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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Snyder v. American Legion Spenard Post No. 28 (09/02/2005) sp-5940

Snyder v. American Legion Spenard Post No. 28 (09/02/2005) sp-5940

     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

RICHARD SNYDER, )
) Supreme Court Nos. S- 10860/S-11220
Appellant,)
) Superior Court No.
v. ) 3AN-01-10786 CI
)
AMERICAN LEGION SPENARD ) O P I N I O N
POST NO. 28, a Non-Profit Corporation, )
)
Appellee. ) [No. 5940 - September 2, 2005]
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Eric T. Sanders, Judge.

          Appearances:    Richard   Snyder,   pro   se,
          Anchorage,  and   Darryl  L.  Thompson,   Law
          Office of Darryl L. Thompson, Anchorage,  for
          Appellant.    Ronald  A.  Offret,   Aglietti,
          Offret & Woofter, Anchorage, for Appellee.

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

          MATTHEWS, Justice.
          BRYNER, Chief Justice, dissenting.


I.   INTRODUCTION
          The  superior  court granted summary  judgment  to  the
American Legion Spenard Post No. 28 after the defendant,  Richard
Snyder,  failed  to  appear at trial.  After final  judgment  was
entered,  Snyder  appealed.  Subsequently, he  moved  for  relief
under  Alaska  Civil Rule 60(b)(1) and (4).  The  superior  court
denied  this  motion,  and  from  this  denial  Snyder  has  also
appealed.  In this opinion we consider both appeals and  conclude
that neither has merit.  We therefore affirm.
II.  PROCEEDINGS
          On  September 25, 2001, Post 28 sued Snyder, its former
finance officer.  The complaint alleged that from January 1998 to
October  1999 Snyder wrote over 144 checks payable to himself  in
an  amount  in  excess  of $110,000 for which  no  receipts  were
provided.   The  complaint  alleged that  Snyder  misappropriated
funds  for his own use and failed to provide an accounting.   The
complaint  requested compensatory damages and  punitive  damages.
Attached  to  the  complaint as Exhibit A was a  listing  of  144
checks  by date and number that Snyder had allegedly fraudulently
written to himself.  The total amount of the checks set forth  in
the exhibit is $111,522.51.
          Snyder  answered  the complaint through  counsel.   The
answer  denied  the allegations of wrongdoing and stated  various
affirmative  defenses  such  as  unclean  hands,  estoppel,   and
comparative  negligence.   Snyders  attorney  was  permitted   to
withdraw  on June 12, 2002.  A hearing was held on that  date  at
which  Snyder was present.  Snyder confirmed his mailing  address
to   the  court  for  purposes  of  service  of  pleadings.   All
subsequent  notices and motions were mailed to that  address  and
not returned.  Nevertheless, Snyder did not defend the case after
his   lawyer  withdrew.   He  did  not  appear  for  his   August
deposition,  respond  to discovery propounded  in  July,  file  a
witness  or exhibit list, respond to Post 28s motions for summary
judgment and discovery sanctions filed on August 30, or appear at
trial on September 23, 2002.
          Snyder,  a North Slope worker on a three-week-on/three-
week-off  rotation, claims he received no notice of discovery  or
trial,  although  he concedes that the documents  may  have  been
received and misplaced while he was working.  Snyder also  claims
his  attorney did not advise him of critical dates  in  the  case
before  his  withdrawal, but he admits that he had  the  pretrial
planning report that listed three proposed trial dates, with  the
first choice as September 23.
          When  Snyder  failed to appear at trial,  the  superior
court granted Post 28s motion for summary judgment.  Post 28  had
requested that Snyders answer and affirmative defenses be  struck
as  a  discovery  sanction, thereby warranting  summary  judgment
because  there would be no disputed factual issues.  On September
23,  2002,  the superior court signed the order prepared  by  the
counsel for Post 28, which provided in relevant part as follows:
               The Court hereby orders summary judgment
          in  favor  of Plaintiff and strikes Defendant
          Snyders Answers and Affirmative Defenses.
          
