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Jourdan v. Nationsbanc Mortgage Corp. (03/08/2002) sp-5545
Jourdan v. Nationsbanc Mortgage Corp. (03/08/2002) sp-5545
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.
THE SUPREME COURT OF THE STATE OF ALASKA
AVA JOURDAN, )
) Supreme Court No. S-9194
Appellant, )
) Superior Court No.
v. ) 3AN-94-1356 CI
)
NATIONSBANC MORTGAGE ) O P I N I O N
CORPORATION; FEDERAL HOME )
LOAN MORTGAGE ) [No. 5545 - March 8, 2002]
CORPORATION (FREDDIE )
MAC); RICHARD ULLSTROM; )
RICHARD CRABTREE; ROUTH )
& CRABTREE; PACIFIC )
NORTHWEST TITLE COMPANY; )
STEWART TITLE COMPANY; )
and CHARLES R. ELDER, JR., )
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Karen L. Hunt, Judge, and
Stephanie E. Joannides, Judge pro tem.
Appearances: Ava Jourdan, pro se, Anchorage,
Appellant. Richard Ullstrom, Routh &
Crabtree, APC, Anchorage, for Appellees
Nationsbanc Mortgage Corporation, Federal
Home Loan Mortgage Corporation, Richard
Ullstrom, Richard Crabtree, and Routh &
Crabtree. No appearance by Appellees Pacific
Northwest Title Company, Stewart Title
Company and Charles R. Elder, Jr.
Before: Fabe, Chief Justice, Matthews,
Bryner, and Carpeneti, Justices. [Eastaugh,
Justice, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
Ava Jourdan brings this action challenging the
foreclosure of her residence. Jourdan claims that the superior
court improperly granted summary judgment, arguing both that the
foreclosure was procedurally flawed and that there existed
material issues of factual dispute. Jourdans various legal
challenges have been heard before a number of superior court
judges. We affirm all of the decisions of the superior court.
II. STATEMENT OF FACTS
In December 1985 Charles Elder executed a deed of trust
against a residence located at 1725 Amherst Circle in Anchorage
to secure a note payable to Alaska Mutual Bank. Elder then
deeded the property to Royalty Company, which was wholly owned by
Ava Jourdan. The note and deed of trust were then assigned by
the bank to the Federal Home Loan Mortgage Corporation (Freddie
Mac).1 A non-judicial foreclosure was initiated in 1991 after
the payments on the note went into default. Jourdan stayed the
foreclosure by putting Royalty Company into Chapter 11
bankruptcy. Royalty Companys bankruptcy was later converted to a
Chapter 7 bankruptcy when Jourdan filed a personal Chapter 7
bankruptcy. Freddie Mac was able to obtain relief from the stay
and recommence the foreclosure action. The foreclosure sale was
conducted on February 10, 1994.
In early February 1994 Jourdan received a copy of a
facsimile from Freddie Mac indicating that the amount of
arrearages was approximately $35,000. Freddie Mac offered to
accept one-half of the amount immediately and the other half over
the course of the next six months in exchange for terminating the
foreclosure proceedings. Jourdan responded by offering to pay
$15,000 immediately and another $15,000 at the end of six months.
This was unacceptable to Freddie Mac. On February 10, 1994,
shortly before the foreclosure sale, Jourdan delivered a letter
to Richard Ullstrom and Richard Crabtree, the attorneys handling
the foreclosure, stating that she wished to accept Freddie Macs
offer of a workout agreement, but adding additional conditions.
Ullstrom and Crabtree did not consider this to be a valid
acceptance and proceeded with the foreclosure sale. Freddie Mac
was the successful bidder at the sale.
