You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
DeNardo v. ABC Inc. RVs Motorhomes (7/26/2002) sp-5599
DeNardo v. ABC Inc. RVs Motorhomes (7/26/2002) sp-5599
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
DANIEL DeNARDO, )
) Supreme Court No. S-9980
Appellant, )
) Superior Court No.
v. ) 3AN-99-5761 CI
)
ABC INC. RVs MOTORHOMES, and )
HARVEY YATES, ) O P I N I O N
)
Appellees. ) [No. 5599 - July 26,
2002]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Stephanie E. Joannides, Judge.
Appearances: Daniel DeNardo, pro se,
Anchorage. Cheryl L. Graves and Laura L.
Farley, Le Gros Buchanan & Paul, Anchorage,
for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. It is precisely because outright failures to respond to
discovery halt the case development process dead in its tracks,
and threaten the underpinnings of the discovery system, that
[Rule 37] authorizes . . . courts, in responding to this kind of
misconduct, . . . to impose in the first instance any of a wide
range of sanctions.1 Such power, however, does not go unchecked
and is the subject of this appeal. Daniel DeNardo claims the
superior court abused its discretion in dismissing his complaint
for failure to comply with a court order compelling discovery.
DeNardo also makes constitutional as well as other claims in
regards to the superior courts order. However, because DeNardo
was given multiple chances to comply with discovery but each time
refused, we affirm the decision of the superior court.
II. FACTS AND PROCEEDINGS
Daniel DeNardo was an employee of ABC, Inc. RVs
Motorhomes (ABC). DeNardo applied for a position as a
recreational vehicle (RV) salesperson advertised in a newspaper
by submitting his resume. On March 8, 1999, ABC alleges that
John and Jay Marquardt interviewed DeNardo and offered him the
position. DeNardo, however, argues only John Marquardt was
present during the interview. The employment agreement was oral;
no written document verified the terms of DeNardos employment.
On March 12, 1999, while DeNardo was filling out an employment
form designed to verify his identity and work eligibility, ABC
alleges that DeNardo displayed his passport, but did not show his
drivers license. ABC claims DeNardo was informed a valid drivers
license was necessary for the position because he was
occasionally required to drive the RVs. DeNardo claims his
drivers license was never requested and that he was told he would
not have to drive the RVs as a part of his employment.
DeNardo was terminated on March 25, 1999 for his
failure to provide a drivers license and his hostile behavior.
DeNardo filed a complaint in superior court in May 1999
alleging breach of an oral employment contract, interference with
contractual relations, and emotional distress. In response to
the complaint, ABC contended that, although DeNardo was employed
by the company, there was no employment contract because he was
an at-will employee. ABC argues that DeNardos dismissal was
justified.
In October 1999 DeNardo filed a motion to compel
production of documents, generally seeking employment information
about other salespeople employed by ABC. This motion was denied
by Superior Court Judge Brian Shortell. DeNardo moved for
reconsideration of the issue. This motion was denied in November
1999.
Also in November 1999 ABC filed a motion to compel.
The motion claimed DeNardo had failed to provide requested
information regarding his prior residences and employers, his
criminal and litigation history, and his subsequent employment.
The motion also requested pertinent background information such
as a copy of his drivers license, social security card, tax
records, and signed release authorizations. Judge Shortell
granted the motion and awarded $100 to ABC as attorneys fees for
having to bring the motion to compel. Judge Shortell also
ordered DeNardo to respond to the order compelling discovery by
December 27. DeNardo moved for reconsideration, but
reconsideration was denied.
DeNardo failed to comply with Judge Shortells order
compelling discovery. ABC then filed a second motion to compel
requesting dismissal of DeNardos complaint or, in the
alternative, additional sanctions. The alternative ABC proposed
was that the presumption should be drawn in favor of the
Defendants. ABC asked that DeNardo be prohibited from offering
any of the information requested into evidence and that a
presumption be established that DeNardo was an at-will employee
hired on a commission basis, thereby presuming no contract
existed. DeNardo opposed ABCs motion and filed a second motion
to compel on February 14, 2000. On February 15 Judge Shortell
issued a second order against DeNardo compelling discovery, but
he declined to dismiss DeNardos lawsuit. Instead, Judge Shortell
stayed any action in the lawsuit for sixty days, waiting for
DeNardo to comply with the order and warning that failure to
comply now might result in dismissal.
