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Cook v. Rowland (6/21/2002) sp-5586
Cook v. Rowland (6/21/2002) sp-5586
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
KIM MICHAEL COOK, )
) Supreme Court No. S-9410
Appellant, )
) Superior Court No.
v. ) 3PA-99-510 CI
)
HALLIE A. ROWLAND, Personal )
Representative of the Estate of ) O P I N I O N
James A. Rowland, )
)
Appellee. ) [No. 5586 - June 21,
2002]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Beverly W. Cutler, Judge.
Appearances: Kim Michael Cook, pro se, and
Susan Orlansky, Feldman & Orlansky,
Anchorage, for Appellant. Eric Jensen,
Jensen & Jensen, Wasilla, and Kenneth J.
Goldman, Law Office of Kenneth J. Goldman,
Palmer, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
PER CURIAM
CARPENETI, Justice, with whom EASTAUGH,
Justice, joins, concurring and dissenting.
BRYNER, Justice, concurring.
FABE, Chief Justice, with whom MATTHEWS,
Justice, joins, concurring in part and
dissenting in part.
.
I. INTRODUCTION
Following the entry of a default judgment against him
in excess of $7,000,000, Kim Michael Cook filed a peremptory
challenge of the assigned judge and a motion to set aside the
default judgment. The superior court rejected the peremptory
challenge as untimely and refused to set aside the default
judgment. Because three members of the court Chief Justice
Fabe, Justices Matthews and Bryner have concluded that Cook has
shown both excusable neglect and a potentially meritorious
defense as to damages, we set aside the default judgment and
remand for a redetermination of damages. Because three members
of the court Justices Eastaugh, Bryner, and Carpeneti have
concluded that Cooks peremptory challenge should be given effect,
proceedings concerning the determination of damages on remand
should be conducted before a different judge.
II. FACTS AND PROCEEDINGS
In the early morning hours of May 15, 1999, Palmer
Police Officer James Rowland approached a parked car in which Kim
Michael Cook was sleeping. In the series of events that
followed, which are not the immediate concern of this case, both
men fired gunshots and both were hit. Officer Rowland died as a
result of his injuries.
Cook was arrested and charged with first-degree murder
in connection with Rowlands death. As a result of his own
injuries, Cook was hospitalized and underwent two surgeries
before being transferred to a maximum security cell at Cook Inlet
Pretrial Facility.
On May 27, 1999, Hallie Rowland, Officer Rowlands widow
and the personal representative of his estate, filed suit against
Cook for wrongful death. The complaint sought compensatory and
punitive damages. Cook was served with the complaint when he
appeared at a criminal arraignment on May 28, but he failed to
answer the complaint within twenty days as required by law. As a
result, Hallie Rowland applied to the clerk for entry of Cooks
default on June 18.
Three days after the default was entered, Rowland
requested a hearing to establish damages for the default
judgment. She later withdrew that request and proposed that the
court enter a default judgment without a hearing. She provided
the court with affidavits supporting her claims for damages. One
affidavit, from an economist, calculated Rowlands lost lifetime
earnings at $1,353,975.00. The other affidavit, from Rowland,
claimed the estates entitlement to $400,000 for non-economic
damages, the maximum allowable award. Rowland calculated her
total compensatory damages at $1,753,975, and proposed an award
of punitive damages of three times that amount, or $5,261,925.
Superior Court Judge Beverly W. Cutler entered the
default judgment against Cook on June 28, 1999, accepting in full
Rowlands calculation of damages for a total judgment of
$7,015,900.
On July 21 Cook responded to the civil suit for the
first time, by moving to set aside the entry of default and the
default judgment. He also then filed a peremptory challenge to
the assigned judge pursuant to Civil Rule 42(c).
Judge Cutler denied Cooks peremptory challenge as
untimely, and scheduled a hearing for two weeks later on Cooks
motion to set aside the default judgment in order to determine
whether there is an evidentiary basis for defendants claims.
Cook sent a handwritten response to the court and Rowlands
attorney stating that he would not be able to arrange for
transportation from his maximum security cell in the prison to
attend the hearing; both the court and Rowlands attorney received
this response the day before the scheduled hearing. Although
Cook did not appear at the hearing, his motion to set aside the
default judgment was denied by the superior court at that time.
Cook filed this appeal challenging two decisions of the
superior court. First, Cook argues that the court improperly
denied his peremptory challenge. Second, Cook argues that the
court erred by not setting aside the default judgment against
him.