On February 14, 1994, Jourdan filed a complaint seeking
a temporary restraining order to halt the recording of the deed
of trust. Superior Court Judge Milton M. Souter granted the
restraining order and later issued a preliminary injunction on
February 25 on the condition that Jourdan pay $17,500 by February
28, in line with the workout agreement Freddie Mac had offered
Jourdan. Judge Souter ordered that the injunction was to expire
on its own terms on February 28 if the necessary money was not
paid. When Jourdan failed to pay, Freddie Mac moved for partial
summary judgment. On September 26, 1994, the superior court,
Judge Souter again presiding, granted summary judgment as to
contractual interference, punitive damages, bad faith dealing,
injunctive relief, and disparate treatment. Jourdan moved in
January 1995 to amend her complaint to repeat the two surviving
counts breach of contract and specific performance and add
claims of defective foreclosure, constructive eviction, invasion
of privacy, unlawful forced entry, and intentional infliction of
emotional distress. In a second motion to amend her complaint,
Jourdan attempted to add claims of violating her right to enjoy
her home, misuse of process, disparagement of character,
deprivation of civil rights, malicious prosecution, and
disparagement of title. This second amended complaint was not
ruled upon by the trial court.
Oral argument was set for September 29, 1995, but
Jourdan moved for and was granted an open-ended continuance based
on an affidavit from her psychiatrist that for the time being she
was unable to deal with complex legal matters. In September 1996
Freddie Mac moved to require Jourdan to show cause why oral
arguments should not proceed. Jourdan responded that the burden
was on Freddie Mac to demonstrate that Jourdan was able to
proceed. After Freddie Mac moved for the imposition of a
conservatorship, Superior Court Judge Karen L. Hunt ruled that
Jourdan was competent to conduct her own legal affairs. This
order further required Jourdan to reactivate her pending civil
litigation. When Jourdan failed to comply, Freddie Mac moved to
proceed with oral argument, which was held before Judge Hunt on
March 26, 1998 with Jourdan participating. On August 27, 1998,
Judge Hunt granted partial summary judgment against Jourdan on
the amended complaint. A request for partial judgment for
possession of the real property was granted, effective August 1,
1999. Jourdan filed a motion for reconsideration, which was
denied by Superior Court Judge Stephanie E. Joannides. Jourdan
now appeals.
III. STANDARD OF REVIEW
We review summary judgment orders de novo.2 In
reviewing a grant of summary judgment, this court must determine
whether any genuine issue of material fact exists and whether on
the established facts the moving party is entitled to judgment as
a matter of law.3 We use our independent judgment in reviewing
conclusions of law.4 Findings of fact will only be reversed if
clearly erroneous.5 A genuine issue of fact exists when
reasonable jurors could differ on their interpretation of the
evidence.6
IV. DISCUSSION
A. The Superior Court Properly Granted Summary Judgment on
the Absence of a Workout Agreement.
As a threshold issue, this court must decide whether
the alleged workout agreement between Jourdan and Freddie Mac
concerning the February 10, 1994 foreclosure sale precluded the
entry of summary judgment against Jourdan with regard to
possession of the house. Judge Hunt ruled that while there was a
genuine issue of material fact as to whether a workout contract
existed, Jourdan did not have the ability to perform on that
contract. This conclusion was based in part upon Jourdans
inability to pay the $17,500 owed after the injunction was issued
and the sale forestalled to give her the opportunity to pay.
Under Alaska law, a plaintiff cannot collect damages in a breach
of contract action without showing the willingness to perform his
or her own obligation,7 which in this case would be to pay the
amount owed under the alleged workout agreement. Because Jourdan
was given the opportunity to pay her outstanding debt and did
not, she cannot bring an action for breach of contract here.8
Consequently, the summary judgment order against Jourdan was
properly granted.9
B. The Notice of Foreclosure Was Valid.
Jourdan alleges that the foreclosure action was invalid
primarily due to the extended length of time between when notice
of the sale was given and the sale itself. Jourdan notes that
three years passed between the initial publication notice of the
sale in the Anchorage Times10 in August through September of 1991
and the foreclosure sale on February 10, 1994. However, notice
of the sale was posted in the Alaska Journal of Commerce from
November 15 to December 6, 1993, only a short time before the
foreclosure sale. Because of the subsequent publication, it is
not necessary for us to reach the issue of the potential
invalidity of a notice published two and a half years before the
actual sale took place.
