Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. DeNardo v. Calista Corporation (04/22/2005) sp-5890

DeNardo v. Calista Corporation (04/22/2005) sp-5890

     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


DANIEL DeNARDO,               )
                              )    Supreme Court No. S-11183
             Appellant,            )
                              )     Superior  Court  No.  3AN-01-
12484 CI
     v.                       )
                              )    O P I N I O N
CALISTA CORPORATION and  )
ALASKA NEWSPAPERS, INC., )    [No. 5890 - April 22, 2005]
                              )
             Appellees.            )
                              )



          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Phillip Volland, Judge.

          Appearances:    Daniel   DeNardo,   pro   se,
          Anchorage.   Joan  E.  Rohlf  and  Pamela  D.
          Weiss,  Guess  &  Rudd P.C.,  Anchorage,  for
          Appellees.

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

          EASTAUGH, Justice.
          BRYNER, Chief Justice, dissenting.

I.   INTRODUCTION

          Plaintiff  filed  three  state  and  federal   lawsuits

against  his  former employer.  After the first two actions  were

dismissed, the superior court dismissed his third, holding it was

barred  by  res  judicata and the judicial policy  against  claim

splitting.  Plaintiff appeals.  Because the stipulated  terms  of

the  dismissal  in  the  first state court action  preserved  the

plaintiffs  non-federal  claims, neither  res  judicata  nor  the

doctrine  against  claim splitting bars  the  third  action.   We

therefore  vacate  the dismissal order in the  third  action  and

remand for further proceedings.

II.  FACTS AND PROCEEDINGS

          Daniel  DeNardo filed three state and federal  lawsuits

against  his former employer, Alaska Newspapers, Inc., (ANI)  and

its  majority shareholder, Calista Corporation.  ANI had employed

DeNardo as an advertising sales representative from October  1999

until  his  termination in July 2000.  It is the superior  courts

dismissal  of the last-filed of these three lawsuits, on  grounds

of  res  judicata  and the policy against claim  splitting,  that

leads to this appeal.

          First lawsuit.  DeNardo filed his first lawsuit against

ANI, Calista, and eight former co-workers in state superior court

in  July  2000.  His complaint in Case No. 3AN-00-8753 CI alleged

numerous  claims, including breach of contract,  retaliation  for

filing  claims  with  the  Department  of  Labor  and  the  Equal

Employment  Opportunity Commission, and negligent and intentional

infliction  of  emotional distress based on  harassment  by,  and

favoritism  toward,  some  of  ANIs  female  employees.   DeNardo

amended his complaint on August 7, 2000, but the changes are  not

material for purposes of this appeal.

          Second  lawsuit.   In October 2000  DeNardo  filed  his

second  lawsuit against Calista and ANI.  He brought this  action

in  federal court in Case No. A00-309-CV, and based his claims on

the  same facts asserted in his state court action.  The  federal

complaint  alleged state law claims of negligent and  intentional

infliction of emotional distress and federal law claims of gender

discrimination  and sexual harassment under 42  U.S.C.   2000(e)-

2000(e)(17) (Title VII).

          Calista  and ANI removed Case No. 3AN-00-8753  CI,  the

state  court action, to federal court in November 2000, where  it

became  Case  No.  A00-351-CV; in December defendants  moved  for

consolidation  of the two federal cases.  United States  District

Judge H. Russel Holland ordered consolidation, but in April  2001

remanded  Case  No.  A00-351-CV to state  court  while  retaining

jurisdiction over Case No. A00-309-CV.

          Following  this remand, DeNardo offered to dismiss  his

now-remanded  state court action, Case No. 3AN-00-8753  CI.   The

defendants accepted his offer, and on April 27, 2001, the parties

signed  a three-paragraph stipulation prepared by defense counsel

for dismissal of Case No. 3AN-00-8753 CI with prejudice.1  In May

2001  Superior  Court  Judge  Elaine M.  Andrews  signed  defense

counsels proposed order granting the Stipulation to Dismiss  With

Prejudice.

          Calista  and  ANI  then  moved  for  dismissal  of  the

remaining federal action, Case No. A00-309-CV, contending that as

tribal  entities they could not be sued under Title VII,  because

neither  was  an  employer.   The United  States  District  Court

granted their motion in November 2001.  Judge Hollands memorandum

dismissal  order stated, however, that because the court  had  no

original  jurisdiction over the Title VII claim, it  declines  to

exercise  supplemental  jurisdiction over  plaintiffs  state  law

claim  for the infliction of emotional distress.  The order  also

stated  that it is without prejudice to pursuit of any state  law

claims  plaintiff  may have in state court.   The  United  States

Court of Appeals for the Ninth Circuit affirmed the dismissal  in

2002.

          Third lawsuit.  In December 2001, after his first state

action  and his federal action were dismissed, DeNardo  commenced

his  third lawsuit by filing a superior court complaint  in  Case

No.  3AN-01-12484 CI against Calista and ANI.  This complaint was

based  on the same facts alleged in the first state court action.

It  expressly asserted a claim of discrimination by  Calista  and

ANI against him in violation of AS 18.80.  It indirectly asserted

claims  of  negligent  and  intentional infliction  of  emotional

distress.

