1958) (''The fact that a worker supplies his own tools is some evidence that he is not a servant. On the other hand, if the worker is using his employer's tools or instrumentalities, especially if they are of substantial value, it is normally understood that he will follow the directions of the owner in their use, and this indicates that the owner is a master."). However, the United States Supreme Court has made clear that "a work for hire can arise through one of two mutually exclusive means, one for employees and one for independent contractors." - Community for Creative Non-Violence, 490 U.S. at 743, 109 S.Ct. 2166.

      . Restatement (SEcomp) or Aczncy § 220(2)(e) (1958).

      . Restatement (SEconp) or Acexncy § 220(2)(g) (1958).

      . - At least one court has held that a worker is an independent contractor in spite of evidence that the worker is paid on a per diem basis. See Soderback v. Townsend, 57 Or.App. 366, 644 P.2d 640, 642 (1982) (holding that broker was an independent contractor, despite undisputed evidence that he was paid a per diem of $175 plus expenses).

      . Restatement (Szconp) or AcEncy § 220(2)G) (1958).

      . See Soderback, 644 P.2d at 643 ("That Townsend may have represented himself as 'working for' Quasar did not present any evidence to dispute Quasar's evidence on its lack of any right to control the means whereby Townsend accomplished his mission for Quasar.").

      . Furthermore, the record suggests that Tanner may have already exceeded the sixteen days of 'work authorized under the contract. Tanner explained that between March 1, 1997 and August 20, 1997, the day of the accident, she had worked less than iwenty days under that contract. However, in her deposition, Tanner stated that she had done approximately ten presentations for Harcourt before the day of the accident.

      . See Restatement (SEconp) or Acency § 220(1), cmt. c (providing that although the existence or nonexistence of a master-servant relationship is ordinarily a jury question, "Hf the inference is clear that there is, or is not, a master and servant relation, it is made by the court."); see also Community for Creative Non-Violence v. Reid, 490 U.S. 730, 752-53, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (holding that sculptor was an independent contractor because "Reid is a sculptor, a skilled occupation. Reid supplied his own tools. He worked in his own studio in Baltimore, making daily supervision of his activities from Washington practicably impossible. Reid was retained for less than two months, a relatively short period of time. During and after this time, CCNV had no right to assign additional projects to Reid. Apart from the deadline for completing the sculpture, Reid had absolute freedom to decide when and how long to work. CCNV paid Reid $15,000, a sum dependent on {completion of a specific job, a method by which independent contractors are often compensated.' Reid had total discretion in hiring and paying assistants. 'Creating sculptures was hardly 'regular business' for CCNV.' Indeed, CCNV is not a business at all. Finally, CCNV did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers' compensation funds.") (citations omitted).

      . See Sterud v. Chugach Elec. Ass'n, 640 P.2d 823, 826-27 n. 8 (Alaska 1982) (affirming judgment in favor of the employer as a matter of law based on affidavits submitted by the employer that indicated that it had no control over the manner and means by which construction by the contractor/labor broker was performed, and the injured party offered no evidence to indicate that the employer retained control over details of the labor involved in the construction: "The mere fact that the question as to whether a particular relationship is that of master-servant or employer-independent contractor is ordinarily a factual one does not mean that it cannot be decided by the court on a motion for summary judgment, where the moving party meets its burden and the nonmoving party does not adequately respond.").

      . Powell appears to argue that even if Tanner could be considered an independent contractor, Harcourt is vicariously liable for the accident because Tanner is an agent of Harcourt. However, the critical inquiry in determining vicarious liability is whether a master-servant relationship exists; evidence of agency, alone, is insufficient to impose vicarious liability. See Norris v. Sackett, 63 Or.App. 762, 665 P.2d 1262, 1262-63 (1983) (holding that a corporation's liability could not be established merely by showing that the motor vehicle operator was an agent of the corporation; the corporation must have been the worker's master and must have had a right to control its servant while carrying out a task for the corporation's benefit); Resratement (Seconp) or Acency § 250, cmt. a ("It is only when to the relation of principal and agent there is added that right to control physical details as to the manner of performance which is characteristic of the relation of master and servant that the person in whose service the act is done becomes subject to liability for the physical conduct of the actor.").
      Powell also asserts that the case law cited by the respondents "does not deal with a company being responsible for acts of an agent against third[ Jparties." However, neither the Restate ment nor any decision by this court indicates that an employer may be vicariously liable when an independent contractor injures a third party. Thus, the fact that a third party was injured in this case is irrelevant.

      . iResratement (Seconp) or AcEncy § 220(1) emt. c (''The relation of master and servant is one not capable of exact definition. ... The factors stated in Subsection (2) are all considered in determining the question, and it is for the triers of fact to determine whether or not there is a sufficient group of favorable factors to establish the relation.") (citation omitted).

      . On May 2, 2001, the superior court granted Powell's attorney's motions to withdraw from the case and to continue the June 4, 2001 trial. However, the trial court did not reopen discovery.

      . Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1169 (Alaska 1998).

      . See id. at 1169-70 ("[The trial court's discretion is limited when the effect of the sanction it selects is to impose liability on the offending party, establish the outcome of or preclude evidence on a central issue, or end the litigation entirely. Before extreme sanctions of this kind may properly be imposed, there must be 'will{ul noncompliance' with court orders, or 'extreme circumstances,' or 'gross violations' of the Rules. The record must also 'clearly indicate a reasonable exploration of possible and meaningful alternatives to dismissal.' ... If meaningful alternative sanctions are available, the trial court must ordinarily impose these lesser sanctions.") (citations omitted).

      . The trial court initially struck thirty-eight of Powell's new witnesses, but upon reconsideration, it allowed one of the thirty-eight witnesses to be added to Powell's final witness list. Thus, only thirty-seven witnesses were struck.

      . But see Sigala v. Spikouris, 2002 WL 721078, 3 (E.D.N.Y.2002) (rejecting the defendant's argument that it should be permitted to depose all witnesses listed on plaintiff's witness list because the argument finds "no support in the Federal Rules of Civil Procedure").