Jourdan then claims that the place of publication of
the second notice was insufficient to meet statutory
requirements. Jourdan concedes the validity of publication in
the Anchorage Times, but disputes the validity of the subsequent
publication of notice in the Alaska Journal of Commerce on the
grounds that it did not have a large enough readership. Alaska
statutes require a notice of sale to be published in a newspaper
that has a total paid circulation or paid distribution of at
least 500 copies, or 10 percent of the total population of the
judicial district, whichever is less.11 By Jourdans own figures,
the Alaska Journal of Commerce satisfies both requirements.
Jourdan stipulates that the journal has 4,100 paid subscribers,
well over the 500 subscriber threshold, and reaches ten percent
of Anchorages population.12 Therefore, her objection here is
without merit.
Jourdan also objects to the physical posting of the
notice of sale, claiming the notice did not list the date of the
foreclosure sale and was not posted at the courthouse. However,
this requirement is not contained in the statute on sale of real
property.13 Notice was posted on November 9, 1993, though it is
unclear what the stated date of sale was.14 Any delay in the
posting from the stated date to the actual February 10, 1994 sale
date was not only minimal, but also due to Jourdans own legal
actions.
C. Jordans Other Eviction Claims Are Without Merit.
Jourdan raises a variety of other eviction-related
claims, such as unlawful forcible entry, defective foreclosure,
constructive eviction, invasion of privacy, intentional
infliction of emotional distress, and punitive damages. All of
these claims are based either on rightful possession of property
or on inappropriate government action. In both instances they
must be dismissed.
Jourdan did not have rightful possession of her
property and thus cannot claim harms based on the mere fact of
her eviction. For example, Jourdan claims that the procedure
used to evict her was illegal because she did not have a landlord-
tenant relationship with her creditor. However, a forcible entry
and detainer action is not limited to landlord-tenant
relationships but rather is meant to cover all possession of real
property. Jourdan cites Modrok v. Marshall15 and AS 09.45.06016 to
support her argument. These authorities, though, specifically
grant entry where appropriate legal procedures have been
followed. Indeed, Modrok addressed a situation other than a
landlord-tenant relationship an attempt to evict a husband from
a marital home following a divorce settlement and held that
forcible detainer actions applied.17
As to the manner of her eviction, Jourdan cannot in the
present suit sue government officials for their official conduct.
Jourdan claims in several places that in executing the writ of
assistance to evict her, the Anchorage Police Department used
excessive force when they entered her house on November 5, 1999.
The individual police officers are not parties to the present
suit, nor is the Anchorage Police Department. Consequently, this
case cannot address claims in which government officials are
being sued for their official conduct. Jourdan further alleges
that the police officers were acting via instructions from
Ullstrom and Crabtree. Though the police officers were executing
a court order for a motion brought by Freddie Macs attorneys,
they were not operating as agents of Ullstrom and Crabtree but
rather were carrying out standard police functions.
D. Jourdans Status as a Pro Se Litigant Was Given Adequate
Accommodation.
Jourdan suggests that the superior court should have
given her special consideration because she is a pro se litigant.
She cites several cases to support her claim.18 However, Jourdan
does not make clear what accommodations she feels she deserved
but was denied. Jourdan was allowed to present evidence and
affidavits in her defense. Jourdan seems to claim primarily that
Judge Joannides erred by not ruling on her second motion to amend
her complaint. Jourdan presents no argument explaining why the
failure to rule was due to Jourdans status as a pro se litigant.
The record does not support Jourdans claim that her
status as a pro se litigant was not given adequate accommodation.
Jourdan was allowed to file an amended complaint on January 10,
1995. Her second attempt to amend her complaint came three years
later on January 21, 1998. The court, after several delays,
scheduled oral argument for March 26, 1998. The trial court did
not address the request to amend the complaint a second time, but
it did address Jourdans late-filed response to Freddie Macs
request for admissions filed in 1995, and Jourdans late-filed
request for admission of new evidence. In the interests of
resolving disputes on the merits and making sure that Jourdan had
a fair hearing, the court accepted both of these motions. Thus,
it does appear that the court was willing to show some leniency
to Jourdan, perhaps because of her pro se status.