          Calista  and ANI moved to dismiss Case No. 3AN-01-12484

          CI on the basis of res judicata and the doctrine against claim

splitting.  Superior Court Judge Phillip R. Volland granted their

motion  on  those grounds.  DeNardo requested withdrawal  of  the

dismissal stipulation filed in Case No. 3AN-00-8753 CI,  but  the

superior  court denied his request.  DeNardo appeals  the  courts

dismissal  of  Case  No. 3AN-01-12484 CI and its  denial  of  his

request to withdraw his dismissal stipulation in Case No. 3AN-00-

8753 CI.

          Unless    context   dictates   otherwise,   we    refer

collectively to the appellees as Calista.

III. DISCUSSION

     A.   Standard of Review

          Whether  res judicata applies is a question of law,  an

issue  that we review de novo.2  We interpret stipulations  using

the   rules   of   contract  interpretation.3   We   review   the

interpretation of contracts, and thus stipulations, de novo.4

     B.   Res  Judicata Does Not Bar DeNardos Claims of Negligent
          Infliction    of   Emotional   Distress,    Intentional
          Infliction of Emotional Distress, and Discrimination.
          
          The  parties  disagree  about  whether  the  dismissals

entered  in DeNardos two previous lawsuits bar his third lawsuit.

Resolution  of this issue requires us to consider the  effect  of

the  superior  court dismissal stipulation and the federal  court

dismissal order.

          1.   Parties contentions

          DeNardo argues that a stipulation will not be construed

to  give effect to a waiver of a right not plainly intended to be

relinquished.5   He argues that a stipulation must  be  construed

according  to the parties intention as expressed in the documents

language.6   DeNardo  contends that  the  dismissal  stipulations

terms  preserved  the  discrimination claim regardless  of  which

court had jurisdiction over it.  He argues that the federal court

dismissed   the   discrimination   claim   because   it    lacked

jurisdiction; he contends that jurisdictional dismissals have  no

res  judicata  effect.7  He also seems to argue  that  his  first

          state action did not include a discrimination claim under AS

18.80  and that therefore the dismissal in his first state  court

action cannot bar his current discrimination claim.

          Calista argues that under the doctrine of res judicata,

dismissal  of  the first state lawsuit bars the present  lawsuit.

It  asserts  that all elements are present to give  res  judicata

effect  to  the stipulated dismissal.  It states that a dismissal

entered  pursuant to a stipulation for dismissal of  claims  with

prejudice  has  the same res judicata effect as a final  judgment

entered  after  trial.8   It therefore contends  that  the  order

granting  the stipulation to dismiss with prejudice  is  a  final

judgment  for  res judicata purposes.  It also  argues  that  the

superior  court  in the first state action had  jurisdiction  and

that  the  same  parties  are involved  in  both  state  actions.

Calista  argues that DeNardo does not dispute that he could  have

asserted  a  claim for discrimination under AS 18.80.220  in  his

first action.  It therefore reasons that the stipulated dismissal

resolved  not only the claims specifically brought, but also  the

claims  DeNardo could have brought under AS 18.80.220.9  It  also

argues  that  we  should  not  permit  DeNardo  to  prolong  this

litigation by splitting his claim.10

          2.   DeNardos prior claims and the stipulated dismissal
               
          DeNardos  original and amended complaints in his  first

state court action, Case No. 3AN-00-8753 CI, alleged, among other

causes of action, claims for negligent and intentional infliction

of  emotional  distress.  They also stated that Calista  and  ANI

sexually  discriminated against DeNardo, although the  complaints

did  not explicitly refer to AS 18.80.  The discrimination  claim

relied  on  the  same  facts  as the  negligent  and  intentional

infliction of emotional distress claims.  We have held  that  the

pleadings  of  pro se litigants should be held to less  stringent

standards  than those of lawyers.11  This proposition reflects  a

policy against finding unintended waiver of claims in technically

defective  pleadings filed by pro se litigants.12   We  therefore

          conclude that DeNardos complaints in Case No. 3AN-00-8753 CI

encompassed a statutory state-law based sex discrimination  claim

even though they did not refer specifically to AS 18.80.13  Alaska

Statute  18.80.220(a)  makes  it  unlawful  for  an  employer  to

discriminate  unjustifiably  against  a  person  because  of  the

persons sex.14

          The  dissent argues at 21-22 that DeNardos position  on

appeal,  which  disavows any intent to assert a  claim  under  AS

18.80  in his original state complaint, precludes us from reading

that  complaint  as  encompassing such  a  claim.   The  dissents

discussion  of  DeNardos complaint and the stipulation  might  be

compelling if DeNardo had been represented by counsel.  But given

the  leniency  with which we interpret the pleadings  of  pro  se

litigants,   we   think   that  focusing  on   DeNardos   current

understanding of his original pleadings is misplaced.  A  pro  se

litigants  interpretation  of  his  own  complaint  need  not  be

determinative of what it actually pleads; the court must exercise

its   independent  judgment  in  determining  what   claims   the

complaints words assert.  DeNardos recitation of facts and use of

the  term sexually discriminated in his first complaint establish

that it pleaded a AS 18.80 claim, his post hoc explanation of his

pleading intentions notwithstanding.15

          Although  DeNardos present interpretation of his  first

complaint  is  not  determinative of what claims  that  complaint

alleged, his contemporaneous understanding of the meaning of  the

stipulation for dismissal is relevant to its interpretation.   As

to  this issue, DeNardo contends on appeal that he understood the

stipulation to preserve his claims then pending in federal court.

