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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kessey v. Frontier Lodge, Inc. (03/01/2002) sp-5541

Kessey v. Frontier Lodge, Inc. (03/01/2002) sp-5541

     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) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


GABRIEL KESSEY,               )
                              )    Supreme Court No. S-9724
             Appellant,            )
                              )    Superior Court No.
     v.                       )    4FA-99-1181 CI
                              )
FRONTIER LODGE, INC., d/b/a   )    O P I N I O N
Frontier Lodge, and BOULDER        )
INVESTMENTS, INC., d/b/a      )    [No. 5541 - March 1, 2002]
Frontier Club; WILLIAM STEWART,    )
DARRIN LEMONS, SUSAN          )
BLACKWELL, RICHARD LEMONS,    )
                              )
             Appellees.            )
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Ralph R. Beistline, Judge.

          Appearances:  Michael W. Flanigan, Walther  &
          Flanigan,  Anchorage,  for  Appellant.   Gary
          Zipkin  and Gregory G. Silvey, Guess  &  Rudd
          P.C., Anchorage, for Appellees.

          Before:   Fabe,   Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          EASTAUGH, Justice.

I.   INTRODUCTION

          Gabriel  Kessey sued Frontier Lodge and others alleging

that they negligently served alcohol to an intoxicated driver who

later  drove  his truck into a car occupied by Kessey.   Frontier

Lodge  moved  for  summary judgment, supporting its  motion  with

affidavits  from its bartender and the driver.  Despite  Kessey's

Alaska  Civil Rule 56(f) request for a thirty-day continuance  to

depose  the bartender and the driver, the superior court  granted

summary judgment against Kessey.   We reverse, because it was  an

abuse of discretion not to grant Kesseys continuance request.

II.  FACTS AND PROCEEDINGS

          Gabriel  Kessey  was  injured in May  1997  when  Scott

Morrison drove his truck into a car occupied by Kessey.  Morrison

was  intoxicated.   Kessey  sued Frontier  Lodge,  Inc.,  Boulder

Investments,  Inc.  (doing business as the  Frontier  Club),  and

others  in  April  1999  for criminal negligence;  his  complaint

alleged  that Frontiers employees had served alcohol to a visibly

intoxicated Morrison.1

          Boulder moved for summary judgment in late March  2000.

Boulder  supported its motion with affidavits from  Morrison  and

Frontier  Lodge bartender Tacey Rahoi.  Morrison  stated  in  his

affidavit that [Morrison] was never in the Frontier Club . . . on

the  evening in question, and that [t]he bar that was in  a  log-

building  structure  where [he] was served an alcoholic  beverage

after  [he]  left Reflections was the bar located in the  Captain

Bartlett  Inn.  He stated that he left Reflections between  12:30

a.m.  and 1:30 a.m.  Rahoi stated that she was the only bartender

at  Frontier  Lodge  that night, that she  did  not  serve  Scott

Morrison alcohol that night, and that she sold the last  beer  of

the night at 11:47 p.m., before the time Morrison claimed he left

Reflections.   Frontier Lodge, Inc. joined  in  Boulders  motion.

For  convenience,  we  sometimes  refer  here  to  the  corporate

defendants  Frontier  Lodge, Inc. and Boulder  Investments,  Inc.

collectively as Frontier,  and to the establishment  as  Frontier

Lodge.