Brown v. Ely gives the trial court broad discretion in
deciding whether or not to allow a party to amend a complaint.19
The fact that amended complaints are potentially allowed, though,
does not mean that the court is required to allow them. The
allegations contained in the second amended complaint that were
not contained in earlier complaints were charges of violating her
right to enjoy her home, misuse of process, disparagement of
character, deprivation of civil rights, malicious prosecution,
and disparagement of title. Like those above, these claims are
all predicated on rightful possession of the property in
question. Because Jourdans house was properly foreclosed, it
would have been futile to allow the claims listed in Jourdans
attempted second amendment to proceed. Judge Joannides was
therefore not obligated to accept Jourdans requested amendment.20
E. Charles R. Elder Was Not an Indispensable Party.
Jourdan argues that Charles R. Elder, Jr., or by
extension his estate, should be included in the suit as both an
indispensable party and a real party in interest.21 Jourdan filed
a motion to join Elder as an indispensable party in March 1999.
Judge Joannides rejected this motion on the grounds that Elder
had no significant involvement with the issues now being
litigated between Jourdan and Nationsbanc.
Freddie Mac contends that Elder could not have been an
indispensable party because he deeded any interest he had in the
property to Jourdan many years prior. Elder, by Jourdans own
admission, had signed a quitclaim deed transferring the property
to Jourdans company, Royalty Company, in December 1985.
Alaska Rule of Civil Procedure 19(a) states that
parties can be joined where adequate relief cannot be granted in
the absence of that party or where the joinder of the
indispensable party is necessary for an existing party to protect
their interests. Under these criteria, Elder is not an
indispensable party.22 Jourdan is challenging a foreclosure
action; whether or not Elder is joined will have no effect on the
remedy that Jourdan is seeking. Consequently, the decision of
Judge Joannides not to join Elder as a party is affirmed.23
F. There Was No Error Regarding the Appointment of a
Conservator for Jourdan.
Jourdan raises an issue concerning whether or not a
conservator should have been appointed for her after Freddie Macs
September 1996 motion to require Jourdan to show cause why oral
arguments should not proceed, but it is not clear what she is
arguing. Jourdan first claims that the evidence did not rise to
a level that would justify Freddie Mac filing for a conservator.24
Jourdan then claims that Judge Hunt erred in not recognizing
Jourdans incompetence and appointing a conservator for her.25 It
appears Jourdan is arguing that Freddie Mac should not have been
allowed to petition for a conservator before the judge herself
decided if a conservator was necessary.26 However, Freddie Mac
did not do anything illegal in filing a motion requesting a
conservatorship for Jourdan. The court eventually ruled Jourdan
competent to conduct her own legal affairs. She does not appeal
this decision. Consequently, there are no reasonable grounds on
which to address the conservatorship issue on appeal.
G. The Superior Court Was Correct To Deny a Waiver of
Jourdans Supersedeas Bond.
Jourdan contends that the supersedeas bond she was
required to post as a condition of staying the judgment of the
superior court should have been waived in order to prevent
erosion of public confidence in the judicial system until the
Supreme Court made its ruling on this appeal. Jourdan wanted to
assign her future Permanent Fund Dividend checks as security for
the supersedeas bond, but Judge Joannides would not allow this.
Jourdan further asserts that because she was not in a landlord-
tenant relationship the superior court committed reversible error
by basing the supersedeas bond on rent.
An order requiring a supersedeas bond is reviewed for
abuse of discretion.27 Under Alaska Appellate Rule 204(d),28 a
supersedeas bond can be required when the appellant seeks to stay
an action pending appeal.29 Jourdan sought such a stay, therefore
the requirement of a supersedeas bond was reasonable. Freddie
Mac argues that because the action in question was a foreclosure
on a house, it was reasonable to base the supersedeas bond on the
amount of rent that would have been obtainable were Freddie Mac
allowed to rent out the house. It was not an abuse of discretion
for Judge Joannides to have so decided.