               And   the   Court  further  finds   that
          Defendant   Snyder  breached  his   fiduciary
          responsibility to the Post and trial of  this
          matter  set  for  the week of  September  23,
          2002, is cancelled.
          
The  court  also  added  in handwriting the following  additional
language:   The  motion  for summary judgment  was  also  granted
because  the defendant did not oppose the motion.  The court  did
not sign a separate proposed form order submitted by Post 28 that
would have granted its motion for discovery sanctions; instead  a
line was drawn across the form and moot was written on it.
          On September 27, 2002, counsel for Post 28 submitted  a
form  final judgment in the principal amount of $111,522.51,  the
sum  of  the 144 checks that Snyder had written to himself,  plus
interest, costs, and attorneys fees.  The document was served  by
mail  on  Snyder  but he did not respond to it.  On  October  10,
2002,  the  superior court signed the proposed judgment.   Snyder
filed a timely appeal.
          During  the pendency of the appeal Snyder, on  February
24,  2003,  filed  a  motion for relief from  the  judgment.   He
contended  that  (1) he was entitled to relief under  Civil  Rule
60(b)(4)  because  the trial court acted in  a  manner  that  was
inconsistent with due process, and (2) his failure to respond  to
discovery,  failure to appear at his deposition, and  failure  to
appear for trial were the result of excusable neglect under Civil
Rule 60(b)(1).
          Superior Court Judge John Suddock denied this motion in
an  opinion that carefully reviewed both the facts and  the  law.
Snyder  timely  appealed  from this  denial.   The  appeals  were
consolidated by this court.  We set forth Judge Suddocks  opinion
at this point:
                             ORDER
          
               The American Legion Spenard Post No.  28
          (Legion)   sued  Richard  Snyder,  a   former
          officer,   for  embezzlement  of  about   one
          hundred   thousand   dollars.    Mr.   Snyder
          retained  counsel,  Jody  Brion.   The  Court
          issued  an  order setting trial for September
          23,  2002.   When Mr. Snyder  failed  to  pay
          Brion, he was permitted to withdraw, on  June
          12, 2002.
          
               On July 19, 2002, the Legion promulgated
          discovery  requests seeking Mr. Snyders  bank
          account and investment statements, so that it
          could  trace  the allegedly embezzled  funds.
          Mr. Snyder did not answer this discovery.
          
               Also  on  July 19, the Legion  sent  Mr.
          Snyder  a Notice of Deposition for August  9,
          2002.   Mr.  Snyder did not  appear  for  his
          deposition.
          
               On August 30, 2002, the Legion moved for
          discovery sanctions, and for summary judgment
          on liability and damages.  Mr. Snyder did not
          respond  to  either  motion.   He  filed   no
          witness  list  or  exhibit  list.    To   all
          appearances,  from  the  withdrawal  of   his
          attorney  on June 10, through the trial  date
          and  the  entry  of judgment on  October  10,
          2003,  a  period  of some  four  months,  Mr.
          Snyder completely ignored his litigation.  He
          did  so, even though by his own admission  he
          actually  possessed  the  Report  of   Partys
          Planning  Meeting signed by his  attorney  on
          December 18, 2001, requesting a trial date of
          either September 23, September 30, or October
          23, 2002.
          
               On  September 23, 2002, Mr.  Snyder  did
          not  appear for trial.  The Court granted the
          unopposed  Motion for Summary  Judgment,  and
          denied the Motion for Discovery Sanctions  as
          moot.1   The  Court  signed  a  judgment   on
          October  10,  2002,  without  objection  from
          Snyder.
          
               On  February 24, 2003, Mr. Snyder  moved
          pursuant  to ARCP 60(b)(1,4) for relief  from
          judgment.  He alleges excusable neglect under
          60(b)(1),  and a due process violation  under
          60(b)(4).
          