          The superior court granted Kesseys motion for a ten-day

extension  to  oppose  the  summary  judgment  motion.    Kesseys

opposition  argued  that  a transcript attached  to  the  summary

judgment  motion  created a material fact dispute  about  whether

Frontier  had  served  Morrison that  night,  precluding  summary

judgment.   The  transcript was of a Fairbanks Police  Department

interview  with  Morrison the night of the accident.  During  the

interview, Morrison told Detective Aaron Ring that he had gone to

three bars that night: Reflections, a second bar, and a log-cabin

place.   Kessey  also  relied  upon Detective  Rings  transcribed

comments  during the interview in which he suggested to  Morrison

that the log building was Frontier Lodge.  Kesseys opposition  to

the  summary  judgment motion did not produce any  evidence  that

contradicted Rahois or Morrisons statements that Morrison was not

at  Frontier  Lodge  on the night of the accident.   But  Kesseys

opposition requested that he be allowed an additional thirty days

under  Alaska  Civil  Rule  56(f)  to  take  the  depositions  of

Morrison,  Rahoi,  Detective  Ring,  and  accident  witnesses  to

attempt  to sort out . . . what were the 2 locations besides  the

Captain  Bartlett [Inn] where Morrison drank that night.  Without

ruling  on Kesseys Rule 56(f) request, the superior court granted

summary  judgment  to  Frontier  Lodge,  Inc.  and  Boulder   and

dismissed  Kesseys  claim against them in May  2000.   The  court

later  entered  Alaska  Civil  Rule  54(b)  final  judgments  for

Frontier Lodge, Inc. and the Boulder defendants.

          Kessey appeals.

III. DISCUSSION

     A.   Standard of Review

          We review for abuse of discretion a decision to deny  a

continuance requested under Alaska Civil Rule 56(f).2

     B.   Kesseys Rule 56(f) Request for a Continuance
          
          Rule 56(f) permits a court to order a continuance if  a

party  needs  time  to  conduct discovery  to  oppose  a  summary

judgment motion:

          Should  it  appear from the affidavits  of  a
          party  opposing  the motion  that  the  party
          cannot   for   reasons  stated   present   by
          affidavit  facts  essential  to  justify  the
          partys  opposition, the court may refuse  the
          application  for  judgment  or  may  order  a
          continuance  to  permit  affidavits   to   be
          obtained  or  depositions  to  be  taken   or
          discovery  to be had or may make  such  other
          order as is just.[3]
          
          Generally, requests made pursuant to Rule 56(f)  should

be  freely  granted,4 at least when the litigant seeking  a  Rule

56(f) continuance has ma[d]e it clear to the trial court and  the

opposing  party  that he opposes the summary judgment  motion  on

this  ground,5  and has provided adequate reasons explaining  why

[he]  cannot  produce facts necessary to oppose summary  judgment

within  the  original  time frame, and [that  he]  has  not  been

dilatory in his use of discovery.6

          Kessey  argues that it was error not to grant his  Rule

56(f)  request.   In  support,  Kessey  cites  the  standard  for

granting  such requests discussed in Munn v. Bristol Bay  Housing

Authority7  and  Gamble  v.  Northstore  Partnership.8   Although

Kessey  offered no affidavits to support his request for  a  Rule

56(f) continuance, his attorney stated in his memorandum opposing

summary  judgment  and  requesting the continuance  that  counsel

would liked to have done these depositions earlier, but had  been

out of town on vacation when Boulder filed its motion for summary

judgment  and  had  been making hectic trial preparations  for  a

complex medical malpractice case when he returned.

          Frontier  seems to argue that Kesseys failure to  offer

an  affidavit in support of his Rule 56(f) request should prevent

him from seeking the continuance.  But we decline to adopt such a

stringent requirement.  It  would be contrary to Alaska practice,

which  requires that Rule 56(f) requests be freely granted.9   It

would  also  be  inconsistent  with federal  authority  governing

interpretation  of  Federal Rule of Civil Procedure  56(f),  upon

which  Alaskas  rule  was modeled.  Alaskas mandate  that  Alaska

Civil  Rule  56(f)  requests  be freely  granted  corresponds  to

          recognition that Federal Rule of Civil Procedure 56(f) should be

applied with a spirit of liberality.10

          The  purpose  of subdivision (f) [of  Federal
          Rule of Civil Procedure 56] is to provide  an
          additional  safeguard against an  improvident
          or  premature  grant of summary judgment  and
          the  rule  generally  has  been  applied   to
          achieve that objective.  Consistent with this
          purpose,  courts have stated  that  technical
          rulings  have no place under the subdivision,
          and  that it should be applied with a  spirit
          of liberality.[11]
          
          Federal  authority  also instructs  courts  to  take  a

substantive approach in deciding whether a party opposing summary

judgment  has complied with the requirements of Federal  Rule  of

Civil Procedure 56(f).12  We agree with this approach.