Jourdan also claims that she should not be required to
post a supersedeas bond because she is litigating in the public
interest. Determination of whether a litigant is litigating in
the public interest is made on a case-by-case basis.30 This
determination is based on whether the case will effectuate strong
public policies; whether a large number of people will benefit
from the litigation; whether only a private party could have
brought the litigation; and whether the litigant would have
brought the suit for personal benefit.31 Jourdan satisfies only
the third of these criteria: Her case is very limited in scope;
it concerns only herself; only a private party could have brought
this case, though this is true of a majority of civil cases; and
the case was entirely for her personal benefit. Jourdan claims
that she is a public interest litigant because the decision in
this case will have precedential value. However, this does
nothing to distinguish Jourdan from any other litigant. She is
clearly not a public interest litigant.
H. Jourdan Was Not Adversely Affected by Alleged Discovery
Abuse and Other Evidentiary Issues.
Jourdan alleges discovery abuse occurred because Judge
Milton Souter denied on June 21, 1995 her motion to compel
discovery. The order was denied without comment, so it is
difficult to tell on what grounds Judge Souter relied. Jourdan
does not clarify the nature of the documents she believes were
withheld. Freddie Mac responds both that they did comply with
applicable automatic discovery requirements under then-Civil Rule
16.132 and that Jourdan never made any specific discovery requests
in the four years that the case was pending. The party claiming
a discovery error or abuse has the burden of showing the
existence of that error or abuse, though after this demonstration
the burden does shift to the party that allegedly concealed
discoverable documents.33 Absent clearer allegations by Jourdan,
it is impossible to engage in meaningful legal analysis on this
issue.34
Jourdan further argues that an evidentiary hearing,
including the presentation and cross-examination of witnesses,
should have taken place at the March 26, 1998 summary judgment
hearing before Judge Hunt. However, Alaska Civil Rule 56, which
lays out the procedures for summary judgment hearings, allows for
affidavits, depositions, interrogatories, pleadings, and
admissions, but does not allow for live witnesses.35
Finally, Jourdan asserts that Judge Hunt committed
reversible error by giving great evidentiary weight to an
affidavit notarized by Crabtree, one of the parties to this case.
The affidavit in dispute attested to the fact that Jourdan would
not be able to raise the money necessary to cover her debt prior
to foreclosure. But because Jourdan failed to perform on the
workout agreement despite being given the opportunity by the
superior court to do so, the disputed affidavit was not necessary
to Judge Hunts decision.
I. Judge Hunt Correctly Declined To Recuse Herself.
Jourdan filed a motion on October 14, 1998, about six
weeks after Judge Hunt had issued her opinion, asserting that
Judge Hunt should have recused herself from the summary judgment
hearing. This motion was denied without comment. Jourdan
asserts three reasons why Judge Hunt should have been
disqualified from her case: (1) Judge Hunt issued contradictory
evidentiary rulings; (2) Judge Hunt treated Jourdan with disdain;
and (3) Judge Hunt was appointed by Governor Sheffield, who was a
personal friend of Charles Elder, allegedly a party to the case.
The justifiable reasons for recusal of a judge are laid
out in AS 22.20.020(a).36 None of the three reasons for recusal
offered by Jourdan falls within the reasons for recusal listed in
the statute. Judges are required to recuse themselves not only
if there is actual bias but also if there is the appearance of
bias.37 However, the mere appearance of bias requires a greater
showing by the petitioner for recusal.38 The refusal by a judge
to be recused from a case is reviewed for an abuse of discretion.39
Issuing an evidentiary ruling against Jourdan does not constitute
bias.40 The evidentiary ruling is appealable and has in fact been
appealed. Even if Judge Hunts ruling on this evidentiary issue
were found to be improper, this does not rise to the level of
bias.