      . Note that our decision does not preclude Harcourt from seeking an order compelling Powell to furnish a list of witnesses she actually intends to call at trial. Cf. Matter of Long, 34 B.R. 85, 87 (Bankr.M.D.Fla.1983) ("[It is quite obvious that it is absurd to bombard a litigant with a list of an army of prospective witnesses without specifying which of them will actually testify. In such a situation, the litigant is faced with two choices, both of them unfair. He either takes the chance and guesses which of them will actually testify and depose them or not to take this chance and depose all of them."). Neither does our decision preclude Harcourt from moving to exclude the testimony of any of Powell's witnesses under Alaska Rule of Evidence 403. See Alaska R. Evid. 403 ("Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.").


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Tracy O. ATKINS, Appellant, v. Veronica L. VIGIL, Appellee.
    No. S-10621.
    Supreme Court of Alaska.
    Nov. 22, 2002.

      Tracy Atkins, pro se, Anchorage, Appellant.
    Maryann E. Foley, Law Office of Maryann E. Foley, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

PER CURIAM.

1. Appellant Tracy Atkins challenges the superior court's determination that the Uniform Child Custody Jurisdiction and En-foreement Act (UCCJEA) prevents Alaska from exercising jurisdiction over a custody dispute between Atkins and appellee Veronica Vigil over their son Julian. The superior court ruled that California is Julian's home state and that even if Alaska has home state jurisdiction, California's proceeding preempts Alaska's jurisdiction. We reverse the ruling of the superior court.

2. Julian Atkins was born to Veronica Vigil and Tracy Atkins on April 2, 1996. Julian's parents were never married. Vigil and her family have taken care of Julian ever since his birth.

3. On July 4 or 5, 2001, Julian went to California to visit Vigil's mother, Julie Roby. While Julian was in California, Vigil decided that Julian should permanently stay with Roby. Since Vigil initially only intended to send Julian for a visit to California, Julian's initial absence from Alaska was a temporary absence and not intended to be permanent.

4, Less than six months after Julian moved to California, Roby petitioned the Superior Court of California in Marin County to name Roby guardian of Julian. The California court ordered a child custody investigation. On November 28, 2001, a California investigator spoke to Atkins on the phone and informed Atkins of the California guardianship proceeding. - Atkins objected to Roby’s petition for guardianship.

5. On January 11, 2002, six months and six or seven days after Julian went to California, Atkins filed a custody petition in Alaska. Vigil filed a motion asking the Alaska superior court to decline custody jurisdiction. The superior court granted Vigil's motion, ruling that it could not exercise jurisdiction. Atkins now appeals.

6. Whether a lower court can exercise jurisdiction is a question of law. For questions of law, the standard of review is de novo or independent judgment. This court adopts the rule of law that is most persuasive in light of precedent, reason, and policy.

7. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Parental Kidnapping Prevention Act (PKPA) govern jurisdictional issues regarding child custody cases in Alaska. These statutes were "promulgated in an effort to encourage courts considering child custody matters to cooperate in order to arrive at a fully informed judgment transcending state lines and considering all claimants, residents and nonresidents, on an equal basis and from the standpoint of the welfare of the child."

8. In order to advance this uniform treatment of custody cases, the statutes assign children "home states." The home state of the child determines which court has principal jurisdiction. A child's home state is the state where the child has lived with his parent or person acting as a parent for six consecutive months immediately before the commencement of the proceeding.

9. The superior court ruled that it could not exercise jurisdiction on two grounds. First, it reasoned that California was Julian's home state. Alternatively, it concluded that even if Alaska had jurisdiction, California's proceeding still preempted the trial court's jurisdiction.

10. A child's home state is determined at the time an action commences. Because Roby commenced the California proceeding less than six months after Julian arrived in California, California was not Julian's home state when Roby filed the California guardian petition. Moreover, Julian's continued residence in California after Roby filed her petition is not relevant in determining Julian's home state; a child and parent cannot fulfill the six-month home state period through their continued residence in a state after a custody action has been filed. Therefore, California is not Julian's home state.

11. Alaska has jurisdiction under AS 25.30.300(a)(2), which provides that "a court of this state has jurisdiction to make an initial child custody determination only if ... this state was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state...." In this opinion we refer to jurisdiction under this section as "recent home state jurisdiction." Alaska had been Julian's home state within six months of Atkins's filing of his child custody action and therefore Alaska had recent home state jurisdiction. In calculating whether Alaska is a child's home state within six months of a proceeding's commencement, a court should include temporary absences from the state. Therefore, in this case, the superior court should have included any temporary absence from Alaska in assessing whether Julian lived in Alaska within six months of the commencement of the Alaska proceeding. Julian's initial departure from Alaska was temporary. According to Roby, Vigil agreed to make Julian's absence from Alaska permanent only after Julian was in California for a significant period of time. In a pleading filed in the California action, Roby describes the evolving nature of Vigil's decision to leave Julian with Roby on a permanent basis: "Julian stayed in California with me longer and longer because my daughter Veronica's life was unstable and I offered to keep him. She agreed, first it was for a few more weeks, then through summer camp, then to start kindergarten, then to stay for the entire kindergarten year. Because Atkins filed the Alaska petition six months and six or seven days after Julian left Alaska for California, and because it is undisputed that Julian's absence from Alaska did not become permanent until more than seven days after his initial departure from Alaska, Alaska was Julian's home state within six months of the commencement of the proceeding. Accordingly, Alaska had recent home state jurisdiction.