          Frontier  also  argues  that  Kessey  was  dilatory  in

conducting discovery  and that the superior court was well within

its  discretion not to grant him additional time.  It notes  that

the accident predated the summary judgment motion by nearly three

years.   But the facts of this case do not establish a  level  of

delay  that  would  have  justified denying  Kesseys  continuance

request.13   Kessey filed his complaint in mid-May 1999.  Boulder

filed its answer and third-party complaint in late July 1999, and

Frontier  Lodge, Inc. filed its answer and third-party  complaint

in   mid-August  1999.   The  record  reflects  extensive  motion

practice  as preliminary issues were resolved among the  numerous

parties before Boulder and Frontier Lodge, Inc. moved for summary

judgment.   The record indicates that as of late 1999,  five  law

firms,  apart from Kesseys counsel, had appeared.  Boulder served

its  summary judgment motion on Kessey by mail on March 28, 2000,

about  ten months after Kessey filed suit and eight months  after

Boulder  filed  its  answer.   Frontier  Lodge,  Inc.  joined  in

Boulders  motion  several days later.  It does  not  appear  that

Kesseys counsel had been doing nothing to advance his case before

the  defendants  moved for summary judgment.  The superior  court

proceedings generated a four-volume record in the fourteen months

after  Kessey filed suit; at least two volumes appear to  predate

          the summary judgment motions.

          The  circumstances of this case set it apart  from  the

case most favorable to Frontier, Brock v. Weaver Bros.14  In that

case no discovery had been undertaken, and there were indications

that  plaintiffs  counsel had done little or nothing  to  advance

plaintiffs case.  Here, however, other aspects of the  case  were

very  actively litigated, effectively delaying discovery,  before

Boulder moved for summary judgment, and Kesseys attorney provided

good reasons why he could not immediately take the depositions of

Morrison and Rahoi after Boulder moved for summary judgment.

          Because  the  showing  made  by  Kesseys  attorney  was

sufficient to require a continuance under Rule 56(f), and because

there  was  no  compelling demonstration of lack of diligence  on

Kesseys  part  in  prosecuting his case, pursuing  discovery,  or

making efforts to oppose the summary judgment motion, we conclude

that  it  was  an  abuse of discretion to grant summary  judgment

without  first  granting Kesseys request for a continuance.   The

only  effective  way  for  Kessey to  test  and  rebut  the  fact

assertions  made  in  the Rahoi and Morrison  affidavits  was  to

depose these witnesses.  In deposing Morrison, Kessey might  have

sought  to obtain the name of the second bar Morrison told police

he  had visited after leaving Reflections and before arriving  at

what  was apparently the Captain Bartlett Inn.  Alaska Civil Rule

56(f) requires that Kessey be given this opportunity.

     C.   Morrisons Affidavit
          
          Kessey  also argues that it was error to grant  summary

judgment to Frontier because, he alleges, Morrisons affidavit was

inconsistent with statements Morrison made to the police;  Kessey

claims  that this inconsistency created credibility disputes  and

thus  genuine  issues of material fact.  We need not  reach  this

contention because we have already concluded that the failure  to

grant a Rule 56(f) continuance requires reversal.

IV.  CONCLUSION

          For these reasons, we REVERSE the summary judgments and

          remand for further proceedings consistent with this opinion.

