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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gilbert v. Nina Plaza Condo Assoc. (2/14/2003) sp-5666

Gilbert v. Nina Plaza Condo Assoc. (2/14/2003) sp-5666

     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

LOIS GILBERT,                 )
                              )    Supreme Court No. S-10000
               Appellant,          )
                              )    Superior Court No.
          v.                  )    3AN-98-7578 CI
                              )
NINA PLAZA CONDO              )
ASSOCIATION, its officers past     )    O P I N I O N
and present, STEVEN SIMONKA and    )
his tenants FRANCES LUNDY and )    [No. 5666 - February 14, 2003]
JOHN and JANE DOES,           )
                              )
               Appellees.          )
                                                                )
LOIS GILBERT,                 )
                              )    Supreme Court No. S-10237
               Petitioner,         )
                              )    Superior Court No.
          v.                  )    3AN-00-7808 CI
                              )
NINA PLAZA CONDO              )
ASSOCIATION, its officers past     )
and present, STEVEN SIMONKA and    )
his tenants FRANCES LUNDY and )
JOHN and JANE DOES,           )
                              )
               Respondents.   )
                                                                )

          Appeal  in File No. S-10000 and Petition  for
          Review  in File No. S-10237 from the Superior
          Court  of the State of Alaska, Third Judicial
          District, Anchorage, Eric T. Sanders, Judge.

          Appearances:    Lois   Gilbert,    pro    se,
          Anchorage.  James J. Hanlon,  Law  Office  of
          James     J.    Hanlon,    Anchorage,     for
          Appellees/Respondents (no brief filed).

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

          BRYNER, Justice.


I.   INTRODUCTION

           Lois  Gilbert appeals the dismissal of two cases  that

she  filed  against  the Nina Plaza Condominium  Association  and

condominium  owner Steven Simonka.  The superior court  dismissed

Gilbert's  first  case for failing to comply  with  the  pretrial

scheduling  order.   The court dismissed  her  second  case,  and

subsequently refused to reopen it, for failing to properly  serve

the  defendants.   Because the superior court  made  insufficient

allowances  for  Gilbert's pro se status in the  first  case  and

because Gilbert successfully served process on the defendants  in

the second case, we reverse.

II.  FACTS AND PROCEEDINGS

           Lois Gilbert lives in a condominium unit owned by  her

mother at the Nina Plaza Condominiums in Anchorage.  Gilbert  has

been   involved  in  an  ongoing  dispute  with  the  Nina  Plaza

Condominium Association as well as various condominium owners and

tenants, including Steven Simonka.

           In  July  1998 Gilbert filed a complaint against  Nina

Plaza,  Simonka,  and  other Nina Plaza tenants.   The  complaint

alleged many ongoing grievances against the defendants, including

wrongful   exclusion  "from  ownership  privileges  and  decision

making,"  discrimination "on the grounds of sex and  disability,"

violation  of  the condominium's bylaws, assault, and  vandalism.

Gilbert  sought to recover compensatory damages for "all injuries

and  vandalism  sustained from harassment" as  well  as  punitive

damages.   About  seventeen  months  after  Gilbert  filed   this

complaint,  Nina  Plaza  and Simonka filed  a  complaint  against

Gilbert and her mother, seeking a permanent injunction to prevent

Gilbert from residing at Nina Plaza.

           Superior  Court  Judge  Eric T.  Sanders  consolidated

Gilbert's and Nina Plaza's cases and scheduled trial for June 26,

2000.   On the date set for trial, the judge dismissed the  cases

after  learning that both parties had failed to comply  with  the

pretrial scheduling order and were unprepared to proceed.

           On  June 9, 2000 - two years after she filed her first

complaint and two weeks before the superior court dismissed it  -

Gilbert  filed  a  second complaint against the same  defendants.

She  intended  the  second  complaint  to  cover  incidents  that

occurred  after the filing of her first complaint.  Her complaint

described and updated the same general acts of ongoing misconduct

alleged  in  her  first  complaint but  added  a  new  claim  for

intentional infliction of emotional distress.

          More than six months after filing the second complaint,

Gilbert still had not served it on the defendants.  On January 3,

2001,   the   superior  court  dismissed  the  second  complaint,

specifying that the dismissal was without prejudice and was  "due

to [Gilbert's] failure to serve the defendant(s) with the summons

and complaint or show good cause why service was not completed."