               Mr.  Snyder  explains  his  failure   to
          answer   the  summary  judgment  motion,   as
          follows:
          
               Regarding the Motion  for
               Summary Judgment, and the
               Motion    for   Discovery
               Sanctions,   I   do   not
               remember  ever  receiving
               those  documents.  It  is
               possible     that     the
               documents arrived when  I
               was  out-of-town and then
               misplaced,     but      I
               certainly do not remember
               seeing  them.  I work  on
               the  North Slope on a  3-
               week rotationand I was on
               the  North  Slope  on  23
               September 2002, the trial
               date.   I  did  not  know
               that I was supposed to be
               in  trial,  as  the  only
               document that I had was a
               copy    of   a   document
               entitled   the    parties
               planning   order,   which
               listed   three   possible
               trial dates.
               
               Had  I  been  warned  and
               properly advised as a pro
               se  defendant, either  by
               my   counsel  or  by  the
               Court, I would have  been
               able to file some kind of
               response  or  sought  out
               some  help  in  filing  a
               response.  But I received
               no   warnings  or  advice
               from   anyone   regarding
               discovery, or the  Motion
               for   Summary   Judgment.
               Also,  I  am not familiar
               with  the rules regarding
               procedure  in  the  trial
               courts,  and  I  have  no
               experience    in    civil
               matters.
               
          Affidavit  of  Richard  Snyder,  Ex.   G   to
          Plaintiffs opening memorandum.
          
               [Snyders] claim of excusable neglect  in
          failing to oppose the summary judgment motion
          thus rests on a service related ground and  a
          pro se ineptitude ground.  The pleadings were
          all sent to his address, the same address  at
          which his wife signed for the service of  the
          original  complaint.   Mr.  Snyder  makes  no
          allegation of postal irregularity or problems
          with  receiving  mail.  The  items  were  not
          returned to the Legion as undeliverable.   He
          raises  no  issue of fact as to  whether  the
          pleadings   were  properly  served   on   him
          pursuant to the civil rules.
          
               Nor does Mr. Snyder offer an explanation
          of why he did not read his mail in the normal
          course.   As  a litigant, he is  required  to
          provide  a  service address.  Since  a  Court
          cannot literally move a litigants eyes across
          a    page,    service    alone    constitutes
          constructive knowledge of the data  contained
          in a pleading.  In the exercise of reasonable
          caution,  a  litigant  must  understand  that
          pleadings   requiring  affirmative  responses
          will  be  served at varied times  during  the
          litigation.  If a litigant chooses to  absent
          himself from his address for periods of time,
          he  must  make  provision for  forwarding  of
          mail,  given that the civil rules can require
          a response to a pleading within ten days.  At
          the   very   least,  a  litigant  must   make
          provision  to gather and read his  mail  upon
          his return to the service address.
          
               Here,  Mr.  Snyder offers absolutely  no
          explanation for his failure to read his mail.
          Indeed,  he  does not exclude the possibility
          that   he   simply  declined  to   open   the
          envelopes, set them aside, and lost track  of
          them.   He  does  not  aver  that  he  is   a
          particularly messy housekeeper; or that he is
          an  alcoholic;  or that he was depressed;  or
          that  he  was  fighting with  his  wife,  who
          perhaps sabotaged him.  He simply states that
          he  does  not presently recall the documents,
          and that they were possibly misplaced.
          
               Were  this deemed a basis for a  finding
          of excusable neglect, any litigant willing to
          swear  to  a lack of present recollection  of
          receipt   of  any  pleading  would  have   an
          automatic  excuse  for derailing  a  lawsuit.
          Absent some explanation of the reasons why he
          did  not  behave  as postal patrons  normally
          behave,  and  as  litigants are  required  to
          behave,  Mr. Snyder raises no basis on  which
          the  Court  can ground a finding of excusable
          neglect.
          
               Secondly,  Mr. Snyder argues  that  once
          his  counsel withdrew, the Court should  have
          explained   litigation  procedure   to   him,
          including the necessity to oppose motions for
          summary judgment.  If, as he alleges, he  did
          not  read  the  Motion for Summary  Judgment,
          such  an  advisement would not have mattered.
          Further,   our  Supreme  Court  has   neither
          required  nor  encouraged  trial  courts   to
          conduct   training  seminars   for   pro   se
          litigants.  The superior court was  under  no
          duty to warn [Mr. Snyder] of the necessity of
          opposing  the  [Legions] Motion  for  Summary
          judgment.  Bauman v. State, Div. of Family  &
          Youth  Servs.,  768 P.2d 1097,  1099  (Alaska
          1989).
          