          DeNardos  federal  complaint  in  Case  No.  A00-309-CV

asserted  state-law  based  claims of negligent  and  intentional

infliction  of  emotional distress as well as  federal-law  based

claims of discrimination.  The federal complaint alleged the same

facts  pleaded in the state law discrimination claim in Case  No.

3AN-00-8753  CI;  the complaint in Case No. A00-309-CV  therefore

          should be read to include the same claims as the complaint in

Case No. 3AN-00-8753 CI.  For that reason, and given our leniency

in  interpreting the pleadings of pro se litigants,16 we read the

federal complaint in Case No. A00-309-CV to have asserted: (1)  a

federally  based  discrimination claim,  (2)  a  state-law  based

discrimination  claim,  and  (3) state-law  based  negligent  and

intentional infliction of emotional distress claims.

          The   claims  asserted  in  that  federal  action   are

important,  given  the  terms of the  stipulation  for  dismissal

signed  by  the parties in Case No. 3AN-00-8753 CI.  To determine

the  res  judicata  effect  of the stipulated  dismissal,  it  is

necessary to determine the stipulations effect.

          After  the  first state action was removed  to  federal

court and then remanded to the superior court, the parties signed

the   stipulation  dismissing  Case  No.  3AN-00-8753   CI   with

prejudice.17

          Res  judicata  applies  if: (1) a  court  of  competent

jurisdiction, (2) has rendered final judgment on the merits,  and

(3)  the  same cause of action and same parties or their  privies

were involved in both suits.18  In Plumber v. University of Alaska

Anchorage  we discussed whether a stipulation for dismissal  with

prejudice could give rise to res judicata:

          [A]   stipulation  to  dismiss  claims   with
          prejudice  is  sufficient  for  res  judicata
          purposes: [A] stipulation [to dismiss  claims
          with  prejudice] is just as valid as a  final
          judgment  resulting  from  a  trial  on   the
          merits, and is res judicata as to all  issues
          that   were   raised  or  could   have   been
          determined under the pleadings.[19]
          
          There   is   no  dispute  that  the  first  and   third

requirements for res judicata are present here.  The  parties  do

not  dispute the superior courts jurisdiction in the first  state

action.  It is also undisputed that the parties in both the first

state  action  and the present action included DeNardo,  Calista,

and ANI, and that causes of action are the same in both lawsuits.

          But   there   is  a  dispute  concerning   the   second

          requirement.  The parties do not dispute that the superior court

rendered  a  final  judgment on the merits when  it  granted  the

stipulation to dismiss with prejudice in Case No. 3AN-00-8753 CI,

but  they  disagree  about  what claims  the  dismissal  actually

resolved.20

          Res  judicata based on a stipulated dismissal does  not

prevent  a  plaintiff from bringing a cause of  action  that  was

expressly  reserved for later adjudication.21  A stipulation  may

reserve  a  claim  for  later litigation,  and  courts  will  not

construe the stipulation to waive rights not plainly intended  to

be  relinquished.22  We recognize that courts look with favor  on

stipulations designed to simplify, shorten or settle  litigation,

or  to  save costs and will not give such stipulations  a  forced

construction.23  Moreover, the language purporting to  reserve  a

claim  must be explicit, so that the parties not only  ha[ve]  an

opportunity to dicker over the language, but [are] thereafter  on

notice  about  which  claims were reserved and  which  were  not.

Blanket reservations of rights will not suffice.24

          We therefore turn to the stipulation to determine which

claims DeNardo preserved.

          Defendants counsel drafted the stipulation in Case  No.

3AN-00-8753 CI, and DeNardo and defendants attorney signed it  on

April  27,  2001.   The first paragraph  stated that  the  claims

asserted by [DeNardo] in [Case No. 3AN-00-8753 CI] . . .  against

all  defendants are dismissed in their entirety, with  prejudice.

But  the second paragraph stated that [t]his stipulation does not

affect  plaintiffs claims against Calista Corporation and  Alaska

Newspapers, Inc. in . . . A00-309 Civ. . . . , currently  pending

in   the   U.S.  District  Court  for  the  District  of  Alaska.

Therefore, even though DeNardo agreed in the first paragraph to a

dismissal  with  prejudice of the claims he had asserted  in  his

first  state  court  action, the second paragraph  preserved  his

claims  against Calista and ANI then pending in federal court  as

of April 27, when the parties signed the stipulation.  The claims

          then pending in federal court included claims for negligent and

intentional infliction of emotional distress and discrimination.