_______________________________
     1     Kesseys  complaint  also advanced  other  theories  of
liability  stemming  in  part from the  ownership  structure  and
operation  of the establishment which allegedly served  Morrison.
In  his  complaint Kessey alleged that Boulder Investments,  Inc.
(Boulder) was doing business as Frontier Club at the time of  the
accident.    Kessey   also   alleged  that   Frontier   Club   is
alternatively known as Frontier Lodge.  We refer to this drinking
establishment as Frontier Lodge throughout.  Kessey also  alleged
that  Boulders  corporate officers and directors  Darrin  Lemons,
Susan  Blackwell, and Richard Lemons  were liable because Boulder
failed  to  procure liability insurance.  Kesseys complaint  also
alleged  that  Frontier Lodge, Inc. was liable  directly  by  and
through its employee and agents or indirectly through its  agent,
servant  or  licensee.  Kessey argues that Frontier  Lodge,  Inc.
held  the  liquor license for Frontier Lodge at the time  of  the
accident  and  permitted Boulder to operate a  liquor  dispensary
business  without  the  proper transfer of  the  liquor  license.
Again,  Kessey  alleged that Frontier Lodge, Inc.s  officers  and
directors   specifically  William Stewart   were  liable  because
Frontier Lodge, Inc. failed to procure liability insurance.   The
superior  court  dismissed Kesseys claim  of  failure  to  obtain
liability insurance for failure to state a cause of action  under
Alaska  Civil Rule 12(b)(6).  Kesseys complaint also named  other
defendants, including persons associated with Reflections, a  bar
which  also  allegedly served Morrison that night.   This  appeal
does not address claims regarding the Reflections defendants.

     2     Munn  v.  Bristol Bay Hous. Auth., 777 P.2d  188,  192
(Alaska 1989) (citation omitted).

     3    Alaska R. Civ. P. 56(f).

     4    Jennings v. State, 566 P.2d 1304, 1313 (Alaska 1977).

     5    Id. at 1313 (affirming superior courts grant of summary
judgment  against  plaintiff  in  wrongful  death  action,  where
plaintiff  not only failed to submit affidavits in her opposition
to summary judgment, but also failed to mention Rule 56(f)).

     6     Gamble v. Northstore Pship, 907 P.2d 477, 485  (Alaska
1995); see also Braun v. Alaska Commercial Fishing & Agric. Bank,
816  P.2d 140, 145 (Alaska 1991) (affirming denial of Rule  56(f)
request where party was on notice of affirmative defense and  was
dilatory in not conducting discovery on that issue).

     7    777 P.2d 188 (Alaska 1989).

     8     907 P.2d 477, 485-86 (Alaska 1995) (reversing grant of
summary  judgment where plaintiff opposing motion had  not  filed
affidavit requesting continuance but had otherwise clearly stated
his  opposition,  and  concluding that plaintiffs  submission  of
affidavit  of plaintiffs counsel which did not expressly  mention
Rule  56(f), but which clearly set forth the [plaintiffs]  desire
and  justification  to  undertake  additional  discovery  .  .  .
satisfied the requirement that a party seeking Rule 56(f)  relief
must make an unambiguous request ).

     9    Jennings, 566 P.2d at 1313.

     10     10B Charles Alan Wright, Arthur R. Miller & Mary  Kay
Kane, Federal Practice and Procedure: Civil  2740, at 402-03  (3d
ed. 1998).

     11    Id.

     12    E.g., Littlejohn v. Shell Oil Co., 483 F.2d 1140, 1146
(5th  Cir.  1973)  (vacating summary judgment  for  defendant  in
antitrust  action  where  plaintiffs counsel  informed  court  in
writing  that  he  could  not show interstate  sales  to  support
subject  matter  jurisdiction  without  further  discovery,   and
requested  delay until he could conduct discovery, but  filed  no
Rule   56(f)  affidavit.  The  court  stated  that  the   written
representation by [plaintiffs] lawyer, an officer of  the  court,
is in the spirit of Rule 56(f) . . . and that [f]orm is not to be
exalted  over fair procedures); contra Radich v. Goode, 886  F.2d
1391, 1394 (3d Cir. 1989) (holding that district courts grant  of
summary  judgment  for  defendant  in  trespass  action  was  not
premature where plaintiffs attorney had claimed in his memorandum
in opposition to summary judgment that unanswered interrogatories
required continuance of discovery period, but where no Rule 56(f)
affidavit had been filed by plaintiff).

     13    One case Frontier cites supports Kesseys position here.
See  Parson  v.  Marathon Oil Co., 960 P.2d 615,  618-20  (Alaska
1998) (reversing denial of Rule 56(f) request, even though it was
not made until after summary judgment had been granted).

     14    640 P.2d 833 (Alaska 1982).