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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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).