Subsequent to the entry of all briefs in this case,
Cook was found guilty of first-degree murder in connection with
Rowlands death.1
III. STANDARD OF REVIEW
We review an order refusing to set aside a default
judgment for abuse of discretion.2 We will not find an abuse of
discretion unless we are left with a definite and firm conviction
on the whole record that a mistake has been made.3 The
interpretation and application of the right to disqualify a judge
under Alaska Civil Rule 42(c) is a question of law that we
consider de novo.4
IV. DISCUSSION
A. The Superior Court Abused Its Discretion in Refusing To
Set Aside the Default Judgment against Cook.
Cook argues that the superior court erred when it
refused to set aside the default judgment against him because his
failure to respond was excusable neglect. The superior court
denied Cooks motion at a hearing on September 15 because it found
no evidence to support Mr. Cooks claims.
The rules of civil procedure provide relief from
judgments which, for one reason or another, are unjust.5 Civil
Rule 55(e) provides that an entry of default may be set aside
[f]or good cause shown, and that a default judgment may be set
aside in accordance with Rule 60(b). We have consistently held
that disposition of a case on the merits is strongly preferred to
judgment by default.6
1. Cook presented sufficient evidence of excusable
neglect.
Civil Rule 60(b) sets forth a number of grounds that
justify relief from a final judgment. Cook looks to apply the
provisions of Rule 60(b)(1) which provide that a final judgment
can be challenged within a reasonable time . . . not more than
one year for mistake, inadvertence, surprise or excusable
neglect.
Specifically, Cook claims that his actions showed
excusable neglect. In an affidavit filed July 21 Cook described
the circumstances that made it difficult for him to respond to
the May 28 summons. These circumstances included: injuries
suffered as a result of gunshot wounds that led to two surgeries,
the administration of pain medication, and limited use of his
right hand; confinement in a maximum security unit at Cook Inlet
Correctional Facility where he did not have use of a phone until
June 22; lack of familiarity with court rules; and preoccupation
with his criminal defense. As a result of these circumstances,
Cook claims that he was not able to respond to the summons before
the twenty-day period had expired on June 18.
In response to Cooks claims, Rowland alleges that those
claims are incredible, that Cook shows a level of sophistication
that would have allowed him to understand the significance of the
complaint, and that Cook acted in bad faith, choosing to ignore
the action on the belief that his assets were beyond the reach of
the court.
We have found excusable neglect in circumstances of
disability which resemble in some respects those presented by
Cook. In Gregor v. Hodges,7 we held that the superior court
abused its discretion in refusing to set aside a default judgment
on excusable neglect grounds where the defendant had a broken
ankle and pneumonia and was bedridden and under the influence of
pain medication. In addition, the defendant had difficulty in
obtaining counsel until after the default judgment had been
entered.8
We have also held that setting aside a default judgment
may be warranted where a pro se litigants default results from
lack of familiarity with the rules, rather than gross neglect or
lack of good faith, and where the litigant is unversed in the
rules of civil procedure.9 Although Cook was later able to
obtain legal assistance to respond, he was initially unable to
contact an attorney during the time relevant to the default.
Based upon the circumstances presented by Cook, we find
that his failure to respond to the complaint in a timely fashion
is excusable. Cook was served with this lawsuit within two weeks
of suffering multiple serious gunshot wounds. As a result, his
claims that he underwent extensive medical treatment and was
heavily medicated appear legitimate. In addition to his physical
incapacitation, Cook was being held in a confined setting which
allowed him minimal contact with the outside world. He was
engaged in and likely preoccupied with defense of the extremely
serious criminal charges filed against him. Based upon these
circumstances, his neglect in responding before the superior
court entered a default and awarded default judgment in his case
was excusable. Rowland suggests that Cook acted in bad faith,
but provides no reason to believe that Cook could profit by
purposefully allowing a default to be taken against him. The
suggestion of bad faith appears to be speculation and is not
supported by any evidence.
2. Cook presented sufficient evidence to find good
cause to set aside the default judgment.
We have directed that in determining whether good cause
exists to set aside a default under Civil Rule 55(e), a court
should consider: whether the defendant has established the
required meritorious defense, prejudice to plaintiffs, the
culpability of defendants conduct, the length of the period of
default, the size of any potential award to plaintiffs, and
alternative sanctions against the defendant.10 An evaluation of
these factors weighs in favor of setting aside the default
judgment against Cook.
a. Cook has established a potential meritorious
defense to the amount of damages.