On April 7 ABC wrote to DeNardo advising him of the
imminent deadline and its intent to renew the motion to dismiss
if he did indeed fail to comply. No response was received.
Sixty days passed and DeNardo again failed to comply. ABC again
moved to dismiss. On May 9 DeNardo filed a motion for discovery,
alleging he needed information from ABC in order to respond to
ABCs motion to dismiss. By this time, because of Judge Shortells
retirement, Superior Court Judge Stephanie E. Joannides had been
assigned the case. Upon review of the pleadings, Judge Joannides
dismissed the lawsuit under Alaska Rule of Civil Procedure
37(b)(2)(C) for DeNardos failure to comply with the courts
previous discovery orders. DeNardo subsequently moved for
reconsideration and renewal of his previous discovery motions.
ABC opposed reconsideration and reconsideration was denied.
DeNardo now appeals the superior courts order of
dismissal.
III. STANDARD OF REVIEW
I. We review a trial courts imposition of sanctions under
Alaska Rule of Civil Procedure 37(b) for a partys failure to
comply with a discovery order for an abuse of discretion.2
However, a trial courts discretion is limited when the effect of
the sanction it selects is to impose liability on the offending
party, establish the outcome of or preclude evidence on a central
issue, or end the litigation entirely.3
Whether a trial court weighed the appropriate factors
in issuing a discovery order is reviewed de novo.4 Factual
findings by the trial court are reviewed under the clearly
erroneous standard.5
When interpreting the Civil Rules we exercise our
independent judgment, adopting the rule of law that is most
persuasive in light of reason, precedent, and policy.6
Constitutional questions are reviewed de novo.7
IV. DISCUSSION
A. The Superior Court Was Within Its Discretion in Dismissing
DeNardos Complaint.
DeNardo argues that Judge Joannides was not within her
discretion in dismissing his complaint for violation of a
discovery order. We disagree.
Alaska Rule of Civil Procedure 37 affords trial courts
broad power to enforce discovery orders by the use of sanctions.8
Rule 37(b)(2)(C) provides in relevant part that when a party
fails to obey an order to provide discovery, the court may enter
an order dismissing the action. However, the sanction of
dismissal is only allowed in extreme cases because a party
should not be barred from his or her day in court where an
alternative remedy would suffice to make the adverse party whole. 9
Because of the extreme nature of dismissal, the Rules
of Civil Procedure require that before a case is dismissed the
trial court must first find (1) that the non-complying party
acted willfully to violate the order in question, (2) that there
is resulting prejudice to the opposing party, and (3) that the
imposed dismissal is sufficiently related to the violation at
issue. In addition, the court must consider a reasonable
exploration of alternatives to dismissal and whether those
alternatives would adequately protect the opposing party as well
as deter other discovery violations.10
1. DeNardos failure to comply with Judge Shortells discovery
order was willful.
DeNardo claims that the superior courts order deleting
six categories of discovery from ABCs original motion to compel
shows that his failure to comply with the courts order was not
willful. Moreover, he argues that, if he had been allowed to
answer ABCs motion to dismiss with the discovery material he
sought from ABC, it would show that ABC had committed many
misrepresentations. ABC responds that DeNardo willfully
disobeyed the courts order. Willfulness in this context is
defined as a conscious intent to impede discovery, and not mere
delay, inability or good faith resistance.11
Although the court did limit the amount of discovery
that ABC had originally requested, this order in itself does
nothing to show that the remaining discovery requests that were
allowed were unwarranted, or that DeNardos actions in failing to
comply with the courts order were in good faith. If anything,
the limiting order shows the superior courts effort to ensure
that DeNardo was not being harassed through the discovery
process, not that the remaining discovery was irrelevant.