               Mr.  Snyder  does  not allege  that,  in
          fact, he was unaware that motions for summary
          judgment  need to be opposed.  In effect,  he
          is arguing that pro se litigants are entitled
          to be read their rights, like defendants at a
          criminal arraignment; further, failure to  do
          so  per se entitles a litigant to relief from
          procedural defaults.
          
               The    Alaska    Supreme    Court    has
          consistently  held  that  litigants  who  are
          litigating  in  good faith but  who  manifest
          ignorance   of   procedural  requisites   are
          entitled   to  solicitude.   See  Kaiser   v.
          Sakata,  40 P.3d 800 (Alaska 2002).  However,
          courts  are  not  required to  train  pro  se
          litigants  in  rudimentary matters  of  civil
          procedure that are either common knowledge or
          readily  discerned through the  most  cursory
          reading of the civil rules:
          
               We   decline  to   extend
               Breck  to require  judges
               to  warn pro se litigants
               on  aspect  of  procedure
               when  the pro se litigant
               has  failed to  at  least
               file      a     defective
               pleading.  It strikes  us
               as  common knowledge that
               initiating and pursuing a
               civil  lawsuit can  be  a
               difficult   and   complex
               procedure.   The   Alaska
               Rules  of Civil Procedure
               have been promulgated for
               the  specific purpose  of
               giving      fair      and
               reasonable notice to  all
               parties      of       the
               appropriate    procedural
               standards that should  be
               uniformly  applied   when
               any  party,  including  a
               pro  se  litigant,  seeks
               relief   in  the  pending
               actionwe also choose  not
               to extend the protections
               some courts have afforded
               pro se prisoners to other
               pro  se  litigants.    To
               require   a   judge    to
               instruct   a    pro    se
               litigant as to each  step
               in   litigating  a  claim
               would   compromise    the
               courts  impartiality   in
               deciding  the   case   by
               forcing the judge to  act
               as  an  advocate for  one
               side.   We hold that  the
               superior court was  under
               no   duty  to  warn  [the
               litigants]     of     the
               necessity of opposing the
               defendants   motion   for
               summary judgment.
               
          Bauman, supra p. 115.
          
               Mr.  Snyder does not appear before  this
          Court  as a good faith litigant trying to  do
          his  best,  defeated  by esoteric  procedural
          requisites.  He makes no showing that he made
          the  least effort prior to entry of  judgment
          to  be  a responsible litigant.  He makes  no
          showing  of extraneous difficulties, such  as
          mental  illness or alcoholism, which  explain
          his  conduct.  Since neither of  Mr.  Snyders
          asserted  bases  for a finding  of  excusable
          neglect  is  sustainable, relief  under  ARCP
          60(b)(1) is denied.
          
               Mr.   Snyder   also  argues   that   any
          imposition of litigation ending sanctions for
          discovery   violations   was   impermissible.
          Judge   Sanders  did  not  impose   discovery
          sanctions,  but rather denied the Motion  for
          Sanctions  as moot.  Instead, he  granted  an
          unopposed   Motion   for   Complete   Summary
          Judgment.   He did so against a litigant  who
          had  not appeared for his deposition; who had
          not  responded to discovery requests; who had
          not answered the summary judgment motion; who
          plausibly appeared from the summary  judgment
          motion  and  supporting  affidavits  to  have
          embezzled  in fact; who had filed no  witness
          nor  exhibit  list; and who had not  appeared
          for trial.
          
               In  Bauman,  supra,  the  Supreme  Court
          noted   that  the  proponent  of  a   summary
          judgment  motion  has no  absolute  right  to
          prevail, merely because the opponent fails to
          respond.    The  Court  analyzed   defendants
          claims,  and found them unlikely to  overcome
          the  States qualified immunity defenses.  The
          defendants     had    moved     below     for
          reconsideration,  but had  still  not  raised
          issues of material fact.  On these facts, the
          Court allowed the summary judgment to stand.
          