          On January 30 Gilbert moved to reopen the case, stating

that  she had "re-mailed the lawsuit and ha[d] attached proof  of

service."  Along with this motion, Gilbert filed proof of service

by  certified mail on James Hanlon, Nina Plaza's attorney in  her

first  case.  Hanlon responded by filing a "conditional entry  of

appearance,"  ostensibly for the "sole purpose" of  arguing  that

Gilbert  had  failed to properly serve his clients with  process.

Hanlon  contended  that  serving the new  complaint  on  him  was

improper  because  on that date of service he had  not  yet  been

retained  as  counsel  by  the defendants  and  therefore  lacked

authority to accept service on their behalf.  Apparently agreeing

with Hanlon, the superior court denied Gilbert's motion to reopen

on  March  6,  2001,  finding  "[n]o  proof  of  service  on  the

defendants."

          On April 23 Gilbert filed a second motion to reopen the

case,  claiming to have personally served the defendants.   Along

with  this  motion, Gilbert filed an audiotape recording  of  her

personally serving process on Simonka and officers of Nina  Plaza

at  a March 27 condominium association meeting.  In opposition to

Gilbert's  motion,  Hanlon,  again  purporting  to  make  only  a

"conditional  entry  of  appearance,"  argued  that  Gilbert  had

violated  Alaska  Civil  Rule 4(c)(1) by  serving  the  complaint

herself,  rather than through an authorized process  server,  and

had  violated Civil Rule 4(d) by failing to specify on her return

of  service that she had served the defendants with a summons  as

well  as  a  complaint.   Again accepting Hanlon's argument,  the

superior  court denied Gilbert's second motion to reopen,  ruling

that  Gilbert had failed to comply with Civil Rules 4(c) and (d).

Hanlon  then  moved  for  an award of full  attorney's  fees  for

expenses attributable to Gilbert's attempts to reopen the case.

          On June 1,  two weeks after the court denied the second

motion  to  reopen, Gilbert filed a third motion to reopen,  this

time  specifying  that  she had "rectified  any  deficiencies  in

service,  mailing  by  certified  mail  copies  of  the  lawsuit,

summons,  certificate of service, motion to reopen and opposition

to  fee  request to Defendants and James Hanlon."  A week  later,

the  superior court issued a sua sponte order, summarily  denying

Gilbert's third motion to reopen.  The court also issued an order

finding  that  Gilbert's repeated attempts to  reopen  her  cases

"constituted  bad  faith  conduct."  On  this  basis,  the  order

awarded   Nina  Plaza  and  Simonka  nearly  half  their  claimed

attorney's fees, warning that it would award the rest of the fees

if Gilbert persisted in her attempts to reopen the case.

           Gilbert appealed the dismissal of her first case.  She

petitioned for review in the second case; we granted the petition

for  review and consolidated the second case with her appeal  for

purposes of this decision.

III. DISCUSSION

A.             Dismissal of Gilbert's First Case
          
           The  superior  court  dismissed Gilbert's  first  case

because it found that both parties had "failed to comply with any

part  of  the  pretrial  scheduling order."   On  appeal  Gilbert

challenges  this ruling, claiming that the superior court  failed

to  take  proper account of her pro se status.1  Gilbert contends

that  "[she]  followed the rules to the best of her understanding

and  as  far as she was physically able" and that her failure  to

fully  comply  with the scheduling order resulted in  large  part

from  her  inability to receive the discovery she  had  requested

from  Nina Plaza.  Gilbert claims that she informed the  superior

court  on  several occasions that the defendants were withholding

discovery  and that, until the court informed her at  trial  that

she  should  have filed a motion to compel, she was  "unaware  of

this legal procedure."  The record supports Gilbert's assertions,

revealing  that the superior court failed to provide  appropriate

guidance to Gilbert in consideration of her pro se status.

           It  is  well settled that in cases involving a pro  se

litigant the superior court must relax procedural requirements to

a  reasonable  extent.2   We have indicated,  for  example,  that

courts should generally hold the pleadings of pro se litigants to

less  stringent  standards  than  those  of  lawyers.3   This  is

particularly true when "lack of familiarity with the rules rather

than  gross  neglect  or lack of good faith underlies  litigants'