DeNardo also argues that if the court had granted his
motion to compel he could have obeyed the courts order. However,
we rejected this argument in Hikita v. Nichiro Gyogyo Kaisha,
Ltd.12 In Hikita we held that a discovery request cannot be
satisfied by a party claiming it is attempting to ascertain the
answers, and putting off its obligation to a later date.13 And,
as in Hughes v. Bobich,14 DeNardos argument here misallocates the
applicable burden of proof on the issue of willfulness. Once
noncompliance has been demonstrated, the noncomplying party bears
the burden of proving that the failure to comply was not willful.15
DeNardo fails to meet this burden. Rather than showing that his
failure to comply was not willful for example, by showing that
the requested material was lost DeNardo repeatedly claimed that
ABC had no right to the answers or documents. But the superior
court had previously decided that ABC had precisely that right
(and DeNardo has not appealed that finding).16
DeNardo also claims that his actions were not willful
because the information could be found in the public record or
because ABC was already in possession of the relevant
information. However, we do not require a complying party to
devise creative ways to obtain information that the noncomplying
party controls and refuses to produce.17 In Hughes, we found that
[b]ecause the evidence established a substantial and continuing
violation . . . and because the Hughes failed to meet their
burden of disproving willfulness, the court could properly find
that the Hughes noncompliance was willful.18 Similarly here, the
evidence establishes a continuing violation of the courts order.
While the violation may not be as egregious as violations in
other cases,19 DeNardo distinguishes himself by showing no
intention of ever complying with the courts orders.
In addition, ABC is correct that it is illogical for
DeNardo to argue that he needs discovery from ABC in order to
complete a discovery order compelling information from him.
Additional discovery from ABC would, in no way, make DeNardos
drivers license or his prior work history easier for him to
produce and DeNardo does not explain in his briefing why such
discovery would help.
Although he does not argue it, we also note that
DeNardos pro se status does not provide an excuse for his
noncompliance with the courts order.20 In her order, Judge
Joannides specifically found DeNardo to be familiar with the
litigation process based on other previous and pending actions
with which he was involved. And, as we found in Coffland v.
Coffland,21 pro se litigants must make some attempt to comply with
the courts procedure before receiving the benefit of the courts
leniency.22 DeNardo has made no effort to comply and therefore is
not entitled to any special allowances based on his pro se
status.
The burden was on DeNardo to show his conduct in not
answering ABCs discovery was not willful, but instead was good
faith resistance. Because DeNardo did not meet this burden, we
find his conduct to evidence a willful intent to impede
discovery.
2. ABC suffered prejudice as a result of DeNardos failure to
comply.
ABC argues it suffered prejudice as a result of
DeNardos failure to produce the requested information. Analysis
of each category of requested information supports ABCs position.
a. Prior residences and employers
ABC argues that it was prejudiced by DeNardos failure
to provide information regarding his prior residences and
employers, information that might go towards DeNardos
credibility. A listing of DeNardos prior residences, ABC claims,
might have aided in determining jurisdictions to search for his
criminal and litigation history.
ABC is correct that information regarding DeNardos
prior residences and employers might have been helpful in
determining which jurisdictions to search for his criminal and
litigation history. In addition, it may have been helpful in
determining DeNardos credibility; credibility would likely be
particularly important in resolving the underlying dispute here,
which concerns an oral contract.23 Knowledge of prior residences
would allow ABC to contact past neighbors of DeNardos who might
give further information regarding credibility. Speaking to past
employers would allow ABC to determine if DeNardo had had
previous work-related problems and might also go towards
determining his credibility in work-related situations.
Because DeNardos prior residences and employment
history would have been helpful in determining how to uncover
other relevant evidence as well as issues involving DeNardos
credibility, Judge Joannides did not err in finding ABC was
prejudiced by DeNardos failure to provide the information.
b. Criminal and litigation history
ABC claims that information regarding DeNardos criminal
and litigation history was necessary because it could have
affected DeNardos credibility, a necessary factor in resolving a
disputed oral contract. DeNardo claims that such information is
generally irrelevant, that character evidence is not admissible
in a civil trial, and that, in any event, such information is
available in the public record.