12. Contrary to the superior court's holding, California's pre-existing child custody proceeding does not preempt the Alaska superior court's jurisdiction. The Uniform Child Custody Jurisdiction Act (UCCJA), which Alaska has since replaced with the UCCJEA, created the possibility of concurrent jurisdiction and resolved the potential conflict by giving preference to the first jurisdiction to hear the custody case. However, the PKPA eliminated the possibility of concurrent jurisdiction and the "first in time" rule:

As to initial jurisdiction, the federal standards implement some of the same policy judgments underlying the UCCJA, but there are also significant differences because the PKPA was drafted, in part, to fill the gaps which existed under the UCCJA. The key distinction is that the UCCJA could result in concurrent jurisdiction if more than one state meets one of the conditions set forth in § 3(a) thereof, while 28 USCS § 1788A¥(c)@)(B)G) and 28 USCS § 1738A(d) effectively eliminate the possibility of concurrent jurisdietion.[]

13. This court has held that the PKPA preempts the UCCJA; therefore, under Alaska law, a child's home state has exclusive jurisdiction in child custody cases: "Under the UCCJA, a court may not exercise jurisdiction if a custody proceeding is already pending in another state, assuming that state has jurisdiction over the case. The PKPA, however, preempts this 'first in time' provision, and grants exclusive jurisdiction to the child's home state.[]

14. Moreover, the UCCJEA, which replaced the UCCJA, is consistent with the PKPA and grants exclusive jurisdiction to the home state or recent home state.

15. Turner v. Pannick sets out the relevant standard that the superior court should apply in determining custody between a biological parent and a third party. In Turner, we concluded that a biological parent should ordinarily be awarded custody over a third party unless "it clearly would be detrimental to the child. This "clear detriment" standard may also bear on the question of whether the child should remain with Roby in California during the pendency of this litigation.

16. We REVERSE the superior court's decision declining jurisdiction in this case and REMAND for proceedings consistent with this order.

      . Kopanuk v. AVCP Reg'l Hous. Auth., 902 P.2d 813, 816 (Alaska 1995).

      . Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000).

      . Id.

      . AS 25.30.300-25.35.390.

      . 28 U.S.C. § 1738A.

      . Rogers v. Rogers, 907 P.2d 469, 471 (1995).

      . David Carl Minneman, Annotation, Home State Jurisdiction of Court Under § 3(a)(1) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.S. § 1738A4(c)(2)(A), 6 ALR.5th 1, 16 (1992).

      . AS 25.30.300; 28 U.S.C. § 1738A(b)(4).

      . 28 U.S.C. § 1738A(b)(4).

      . Bock v. Bock, 824 P.2d 723, 724 n. 4 (Alaska 1992).

      . David Carl Minneman, Annotation, Home State Jurisdiction of Court Under § 3(a)(1) of the Uniform Child Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.S. § 1738A4(c)(2)(A), 6 A.L.R.5th 1, 48-50 (1992); Irving v. Irving, 682 S.W.2d 718, 721 (Tex.App.1985) ("[Wle cannot allow the appellee to bootstrap his way into a Texas court based on relationships developed after suit was commenced.").

      . AS 25.30.909(7) (" 'home state' means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months, including any temporary absences of the child or parent or person acting as a parent); 28 U.S.C. § 1738A(b)(4) ("Periods of temporary absence of [child, parent, or person acting as parent] are counted as part of the six-month ... period.").

      . Declaration of Julie Roby in Opposition to Motion to Quash Guardianship Proceedings, executed on February 19, 2002, at Novato, California.

      . David Carl Minneman, Annotation, Pending Proceeding in Another State as Ground for Declining Jurisdiction Under § 6(a) of the Uniform Child Custody Jurisdiction Act (UCCIA) or the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.S. § 1738A(g), 20 ALR .5th 700, 731 (1994).

      . Rogers v. Rogers, 907 P.2d 469, 471 (1995).

      . AS 25.30.300. AS 25.30.300(3) only gives jurisdiction to a non-home state when there is no home state or recent home state jurisdiction, thereby eliminating the possibility of concurrent jurisdiction.

      . 540 P.2d 1051 (Alaska 1975).

      . Id. at 1054.


author: CARPENETI, Justice.

text:
    Natalie B. MANELICK, Appellant, v. Gregory A. MANELICK, Appellee.
    No. S-9986.
    Supreme Court of Alaska.
    Nov. 22, 2002.

      Peggy A. Roston, Law Office of Peggy A. Roston, Anchorage, for Appellant.
    Maryann E. Foley, Law Office of Maryann E. Foley, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

In this appeal of the superior court's property division, Natalie Manelick challenges the superior court's valuation of her medical practice. Because the superior court failed to make findings as to the marketability of the goodwill of that practice, we reverse the superior court's valuation of goodwill and, because the record demonstrates that the goodwill was not marketable, we hold that no value may be assigned to it. Because both parties agree, we hold that the superior court erred in failing to include a debt the parties owed on a piano in the property division order. Finally, we hold that the superior court did not err in assigning a marital car a value of zero.

II FACTS AND PROCEEDINGS

A. Facts

On July 31, 1997 Natalie B. Manelick filed for divorcee from her husband, Gregory A. Manelick. Natalie and Gregory were married on July 11, 1987, and have three children. Natalie and Gregory accumulated a substantial amount of property and debt, including Natalie's medical practice, Gregory's military pension, and property and related debt in Alaska and Pennsylvania.

Natalie started a private medical practice as an internist in 1989. Natalie provided her medical services out of both her Wasilla medical clinic and Palmer Valley Hospital, where she has hospital privileges. The value of the medical practice was hotly contested during the divorce proceedings.

Gregory was in the military from 1978 until 1992, when he retired under a "Voluntary Separation Incentive" annuity program. Since Gregory earned part of this retirement during the marriage, the portion earned from July 11, 1987 until his retirement was marital property.

Natalie and Gregory acquired a house in Palmer, a truck and camper, a Land Rover, and a piano, all of which had outstanding debt. The parties had $258,000 left to pay on their home mortgage and $44,228 on a home improvement loan. They also owed $89,868 on the truck and camper and $56,000 on the Land Rover. In addition, the parties owed the Internal Revenue Service $1,971.57. The piano is not recorded on the listing of marital properties but $7,000 is owed on it, even though it is apparently worth only $8,000. The marital estate also includes an 8.82 acre parcel in Palmer, three horses, personal property, three large parcels of property in Pennsylvania, and a retirement account, none of which carries any debt and the division of which is not at issue on appeal.