In addition to the specific showing of excusable
neglect to satisfy Rule 60(b), the rules governing setting aside
a default judgment generally require that the movant have a
meritorious defense.11 It is not necessary that the defendant
show that, if relief is granted, the ultimate outcome will be
different, but the defendant must demonstrate that the outcome
might be different if a trial were held.12
Showing a meritorious defense demands more than a
perfunctory statement that a meritorious defense exists.13 The
defaulting party may be required to show that there is a factual
or legal basis for the tendered defense.14 Cook contends that
this requirement only means that a defendant must say more than
the conclusory statement I have a defense. But the exact
standard is not so easily defined, because the amount of proof
required will change based on the persuasiveness of the other
equitable factors considered under Rule 55(e)s requirement of
good cause.
Rowland argues that a meritorious defense requires both
a claim of defense and a factual representation supporting that
claim. Rowland relies upon our finding in Wright v. Shorten that
a meritorious defense existed where the defendant pleaded a
defense and presented evidence to support the claim.15 However,
in several other cases we have not required evidence but have
found a meritorious defense when facts supporting a claim of
defense are merely alleged.16 Again, the existence and quality of
evidence establishing a meritorious defense is a factor to be
weighed in determining whether good cause exists to set aside the
default judgment.
Cook has presented two different theories to attempt to
meet the meritorious defense requirement. First, Cook contends
that he was acting in self defense when he shot Officer Rowland.
Cook states that he was fearful because he believed Officer
Rowland was going to kill or severely injure me. But Cook was
found guilty of first-degree murder for the killing of Officer
Rowland.17 Cooks conviction precludes him from presenting a
merits defense to liability in the civil action.18
But Cook also claims that he has a meritorious defense
against the amount of damages requested by Rowland and awarded by
the superior court. To be meritorious a defense need not provide
a complete defense to the action. Rather, a defense is
meritorious if it will reduce a plaintiffs award, and thereby
alter the outcome of the suit.19 Cook claims that if he were
allowed to present his story of the events leading to Officer
Rowlands death punitive damages might be assessed differently, or
not at all, and that in any case testimony about his assets could
support a reduced punitive damage award. In addition, he points
out that in certain respects Rowlands award for past and future
economic damages are not supported by underlying data and
calculations, and thus may be vulnerable to challenge.
We agree that Cook has established a potentially
meritorious defense insofar as he has shown that the amount of
damages awarded against him might be lower if he were allowed to
participate in a damages hearing. Therefore we conclude that
although Cook may not deny liability for Officer Rowlands death,
he has shown a meritorious defense with respect to damages.
b. The award in this case is substantial.
We have held that the magnitude of a default judgment
is a factor in considering whether it should be set aside. In
Hertz, the plaintiffs were awarded $463,319.43, which led us to
comment that [u]nless there are intervening equities, a
controversy concerning damages of this magnitude should be
resolved on its merits whenever possible.20 In the present case
this factor is certainly present.
c. Cooks conduct related to entry of the default
was not significantly culpable.
We emphasize that the conduct relevant to this factor
is not the conduct underlying the initial claim, in this case
Cooks shooting of Officer Rowland (which was highly culpable),
but the conduct related to entry of the default.21 Our finding
that Cooks default was the result of excusable neglect
sufficiently establishes that his failure to answer in a timely
manner was not significantly culpable.
d. The duration of the default was minimal;
setting aside the default judgment does not
prejudice the plaintiff.
Default judgments are more likely to be set aside when
the length of time the defendant is in default is minimal and
setting aside will not result in prejudice to the plaintiff.22
In this case, Cook filed his motion to set aside the
judgment on July 21, only twenty-three days after the default
judgment had been entered. The default judgment itself followed
quickly upon the events giving rise to the cause of action.
Rowland has not presented this court with any argument that she
will be prejudiced if the default judgment against Cook is set
aside. This court has previously held that [t]he mere fact that
the nondefaulting party will be required to prove his case
without the inhibiting effect of the default upon the defaulting
party does not constitute prejudice which should prevent a
reopening.23
Further, on remand, the only relevant issue will be the
amount of damages. Potential prejudice to the plaintiff can be
reduced by not requiring the return of any seized property unless
the final judgment turns out to be less than the value of the
property seized. Civil Rule 60(b) directs that a motion to set
aside a default should be granted upon such terms as are just.