Reviewing Jourdans motion for recusal reveals that most
of her claims of bias are based on Judge Hunts application of the
law. By themselves, interpretations of the law are not
sufficient to demonstrate the existence of bias.41 Jourdan claims
that Judge Hunt smirk[ed] and laugh[ed] at her during the March
26, 1998 hearing. However, the statements that Jourdan alleges
show Judge Hunts disdain are more appropriately interpreted as an
explanation of proper court procedure.42 While it is difficult to
tell from the transcript the demeanor of Judge Hunt, absent
further evidence by Jourdan it is impossible to conclude that
Judge Hunt acted inappropriately. Finally, being appointed by a
governor who allegedly was a friend of one of the parties43 does
not in itself constitute a close enough connection to merit
recusal of the judge.44
Jourdan further alleges that she should have been given
the opportunity to preempt Judge Hunt under Alaska Civil Rule
42(c).45 It is unclear from Jourdans limited presentation of
facts whether or not she had an opportunity to preempt Judge
Hunt. Regardless, her argument loses any effect it may have had
due to the fact that Jourdan waited until after Judge Hunt issued
her ruling to assert that Judge Hunt should have recused herself.46
Jourdan further asserts that Superior Court Judge Sen
K. Tan should have recused himself from hearing one of Jourdans
motions in the case because he was not assigned to the case and
because he had been assigned to another case in which she was a
party concerning the removal of Jourdans personal property and
household goods. Jourdan does not specify which motion this is,
but it appears she is referring to Judge Tans order affirming
Judge Hunts refusal to recuse herself. If so, review of a
judicial officers disqualification is required as a matter of
law.47 Furthermore, a judge who has previously presided in a
trial involving the plaintiff, and held against the plaintiff, is
not automatically required to be recused from any future cases
involving the plaintiff.48
V. CONCLUSION
Ava Jourdan raises a variety of claims surrounding the
1994 foreclosure on her home. The dispute before the court
arises from the summary judgment order entered by Judge Hunt on
August 27, 1998 and related subsequent matters. Because all of
Jourdans claims are without merit, the orders of the superior
court are AFFIRMED in all respects.
_______________________________
1 There are eight parties listed in the case caption as
appellees. The lawyers who filed the appellees brief represent
all appellees except for Pacific Northwest Title Company, Stewart
Title Company and Charles R. Elder, Jr. The appellees will be
referred to collectively as Freddie Mac. Whether Elder and
Stewart Title Company are parties to this case is in dispute.
2 Nielson v. Benton, 903 P.2d 1049, 1052 (Alaska 1995).
3 Id. at 1051-52.
4 R&Y, Inc. v. Municipality of Anchorage, 34 P.3d 289,
292 (Alaska 2001).
5 City of Hydaburg v. Hydaburg Co-op Assn, 858 P.2d 1131,
1135 (Alaska 1993).
6 Bliss v. Bobich, 971 P.2d 141, 145 n.4 (Alaska 1998).
7 T. Ferguson Constr., Inc. v. Sealaska Corp., 820 P.2d
1058, 1061 (Alaska 1991) (An obligee who believes, for whatever
reason, that the obligor will not or cannot perform without a
breach, is always free to act on that belief. . . . If he can
prove that his belief would have been confirmed, he is at least
shielded from liability even if he has failed to give a
performance that is due before that of the obligor or has, by
making alternative arrangements, done an act that amounts to a
repudiation.) (quoting from Restatement (Second) of Contracts
251 cmt. b (1981)).
8 Jourdan does allege that there were disputed facts
concerning the existence of a workout agreement, specifically
that she had a potential buyer for the property. However, she
does not dispute that in actuality she failed to pay the amount
specified in the injunction.
9 Jourdan claims that her eviction violates the Homestead
Act. See AS 38.09.010-900. The land on which Jourdans house is
located has not been designated as land for homestead entry.
Thus, the Homestead Act does not apply. See AS 38.09.010.
10 Jourdan claims the place of publication was the
Anchorage Daily News, but the record shows the actual place of
publication to be the Anchorage Times.
11 AS 09.35.140(2)(B).
12 The Alaska Journal of Commerce has previously been
determined by the court system to be an acceptable alternate
location of publication to the Anchorage Daily News. Moreover,
the Anchorage Times had ceased publication by the time of the
second notice, so re-publication in the same newspaper would have
been impossible.