               In  the  instant case, Mr. Snyder  first
          established the existence of material  issues
          of  fact in his affidavits filed February 24,
          2003,  five months after the grant of summary
          judgment.  Had he done so in a timely  motion
          for reconsideration, Bauman suggests that the
          case should have proceeded to trial.
          
               This  case  is not Bauman.  The  Baumans
          were  behaving as active litigants.   As  Mr.
          Snyder  notes,  the  instant  case  is   more
          analytically akin to a default.   Mr.  Snyder
          was not physically present for trial.  He was
          constructively on notice of his  trial  date,
          because  his  attorney was  served  with  the
          Courts   pretrial  order.    He  had   actual
          knowledge  that his attorney had requested  a
          trial  setting in the September-October  time
          frame.   He does not allege that his attorney
          withheld  the  file from him, or  refused  to
          divulge  the  trial date.  Mr. Snyder  simply
          abandoned  the  litigation,  for   a   period
          exceeding four months.
          
               Under those circumstances, the grant  of
          summary   judgment  to  the  Legion   was   a
          reasonable  way to resolve the lawsuit.   Mr.
          Snyders   citations  to  discovery  violation
          cases  are  not on point.  His right  to  due
          process  was  not  violated  when  the  court
          granted  judgment against him as a defaulting
          litigant.   His  right  to  relief  from  the
          consequences of his default is via a  showing
          of  excusable neglect, which he  has  utterly
          failed to do.
          
               Mr.   Snyders  Motion  For  Relief  From
          Judgment  pursuant  to  ARCP  60(b)(1,4)   is
          denied.
          
III. STANDARD OF REVIEW
          A  grant of summary judgment is reviewed de novo.1   We
review  a  courts  refusal to set aside a  judgment  pursuant  to
Alaska Civil Rule 60(b) for abuse of discretion.2  We also review
for abuse of discretion a courts decision on guidance to a pro se
litigant.3
IV.  DISCUSSION
     A.   The Direct Appeal  Entry of Default Against Snyder
          Snyder  argues  that  the  superior  court  abused  its
discretion  in  granting  discovery sanctions  that  resulted  in
summary  judgment  against  him.   Post  28  contends  that   the
discovery  sanctions were dismissed as moot and  that  the  court
entered  summary  judgment because Snyder failed  to  oppose  the
motion and to appear at trial.
          We may affirm a judgment on any grounds that the record
supports,  even  if  not relied on by the  superior  court.4   In
Snyders  case, the grant of judgment against him could have  been
based on his non-appearance at trial.  Alaska Civil Rule 55(c)(1)
provides that if [a] party fails to appear for trial .  .  .  the
court may proceed ex parte upon any motion for default or default
judgment.5   When Snyder failed to appear at trial  on  September
23,  2002,  the  superior court could have,  in  its  discretion,
entered  a  default against Snyder based on this provision.   The
rule  that an appellate court may affirm a judgment on any ground
supported  by  the record regardless of whether  the  ground  was
relied  on  by  the trial court should not ordinarily  extend  to
discretionary rulings that the court might properly have declined
to  make.   But  where  it is clear that  the  court  would  have
exercised  its discretion in a manner that upholds the  judgment,
we believe that an appellate court can properly apply the rule.
          That is the case here.  When Snyder did not appear  for
trial,  Superior  Court Judge Eric T. Sanders  granted  Post  28s
motion for summary judgment, employing the reasons stated in  the
proposed order lodged by Post 28 (Snyders answers and affirmative
defenses   were  stricken  and  Snyder  breached  his   fiduciary
responsibility  to Post 28) and added as another  reason  Snyders
non-opposition  to  the summary judgment motion.   Judge  Sanders
obviously  believed at this point that Snyder had  forfeited  his
right to defend the case.  If Post 28s counsel had requested  the
additional  remedy of entry of a default under Rule  55(c)(1)  it
seems  clear that such a request would have been granted.   Entry
of  default would unquestionably have been proper, for the  fails
to  appear  for  trial  language of  the  rule  was  specifically
designed to end the previously existing uncertainty as to a trial
courts  power  in cases like this.  We could in  theory  order  a
limited  remand requesting the trial judge to decide  whether  he
would  have exercised his discretion to enter a default,  but  we
consider that such a remedy under the circumstances of this  case
would  be  a  pointless judicial exercise.   In  addition,  Judge
Sanders  has  retired  from the bench and is actively  practicing
law,  so the availability of this option is unclear.  We conclude
therefore  that judgment against Snyder should be affirmed  based
on his failure to appear for trial.
          The  superior  courts  issuance  of  a  final  judgment
awarding $111,522.51 in damages was also justified.  The superior
court  was  authorized to proceed ex parte and without notice  to
determine   damages  under  subparagraph  (c)(1).    Under   that
subsection  a  party who fails to appear for trial has  the  same
status  as a party who has not appeared at all in the  case.   In
such  cases  ex  parte  proceedings  to  determine  damages   are
permissible  even  when  the damages  cannot  by  computation  be
reduced to a sum certain:
          When  the damages cannot be reduced to a  sum
          certain, as in the case at hand, the superior
          court may conduct such hearings or order such
          references  as it deems necessary and  proper
          to  determine  the amount  of  damages.   The
          superior   court  may  conduct  its   damages
          proceedings   ex  parte,  without   requiring
          notice  to  a  defendant who  has  failed  to
          previously appear in the action.[6]
          