As noted above, credibility is a necessary factor in
resolving a dispute over an oral contract.24 DeNardos criminal
history is thus possibly relevant as it might affect the fact-
finders view of DeNardos credibility. DeNardos previous
litigation history is potentially relevant as well, and it might
lead to the discovery of admissible evidence.
c. Subsequent employment and tax records
ABC argues that in order to properly determine damages,
information regarding DeNardos subsequent employment is required.
DeNardo responds that ABC already possesses information regarding
his subsequent employment and that his tax records are protected.
We have held that [w]ithholding materials relating to a
partys damages may seriously prejudice the adverse party by
making it difficult or impossible to adequately assess the
strength of the opponents case, thereby leaving the opponent in a
weakened position for settlement negotiations or other purposes.25
That appears to have been the case here.
In his complaint, DeNardo requested compensatory
damages. However, as DeNardo knows from his own previous
litigation, a plaintiff alleging breach of contract must present
evidence sufficient to calculate the amount of the loss caused by
the breach. 26 DeNardo argues that ABC has all of the information
it needs because it knows he was subsequently hired by Alaska
Economy RVs. However, [t]he purpose of awarding damages for a
breach of contract is to put the injured party in as good a
position as that party would have been had the contract been
fully performed.27 Therefore, by analogy to wrongful discharge
cases, an employee is generally entitled to the amount of the
agreed-upon salary for the unexpired term of his employment minus
what he could earn by making diligent efforts to obtain similar
work.28 ABC has no way of knowing, absent DeNardo providing it,
the salary information necessary to litigate or settle the issue
of damages. Therefore, despite ABC possibly having some
knowledge regarding where DeNardo was working shortly after he
left ABC, DeNardo was required to provide the information ABC
requested.
Because whether DeNardo obtained subsequent employment
and because information involving that employment was relevant to
any damages regarding his claim for breach of contract, ABC was
prejudiced by his failure to provide the requested information.
d. DeNardos drivers license
One of the alleged reasons for DeNardos termination was
his failure to provide a copy of his drivers license upon being
hired by ABC, which claimed that driving RVs was a requirement of
DeNardos employment. ABC thus argues that whether DeNardo had a
valid drivers license is at the very heart of this dispute.
DeNardo claims this information is irrelevant because driving was
not a requirement.
This factual dispute was not susceptible to resolution
during the pretrial period when discovery occurs. But ABC was
entitled to discovery of information pertinent to the claim so
that it could prepare for the litigation. Had the case proceeded
to trial, and had the fact-finder concluded that a drivers
license was a requirement of the job, it would clearly have been
important to know if DeNardo possessed a license.
3. The sanction chosen was sufficiently related to DeNardos
violation of the order.
1. The trial court must be allowed to enforce its discovery
orders with sanctions tailored to fit the circumstances.29 The
test for the validity of a discovery sanction that dismisses
claims or orders facts or issues to be taken as established under
[Rule 37(b)(2)] is whether these claims or issues are elements of
the dispute that cannot be determined on the merits without
disclosure of the evidence the Court has ordered the party to
produce. 30 If the dismissed claims are unrelated to the
information the party refuses to supply, the discovery sanction
constitutes punishment and is impermissible.31
The credibility of a party is relevant to the issue of
how to interpret an oral contract.32 Evidence of DeNardos
credibility, which could be influenced by information gained from
prior residences, and prior employment, was highly relevant to
the dismissed claims. And subsequent employment, as well as tax
information, are relevant to the issue of damages. Because the
information requested was directly relevant to the claims at
issue, the dismissal sanction was sufficiently related to the
violation.
4. A lesser sanction would not adequately protect the opposing
party while deterring other discovery violations.
DeNardo claims Judge Joannides did not consider
meaningful alternatives to the sanction of dismissal in her order
as required by law. ABC contends that a lesser sanction in this
instance would not have sufficed.