We believe that retention of seized property under these
conditions is a just term within the meaning of this rule.
B. Cooks Peremptory Challenge Must Be Given Effect on
Remand.
Because the default judgment as to damages has been
vacated by this opinion, on remand the superior court must
determine damages in accordance with the provisions of Civil Rule
55(c). As explained in the separate opinions of Justice
Carpeneti, in which Justice Eastaugh joins, and Justice Bryner,
three members of the court have concluded that the peremptory
challenge exercised by Cook must be given effect. Accordingly,
on remand this case must be reassigned to a new judge in
accordance with Civil Rule 42(c)(5).
V. CONCLUSION
For the reasons stated:
1. The default judgment as to damages is VACATED
under the conditions expressed herein.
2. This case is REMANDED for a determination of
damages.
3. Proceedings on remand shall be conducted before a
new judge.
CARPENETI, Justice, concurring and dissenting, with whom
EASTAUGH, Justice, joins.
I agree with the opinion of the court that this case
should be remanded for further proceedings before another judge.
But I disagree as to how this result is reached. I write
separately to set out (1) why Cooks peremptory challenge must be
given effect and (2) why a new judge on remand not this court
should decide all matters remaining in this case, including the
fate of the motion to set aside the default.
1. The Superior Court Erroneously Denied Cooks
Peremptory Challenge as Untimely.
Cook argues that the superior court erred when it
dismissed his peremptory challenge as untimely. Litigants have a
statutory right to peremptory disqualification of a judge under
AS 22.20.022,1 and Alaska Civil Rule 42(c) controls the procedure
and scope of such disqualification in civil cases.2 Because Cook
filed his peremptory challenge in accord with the provisions of
that rule, his challenge was proper.
Rule 42(c) provides: [i]n an action pending in the
Superior or District Courts, each side is entitled as a matter of
right to a change of one judge and of one master.3 The
timeliness provisions for a peremptory challenge are contained in
subsection (3):
Timeliness. Failure to file a timely notice
precludes change of judge as a matter of
right. Notice of change of judge is timely
if filed before the commencement of trial and
within five days after notice that the case
has been assigned to a specific judge. Where
a party has been served or enters an action
after the case has been assigned to a
specific judge, a notice of change of judge
shall also be timely if filed by the party
before the commencement of trial and within
five days after a party appears or files a
pleading in the action.[4]
Cooks challenge falls under the second part of the rule, because
he was served . . . after the case ha[d] been assigned to a
specific judge. Cook was initially served on May 28, after
Judge Cutler had been assigned to the case on May 27.5 As a
result, Rule 42(c)(3) required Cook to file his challenge before
trial and within five days of an appearance or filing in the
action.6
The superior court ruled that Cooks motion was not
timely because the normal time limits of Rule 42(c)(3) were not
available when a party had not entered a timely response to the
complaint. The superior courts interpretation reads Rule
42(c)(3)s five-day window after an appearance or pleading as
applying only to a timely appearance or pleading. The court
said, a party must timely enter an action in order to
peremptorily challenge the judge within 5 days of that entry.
The superior court did not cite to the rules or case law to
support its interpretation of the rule,7 but relied upon the
argument that bad policy would result from allowing peremptory
challenges after a default judgment: [I]t would encourage other
litigants to default, await a ruling on the merits, and then
challenge the judge and move to vacate the default.
Cooks peremptory challenge falls within the plain
language of Rule 42(c)(3), because his challenge was filed before
any trial was held in the case and on the same day as his first
filing or appearance in the case. Moreover, allowing Cook to
raise a peremptory challenge after entry of default does not
promote bad policy. While the superior court was concerned that
allowing a peremptory challenge after a default would encourage
litigants to default, neither the superior court nor Rowland
identified any possible advantage that might be gained by a party
in allowing default to be taken against itself, and I can think
of none.
Cook points to our decision in Staso v. State,
Department of Transportation8 to support his position that
allowing his peremptory challenge will not lead to abuse. In
that case, we held that a party has the right to peremptorily
challenge the judge in a new case filed after an identical case
is dismissed, even if the party had exercised its peremptory
challenge in the earlier, dismissed case.9 Despite the argument
by the state that allowing such challenges would encourage judge
shopping by parties who simply allowed their cases to be
dismissed, we observed that other civil rules provided adequate
sanctions against bad faith dismissal and refiling of cases.