          Moreover, the damages claim in this case was for a  sum
certain or for a sum which can by computation be made certain and
          thus no hearing on damages was required.7  Post 28 alleged that
Snyder   fraudulently  wrote  144  checks  to  himself,  totaling
$111,522.51, and attached a list of the checks to its  complaint.
With  its summary judgment motion, Post 28 submitted an affidavit
from  a  member of its audit committee verifying that 144  checks
were  written by Snyder, that they totaled $111,522.51, and  that
when  the  committee asked Snyder for receipts  to  back  up  the
checks he did not respond, and has refused to answer our requests
for  information other than to say he gave receipts to the  Posts
accountant.  Post 28 also submitted excerpts from the  deposition
of  the accountant who testified that he did not receive receipts
from  Snyder and that if he received vendor invoices from Snyder,
that  information would be returned each month:  But with respect
to  expense documentation, that went back to the Post every month
what  small  amount of information we ever had.   The  accountant
also  testified  that it was a usual and customary  practice  for
Post  financial  officers to reimburse themselves  for  purchases
made from personal funds for Post purposes.
          This showing does not establish that Snyder necessarily
embezzled  the proceeds from each of the checks.  The  accounting
requested  by  Post 28 was designed to determine  that  question.
But  having  failed  to appear for trial, Snyder  was  no  longer
entitled to an accounting.
          The  effect  of a default is to establish as  true  the
allegations of the complainant, unless they are clearly untrue:
          [A]  default  establishes  the  well  pleaded
          allegations of the complaint unless they  are
          incapable of proof or are contrary  to  facts
          judicially   noticed  or  to   uncontroverted
          evidence    presented   by    the    parties.
          Uncontroverted   evidence   disproving    the
          allegations of plaintiffs complaint refers to
          evidence  that could not possibly be rebutted
          if the non-defaulting party were permitted  a
          trial.   If  the  evidence  offered  by   the
          defaulted party merely tends to show that  an
          allegation  is not true, then the  allegation
          must be taken as true.[8]
          