While we have recognized that the trial court need not
make detailed findings or examine every alternative remedy, we
have held that litigation ending sanctions will not be upheld
unless the record clearly indicate[s] a reasonable exploration of
possible and meaningful alternatives to dismissal. 33 A
conclusory rejection of all sanctions short of dismissing an
action does not suffice as a reasonable exploration of meaningful
alternatives.34 [A] party should not be barred from his or her
day in court where an alternative remedy would suffice to make
the adverse party whole. 35 [B]efore a court may impose
litigation ending sanctions for discovery violations the record
must clearly indicate a reasonable exploration of possible and
meaningful alternatives to dismissal.36
In her order, Judge Joannides stated, Lesser sanctions
than dismissal have been attempted and have been unsuccessful.
Plaintiffs violations are so numerous [that] sanctions other than
dismissal will not adequately protect defendants. We agree. No
alternate remedy would serve to make ABC whole.
Prior to Judge Joannides taking over the case, Judge
Shortell gave DeNardo ample chances to comply. First, he imposed
a monetary sanction. Second, he issued a stay on proceedings.
Each time, DeNardo responded with the same outright refusal. And
finally, after DeNardo did not act within the sixty-day period
allowed by the court, Judge Joannides granted ABCs motion to
dismiss.
DeNardo claims Judge Joannides did not consider lesser
sanctions. At this point, though, she was not required to
consider lesser sanctions. The record already indicated that
lesser sanctions had been attempted unsuccessfully. DeNardos
violations had become so egregious, Judge Joannides acted well
within her discretion in determining that no lesser sanction
would deter DeNardo from future violations.
B. The Imposition of Sanctions Did Not Deny DeNardo Any
Constitutional Rights.
1. DeNardos due process rights were not violated by the
dismissal of his complaint.
DeNardo claims that, because he was not afforded an
opportunity to respond to the motion to dismiss, his due process
rights were violated. ABC argues that DeNardo was afforded full
due process before his complaint was dismissed.
In Sandstrom & Sons, Inc. v. State,37 Sandstrom argued
that the superior courts dismissal of his complaint denied him
due process because the superior court did not hold a dismissal
hearing.38 We held that due process was properly afforded by the
superior courts warning to Sandstrom in advance that dismissal
with prejudice would occur if Sandstrom did not comply with the
discovery order. This order afforded Sandstrom notice and an
adequate opportunity to be heard on the dismissal issue.39 In
Sandstrom, the time between the courts warning and the actual
dismissal was almost two months.40 Similarly, DeNardo was given
sixty days to comply with the courts order, an order which also
warned dismissal would be a consequence of noncompliance.
Although DeNardo requested an extension of time to respond on May
9, 2000, the superior court was within its discretion in denying
the request, as the request stated that the need for additional
time was for DeNardo to complete his own discovery, not to gather
materials to comply with the courts orders. DeNardo could have
requested a hearing on the issue of whether dismissal was an
appropriate sanction for his failure to comply. As in Sandstrom,
however, no such hearing was requested.
Because the superior court adequately warned DeNardo
dismissal would occur if the courts order was not complied with,
DeNardos right to due process was not violated by the dismissal
of his complaint.
2. DeNardos right to a trial by jury was not violated.
1. The Alaska Constitution guarantees the right to jury trial.41
The Alaska Constitution, however, preserves the right to a jury
trial in civil cases only to the same extent it existed at common
law. 42 In Christensen, Christensen argued that his right to a
jury trial was violated by the courts grant of summary judgment.
But we held that because a trial court had the right at common
law to remove factual issues from the jurys consideration where
there was insufficient evidence to raise a question of fact for
the jury, a partys right to a jury trial could only be violated
by a summary judgment motion when it was improperly granted.43
A party willfully refusing to comply with a discovery
order risks ultimate loss of its case, whether through dismissal
(if the recalcitrant party is the plaintiff)44 or imposition of
liability (if the non-complying party is the defendant).45
Because DeNardo was given adequate notice that he
risked dismissal if he continued to violate the superior courts
discovery order, dismissal did not violate his right to a jury
trial.