Specifically, we noted that the threat of sanctions as provided
in the Civil Rules against a party who refiles a dismissed case
afford[s] courts the tools necessary to deter litigants from
judge shopping.10
Similar controls exist in the rules to protect against
any theoretical abuse considered here. There are at least two
ways in which the current rules would dissuade parties who might
attempt, as the superior court feared, to sit by and allow a
default, and then disqualify the judge.
First, parties who invite a default face the additional
burden of successfully moving to set aside a default judgment
before earning a trial on the merits with a different judge. A
peremptory challenge entered after a default judgment would not
automatically nullify that judgment.11 Instead, a defendant
would have to proceed before a new judge with a motion to set
aside a default judgment under the requirements contained in
Civil Rule 60(b).12 Setting aside a default judgment requires a
defendant to show good cause, including a meritorious defense,13
as well as some form of mistake, fraud, new evidence, or
excusable neglect.14 I can perceive no reason a defendant would
purposefully allow a default to be taken against himself or
herself when there is no advantage and the defendant would be
required to make a positive showing to set aside the default.
Second, if for any reason a party were to invite a
default in order to subsequently exercise a peremptory challenge,
that party would be guilty of bad faith and would risk losing the
motion to set aside the default for that reason. A plaintiff who
can establish that a defendant has intentionally defaulted as a
way to engage in judge shopping can argue that the default
judgment should not be set aside because the defaulting party has
acted in bad faith.15 In Melendrez v. Bode,16 we affirmed the
denial of a motion to set aside because the defendant had acted
in bad faith by attempting to avoid service and then failing to
respond to the summons claiming, incredibly, that he was unaware
there was a suit pending against him.17 We denied the motion to
set aside primarily because of Melendrezs culpable behavior.18
In fact, in this case, Rowland has alleged that Cook
acted in bad faith. Rowland claims that Cooks failure to respond
to the complaint in a timely fashion was the result of bad faith.
Allowing Cook to maintain his peremptory challenge would not
defeat Rowlands right to claim that the default should stand
because Cook acted in bad faith.
In sum, Cooks peremptory challenge satisfied the
language of Civil Rule 42(c)(3) because it was filed before any
trial was held and at the same time that he appeared and filed a
pleading in the case. Recognizing his peremptory challenge does
not promote bad policy. Our case law provides sufficient
deterrent against judge shopping.
2. The New Judge Should Decide All Remaining Matters, Including
Cooks Motion To Set Aside the Default Judgment.
Since the superior court erroneously denied Cooks
peremptory challenge, decisions made by that court subsequent to
the denial are void.19 The valid exercise of a peremptory
challenge divests the challenged judge of authority to act in the
case. As we stated in Channel Flying, Inc. v. Bernhardt,20
The only meaning that can be given to the
requirement [in AS 22.20.022(a)] that the
matter be assigned at once and without
requiring proof to another judge, is that
when a timely and proper affidavit is filed
the judge concerned is at once disqualified
from acting as a judge in the particular
action or proceeding. When [s]he is
disqualified [s]he no longer possesses the
qualities . . . of power, capacity, fitness
or competency to proceed further. In short,
when a proper affidavit has been timely
filed, the judge involved is without power or
jurisdiction to take any further action in
the proceeding.[21]
We have consistently followed this rule.22 No reason appears in
this case to depart from it. Therefore, Cooks motion to set
aside the default judgment should be remanded to the superior
court for assignment to a new judge. That new judge should
decide all matters arising after the peremptory challenge was
made.
The decision that the challenge was timely does not
invalidate the default judgment itself, which was entered by the
superior court before Cook filed his peremptory challenge. Since
the superior court was without jurisdiction to rule on the motion
to set aside the default judgment, Cooks appeal of that decision
is moot. There is, therefore, no reason for this court to rule
on any issue including the pending motion to set aside the
default that is not properly before it. For this reason, I
dissent from todays per curiam opinion to the extent it reaches
the question of setting aside the default judgment. Instead,
that matter should be resolved by the superior court on remand.
BRYNER, Justice, concurring.
I join the per curiam opinion in holding that Cooks
default judgment must be set aside and the case remanded for a
determination of damages. I also join Justices Eastaugh and
Carpeneti in concluding that Cooks peremptory challenge must be
treated as timely on remand; but I set out my reasons separately,
because they differ from those adopted in Justice Carpenetis
concurring opinion.