          The  stipulation  is  ambiguous,  because  it  did  not

clearly  explain how to resolve claims that were pending,  as  of

April  27,  2001, in both state and federal court,  i.e.,  claims

encompassed  by  both  the  first and second  paragraphs  of  the

stipulation.   The dissent correctly notes that a dismissal  with

prejudice  usually bars a plaintiff from refiling the same  claim

in  the same court.25  But given the ambiguity introduced by  the

stipulations second paragraph, we cannot conclude that the  first

paragraphs  dismissal of claims with prejudice bars  this  action

before  we  resolve  which claims the stipulation  dismisses  and

which claims it preserves.

          We  conclude,  for three reasons, that the  stipulation

should not be read to foreclose the claims reserved by the second

paragraph.   First,  we hold pro se litigants to  less  stringent

standards.26   Second,  we construe the ambiguous  terms  of  the

document  contrary  to  the preparer of  the  document,  Calistas

counsel.27  Third, we interpret waiver language narrowly.28

          This  reading does not render the stipulation a nullity

from   its   inception;  when  the  parties  entered   into   the

stipulation, the federal court had not yet ruled that Calista was

not  an  employer.   Parties entering into the stipulation  could

have rationally assumed that the federal court, in resolving  the

Title  VII  claim,  would  also  resolve  the  pendant  emotional

distress  claims.  Given the litigation history of the employment

dispute,  parties could have rationally thought it was  desirable

to  attempt to resolve all remaining claims, including the  Title

VII claim and the state law claims, in a single forum in a single

proceeding.

          Two  circumstances  might justify a different  outcome.

First,  the policy of favoring stipulations to simplify or settle

litigation favors reading the two paragraphs in a way that avoids

conflict.    Second, extrinsic evidence might  help  resolve  the

          apparent ambiguity: DeNardos April 20, 2001 offer to enter into a

stipulation   implies that he was willing to dismiss  his  entire

state court action; it stated that he wished only to maintain the

prosecution  of his Title VII action in the federal  court.   The

text  of  his dismissal offer would support a conclusion that  he

only  intended to prevent a stipulated state court dismissal from

interfering  with  the federal court proceeding (perhaps  through

any  res judicata effect the proposed dismissal could have on the

federal  action).   This  would support  a  conclusion  that  the

reservation  in the stipulation was not necessarily  intended  to

permit DeNardo to begin a new state court action asserting claims

that  were  in  the federal court only through exercise  of  that

courts pendant jurisdiction.

          But the stipulations reservation was not as limited  as

DeNardos   offer.    Furthermore,  the   stipulation   explicitly

preserved DeNardos claims then pending in federal court,29 not the

forum where those claims were then pending.  That the stipulation

described the claims to be preserved as those then pending in the

federal court did not preclude their later adjudication in  state

court.   Instead, because the stipulation did not state that  the

preserved claims would be barred in state court if they were  not

finally  adjudicated in federal court, it did not  designate  the

federal  court  as the exclusive forum for the preserved  claims.

Despite  the  apparent dismissal with prejudice of  the  disputed

claims in state court, their dismissal in state court was without

prejudice  because  they  were among the pending  federal  claims

expressly preserved.

          The  dissent argues at 22 that we err by giving DeNardo

relief  on unraised substantive grounds that differ substantially

from  the issues that the parties actually briefed.  In our view,

DeNardo  raised the grounds on which our holding  rests  when  he

asserted  in his opening brief that the second paragraph  of  the

stipulation preserved all claims then pending in federal court.

          Because  DeNardos first state court complaint  and  his

          federal complaint both included AS 18.80 claims and the

stipulation  preserved all claims in DeNardos federal  complaint,

we  conclude  that the stipulation does not prevent DeNardo  from

litigating his AS 18.80 claim in state court.

          3.   The federal courts dismissal

          We  now  turn  to  Judge Hollands  dismissal  order  to

determine  what  claims  remained  after  he  dismissed  DeNardos

federal  case.   At least in theory, the federal dismissal  order

could  have res judicata effect.  But the federal dismissal order

declined  to  rule on the merits of DeNardos non-federal  claims.

The  federal courts November 2001 order dismissing Case No.  A00-

309-CV  recognized that [h]aving dismissed plaintiffs  Title  VII

claims,  the  only claims remaining are plaintiffs pendent  state

law  claims  for infliction of emotional distress.   The  federal

court  stated  that  original jurisdiction  does  not  exist  for

plaintiffs  Title VII claim.  Accordingly, the court declines  to

exercise  supplemental  jurisdiction over  plaintiffs  state  law

claim  for  the infliction of emotional distress.   It  concluded

that  the dismissal is without prejudice to pursuit of any  state

law  claims  plaintiff may have in state court.  Because,  as  we

concluded  above,  Case No. A00-309-CV included  claims  of  both

negligent  and intentional infliction of emotional  distress  and

discrimination, and all of these claims were independently  based

on  state law, the dismissal of DeNardos Title VII claim did  not

affect these claims.