B. Proceedings

Trial was held August 30-September 1, 1999 before Superior Court Judge Rene J. Gonzalez. The parties put their agreement as to child support, custody and visitation on the record on August 30, 1999 and the superior court accepted this agreement as in the best interests of the children. The parties stipulated to a partial decree of divorce on December 10, 1999, dissolving the marriage.

Both Natalie and Gregory submitted reports and presented expert testimony as to the value of Natalie's medical practice. Jacquelyn M. Briskey, a certified public accountant, served as an expert witness for Natalie in valuing her medical practice. Briskey opined that the fair market value of the practice as of December 31, 1998 was $156,497. Briskey's opinion was based on two methods of valuation: the capitalization of excess earnings method and a market approach method. The capitalization of excess earnings method is a method used to value intangible assets, such as goodwill. It is done by taking adjusted net income, as shown by tax returns, and subtracting an average rate of return on net assets (total assets-total liabilities = net assets). This amount is the total excess earnings, which are then reduced to present value. The excess earnings (intangible assets) are added to the net assets, reduced to present value, to calculate the fair market value of the practice. Briskey opined that under this method Natalie's work at the hospital must be considered separately from the value of the practice because she was essentially a part-time employee of the hospital, since her privileges were individual to her and not transferable.

Under the market approach, one compares similar businesses and sales to determine the value of the business. Briskey testified that there were no transfers of medical practices in Alaska to compare to Natalie's practice and that other certified public accountants had stated that doctors have walked away from practices because there was no market for medical practices in this state. Briskey testified that the dearth of doctors in the Palmer area allowed a new doctor to come in with his or her own equipment and have a full schedule almost immediately. - Using both methods, Briskey concluded that Natalie's practice was worth only as much as the tangible assets minus the practice's liabilities ($156,497) because of the shortage of doctors in the area and the fact that much of Natalie's income is derived from her non-transferable privileges that allow her to perform surgery at the hospital Briskey calculated Natalie's salary from her practice to be approximately $146,160.

Ronald E. Greisen, also a certified public accountant, valued the practice for Gregory. Greisen valued the practice as of July 31, 1997 using the capitalization of excess earnings method. Greisen valued the tangible assets at $188,788 and the intangible assets at $297,000, giving the practice a fair market value of $485,733. Greisen credited Natalie with a maximum salary of $126,410 in 1996.

The superior court disagreed with Bris-key's opinion that Natalie's income from work done at the hospital should not be included in the total gross income of her medical practice. The superior court relied on several facts to support its position: Natalie was not an employee of the hospital, she did not receive a W-2 income statement from the hospital, her services were billed by her medical office, and payments were paid directly to her office. Thus, the superior court found that Briskey's valuation of the practice was too low.

At the same time, the superior court did not accept Greisen's opinion either. The superior court found that Greisen's computation of Natalie's compensation was too low and that his computation of fixed assets was based on incomplete information. The superior court found that Natalie's salary was $140,000. The court accepted Greisen's computation of $138,733 as the tangible asset value, and the court valued the excess earnings of the practice at $221,692 when reduced to present value. Using the capitalization of earnings method, these valuations led to a fair market value of $360,425.

Based on this valuation and the valuation of the other marital property, the superior court then divided the marital estate in what it considered to be a just and equitable manner. Natalie was awarded the medical practice, the family home, the Land Rover, the truck and camper, the three horses, and the personal property in the family home. Natalie was also assigned the debts on these items and the money owed to the IRS. Gregory was awarded his military retirement, all of the property in Pennsylvania, the property in Palmer, the Fidelity retirement account, the personal property in his possession, a post-separation distribution of funds from a joint checking account, and an increase in credit card debt. In order to equalize the division of marital property, Natalie was ordered to pay Gregory $178,063. Due to the lack of liquidity of Natalie's assets, the parties were ordered to enter into a reasonable agreement for the payment of this sum.

IHH. STANDARD OF REVIEW

The superior court has broad discretion in fashioning a property division. "The valuation of available property is a factual determination that should be reversed only if clearly erroneous." A finding of fact is clearly erroneous when we are left with a definite and firm conviction that the trial court has made a mistake.

We will reverse the superior court's determination of what property is available for division only if we find an abuse of disceretion based on our review of the entire record. The superior court's equitable allocation of property is also reviewed under an abuse of discretion standard. We review the denial of a motion for reconsideration for an abuse of discretion. We will find an abuse of discretion only when we are left with a definite and firm conviction that the trial court erred after reviewing the whole record.

IV. DISCUSSION

A. The Superior Court Erred by Overvaluing Natalie's Medical Practice at $360,425.

The superior court erred in undervaluing the tangible assets of the practice at $138,733.

In Wanberg v. Wanberg, we explained that division of marital assets involves a three-step process: (1) the trial court determines what specific property is available for distribution; (2) the court then determines the value of this property; and (3) the court decides what allocation is most equitable. In Merrill v. Merrill, we held that the trial court must make "sufficiently detailed and explicit findings 'to give the appellate court a clear understanding of the basis of the trial court's decision, and to enable it to determine the ground[s] on which the trial court reached its decision. "

Natalie argues that, in total, the superior court overvalued her medical practice. But her complaint as to the valuation of the tangible assets by the superior court is that the court selected a value that was too low. Natalie argues that the superior court erred when it found that the tangible assets of the practice had a fair market value of $138,738, rather than the $156,497 figure that her expert testified to. Natalie asserts that, since Greisen used the list of assets found in the tax returns for 1992-1996 and looked to no other source, his list of assets was inaccurate and, therefore, so was his valuation. In contrast, Briskey relied on three separate sources to value the fixed assets: the list from the tax returns, a list from Natalie's bookkeeper, and a list prepared by Natalie herself. Briskey stated that she primarily relied on the list prepared by Natalie.

The superior court acknowledged that "Greisen's computation of fixed assets is questionable as it is based on incomplete information." - Nonetheless, the court used Greisen's figure for the tangible asset value in which the fixed asset figure was one component. Because the superior court acknowledged that Greisen's figures were questionable and did not attempt to obtain a more accurate figure, it was error to use these figures. We therefore adopt Briskey's valuation, $156,497, of the net assets.