13 See AS 09.35.140:
(1) notice of the sale of personal
property is given by posting a written or
printed notice of the time and place of sale
in three public places within five miles of
the place where the sale is to be held, not
less than 10 days before the day of sale; one
of the notices shall be posted at the post
office nearest to the place where the sale is
to take place; (2) notice of the sale of real
property is given by posting a similar notice
particularly describing the property,
including the propertys street address if
there is a street address for the property,
not less than 30 days before the day of sale
in three public places, as provided in (1) of
this section, and publishing a copy of the
notice four times, once a week for four
successive weeks in a newspaper of general
circulation published nearest to the place of
sale.
14 Freddie Mac claims a stated date of December 7, 1993,
but there is nothing in the record to confirm this.
15 523 P.2d 172, 174 (Alaska 1974) (It is well-settled
that where title to the property is in dispute, dispossession by
this summary procedure may not be ordered. Instead, the plaintiff
must establish his paramount title in an action for ejectment.).
16 The statute provides: A person may not enter upon any
land, tenement, or other real property except in cases where
entry is given by law. In those cases the entry may not be made
with force but only in a peaceable manner.
17 523 P.2d at 175.
18 See Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987)
(holding that the trial judge should inform a pro se litigant of
the proper procedure for the action he or she is obviously
attempting to accomplish); Haines v. Kerner, 404 U.S. 519, 520
(1972) (holding that allegations in a pro se complaint are held
to less stringent standards than formal pleadings drafted by
lawyers); Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975)
(holding that entry of summary judgment against a pro se state
prisoner was inappropriate where the litigant had not been
informed of his right to file counter-affidavits); Hudson v.
Hardy, 412 F.2d 1091, 1094-95 (D.C. Cir. 1968) (holding that a
pro se prisoner was due special consideration in light of his
condition, including explaining the summary judgment rule to
him).
19 14 P.3d 257, 259 (Alaska 2000) (A decision to grant or
deny a motion to amend after the initial limitations period has
passed under Alaska Civil Rule 15(a) is a matter within the broad
discretion of the trial court and is reviewed for abuse of
discretion.).
20 See Alderman v. Iditarod Properties, Inc., 32 P.3d 373,
395 (Alaska 2001) (holding that a trial court may deny amendment
of a complaint when the amendment offered is unduly delayed,
offered in bad faith, or futile).
21 Jourdan also makes this claim about Stewart Title
Company, who was the trustee for the disputed property, and
Pacific Northwest Title Company, whose role in the disposition of
Jourdans house is never clarified. Her entire discussion,
however, focuses on Elder.
22 Who may be joined as an indispensable party is a
question of law to which we apply our independent judgment.
Silvers v. Silvers, 999 P.2d 786, 792 (Alaska 2000).
23 By extension, Judge Souters order dismissing Stewart
Title Company, to the extent that it is challenged at all, is
affirmed. Pacific Northwest Title Company is also not to be
considered an indispensable party.
24 Jourdan claims that she was being treated at the time
for biological diagnosed depression, along with severe back pain
and complications from surgery. She does not cite to anything in
the record suggesting that this necessitated the appointment of a
conservator. Jourdans motion from November 21, 1996 to stay all
matters until after she had the opportunity to undergo surgery in
Seattle was denied because she failed to show that additional
time for recovery was necessary other than the two months that
the court had already granted.
25 Jourdans brief asserts:
The Superior Court committed plain error,
prejudice and abuse of discretion by allowing
appellant to represent herself in propria
persona immediately prior to appellees filing
the petition to proceed in Probate Court,
because the judges silence, conduct and
negligence are evidence she erred by failing
to recognize Jourdans alleged incompetence.
Such incompetence made it incumbent on Judge
Hunt, [on her own motion], to Petition
Probate Court for a Special Conservator for
Ava Jourdan, as to Case No. 94-1356 CI.
Therefore, appellant moves the Supreme Court
to reverse Judge Hunt due to her prejudice,
abuse of discretion and plain error.
26 Jourdans brief states: Judge Hunt committed clear
reversible err[or] when she condoned Appellees petitioning
Probate Court for a Special Conservator of Appellant Jourdan
without first compelling Appellees to file a motion for her to
rule on as to whether or not a Petition to Appoint a Special
Conservator for Appellant Jourdan was necessary.