          The parties compare and contrast claims under Title VII

and AS 18.80.  Because the federal court dismissed DeNardos Title

VII  claim  on jurisdictional grounds based on Calistas exemption

from Title VII claims, dismissal of his Title VII claim does  not

preclude his AS 18.80 claim.30

          DeNardos  complaint  in the present lawsuit  explicitly

refers  to  the state anti-discrimination statute, AS 18.80.   It

also seeks damages for emotional anxiety and distress and for the

outrageous  and  bad  faith conduct by  defendants  done  with  a

reckless  disregard  and  deliberate indifference  to  [DeNardos]

civil rights.  Once again, because of our greater leniency toward

pleadings of pro se litigants,31 and because all of the claims are

based  on the same facts, we conclude that DeNardos complaint  in

          the present case alleges both discrimination and negligent and

intentional  infliction  of  emotional  distress.   As  described

above,  neither  the stipulation nor the federal court  dismissal

precluded these claims.  We therefore conclude that it was  error

to  hold  that  res judicata prevented DeNardo from pursuing  the

current action.32

          4.   Claim splitting

          The   doctrine   against  claim   splitting   prohibits

advancing  one part of the claim in an initial suit and reserving

the  remaining  parts  for a later suit.33  Because  the  present

lawsuit  raises  only claims already raised in  the  first  state

action, DeNardo did not split his claim.  It was therefore  error

to hold that the doctrine against claim splitting barred DeNardos

current action.

          5.   Rescission of stipulation

          DeNardo  asserts that stipulations can be rescinded  in

the  interests of justice and to avoid a manifest injustice.  The

superior court denied DeNardos motion to rescind the stipulation.

DeNardos  brief  does  not  assert that  it  was  error  to  deny

rescission  and  its terse reference to the issue  is  completely

insufficient to demonstrate that it was an abuse of discretion to

deny the request.34

 IV. CONCLUSION

          For   the  foregoing  reasons,  we  VACATE  the   order

dismissing  plaintiffs complaint in this lawsuit and  REMAND  for

proceedings consistent with this opinion.

BRYNER, Chief Justice, dissenting.

          I  disagree  with  the opinions interpretation  of  the

order  dismissing DeNardos state action and with  its  conclusion

that  the  dismissal left DeNardo free to renew his state  action

after the federal court dismissed his federal action.

          The  crucial  question  here  is  the  meaning  of  the

superior  courts order dismissing DeNardos initial  state  action

with  prejudice.  The order incorporated the parties stipulation,

which  agreed  to  dismiss  DeNardos  state  claims  against  all

defendants . . . in their entirety with prejudice . . .  [without

affecting]  plaintiffs claims against Calista  .  .  .  currently

pending  in  the U.S. District Court for the District of  Alaska.

The  meaning of the order and stipulation raise questions of law.

Civil Rule 41(a)(1) presumes that a stipulated dismissal will  be

entered without prejudice but leaves it to the parties to  supply

a  different  meaning.  Here the parties expressly  agreed  to  a

dismissal  with  prejudice;  but the provision  allowing  further

proceedings on DeNardos federal claims make it obvious that  they

contemplated  something  narrower than  the  traditionally  broad

meaning  of  with prejudice. Given these circumstances,  I  would

take guidance from the somewhat narrower meaning usually given to

a  dismissal  on  the  merits  under Civil  Rule  41(b)s  default

provision.  As we recently recognized, a dismissal with prejudice

under  the  default  provision of Rule 41(b) typically  bars  the

claimant from refiling the same claims in the court that  ordered

the   dismissal:   unlike  a  dismissal  without  prejudice,  the

dismissal  . . . bar[s] refiling of the same claim in  the  [same

court]. 1

          Apart  from being the usual meaning given to  the  term

with  prejudice in a dismissal order of this kind,  this  meaning

comports with the express terms of the stipulation in this  case,

which  unequivocally  contemplated  finally  dismissing  DeNardos

state-court  action, while at the same time leaving DeNardo  free

to  pursue  his already pending federal action in federal  court.

          The usual meaning similarly comports with Calista and ANIs

understanding  of  the stipulation; more to the  point,  it  also

comports   with  DeNardos  own  description  of  the   stipulated

dismissals meaning.

          The  argument DeNardo actually advances here, as I  see

it,  boils  down  to  this: (1) his original  state  action  only

asserted   tort   claims  and  did  not   include   a   statutory

discrimination claim; (2) in stipulating to dismiss his  original

action,  he simply meant to give up his state-court tort  claims,

while  preserving his right to pursue his then-pending action  in

federal  court, which included a statutory discrimination  claim;

and (3) once the federal court dismissed his discrimination claim

without  prejudice,  he  was free to raise  it  in  state  court,

because he had never raised it there before.

          Thus,  in  presenting his own case, DeNardo essentially

admits  understanding  that the stipulation  precluded  him  from

returning to state court with claims that he had already  raised;

he  merely argues that the stipulation did not preclude him  from

filing  new state claims.  As already pointed out above, this  is

the usual meaning given to a dismissal with prejudice under Civil

Rule  41(b)s  default  provision.  The only  issue  this  meaning

leaves open here is whether DeNardos current discrimination claim

is  a new claim or part of the same claim he originally filed  in

the superior court.

          DeNardos argument on this point might have merit if  he

were  correct  in  assuming that his discrimination  claim  could

evade being barred merely because it relied on a new legal theory

that  he  chose  not to include in his original state  complaint.