C. DeNardo Failed to Show that Alaska Rules of Civil Procedure
11, 26, 34, 37, and 56 Are Unconstitutional.
The burden is on the party who challenges a statute or
rule on constitutional grounds to demonstrate
unconstitutionality, for there is a presumption of
constitutionality which attaches to such enactments.46 DeNardo
claims Rules 11, 26, 34, and 37 of the Alaska Rules of Civil
Procedure are unconstitutional. However, he makes no mention of
these rules after his statement of issues. DeNardo therefore
does not meet his burden to rebut the presumption of
constitutionality that the rules enjoy.
DeNardo claims Rule 56 is unconstitutional. But his
lawsuit was dismissed on a motion to dismiss, not a Rule 56
motion for summary judgment. For this reason, and because his
briefing is so cursory as to constitute a waiver of the argument,47
we reject this claim.
D. The Information Requested by ABC Does Not Violate
DeNardos Constitutional Right to Privacy.
The right to privacy is not absolute; it protects
intimate or sensitive personal information . . . which, if
disclosed even to a friend, could cause embarrassment or anxiety. 48
But it does not shield a party who brings a lawsuit from having
to reveal information that is relevant to his or her claims, even
though the information may otherwise be private.49
Moreover, the information at issue here is background
information routinely requested in civil litigation. Although
DeNardo claims his tax returns are not relevant, they provide
evidence of his earning potential, information useful in any
damages determination. DeNardo has no privacy defense to the
discovery information relevant to the lawsuit he instituted.
V. CONCLUSION
I. DeNardo willfully disobeyed court orders regarding
discovery. Therefore, the superior court decision dismissing his
complaint for his repeated failure to comply with those orders is
AFFIRMED.50
_______________________________
1 Hikita v. Nichiro Gyogyo Kaisha, Ltd., 12 P.3d 1169,
1175 (Alaska 2000) (quoting 7 James Wm. Moore et al., Moores
Federal Practice 37.90, at 37-141 (3d ed. 1997)) (alteration in
original).
2 Coffland v. Coffland, 4 P.3d 317, 320 (Alaska 2000).
3 Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1169
(Alaska 1998).
4 Peter v. Progressive Corp., 986 P.2d 865, 867 (Alaska
1999).
5 Coffland, 4 P.3d at 320.
6 Peter, 986 P.2d at 867 (internal citations omitted).
7 Id.
8 Hughes v. Bobich, 875 P.2d 749, 752 (Alaska 1994).
9 Id. (quoting Sandstrom & Sons, Inc. v. State, 843 P.2d
645, 647 (Alaska 1992)).
10 Alaska R. Civ. P. 37(b)(3); Hughes, 875 P.2d at 753.
11 Hawes Firearms Co. v. Edwards, 634 P.2d 377, 378
(Alaska 1981).
12 12 P.3d 1169, 1175 (Alaska 2001).
13 Id.
14 875 P.2d 749 (Alaska 1994).
15 Id. at 753.
16 In granting the motion to compel, the superior court
implicitly affirmed the likelihood that the answers or documents
will lead to the discovery of admissible evidence. Alaska R.
Civ. P. 26(b).
17 Coffland v. Coffland, 4 P.3d 317, 321 (Alaska 2000).
18 Hughes, 875 P.2d at 753.
19 See, e.g., Coffland, 4 P.3d at 320-21 (Alaska 2000)
(holding that sanctions were proper after husband failed to
answer any interrogatories, failed to timely file witness list,
and failed to timely provide information for valuation of family
business); Honda Motor Co., Ltd. v. Salzman, 751 P.2d 489, 492-93
(Alaska 1988) (affirming declaration of liability for various
discovery violations against party after oral and written
warnings, extended deadlines, and less drastic sanctions were
imposed).
20 ABC, however, does argue against the application of a
more lenient standard to DeNardo as a result of his pro se
status.
21 4 P.3d 317 (Alaska 2000).