2. The superior court did not err in finding that the practice has goodwill as calculated by the capitalization-of-the-excess-earnings method.

Natalie argues that the superior court erred when it found that the practice bad goodwill value. She claims that the practice actually had no value beyond its tangible assets. In Moffitt v. Moffitt, we held that the valuation of goodwill is a two-step process. First, "the trial court must decide whether good will exists." Second, if the superior court determines that goodwill exists, it "then must determine whether the good will could actually be sold to a prospective buyer. If the trial court determines either that no good will exists or that the good will is unmarketable, then no value for good will should be considered in dividing the marital assets." To be clearly erroneous, a superior court's findings of fact with regards to goodwill must be entirely unsupported by the record.

Here, the superior court heard testimony from two experts: Briskey and Greisen. Briskey stated in her report that Natalie's revenue from hospital procedures should not be considered in valuing the practice because Natalie was really acting as a part-time employee of the hospital, her privileges were individual to her and not transferable, and the privileges were renewable at the discretion of the hospital every two years. Briskey testified that Natalie's practice was "a special case really because she's got income in there that really isn't comparable to other internal medicine or other practices of this nature." Briskey went on to state that "if you are trying to compare [Natalie's] practice with other practices, you have to extract that other income." Because Briskey would extract revenues from procedures done at the hospital, her analysis concluded that the practice would actually have a net loss instead of net income.

Greisen disagreed with Briskey's conclusion that the income from Natalie's work at the hospital should not be included in the excess earnings analysis. Greisen testified that Briskey's conclusion that Natalie's work at the hospital was separate from her practice was a fiction because, in reality, all of Natalie's activities comprised one practice. Greisen believed that Briskey used a novel approach that he had never seen before in the medical profession, even though it is common for doctors to have several locations of practice.

Based on this evidence, the superior court came to the conclusion that Natalie was not an employee of the hospital, she received no compensation from the hospital, and her practice billed and received all payments for procedures Natalie did at the hospital We have upheld a trial court's determination of goodwill based on the capitalization of excess earnings method and qualified expert testimony. Because Natalie is not contesting Greisen's qualifications as an expert witness and there was ample testimony by Greisen to allow the superior court to find that Greisen's evaluation was sound, the trial court did not clearly err in determining that the practice possessed goodwill. Therefore, we uphold the superior court's finding that the practice had goodwill.

3. The superior court erred in finding that the, practice's goodwill was marketable.

Natalie argues that the superior court erred in valuing her practice above the fair market value of the tangible assets because the goodwill is personal to her and she would be unable to sell the practice for anything more than the value of the tangible assets. Because there is more demand for physicians than there are physicians to meet the demand, Natalie argues that there is no reason for a physician wishing to open a practice in the Wasilla/Palmer area to buy an existing practice. Natalie argues that a new doctor merely has to obtain equipment and office space and open the office doors to have a full-time practice, so there is no reason for a physician to pay extra for goodwill.

Natalie presented evidence at trial that the practice's goodwill was not marketable. Briskey testified that she talked with several CPA's in the Anchorage area who indicated that they did not know of any recent sales of medical practices. Briskey also stated that she was told of two doctors who walked away from their practices after they were unable to find buyers. Briskey spoke with the doctor who now shares the practice with Natalie, Dr. Cooney. According to Briskey, Dr. Coo-ney stated that there was no reason for her to buy into the practice. Natalie testified that she was able to convince Dr. Cooney to share office space with her by providing free office space to Dr. Cooney for four months and then requiring only one-third of the rent for another two months before Dr. Cooney started paying one-half of the rent.

Natalie also testified that the region where she practices is under-served and that she had been trying to get another physician into her practice almost since she started in 1989 but that because there was so much demand for doctors in the area, no one would buy into her practice. Natalie testified that she had 6,000 patients, that she had not been taking new patients for the last several years, and that any internist would only have to buy some equipment and open the office doors to have a practice.

wIn response to this Alaska-specific evidence, Gregory offered only evidence based on a nationwide seale. Greisen testified that a physician "coming to practice without having a practice and if their alternative was hanging their sign out that says I'm a doctor and wait for the patients to come, they're not going to make the average salary of [$]126,-410." Greisen admitted that he did not have any market data on medical practices in Alaska, but used nationwide data to determine the marketability of Natalie's practice. Greisen also admitted that he was unaware of any practices that had been sold in the area. Greisen offered no other testimony as to the marketability of the practice's goodwill.

We have held that if the superior court determines that goodwill exists it "then must determine whether the good will could actually be sold to a prospective buyer." Where no market exists for goodwill, it should be considered to have no value. Here, the superior court made no findings regarding whether there was actually a market for the goodwill of the practice. Because the trial court did not make "sufficiently detailed and explicit findings 'to give the appellate court a clear understanding of the basis of the trial court's decision, and to enable it to determine the ground[s] on which the trial court reached its decision,' " we must reverse its valuation of goodwill.

The superior court failed to make any findings regarding the marketability of the practice's goodwill. Because Natalie offered substantial evidence that the goodwill would not be marketable and Gregory failed to counter that evidence on a regional scale in terms of the Wasilla/Palmer area, or even in terms of Alaska as a whole, the superior court clearly erred in determining that Natalie's practice had a value beyond its tangible assets. Therefore, because Natalie presented substantial evidence that her practice had no marketable goodwill and Gregory presented no substantial evidence to the contrary, the superior court should have adopted Bris-key's opinion that the practice had no value beyond the value of its net assets. We thus hold that the practice has a fair market value of $156,497.

B. The Superior Court Erred in Failing To Include the Loan for the Piano in the Property Distribution.

Natalie argues that the superior court erred in failing to include the loan for the piano on the list of Habilities. Gregory agrees that the property distribution order should be amended to include the $7,000 piano debt. To that must be added a $3,000 credit (reflecting the piano's fair market value) to Natalie's net property value, giving a net loss to Natalie of $4,000. On remand, we direct the superior court to amend the property order to reflect this change.