But   this   assumption   is  legally   flawed:   his   statutory

discrimination  claim  arises from the same  transaction  as  his

original tort claims and could have been filed with those claims;

so   for   purposes  of  determining  the  stipulated  dismissals

preclusive  effect, the claim-splitting doctrine requires  us  to

treat  the  later discrimination claim as the same claim   as  if

DeNardo  had actually included it in his original state  action.2

Under  DeNardos  own  view of the stipulated dismissals  meaning,

then,  his  new  statutory discrimination claim is  barred  as  a

matter  of  law  by  the  stipulated order dismissing  his  state

claims.3

          Todays opinion nonetheless comes to DeNardos rescue  by

invoking  the maxim that a pro se litigants pleadings  should  be

interpreted leniently.  The opinion reads DeNardos original state

complaint as advancing an implied statutory discrimination claim,

and  concludes  that  his new discrimination  claim  consequently

evades  the claim-splitting doctrine; the opinion finds that  the

stipulation meant to allow DeNardo to return to state court  with

any  claim  then  pending in his federal case; and  it  construes

DeNardos  new  state  action as permissibly  including  both  his

discrimination claim and an implied IIED claim.

          The  trouble  with this analysis is that it  gives  the

stipulation  a meaning that neither party has ever asserted,  and

it  adopts a substantive legal theory that flatly conflicts  with

each  aspect  of the theory DeNardo actually argues  here.   Even

though  DeNardos  briefing repeatedly insists  that  he  did  not

assert  his  current discrimination claim in his  original  state

action,  the  opinion says that he is wrong   he  did.   Although

DeNardo  acknowledges that by stipulating to dismiss the original

action  he  meant to abandon his right to pursue his  state  tort

claims,4  the  opinion  rejects  his  description  of   his   own

intentions  and  finds that the stipulations  left  him  free  to

return to state court with any claim pending in his federal case,

including  his  tort claim.  And despite the facts that  DeNardos

new  state complaint omits the express IIED claim advanced in his

earlier  complaints  and that his appellate  briefing  omits  any

mention  of  an  intent to pursue this tort  claim,  the  opinion

insists  that DeNardo must have meant to pursue it, finding  that

an implied IIED claim lies embedded in his new state complaint.

          In  my  view,  this analysis improvidently expands  the

          rule allowing courts to treat pro se litigants pleadings

leniently:  until now, we have carefully confined  this  rule  to

situations  in  which  courts need to  relax  technical  pleading

requirements  to enable pro se litigants to make the  substantive

points  they actually try to pursue.5  Yet todays opinion  vastly

broadens  the power of leniency toward pro se litigants by  using

it  to assist DeNardo in prevailing on a substantive theory  that

he  actively disavows.  In my judgment, the court errs by  giving

DeNardo  relief  on unraised substantive grounds  that  stray  so

dramatically from the theories actually briefed.6  I would affirm

the superior courts ruling on the issues DeNardo actually argued.

          Accordingly, I dissent.

_______________________________
     1    The stipulation provided, in part:

            [T]he claims asserted by plaintiff in [Case
          No.   3AN-00-8753  CI]  .  .  .  against  all
          defendants  are dismissed in their  entirety,
          with prejudice . . . .
          
               This   stipulation   does   not   affect
          plaintiffs claims against Calista Corporation
          and  Alaska Newspapers, Inc. in . . . A00-309
          .  . . currently pending in the U.S. District
          Court for the District of Alaska.
          
     2      Tru-Line   Metal  Prods.,  Inc.  v.   United   States
Fabrication & Erection, 52 P.3d 150, 153 (Alaska 2002).

     3    See Van Deusen v. Seavey, 53 P.3d 596, 603 n.23 (Alaska
2002)  (We  apply  our  independent  judgment  in  reviewing  the
superior  courts interpretation of the stipulation and the  final
judgment to determine the parties intentions.) (citing Jackson v.
Barbero,  776  P.2d 786, 788 (Alaska 1989) (Interpretation  of  a
contract is a question of law, for which the reviewing court uses
independent  judgment.)).  See also Jones v. World Life  Research
Inst.,   131   Cal.  Rptr.  674,  677  (Cal.   App.   1976)   (If
interpretation of a stipulation is in order the rules applied are
those  applied  to  the  interpretation of  contracts.)  (quoting
Harris  v. Sinali Auto Sales, Inc., 20 Cal. Rptr. 586, 589  (Cal.
App. 1962)).

     4     See  Van Deusen, 53 P.3d at 603.  See also Traynor  v.
Thomas  &  Betts  Corp., 659 N.W.2d 158,  162  (Wis.  App.  2003)
(Construction  of  a stipulation is a question  of  law  that  we
review independently.).