22 Id. at 321.
23 See Howarth v. First Natl Bank of Anchorage, 540 P.2d
486, 490 (Alaska 1975) (holding that oral contacts are, by their
very nature, dependent upon an understanding of the surrounding
circumstances, the intent of the parties, and the credibility of
witnesses.).
24 Id.
25 Alaska Trams Corp. v. Alaska Elec. Light & Power, 743
P.2d 350, 354 (Alaska 1987).
26 DeNardo v. GCI Communication Corp., 983 P.2d 1288, 1290
(Alaska 1999) (quoting Ben Lomond, Inc. v. Schwartz, 915 P.2d
632, 636 (Alaska 1996)).
27 Guard v. P&R Enterprises, Inc., 631 P.2d 1068, 1071
(Alaska 1981).
28 City of Fairbanks v. Rice, 20 P.3d 1097, 1111 (Alaska
2000).
29 Rohweder v. Fleetwood Mobile Homes of Oregon, Inc., 767
P.2d 187, 191 (Alaska 1989).
30 Hazen v. Municipality of Anchorage, 718 P.2d 456, 460
(Alaska 1986) (quoting Bachner v. Pearson, 479 P.2d 319, 324
(Alaska 1970)).
31 Id.
32 Howarth v. First Natl Bank of Anchorage, 540 P.2d 486,
490 (Alaska 1975).
33 Hughes v. Bobich, 875 P.2d 749, 753 (Alaska 1994)
(alteration in original) (quoting Power Constructors, Inc. v.
Acres Am., 811 P.2d 1052, 1055 (Alaska 1991)).
34 Id.
35 Sandstrom & Sons, Inc. v. State, 843 P.2d 645, 647
(Alaska 1992) (quoting Power Constructors, Inc., 811 P.2d at 1055
(remanding dismissal of lawsuit for reasonable exploration of
alternate sanction to dismissal where no evidence existed on
record of such exploration prior to dismissal)).
36 Underwriters at Lloyds London v. The Narrows, 846 P.2d
118, 119 (Alaska 1993).
37 843 P.2d 645 (Alaska 1992).
38 Id. at 648.
39 Id.
40 Id.
41 Alaska Const. art. I 16.
42 Christensen v. NCH Corp., 956 P.2d 468, 477 (Alaska
1998) (quoting Alaska Const. art. I, 16).
43 Id.
44 Alaska Trams Corp. v. Alaska Elec. Light & Power, 743
P.2d 350 (Alaska 1987).
45 Honda Motor Co., Ltd. v. Salzman, 751 P.2d 489 (Alaska
1988).
46 A. Fred Miller Attorneys at Law, P.C. v. Purvis, 921
P.2d 610, 618 (Alaska 1996).
47 A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995)
(arguments given only cursory treatment in briefing are
considered waived on appeal).
48 Intl Assn of Fire Fighters, Local 1264 v. Municipality
of Anchorage, 973 P.2d 1132, 1134 (Alaska 1999) (alterations in
original) (quoting Doe v. Alaska Superior Court, Third Judicial
Dist., 721 P.2d 617, 629 (Alaska 1986)).
49 See, e.g., Langdon v. Champion, 745 P.2d 1371, 1372-73
(Alaska 1987) (restating rule that commencement of action for
personal injuries constitutes plaintiffs waiver of physician-
patient privilege); Trans-World Investments v. Drobny, 554 P.2d
1148, 1151 (Alaska 1976) (holding that the filing of a personal
injury action waives the physician-patient privilege as to all
information concerning the health and medical history relevant to
the matters which the plaintiff has put in issue.).
50 DeNardos claims that the superior court erred in
denying his discovery motions are moot: Because we affirm the
dismissal of DeNardos complaint, even resolving his claims in his
favor would provide him no relief. A claim is moot if the party
bringing the action would not be entitled to any relief even if
they prevail[ed]. Nickels v. Napolilli, 29 P.3d 242, 254, n.60
(Alaska 2001) (alterations in original) (quoting Maynard v.
State Farm Mut. Auto. Ins. Co., 902 P.2d 1328, 1329 n.2 (Alaska
1995)).