Civil Rule 42(c)(3) allows a party who enters an action
after the case has been assigned to a specific judge to file a
peremptory challenge at any time before the commencement of trial
and within five days after a party appears. I would apply the
literal terms of this rule to Cooks situation.1
Cooks motion to set aside the judgment under Rule 60(b)
did not commence a new action for purposes of the peremptory
challenge rule; rather, it sought to reopen the earlier action,
which already had been closed by final judgment. And since Cook
had never appeared in that action before it was closed, he had no
right to enter it merely by filing a motion. Instead, his Rule
60(b) motion essentially sought leave to reopen and enter the
action. Because Cook was not yet entitled to enter the action,
his notice of peremptory challenge was not effective when it was
filed and did not bar Judge Cutler from presiding over his
motion. In short, unlike Justices Eastaugh and Carpeneti, I
would not read Rule 42 as having given Cook the right to demand
that a new judge hear his Rule 60(b) motion for relief from the
default judgment.
But now that satisfactory grounds have been found for
relief under Rule 60(b), Cook is entitled to reopen and enter the
original action. And because the original judgment has been set
aside, he now unquestionably qualifies as a party entering the
action before the commencement of trial. Accordingly, I would
read Rule 42 to require that Cooks peremptory challenge be
honored as timely on remand.2 I favor this reading of the rule
over those advanced in this courts two other separate opinions
because I think that it is textually more faithful to the rule
and, unlike the dissenting opinions reading, avoids conflict with
our recent decision in Mundt v. Northwest Explorations, Inc.3
I thus would set aside the default judgment, would
remand for further proceedings as directed in the per curiam
opinion, and would require the case to be reassigned to another
judge on remand.
FABE, Chief Justice, with whom MATTHEWS, Justice, joins,
concurring in part, and dissenting in part.
Although I agree that the default judgment must be set
aside and the case remanded for a determination of damages, I
disagree with the majoritys holding today that Cooks peremptory
challenge of Judge Cutler was timely. In my view, this case
should be remanded for a trial on damages before Judge Cutler,
the originally assigned trial judge.
Rule 42(c)(3) prevents a party from exercising a
peremptory challenge against the assigned trial judge after a
default judgment has been entered. That rule provides that a
notice of change of judge is timely if filed by the party before
the commencement of trial.1 I believe that the term trial must
be interpreted to encompass the concept of final resolution of
the case, including a default judgment.2
Moreover, in many default cases, the judge holds a
damages hearing prior to entry of a default judgment, a
proceeding that is tantamount to a trial on the issue of
damages.3 And if either party has requested a jury trial prior
to entry of default, the issue of damages must be tried to a
jury, despite one partys absence at trial.4 If Judge Cutler had
held a damages hearing, listening to the same witness who
prepared the damages affidavit in this case, Cooks peremptory
challenge would not have been timely filed as it would have
occurred after trial. The right to file a peremptory challenge
after a default judgment should not depend on whether the trial
court has determined the amount of damages based on the testimony
in an affidavit or that of a live witness.
As a result of the courts decision today, careful
practitioners will request a damages hearing or trial in every
future default case, to avoid the possibility that a defendant,
unhappy with the result of the case, will enter an appearance,
preempt the judge, and move to set aside the default judgment.
This will result in time-consuming and unnecessary hearings in
cases where the amount of damages is easily ascertainable from
documentary evidence.
For these reasons, I respectfully disagree with the
majoritys view that Cooks peremptory challenge was timely and
should be given effect. I would remand for a damages trial
before Judge Cutler.
_______________________________
1 See State v. Cook, 3PA-99-832 Cr. (Alaska Super.,
October 27, 2000).
2 See Wright v. Shorten, 964 P.2d 441, 443 (Alaska 1998).
3 Id. (quoting Johnson v. Doris, 933 P.2d 1139, 1142
(Alaska 1997)).
4 See Barber v. Barber, 915 P.2d 1204, 1208 n.8 (Alaska
1996); Staso v. State, Dept of Transp., 895 P.2d 988, 990 (Alaska
1995).
5 Wright, 964 P.2d at 443.
6 See Melendrez v. Bode, 941 P.2d 1254, 1258 (Alaska
1997); Hertz v. Berzanske, 704 P.2d 767, 771 (Alaska 1985); see
also Wright, 964 P.2d at 444.