     5    Godfrey v. Hemanway, 617 P.2d 3, 8 (Alaska 1980).

     6     Kershaw  v. Pierce Cattle Co., 393 P.2d 31, 34  (Idaho
1964).

     7      Tru-Line   Metal  Prods.,  Inc.  v.   United   States
Fabrication & Erection, 52 P.3d 150, 154 (Alaska 2002).

     8    Tolstrup v. Miller, 726 P.2d 1304, 1306 (Alaska 1986).

     9    Id.

     10    See DeNardo v. State, 740 P.2d 453, 457 (Alaska 1987).

     11    Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987); see also
Haines  v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (stating
that  Court  holds  pleadings  of pro  se  complainants  to  less
stringent  standards than formal pleadings drafted  by  lawyers);
Gilbert v. Nina Plaza Condo Assn, 64 P.3d 126, 129 (Alaska  2003)
(We  have  indicated, for example, that courts  should  generally
hold  the  pleadings  of  pro  se  litigants  to  less  stringent
standards than those of lawyers.).

     12     See Zok v. State, 903 P.2d 574, 576 n.2 (Alaska 1995)
(holding  that  appellant  waived issue,  even  applying  a  more
lenient  standard for [appellant] as a pro se litigant) (emphasis
added).   See also Castro v. United States, 540 U.S. 375,  381-82
(2003)  (noting that [f]ederal courts sometimes will  ignore  the
legal  label  that a pro se litigant attaches  to  a  motion  and
recharacterize the motion in order to place it within a different
legal  category . . . in order to avoid an unnecessary dismissal,
to avoid inappropriately stringent application of formal labeling
requirements,  or to create a better correspondence  between  the
substance  of  a  pro se motions claim and its  underlying  legal
basis.) (internal citations omitted) (emphasis added).

     13     See Smith v. Sampson, 816 P.2d 902, 906 (Alaska 1991)
(relaxing requirement of Appellate Rule 210(e) and discussing pro
se appellants due process claims not listed in points of appeal);
Wilkerson v. State, Dept of Health & Soc. Servs., Div. of  Family
&  Youth  Servs.,  993 P.2d 1018, 1022 (Alaska 1999)  (concluding
that  pro se appellants failure to identify and apply the precise
legal  tests  for determining a violation of those constitutional
provisions is not fatal when those tests are well established and
could have been easily applied by the superior court).

     14    AS 18.80.220(a) provides, in part:

          Except  as  provided in (c) of  this  section
          [inapplicable here], it is unlawful for
               (1)  an employer to refuse employment to
          a person, or to bar a person from employment,
          or   to  discriminate  against  a  person  in
          compensation  or  in  a term,  condition,  or
          privilege  of  employment  because   of   the
          persons  race, religion, color,  or  national
          origin,  or  because  of  the  persons   age,
          physical  or mental disability, sex,  marital
          status, changes in marital status, pregnancy,
          or  parenthood when the reasonable demands of
          the  position  do not require distinction  on
          the   basis   of  age,  physical  or   mental
          disability, sex, marital status,  changes  in
          marital status, pregnancy, or parenthood;
               . . . .
               (4)  an employer, labor organization, or
          employment  agency  to discharge,  expel,  or
          otherwise  discriminate  against   a   person
          because  the person has opposed any practices
          forbidden  under AS 18.80.200   18.80.280  or
          because  the  person has filed  a  complaint,
          testified, or assisted in a proceeding  under
          this chapter . . . .
          
     15     Cf.  Leis  v. Hustad, 22 P.3d 885, 888 (Alaska  2001)
(giving  little weight in property division case to partys  trial
testimony  about  intent  regarding  transmutation  of   property
because parties actions during marriage are more probative).

     16    See supra note 11.  See also Castro, 540 U.S. at 381-82
(noting federal court policy of recharacterizing pro se litigants
motions   in   order   to   avoid   unnecessary   dismissal    or
inappropriately   stringent  application   of   formal   labeling
requirements, or to align substance of pro se motions claim  with
its legal basis).

     17    Recall that the defendants removed the first state case
to  the federal court, where it became Case No. A00-351-CV.   The
federal  court later remanded Case No. A00-351-CV to the superior
court and retained jurisdiction over Case No. A00-309-CV.

     18     DeNardo v. Municipality of Anchorage, 775 P. 2d  515,
517 (Alaska 1989).

     19    Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166
(Alaska  1997) (quoting Tolstrup v. Miller, 726 P.2d  1304,  1306
(Alaska 1986)); see also DeNardo v. State, 740 P.2d at 456 (It is
settled  that  res judicata precludes relitigation  by  the  same
parties,  not only of claims raised in the first proceeding,  but
also of those relevant claims that could have been raised.).

     20     DeNardo incorrectly contends that the dismissal of  a
complaint  does not affect rights not asserted in the  complaint.
It  is  clear  that res judicata, through the doctrine  of  claim
preclusion, also bars claims that could have been brought in  the
first action.  See, e.g., Plumber, 936 P.2d at 166.

     21     See Tope v. Christianson, 959 P.2d 1240, 1245 (Alaska
1998)  (Res  judicata does not prevent a debtor from suing  on  a
cause  of  action  that the debtor expressly reserved  for  later
adjudication.).

     22     Godfrey,  617 P.2d at 8 (quoting State by  &  Through
State Highway Commn v. Feves, 365 P.2d 97, 102 (Or. 1961)).

     23    Id.

     24    Tope, 959 P.2d at 1245 (citation omitted) (quoting D &
K  Props.  Crystal Lake v. Mut. Life Ins. Co., 112 F.3d 257,  261
(7th Cir. 1997)).