In  this  case  there  is a well pleaded allegation  that  Snyder
fraudulently  took  the  money belonging  to  plaintiff  American
Legion  in the amounts and by the checks set forth on Exhibit  A,
attached  hereto, referring to the list of 144 checks.  There  is
also some evidence that not all the checks represented fraudulent
transactions.   But this evidence is not uncontroverted  evidence
in  the sense required by the applicable standard because  it  is
not  evidence that could not possibly be rebutted.   We  conclude
therefore  that given his failure to appear, Snyder is  precluded
from  defending on the grounds that the proceeds from the  checks
in question were not appropriated by him.
     B.   Appeal from the Denial of Rule 60(b) Relief
          Snyder  argues  that the superior court erred  when  it
denied  his  motion to set aside the judgment  under  Civil  Rule
60(b)(1)  and  (b)(4).  The arguments he makes do not  go  beyond
          those that he presented to the superior court.  We believe that
they  were  properly rejected for the reasons  expressed  by  the
superior court in its opinion, which we have set out above.
V.   CONCLUSION
          The judgment of the superior court of October 10, 2002,
is AFFIRMED.  The order of the superior court of August 21, 2003,
denying  Snyders  motion  for Civil Rule  60(b)  relief  is  also
AFFIRMED.
BRYNER, Chief Justice, dissenting.
          I  disagree  with  the courts decision  to  affirm  the
judgment  against  Snyder.  In my view, the  judgment  cannot  be
upheld for several interrelated reasons.
          Because  the  superior  court  dismissed  Snyders  case
without independently reviewing the record, its dismissal  cannot
properly be affirmed on the theory that it was a summary judgment
warranted  by Snyders failure to respond to Post 28s  motion  for
summary  judgment.  For despite Snyders failure to respond,  [i]t
remain[ed]  the duty of the trial court to determine whether  the
record  present[ed] any factual issues which would  preclude  the
entry of summary judgment as a matter of law.1
          Nor  can the judgment against Snyder be sustained as  a
sanction  for  his  discovery violations.   Civil  Rule  37(b)(3)
prohibits  a  trial  court  from ordering  dispositive  discovery
sanctions  unless it first finds that the violation  was  willful
and  that  no lesser sanction would be effective.2  Our case  law
separately  commands similar findings.3  Here,  the  trial  court
failed to comply even minimally with these requirements.
          The  opinion  attempts to avoid these  deficiencies  by
affirming  on  an alternative theory.  Even though  the  superior
court  actually  dismissed  the  case  on  summary  judgment  and
cancelled the trial, the opinion reasons that Snyders failure  to
appear  for  trial could have justified the entry  of  a  default
against  him; concluding that the trial court plainly would  have
taken  that course if the case had not been dismissed on  summary
judgment, the opinion treats Snyders judgment as one entered upon
his default.
          But even if this assumption were true, that is, even if
it  were  clear  that the trial court would have held  Snyder  in
default  for  missing his trial, it would not necessarily  follow
that  the court would have proceeded to enter an ex parte default
judgment  against him  especially a judgment in the  full  amount
claimed by the Post.
          Under  Alaskas  Civil Rules, a default  and  a  default
judgment are two separate creatures and are governed by different
requirements.4  Civil Rule 55(a) allows the trial court to  enter
a  default  sua sponte.  In contrast, Rule 55(c) only allows  the
court  to  enter a default judgment upon proper motion.  Although
the  rule  allows  trial courts to accept ex  parte  motions  for
default judgment, it grants them discretion to require that  such
motions  be properly noticed.  And if the trial court  finds  any
uncertainty  on  the issue of  damages, the rule  authorizes  the
court  to  demand further evidence, provides for a  hearing,  and
grants broad discretion to deny entry of a default judgment.5
          We  have  previously emphasized that  these  procedural
protections  are necessary because, in the interests of  justice,
there  must be some degree of assurance that plaintiffs claim  is
valid  and  not false or frivolous.6  We have likewise recognized
that  a  trial  courts  failure to exercise available  discretion
amounts  to  an  abuse of that discretion.7  Yet here,  Post  28s
failure to file the requisite motion left the superior court with
no  occasion  to  follow  the proper procedures  for  entering  a
default  judgment or to exercise the discretion they  would  have
          permitted.  The absence of a motion reduced the entry of judgment