errors."4  We have further indicated that a court "should  inform

a  pro  se litigant of the proper procedure for the action he  or

she  is  obviously  attempting to accomplish"5  and  should  also

"inform  pro  se  litigants of defects in their pleadings."6   In

return,  we  have stressed, the pro se litigant "is  expected  to

make a good faith attempt to comply with judicial procedures  and

to  acquire  general familiarity with and attempt to comply  with

the  rules of procedure - absent this effort, [the litigant]  may

be denied the leniency otherwise afforded pro se litigants."7

           Here, Gilbert made several efforts to notify the court

that  she was having discovery problems and needed help.  At  the

trial setting conference on January 6, 2000, Gilbert alerted  the

trial  court that she needed additional time to prepare her case,

in  part  because she had not yet received any of  her  requested

discovery  from  Nina Plaza.  The trial court set  the  case  for

trial on June 26, 2000, but, despite Gilbert's expressed concern,

it  did  not  attempt  to  explain the available  procedures  for

compelling  discovery.   On  June 23, three  days  before  trial,

Gilbert  sought  to  postpone  the  trial,  filing  a  motion  to

reschedule  in  which she stated that she needed  extra  time  to

prepare her case because Nina Plaza continued to deny her  access

to  the condominium records and because her disabilities had made

it  difficult  to  prepare.  On the day of trial,  Gilbert  again

indicated that she had not received discovery.  Although  Gilbert

said  that  she would be able to proceed with what she  had,  she

emphasized that she would prefer a continuance.

           The  record confirms Gilbert's claims that Nina  Plaza

failed  to comply with discovery requirements, in spite of  being

represented  by  counsel.   Yet the  superior  court  found  both

parties equally blameworthy and dismissed both their cases.   The

only  time  the court explained Gilbert's procedural options  was

when  it dismissed the case, stating "if you didn't get discovery

on  a certain date, you should have filed a motion to compel.  So

there's nothing the court can do about that."

          Because Gilbert was a pro se litigant and made it clear

early on that she was having trouble with discovery, we hold that

it  was  an  abuse  of  discretion to dismiss  her  case  without

explaining  the  basic steps she could take to  comply  with  the

pretrial  order  -  including the option of filing  a  motion  to

compel  discovery  - and without then allowing her  a  reasonable

opportunity to take those steps.  We therefore reverse the  order

dismissing Gilbert's first complaint.8

B.             Refusal To Reopen Gilbert's Second Case

           The  superior  court dismissed Gilbert's  second  case

seven  months  after it was filed, specifying that the  dismissal

was  for failure to serve process and was without prejudice.  But

the  court later denied Gilbert's repeated efforts to reopen  the

case  after she made further attempts to serve process.   Gilbert

challenges  these rulings, arguing that she eventually  rectified

any  errors in her original service. Gilbert further asserts that

Nina  Plaza's  attorney, James Hanlon, manipulated the  rules  of

procedure  to avoid service of process:  "Hanlon claimed  service

to  him  was improper even though he filed an entry of appearance

to  represent [the defendants] and was representing them in  [the

earlier  filed case] at the time he was served with  [the  second

complaint]."

           In  response to these arguments, Nina Plaza  does  not

deny  that  Gilbert  eventually managed to make  proper  service.

Instead,  it argues that Gilbert's second complaint was  properly

dismissed as an impermissible attempt to circumvent the  superior

court's  earlier  dismissal  of her first  suit.   Since  Gilbert

"refiled the same case," Nina Plaza contends, "[d]enial of  [her]

motion to reopen was proper given the fact that [she] had already

appealed Judge Sanders' dismissal of her original case."

            However,  despite  Nina  Plaza's  suggestion  to  the

contrary,  the  superior  court did  not  view  Gilbert's  second

complaint as an impermissible reiteration of her first complaint.

Instead, the court specified that it dismissed the second case on

the  ground of lack of service and that the dismissal was without

prejudice.   The superior court rebuffed Gilbert's later  efforts

to  reopen for the same reason solely because the court  believed

that Gilbert had still failed to make proper service.

           Furthermore, the record refutes Nina Plaza's portrayal

of  Gilbert's  second complaint as an effort  to  circumvent  the

superior court's dismissal of her first complaint.  Gilbert filed

her  second complaint on June 9, 2000, over two weeks before  the

superior court dismissed her first case on June 26.  And although

the  basic  claims  in both cases were nearly identical,  Gilbert

apparently intended the second complaint to address conduct  that

allegedly  continued  to  occur after she  had  filed  the  first

complaint.   At  a  pretrial conference in the  first  case,  for

example,  Gilbert alerted the court that, to preserve  her  civil

rights  claims, she would be filing a second complaint  to  cover

developments  occurring  since her  first  complaint  was  filed.

Accordingly,   Nina  Plaza's  characterization  of   the   second

complaint finds no support in the record.