27 See Breck v. Moore, 910 P.2d 599, 609 (Alaska 1996).
28 The rule states in part: Whenever in a civil case an
appellant entitled thereto desires a stay on appeal, the
appellant may present to the superior court for its approval a
supersedeas bond which shall have such surety or sureties as the
court requires.
29 Cameron v. Hughes, 825 P.2d 882, 885 (Alaska 1992).
30 Anchorage Daily News v. Anchorage Sch. Dist., 803 P.2d
402, 404 (Alaska 1990).
31 Id.
32 Civil Rule 16.1 was repealed by statute effective July
15, 1997. Alaska Supreme Court Order No. 1266 (July 15, 1997).
33 See Alaska Trams Corp. v. Alaska Elec. Light & Power,
743 P.2d 350, 354 (Alaska 1987) (Once noncompliance is shown, the
burden is upon the noncomplying party to prove that its failure
to provide discovery was not willful.).
34 Jourdan also seems to allege discovery abuse by Judge
Herbert A. Ross in United States Bankruptcy Court, but that issue
is beyond our jurisdiction.
35 Jourdan also claims that Judge Hunt improperly denied
Jourdan the admission of newly discovered evidence. However,
Judge Hunts decision makes it clear that this evidence was
admitted.
36 The statute provides:
(a) A judicial officer may not act in a
matter in which
(1) the judicial officer is a party;
(2) the judicial officer is related to
a party or a partys attorney by consanguinity
or affinity within the third degree;
(3) the judicial officer is a material witness;
(4) the judicial officer or the spouse
of the judicial officer, individually or as a
fiduciary, or a child of the judicial officer
has a direct financial interest in the
matter;
(5) a party, except the state or a
municipality of the state, has retained or
been professionally counseled by the judicial
officer as its attorney within two years
preceding the assignment of the judicial
officer to the matter;
(6) the judicial officer has
represented a person as attorney for the
person against a party, except the state or a
municipality of the state, in a matter within
two years preceding the assignment of the
judicial officer to the matter;
(7) an attorney for a party has
represented the judicial officer or a person
against the judicial officer, either in the
judicial officers public or private capacity,
in a matter within two years preceding the
filing of the action;
(8) the law firm with which the
judicial officer was associated in the
practice of law within the two years
preceding the filing of the action has been
retained or has professionally counseled
either party with respect to the matter;
(9) the judicial officer feels that,
for any reason, a fair and impartial decision
cannot be given.
37 Perotti v. State, 806 P.2d 325, 327 (Alaska App. 1991).
38 Lacher v. Lacher, 993 P.2d 413, 421 n.21 (Alaska 1999);
Blake v. Gilbert, 702 P.2d 631, 642 (Alaska 1985).
39 Id.
40 Cf. R.J.M. v. State, 946 P.2d 855, 869-70 (Alaska 1997)
(This court will not overturn a trial judges recusal decision
unless it is plain that a fair-minded person could not rationally
come to that conclusion on the basis of the known facts.
(quoting Amidon v. State, 604 P.2d 575, 577 (Alaska 1979))).
41 Cf. Lacher, 993 P.2d at 420-21 (dismissing an argument
for recusal as little more than an expression of [appellants]
dissatisfaction with the superior courts ruling).
42 It should be noted that the exact quotations alleged in
Jourdans brief do not appear in the transcript from that day,
though similar topics are addressed.
43 Jourdan does not present any evidence to back this
assertion. Furthermore, Charles Elder has been deemed not to be
an indispensable party to this case, rendering this aspect of
Jourdans argument moot.
44 See AS 22.20.020(a).
45 The rule states in pertinent part: In an action
pending in the Superior or District Courts, each side is entitled
as a matter of right to a change of judge and of one master.
46 See Lacher, 993 P.2d at 421 (holding that the trial
courts decision did not demonstrate any specific bias or
generalized pattern of bias where the party did not complain of
bias until after the adverse ruling against her (quoting Alaska
Trams Corp. v. Alaska Elec. Light & Power, 743 P.2d 350, 353 n.7
(Alaska 1987))).
47 See AS 22.20.020(c).
48 Pride v. Harris, 882 P.2d 381, 385 (Alaska 1994).