     25    See DeNardo v. Barrans, 59 P.3d 266, 268 (Alaska 2002)
(barring  plaintiff from filing same claims dismissed in  federal
court  for  failure to proceed with trial in state court  on  res
judicata grounds).

     26      See   supra   note  12.   Castros   policy   against
unintentional waiver of claims through technical pleading defects
by   pro  se  litigants  suggests  that  application  of  lenient
standards is appropriate when they stipulate to dismiss some, but
not  all, of their claims.  See Castro v. United States, 540 U.S.
375,  381-82  (2003).    We  therefore  interpret  leniently  the
stipulation to dismiss.

     27     Klosterman v. Hickel Inv. Co., 821 P.2d 118, 123  n.6
(Alaska   1991)  (Applying  an  established  rule   of   contract
construction,  we will construe the ambiguity against  the  party
that  supplied  the  contract.);  Wessells  v.  State,  Dept   of
Highways,  562  P.2d  1042, 1050 (Alaska  1977)  (stating  it  is
established  rule of construction that ambiguities are  construed
against the party that supplied and drafted the form).

     28     Godfrey, 617 P.2d at 8.  See also Alaska  Civil  Rule
41(a)  (Unless  otherwise stated in the notice  of  dismissal  or
stipulation, the dismissal is without prejudice. . . .).

     29     That  DeNardo  has  not  asserted  a  contemporaneous
understanding that the stipulation specifically preserved his  AS
18.80   claim  does  not  preclude  an  interpretation   of   the
stipulation  as  preserving  that  claim.   DeNardo   claims   he
understood  the  stipulation  more generally  as  preserving  all
claims then pending in federal court.

          Because DeNardo, as a pro se litigant, is entitled to a
lenient   interpretation   of   his   federal   complaint,    his
understanding  of the stipulation as preserving  all  the  claims
therein encompasses his AS 18.80 claim.

     30    See Tru-Line, 52 P.3d at 155.

     31    See supra note 12.

     32    DeNardo argues in passing that the Alaska Constitution
entitles  him  to  a  jury determination of the  meaning  of  his
stipulation  with Calista.  Article I, section16  of  the  Alaska
Constitution provides that [i]n civil cases where the  amount  in
controversy exceeds two hundred fifty dollars, the right of trial
by a jury of twelve is preserved to the same extent as it existed
at common law.  But disputes over contract interpretation present
questions  of law.  See Peterson v. Ek, 93 P.3d 458, 463  (Alaska
2004).   As such, they are not submitted to a jury, which decides
questions  of  fact.   The stipulation is a  contract.   DeNardos
argument   is   therefore   without  merit.    Furthermore,   our
interpretation   of   the  stipulation  renders   this   argument
irrelevant to future litigation in this case.

     33     McDowell v. State, 23 P.3d 1165, 1166 (Alaska  2001);
see  also Robertson v. Am. Mech., Inc., 54 P.3d 777, 780  (Alaska
2002).

     34    Wilkerson v. State, Dept of Health & Soc. Servs., Div.
of  Family & Youth Servs., 993 P.2d 1018, 1021-22 (Alaska  1999);
Wren v. State, 577 P.2d 235, 237 n.2 (Alaska 1978).

1     DeNardo  v.  Barrans,  59 P.3d 266,  268-69  (Alaska  2002)
(quoting  Semtek  Intl, Inc. v. Lockheed Martin Corp.,  531  U.S.
497, 506 (2001)).

2      See,   e.g.,  McDowell  v.  State,  23  P.3d  1165,   1166
(Alaska 2001).

     3     And  this  holds true even though DeNardo  might  have
mistakenly  believed that the statutory claim would not be barred
by  the  stipulated dismissal.  For his mistaken belief would  at
most  have  amounted to a unilateral mistake of  law,  and,  even
viewing  DeNardos pleadings in the light most charitable to  him,
he  has failed to allege any compelling justification that  would
excuse  his  ignorance of the law and justify  the  extraordinary
remedy  of  relief from judgment on that ground under Civil  Rule
60(b).    DeNardo   undeniably  had  a   right   to   split   the
discrimination claim from his original state claims and  file  it
in  federal  court.  But by electing to dismiss his state  claims
with  prejudice, he consented to a judgment that, as a matter  of
law,  barred  all  future  state claims  arising  from  the  same
transaction as the claims he originally filed.  DeNardos  failure
to  understand the legal effects of his stipulation is a  mistake
of  law,  and because ANI did not share in this misunderstanding,
it was a unilateral mistake of law.

     4     As  DeNardo  put it during oral argument  before  this
court  when  he  summed  up  his intent  in  stipulating  to  the
dismissal,  So,  what I did is I just dismissed  the  state  tort
claims.

     5     See,  e.g., Gilbert v. Nina Plaza Condo Assn, 64  P.3d
126, 129 (Alaska 2003).

     6     At a minimum, I think that fundamental fairness should
require  that both parties be given advance notice of the  courts
proposed  ruling and an opportunity to address it in supplemental
briefs.