          We thus turn to the merits of Gilbert's contention that

she  cured  her  original failure to serve process and  therefore

should  have been allowed to reopen her second case.  The  record

indicates  that  by the time Gilbert filed her  first  motion  to

reopen  the  case,  Nina Plaza and Steven  Simonka  had  received

actual  notice  of  Gilbert's complaint.  Attached  to  Gilbert's

first motion to reopen was a certificate of service stating  that

Gilbert  had delivered the complaint by certified mail  to  James

Hanlon,  the  attorney for both Nina Plaza  and  Simonka.   After

receiving   the   complaint,  Hanlon   entered   a   "conditional

appearance"  on  behalf of the defendants  to  contest  Gilbert's

attempt  to serve process.  He claimed that serving the complaint

on  him had been improper because Nina Plaza and Simonka had  not

yet  retained  him  as  counsel in  the  second  case.   Although

challenging Gilbert's earlier service on him as premature, Hanlon

undertook  future representation of the defendants in the  second

case, asking that all subsequent pleadings concerning the case be

mailed to him.

          Thus, assuming that Gilbert's initial service on Hanlon

was  improper,  by  the time Gilbert filed her  third  motion  to

reopen  the case she had undisputedly succeeded in making  proper

service:  by then she had sent by certified mail "copies  of  the

lawsuit, summons, certificate of service, [and] motion to reopen"

to  both  the  defendants and James Hanlon.  Hanlon  acknowledged

receiving these documents and represented Nina Plaza and  Simonka

in the second case when he received them.9

           Accordingly, the record establishes beyond doubt  that

Gilbert  ultimately  cured any defects  in  service  of  process.

Because  Gilbert's motions to reopen the case  were  denied  only

because  the  court believed that service had not  been  properly

made,  we hold that it was error to deny reopening.  And  because

of this error, we further hold that the superior court's award of

prevailing-party attorney's fees to Nina Plaza and  Simonka  must

be vacated.

IV.  CONCLUSION

           We REVERSE the dismissal of Gilbert's first case (3AN-

98-7578 CI), and we REMAND the second case (3AN-00-7808 CI)  with

directions  to reopen it; we also VACATE the award of  attorney's

fees in that case.

_______________________________
1We  review procedural dismissals for abuse of discretion.   See,
e.g., Balough v. Fairbanks North Star Borough, 995 P.2d 245,  254
(Alaska  2000); Arbelovsky v. Ebasco Servs., Inc., 922 P.2d  225,
227  (Alaska  1996); Johnson v. Siegfried, 838  P.2d  1252,  1254
(Alaska  1992).   "Under  the abuse of discretion  standard,  the
trial court's decision will only be overturned if this court  has
`a definite and firm conviction that the judge made a mistake.' "
Arbelovsky,  922 P.2d at 227 (quoting City of Kenai v.  Ferguson,
732 P.2d 184, 190 (Alaska 1987)).
2See, e.g., Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002).
3See,  e.g.,  Wilkerson  v. State, 993 P.2d  1018,  1022  (Alaska
1999); Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).
4Kaiser,  40  P.3d  at  803  (internal quotations  and  citations
omitted);  see also Noey v. Bledsoe, 978 P.2d 1264, 1270  (Alaska
1999)  ("We have frequently recognized that pro se litigants  who
make good faith efforts to comply with court rules should not  be
held to strict procedural requirements."); Wright v. Shorten, 964
P.2d  441, 444 (Alaska 1998) ("Where a pro se litigant's  default
results from lack of familiarity with the rules, . . . and  where
the litigant is unversed in the rules of civil procedure, setting
aside  a default judgment may be warranted.") (internal citations
and quotations omitted).
5Breck, 745 P.2d at 75.
6Wright,  964  P.2d at 444; see also Collins v. Arctic  Builders,
957  P.2d 980, 982 (Alaska 1998) (holding that a superior court's
failure  to  inform a pro se litigant of the specific defects  in
his  notice  of appeal and to give him an opportunity  to  remedy
those defects is "manifestly unreasonable and thus constitutes an
abuse of discretion").
7Kaiser, 40 P.3d at 803 (internal citations omitted).
8Our   decision  makes  it  unnecessary  to  consider   Gilbert's
remaining arguments in her first case.
9We reject Hanlon's implicit assertion that Gilbert's mailing was
defective  because it included pleadings other than  the  summons
and  complaint.  Alaska Civil Rule 4 does not prohibit serving  a
summons  and  complaint by mail along with other pleadings.   See
Anderson  v.  State, 584 P.2d 537, 541 (Alaska  1978)  (reasoning
that because the purpose of service of process is to provide "the
defendant  with  notice  of  the  proceeding  against  him,"  the
inclusion  of unnecessary information in the process  should  not
render service defective).