7 612 P.2d 1008, 1010 (Alaska 1980).
8 Id.
9 Wright, 964 P.2d at 444 (citations and quotation marks
omitted); see also Rodriguez v. Rodriguez, 908 P.2d 1007, 1010
(Alaska 1995) (affirming that default should be set aside when
pro se litigant filed answer on same day default was entered).
10 Hertz, 704 P.2d at 771; Melendrez, 941 P.2d at 1258
(applying factors to default judgment).
11 Wright, 964 P.2d at 445; Melendrez, 941 P.2d at 1258.
12 Melendrez, 941 P.2d at 1258.
13 Hertz, 704 P.2d at 772.
14 Id.
15 964 P.2d at 445 (finding meritorious defense in a child
support case where defendant claimed that he was not the real
father and presented evidence of blood type).
16 See Melendrez, 941 P.2d at 1258 (finding that in an
action to quiet title, claim that plaintiff had no right to the
property and that defendant was owed more than the default
judgment provided was sufficient even though presented in
briefing which left much to be desired); Gregor, 612 P.2d at 1010
(finding that in response to a claim of fraudulent possession of
land, it was sufficient that the defendants answer alleged that
she had paid $10,000 for the property); Sanuita v. Hedberg, 404
P.2d 647, 651 (Alaska 1965) (finding meritorious defense where
defendant denied plaintiffs assertions and asserted defenses of
qualified privilege and truth to claim of libel).
17 See State v. Cook, 3PA-99-832 Cr. (Alaska Super.,
October 27, 2000).
18 See Howarth v. State, Public Defender Agency, 925 P.2d
1330, 1334-35 (Alaska 1996) ([A] defendant convicted of a felony
. . . should not be allowed to claim in court in subsequent
litigation that the elements essential to his conviction did not
exist.).
19 Hertz, 704 P.2d at 772; see also Melendrez, 941 P.2d
1258.
20 704 P.2d at 773.
21 See Melendrez, 941 P.2d at 1258 (finding defendant
culpable for default because he attempted to avoid service).
22 See id.; Hertz, 704 P.2d at 773.
23 Hertz, 704 P.2d at 773 (citation and quotations marks
omitted).
1 AS 22.20.022(a) provides:
If a party or a partys attorney in a
district court action or a superior court
action, civil or criminal, files an affidavit
alleging under oath the belief that a fair
and impartial trial cannot be obtained, the
presiding district court or superior court
judge, respectively, shall at once, and
without requiring proof, assign the action to
another judge . . . .
2 See Staso v. State, Dept of Transp., 895 P.2d 988, 990
(Alaska 1995).
3 Alaska R. Civ. P. 42(c)(1).
4 Alaska R. Civ. P. 42(c)(3) (emphasis added).
5 The superior courts own ruling implies that the second
part of the rule applies. The superior court notes that Cooks
challenge would be timely if filed within five days of appearing
or filing a pleading in the action.
6 See Karen L. v. Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 953 P.2d 871, 879-80 (Alaska 1998)
(permitting peremptory challenge filed by state along with its
initial appearance almost three weeks after it had been served
with summons, because second part of Rule 42(c)(3) applied as
state had been served after judge had been assigned).
7 There are no Alaska cases on point with regard to
whether a peremptory challenge can be raised after a default, and
cases from other jurisdictions are only minimally instructive.
See State ex rel. Frohnmayer v. Low, 804 P.2d 1217, 1218-19 (Or.
App. 1991) (holding that challenge to judge after entry of
default was not timely under Oregon rules which required
affidavit be filed prior to final determination of cause or prior
to ruling on petition or motion); Olsten Staffing Servs., Inc. v.
D.A. Stinger Servs., Inc., 921 P.2d 596, 600-01 (Wyo. 1996)
(holding that challenge to judge is permissible after entry of
default, but might not extend to default judgment).
8 895 P.2d 988 (Alaska 1995).
9 Id. at 992.
10 Id.
11 See generally Mundt v. Northwest Explorations, Inc.,
963 P.2d 265, 270 (Alaska 1998) ([Northwests] recourse is to show
the new judge that [the challenged judge] has already decided any
issues that Mundt tries to reopen. The court can readily dismiss
any attempt to relitigate issues as barred by the law of the case
. . . .).