C. The Superior Court Did Not Err in Valuing the Range Rover at Zero Value instead of a Negative Value.

- Natalie asserts that it was clear error to assign the Range Rover a value of $56,000 when she presented evidence at trial that the car was worth only $45,000. Instead, Natalie argues that the superior court should have assigned the car a negative value of $11,789.12, the value of the car minus the balance on the car loan as of December 5, 1996. Gregory argues that, since the Range Rover was purchased only eight months before trial, the superior court was within its discretion in using the promissory note to value both the Range Rover and the balance of the debt instead of requiring more information from the parties or accepting Natalie's testimony of the value..

"The valuation of marital property is a factual determination 'which will not be set aside unless it is clearly erroncous.' " The superior court used the promissory note and the balance of the debt on the car to value the car. Natalie testified that the car was worth about $45,000 at the date of separation. Natalie offered no other evidence of the value of the car. Specifically, Natalie did not offer any expert testimony or documentation as to the value of the Range Rover and neither did Gregory. Also, neither party offered any evidence of the balance on the loan as of the date of trial. The superior court was not required to procure its own evidence on the value of the Range Rover. We hold that the superior court did not clearly err in adopting the value reflected on the promissory note instead of relying on Natalie's testimony. We affirm the superior court's valuation of the Range Rover.

V. CONCLUSION

Because the superior court failed to make findings as to the marketability of the goodwill of Natalie's medical practice, we REVERSE its conclusion concerning the value of the practice. Because the evidence allows no other conclusion, we hold that the practice had no marketable goodwill. We adopt the net asset value of $156,497. Because the piano debt was not included in the property division, we REMAND this issue so that the court may amend the list accordingly. We AFFIRM the superior court's valuation of the Range Rover.

On remand the court should adjust the property division in accordance with this opinion. If the court decides to continue to divide the parties' property equally, the equalizing payment due Gregory from Natalie will be approximately $74,099. If the court determines that it is no longer just to divide the parties' property equally, the court is authorized to make adjustments in the property division supported by appropriate findings of fact and conclusions of law.

      . Edelman v. Edelman, 3 P.3d 348, 351 (Alaska 2000).

      . Berry v. Berry, 978 P.2d 93, 95 (Alaska 1999) (citing Cox v. Cox, 882 P.2d 909, 913-14 (Alaska 1994)).

      . Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).

      . Berry, 978 P.2d at 95.

      . Id.

      . Harrelson v. Harrelson, 932 P.2d 247, 250 (Alaska 1997).

      . Morgan v. State, Dep't of Revenue, 813 P.2d 295, 297 n. 4 (Alaska 1991).

      . 664 P.2d 568 (Alaska 1983).

      . Id. at 570.

      . 368 P.2d 546 (Alaska 1962).

      . Id. at 548 (quoting Irish v. United States, 225 F.2d 3, 8 (9th Cir.1955)); see also Alaska R. Civ. P. 52(a) (stating in pertinent part "[in all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon ...").

      . 749 P.2d 343 (Alaska 1988).

      . Id. at 347.

      . Id.

      . Id.

      . Id.

      . See Miles v. Miles, 816 P.2d 129, 131 (Alaska 1991) (stating that "the trial court used an accepted method of business valuation, capitalization of excess earnings, to determine whether goodwill exists. Based on the testimony of William's expert witness, Ronald Griesen, the superior court found that Miles & Associates possessed no goodwill value. Because Greisen was qualified as an expert in business valuation, we find no error in the court's acceptance of his testimony." (citations omitted)).

      . Moffitt, 749 P.2d at 347.

      . Miles, 816 P.2d at 131.

      . Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962) (quoting Irish v. United States, 225 F.2d 3, 8 (9th Cir.1955]); see also Alaska R. Civ. P. 52(a) (stating in pertinent part "[iJn all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon

      . See Lacher v. Lacher, 993 P.2d 413, 421 (Alaska 1999) (stating "[when dividing property between divorcing parties, the trial court must distribute all assets acquired during marriage.").

      . Sloane v. Sloane, 18 P.3d 60, 64 (Alaska 2001) (quoting Musser v. Johnson, 914 P.2d 1241, 1242 (Alaska 1996)).

      . Calculated by deducting from Natalie's net recovery, $613,243, the over-valuation of her practice, $203,928 ($360,425-$156,497) and the net negative value of the piano, $4,000, for a new net recovery of $405,315. This, when added to Gregory's net recovery of $257,117, represents the total net marital property. A 50/50 division would thus be $331,216 [($405,315 + $257,-117)/2]. This exceeds Gregory's net recovery by $74,099.


author: BRYNER, Justice.

text:
    Daniel DeNARDO, Appellant, v. Diane BARRANS, Teresa Williams, Mark Begich, Milton Byrd, Alaska Student Loan Corp., Alaska Commission on Postsecondary Education, Frank Love, Jan Ferrell, Burton Research, Sharon Burton, and Karla Burton, Appellees.
    No. S-10292.
    Supreme Court of Alaska.
    Nov. 29, 2002.

      Daniel DeNardo, pro se, Anchorage.
    Kevin M. Saxby, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellees Bar-rans, Williams, Begich, Byrd, Alaska Student Loan Corp., Alaska Commission on Postsec-ondary Education, Love, and Ferrell,
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Daniel DeNardo filed a superior court action for damages arising out of his allegedly wrongful termination from state employment. The superior court dismissed his case, ruling that it was barred under the doctrine of res judicata by a prior judgment on a nearly identical federal claim, which the federal court had dismissed "with prejudice" under Federal Civil Rule 41(b) as a result of De-Nardo's wilifal refusal to comply with a calendaring order. The primary question on appeal is whether claim-preclusive effect attaches to the federal dismissal. Because we conclude that federal law requires us to give claim-preclusive effect to a punitive dismissal entered on the merits by a federal court under Rule 41(b), we affirm the superior court's judgment.

