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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).