12 It is also possible that a defendant could move under
Civil Rule 77(k) to have the new judge reconsider the previous
judges decision to grant the default judgment. However, such a
maneuver would not easily provide a favorable result for the
defendant. It is likely that the judge assigned following a
peremptory disqualification would be reluctant to reconsider the
decision to grant a default judgment by another judge, especially
when there are specific provisions under which such a judgment
can be set aside in Rule 60(b).
13 Alaska R. Civ. P. 55(e); Wright v. Shorten, 964 P.2d
441, 445 (Alaska 1998).
14 Alaska R. Civ. P. 60(b).
15 Hertz v. Berzanske, 704 P.2d 767, 771 (Alaska 1985)
(directing a court to consider the culpability of defendants
conduct), superceded by statute on other grounds as noted in
McConkey v. Hart, 930 P.2d 402, 407 n.4 (Alaska 1996).
16 941 P.2d 1254 (Alaska 1997).
17 Id. at 1258.
18 Id.
19 See Channel Flying, Inc. v. Bernhardt, 451 P.2d 570,
574 (Alaska 1969) (In short, when a proper affidavit has been
timely filed, the judge involved is without power or jurisdiction
to take any further action in the proceeding.); see also
McCracken v. State, 521 P.2d 499, 510 (Alaska 1974); Pope v.
State, 478 P.2d 801, 804 (Alaska 1970).
20 451 P.2d 570 (Alaska 1969).
21 Id. at 574.
22 For example, in Hartford Accident & Indem. Co. v. State
for Use and Benefit of Consol. Constr. Co., 498 P.2d 274 (Alaska
1972), we stated that [u]nder AS 22.20.022 the filing of a timely
affidavit in compliance with the statute operates to bar the
judge from proceeding any further in the matter other than
transferring the case to another judge. Id. at 275. We concluded
that if petitioners affidavit was timely filed, the judge
involved is without power or jurisdiction to proceed further with
the action. Id. In Dean v. Firor, 681 P.2d 321 (Alaska 1984),
we stated that [t]he effect of a peremptory disqualification of a
master is that the master loses the capacity to proceed further.
Id. at 325. See also Morgan v. State, 635 P.2d 472, 478-79
(Alaska 1981); Pope, 478 P.2d at 804.
1 Cf. Gardner v. State, 702 P.2d 250, 251 n.4 (Alaska
App. 1985) (observing that a literal interpretation of the
criminal rule providing for peremptory challenges is in keeping
with the general principle that disfavors interpretations
resulting in findings of waiver).
2 Even if Cooks peremptory challenge were untimely, I
would be inclined to hold that Rule 42 should be relaxed, and the
untimeliness excused, upon a finding of grounds for relief under
Rule 60(b). Cf. Riley v. State, 608 P.2d 27, 29 (Alaska 1980)
(holding, in the criminal context, that [t]he right to
peremptorily challenge a judge is sufficiently important so that
it should not be lost by inaction before there is an opportunity
to confer with an attorney).
3 963 P.2d 265, 268 (Alaska 1998) (holding that nothing
in AS 22.20.022 or Rule 42(c) prevents an intervenor who enters a
case after an initial judgment and appeal from exercising the
right to peremptorily change judges).
1 Alaska Civil Rule 42(c)(3) states:
Timeliness. Failure to file a timely
notice precludes change of judge as a matter
of right. Notice of change of judge is
timely if filed before the commencement of
trial and within five days after notice that
the case has been assigned to a specific
judge. Where a party has been served or
enters an action after the case has been
assigned to a specific judge, a notice of
change of judge shall also be timely if filed
by the party before the commencement of trial
and within five days after a party appears or
files a pleading in the action.
2 A default judgment is a final judgment that terminates
litigation and decides a dispute. Hertz v. Berzanske, 704 P.2d
767, 770 (Alaska 1985). See also Calhoun v. Greening, 636 P.2d
69, 72 (Alaska 1981) (holding that a default judgment and
subsequent motion to set aside constitute a final judgment for
purposes of res judicata).
3 Alaska Civil Rule 55(c)(1) provides in part:
If, in order to enable the court to enter a
judgment or to carry it into effect, it is
necessary to take an account or to determine
the amount of damages or to establish the
truth of any averment by evidence or to make
an investigation of any other matter, the
court may conduct such hearings or order such
references as it deems necessary and proper.
4 Hall v. Morozewych, 686 P.2d 708, 711-12 (Alaska 1984).