II. FACTS AND PROCEEDINGS

After being fired as an auditor for the Alaska Commission on Postsecondary Education, Daniel DeNardo filed an action for damages in the United States District Court for the District of Alaska against nine state employees, claiming that various actions they had taken against him in the course and scope of their employment resulted in his wrongful termination and deprived him of his constitutional rights. The district court entered a summary judgment order dismissing "with prejudice" DeNardo's claims against all defendants except Diane Barrans, his supervisor. Several days before trial on the claims against Barrans, DeNardo asked for a continuance for medical reasons. When the court denied his request and directed him to proceed with trial on the date scheduled, DeNardo stated that he did not intend to appear as directed. In response, the district court dismissed DeNardo's case for "failure to abide by the orders of the court," specifying that the dismissal would be "with prejudice."

DeNardo then filed a nearly identical complaint in the Alaska superior court, naming as additional defendants two state agencies, the Alaska Commission on Postsecondary Education and the Alaska Student Loan Corporation. The defendants moved for summary judgment, arguing that DeNardo's claims were barred by res judicata. Superi- or Court Judge Stephanie E. Joannides granted the motion, ruling that DeNardo's complaint raised claims that the federal court had already resolved. DeNardo appeals.

III DISCUSSION

In challenging the superior court's summary judgment order, DeNardo emphasizes that the doctrine of res judicata can apply only when a previous judgment has resolved the same claim "on the merits." He argues that the federal district court's judgment dismissing his prior complaint does not qualify as a judgment "on the merits" because the dismissal was entered under Federal Civil Rule 41(b). Although this rule expressly specifies that a dismissal under its provisions "operates as an adjudication upon the merits" unless the court specifically states otherwise in its dismissal order, De-Nardo nonetheless cites the United States Supreme Court's recent decision in Semtek International, Inc. v. Lockheed Martin Corp. as holding that Rule 41(b) dismissals do not qualify as judgments "on the merits" under the doctrine of res judicata.

But DeNardo's argument is unpersuasive. Preliminarily, we note that DeNardo's federal claims against all the defendants other than Barrans were dismissed with prejudice by summary judgment for failure to establish a prima facie case. This dismissal was unrelated to the subsequent Rule 41(b) dismissal of DeNardo's claims against Barrans; and because an order dismissing a claim for failure to establish a prima facie case necessarily passes on the substance of that claim, the federal court's order dismissing DeNardo's case against all defendants other than Bar-rans qualified as a judgment "on the merits" triggering res judicata's preclusive effect. The federal court's summary judgment order thus barred DeNardo from relitigating his claims against all individual defendants other than Barrans, regardless of whether the subsequent Rule 41(b) dismissal had claim-pre-clusive effect.

As to the federal claims against Barrans, DeNardo's argument based on Semmtek is unpersuasive because it misconstrues the decision and overstates Semtek's significance in determining a punitive dismissal's preclusive effect. Although DeNardo insists that Sem-tek stands for the proposition "that dismissals pursuant to [FRCP 41(b)] are not 'on the merits' and have never had res judicata ef-feet," its holding is considerably narrower.

In construing Rule 41(b)'s default provision, which specifies that a dismissal under the rule's terms "operates as an adjudication upon the merits" unless the order of dismissal specifies otherwise, Semtek began by observing that "[the original connotation of 'an on the merits' adjudication"-the connotation traditionally used to determine a judgment's preclusive effect-"is one that actually 'pass[es] directly on the substance of [a particular] claim' before the court." But Sem-tek held that the rule's use of the phrase has a narrower meaning: "[The effect of the 'adjudication upon the merits' default provision of Rule 41(b) ... is simply that, unlike a dismissal 'without prejudice," the dismissal in the present case barred refiling of the same claim in the [same court]."

Having adopted this interpretation, however, Semtek did not go on to conclude-as DeNardo insists it did-that Rule 41(b) dismissals can never have preclusive effect as judgments "on the merits" in the traditional sense. Instead, Semtek recognized that Rule 41i(b) simply does not address the issue. Noting that a judgment "upon the merits" under Rule 41(b) "is undoubtedly a necessary condition, but it is not a sufficient one, for claim-preclusive effect in other courts," the Court in Semtel found it necessary to search elsewhere to determine the issue: "Having concluded that the claim-preclusive effect ... [of the federal judgment at issue] is dictated neither by Dupasseur v. Rochereau [88 U.S.(21 Wall.) 130, 22 L.Ed. 588 (1874)], as petitioner contends, nor by Rule 41(b), as respondent contends, we turn to consideration of what determines the issue."

After considering this issue, Semtek concluded that federal common law determines a federal dismissal's preclusive effect in both federal-question and diversity cases. Regarding - federal-question - dismissals, the Court in Semtel emphasized that "no federal textual provision addresses the claim-preciu-sive effect of a federal-court judgment in a federal-question case, yet we have long held that States cannot give those judgments merely whatever effect they would give their own judgments, but must accord them the effect that this Court prescribes."

To determine the claim-preclusive effect of a punitive dismissal under Rule 41(b), then, Semtek requires us to look for an answer in federal common law, not Rule 41(b). And federal case law provides a clear answer, holding that, unless the dismissing court otherwise specifies, a Rule 41(b) dismissal for failure to comply with a court order is "on the merits" in the traditional sense and must be given preclusive effect:

All of the dismissals enumerated in Rule 41(b) which operate as adjudications on the merits-failure of the plaintiff to prosecute, or to comply with the Rules of Civil Procedure, or to comply with an order of the Court, or to present evidence showing a right to the relief on the facts and the law-primarily involve situations in which the defendant must incur the inconvenience of preparing to meet the merits because there is no initial bar to the Court's reaching them. It is therefore logical that a dismissal on one of these grounds should, unless the Court otherwise specifies, bar a subsequent action.[]

Wriceut, Murer & Cooper amplifies this reasoning, describing the unique characteristics of "penalty dismissals" that justify giving them a preclusive effect:

Rule 41(b) provides that unless the court in its order for dismissal otherwise provides, dismissals for failure to prosecute, to comply with the civil rules, or to comply with any order of court operate as an adjudication on the merits. The purpose of this provision is to establish a strong sanction to enforce compliance with proper procedure. Quite apart from Rule 41(b), this purpose of itself would suggest that penalty dismissals often should preclude a see-ond action on the same claim.[]

