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Benedict v. Key Bank of Alaska (5/24/96), 916 P 2d 489
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Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
HOWARD M. BENEDICT, )
) Supreme Court No. S-6743
Appellant, )
) Superior Court No.
v. ) 3AN-91-10305 Civil
)
KEY BANK OF ALASKA, ) O P I N I O N
)
Appellee. ) [No. 4353 - May 24, 1996]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John Reese, Judge.
Appearances: Rebecca S. Copeland, Koval &
Featherly, P.C., Anchorage, for Appellant.
Kathryn A. Black and Kenneth D. Albertsen,
Birch, Horton, Bittner and Cherot, Anchorage,
for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Shortell,
Justice, pro tem.
SHORTELL, Justice, pro tem.
I. INTRODUCTION
Howard Benedict appeals the superior court's denial of
his Alaska Rule of Civil Procedure 60(b) motion for relief from a
default judgment obtained by Key Bank of Alaska. We affirm the
trial court's ruling.
II. FACTS AND PROCEEDINGS
In 1984, Key Bank loaned a substantial amount of money to
a partnership in which Howard Benedict was a general partner. The
loan was secured by a deed of trust on real property in Anchorage
(property). Benedict also personally guaranteed the promissory
note on the loan. The partnership was unable to make payments in
the wake of a sharp downturn in the Anchorage real estate market.
Repayment deadlines were renegotiated numerous times.
In 1987, Key Bank again agreed to extend the deadline on
the loan in exchange for new promissory notes for the accrued
interest on the original loan. When the new maturity date arrived,
payment still had not been made on the original or subsequent
notes. Key Bank again agreed to extend the maturity date, but only
after receiving a new promissory note for the accrued interest.
In 1989, Benedict offered to settle all of his debts with
Key Bank, including a 1986 loan made to another partnership in
which he was a general partner, in exchange for the property and
proceeds from a related condemnation action. Key Bank rejected the
offer and filed suit against Benedict on the promissory notes. Key
Bank dismissed the suit without prejudice after reaching yet
another extension agreement with Benedict and once again receiving
a promissory note for accrued interest.
On December 10, 1991, Key Bank filed suit again. The
suit sought recovery on the initial promissory note, the three
notes representing accrued interest, and the 1986 loan to
Benedict's other partnership. Benedict did not answer the
complaint. On January 24, 1992, the Clerk of Court entered default
against Benedict.
In July 1992, Key Bank offered to accept the property in
exchange for "cancellation of the debt owed by the partnership."
Benedict did not respond. On October 30, 1992, Key Bank filed a
motion for entry of partial default judgment on all of the
outstanding notes. On January 22, 1993, Key Bank filed another
motion for entry of partial default judgment. Key Bank admits that
it did not serve notice of these motions on Benedict.
Three days later, on January 25, Key Bank renewed its
July 1992 settlement offer. Benedict accepted. On February 17,
the court entered a partial default judgment against Benedict on
the January 24, 1992, entry of default by the Clerk of Court.
Benedict concedes that he received notice of the default judgment
shortly after it was entered.
On June 23, 1993, Key Bank filed an action in Benedict's
home state of Connecticut to collect on the default judgment.
However, it was not until one year after entry of default judgment,
on February 17, 1994, that Benedict filed a Rule 60(b)(3) motion
for relief from judgment. The superior court refused to set aside
the judgment.
III. DISCUSSION
The standard of review for an order denying relief from
judgment is whether the trial court abused its discretion. Bauman
v. Day, 892 P.2d 817, 828-29 (Alaska 1995). Alaska Rule of Civil
Procedure 60(b)(3) provides that a party may seek relief from
judgment for "fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse
party." Such a motion must be made within a reasonable time, and
in any case no later than one year after the date of notice of the
judgment.
Benedict's motion was based on his claim that he had not
been given notice by Key Bank that it would seek a default and that
he had been fooled by the bank's conduct into believing that he
would not be required to respond to the complaint or take action to
set aside the default judgment.
Failure by the moving party to give prior notice of its
intent to seek a default, although inappropriate, will not be
sufficient to render the ensuing default judgment void or to
authorize untimely filing of a motion for relief from that
judgment. Kenai Peninsula Borough v. English Bay Village, 781 P.2d
6, 8 n.2 (Alaska 1989). Although the bank had pursued its claims
to judgment and had given him no explicit indication that it did
not intend to enforce that judgment, Benedict allowed a year to
pass, while the bank pursued collection on the judgment in a
lawsuit in his home state. His motion was not made within a
reasonable time, and was properly denied.
IV. CONCLUSION
It was not an abuse of discretion for the trial court to
deny the motion for relief from judgment. Benedict's delay in
filing the motion was unreasonable. (EN1) He has failed to offer
any reasonable excuse for his failure to act sooner. The judgment
of the superior court is AFFIRMED.
ENDNOTES:
1. See, e.g., Princiotta v. Municipality of Anchorage, 785 P.2d
559 (Alaska 1990) (twenty-two day delay reasonable); Alaska Placer
Co. v. Lee, 502 P.2d 128 (Alaska 1972) (forty-nine day delay
reasonable); Security Mut. Cas. Co. v. Century Cas. Co., 621 F.2d
1062 (10th Cir. 1980) (115 day delay unreasonable); Central
Operating Co. v. Utility Workers of Am., AFL-CIO, 491 F.2d 245 (4th
Cir. 1974) (four month delay unreasonable).
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