And Semtek itself makes the same point. The specific question at issue in Seméek was the preclusive effect of a federal judgment that dismissed a diversity claim on statute-of-limitations grounds under Rule 41(b). Applying its common-law power to decide the issue, the Court fashioned a federal rule for diversity cases that ordinarily would incorporate the claim-preclusion law of the state whose substantive law is at issue. But the Court took pains to warn that it might deviate from this rule if the state law at issue refused to give claim-preclusive effect to a punitive dismissal:

This federal reference to state law will not obtain, of course, in situations in which the state law is incompatible with federal interests. If, for example, state law did not accord claim-preclusive effect to dismissals for willful violation of discovery orders, federal courts' interest in the integrity of their own processes might justify a contrary federal rule.[]

In summary, then, Semtek requires us to determine the preclusive effect of DeNardo's Rule 41(b) dismissal by referring to federal common law. Because federal cases unequivocally treat a punitive dismissal like DeNardo's-a judgment that terminates a case for failing to follow court orders-as a judgment "on the merits" that has claim-preclusive effect, we hold that the federal-court judgment dismissing DeNardo's claim against Barrans had the effect of precluding his subsequent state action against Barrans, which asserted the same claim.

So far, our decision precludes DeNar-do from pursing his state claims only against the individual defendants that he named in his superior court complaint. We have not yet considered his state claims against newly named agencies, the Alaska Commission on Postsecondary Education and the Alaska Student Loan Corporation. DeNardo asserts that, because federal law barred him from naming these agencies as defendants in his federal-court action, the superior court erred in concluding that res judicata precluded him from suing them in state court.

Yet res judicata can bind parties who did not participate in the prior action: the doctrine holds that a properly entered judgment "should be conclusive upon the parties and those in privity with them. Because the commission and the corporation are governmental entities, not individuals, and so could not act except through their officers and employees, their liability could only be established vicariously, through proof that their officers and employees (the individual defendants named in DeNardo's complaint) acted wrongfully. Under these cireum-stances, privity arises between the agency defendants, who had not been sued in federal court, and the individual defendants, all of whom were sued for actions taken in the course of their employment, because their relationship is "such that one of them is vicariously responsible for the conduct of the other." It follows that, by precluding De-Nardo's individual claims, we also must preclude his agency claims.

IV. CONCLUSION

We therefore AFFIRM the superior court's judgment of dismissal.

      . The Ninth Circuit Court of Appeals summarily affirmed the dismissal in DeNardo v. Barrans, 230 F.3d 1366 (9th Cir.2000) (unpublished table decision), cert. dismissed, 531 U.S. 989, 121 S.Ct. 505, 148 L.Ed.2d 452 (2000).

      . The Ninth Circuit Court of Appeals summarily affirmed the dismissal in DeNardo v. Barrans, 238 F.3d 428 (9th Cir.2000) (unpublished table opinion}, cert. dismissed, 531 U.S. 1006, 121 S.Ct. 607, 148 L.Ed.2d 480 (2000).

      . Several of the defendants named in the state complaint are different from those named in the federal complaint, but those differences are irrelevant. Three of the newly named defendants, Burton Research, Sharon Burton, and Karla Burton, were never served with process and did not participate in the superior court proceedings. The remaining newly named defendants are either successors of previously named defendants or additional commission members not alleged to have committed specific wrongful acts.

      . For example, we recently stated:
      The doctrine of res judicata provides that a judgment in a prior action will bar a subsequent action if the prior judgment was (1) a final judgment on the merits, (2) from a court of competent jurisdiction, (3) in a dispute between the same parties (or their privies) about the same cause of action.
      Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1251 (Alaska 2001), cert. denied, 534 U.S. 1135, 122 S.Ct. 1081, 151 L.Ed.2d 981 (2002) (mem.).

      . - Federal Rule of Civil Procedure 41(b) provides, in relevant part:
      Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

      . 531 U.S. 497, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001).

      . See id. at 501-02, 121 S.Ct. 1021 ("[A)n 'on the merits' adjudication is one that actually 'pass[es] directly on the substance of [a particular] claim' before the court.") (quoting ResraremEnt (Seconp) or Jupements § 19 cmt. a (1982) [hereinafter ReSTATEMENT] ).

      . Id. (quoting Restatement § 19 cmt. a).

      . Id. at 506, 121 S.Ct. 1021.

      . Id.

      . Id.

      . Id. at 507-08, 121 S.Ct. 1021.

      . Id. at 507 (citations omitted).

      . Costello v. United States, 365 U.S. 265, 286-87, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961).

      . 18A Aran Waricur, Artgur R. Miter, & Epwarp H. Coopgr, Feperar Practice anp § 4440 (2d ed.2002); see also Restatement § 19 emt. e (adopting a rule of preclusion for failure to prosecute, to obey an order of court, or to appear).

      . See Semtek, 531 U.S. at 499, 121 S.Ct. 1021.

      . See id. at 508, 121 S.Ct. 1021.

      . Id. at 509, 121 S.Ct. 1021.

      . We include in this category individual defendants newly named in DeNardo's state claim by virtue of their status as successors of previously named defendants, since these newly named individuals are essentially placeholders for previously named defendants; we similarly include commission members newly added in the state action, since these defendants were simply added in their capacity as board members representing the newly named agency defendants and are not alleged to have committed any specific wrongful acts.

      . Pennington v. Snow, 471 P.2d 370, 374 (Alaska 1970) (quoting State v. Baker, 393 P.2d 893, 897 (Alaska 1964)).

      . See City of North Pole v. Zabek, 934 P.2d 1292, 1300 (Alaska 1997) ("For vicarious liability to attach, some sort of underlying liability must be established for which the employer can be held liable.").

      . See Restatement § 51. We follow the Restatement of Judgments in determining whether privity exists for res judicata purposes. See, eg., Alaska Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd., 768 P.2d 117, 121 (Alaska 1989).