to  a ministerial act: the superior court mechanically entered  a
final  judgment  totaling over $137,000 without  any  independent
consideration of the record or the merits of Post 28s  claim,  as
would   have   been   required  under  Rule  55.    Given   these
circumstances,  it seems untenable to affirm the superior  courts
summary  judgment  ruling   which at most  evidenced  the  courts
willingness  to  declare  a  default   by  treating   it   as   a
discretionary  ruling  that  was  never  formally  requested   or
actually considered.
          Nor can this problem be cured by speculating about what
the  superior  court might have done had the issue been  properly
raised.   As  the  record now stands, there  is  good  reason  to
suspect  that,  if  the trial court had actually  considered  the
issue, as a properly filed motion for summary judgment would have
required  it  to  do, the court may not have  entered  a  default
judgment  without demanding additional evidence  at least  not  a
judgment   in  the  full  amount  claimed.   From  the   verified
information in the record it appears that Post 28 based its claim
mainly on the allegation that Snyder wrote a series of checks  to
himself  while  serving  as the Posts  financial  officer.8   Yet
uncontradicted  evidence  precludes  drawing  any  inference   of
impropriety  from this conduct alone: According to Post  28s  own
CPA, Owen Freeman, it was a usual and customary practice for Post
28s  financial  officers  to  pay business  expenses  from  their
personal  funds  and  reimburse themselves  for  their  payments.
Because verified record evidence fails to establish a prima facie
claim  for damages, let alone for the full amount claimed by  the
Post,  I  see  no reasonable basis for predicting  that,  if  the
default  judgment procedures required by Civil Rule 55  had  been
followed,  the  superior court would have  automatically  entered
judgment against Snyder for the full amount claimed.
          The  opinion nonetheless reasons that there was no need
for  supporting evidence here.  Citing Syndoulos Lutheran  Church
v.  A.R.C.  Industries, Inc.,9 it maintains that, because  Snyder
could properly have been held in default, the superior court  was
authorized  to enter a default judgment against him based  solely
on  the  well  pleaded allegations of the Posts  complaint.   But
Syndoulos  fails  to support this proposition;  indeed,  it  cuts
against the propriety of dispensing with a trial on damages in  a
situation like Snyders.10
          In  Syndoulos,  the  trial court, despite  holding  the
defendant  to be in default,  actually did conduct a post-default
trial  on damages; and on appeal, over the plaintiffs objections,
we  expressly recognized that, despite the default, the defendant
had  the  right to contest the issue of liability at his  damages
trial by disproving the complaints allegations:
          We   interpret   [Civil  Rule  55(c)(1)]   as
          permitting  the superior court to question  a
          defendants liability after a default has been
          entered against him.  If the court determines
          that  in  order to enter the judgment  it  is
          necessary   for  the  plaintiff  to   present
          evidence  supporting  one  or  more  of   the
          plaintiffs  allegations and if the  plaintiff
          is  unable to adduce any evidence tending  to
          support  the questioned allegations,  then  a
          judgment  should  be entered  dismissing  the
          plaintiffs complaint.[11]
          
          Under Syndoulos, then, Snyder should at least have been
given  an  opportunity to defend himself at a  trial  on  damages
before a default judgment could be entered against him.
          I therefore dissent.
_______________________________
          1  The Legion had filed a proposed order
          granting its motion for discovery sanctions.
          Judge Sanders drew a line through the text
          and wrote the word moot on the proposed
          order.  There is no indication the stricken
          order was served on either party.
          
     1     E.g.,  Native Vill. of Elim v. State, 990  P.2d  1,  5
(Alaska 1999).

     2    E.g., Brown v. Lange, 21 P.3d 822, 824 (Alaska 2001).

     3    E.g., Genaro v. Municipality of Anchorage, 76 P.3d 844,
845 (Alaska 2003).

4     E.g.,  Marshall  v.  First Natl Bank  of  Alaska,  97  P.3d
830,  835  (Alaska  2004); Ransom v. Haner,  362  P.2d  282,  285
(Alaska  1961) ([I]t is a rule of law that an appellee may  urge,
and the appellate court should consider in defense of a decree or
judgment  any  matter appearing in the record, even  if  rejected
below  and even if appellees argument may involve an attack  upon
the  reasoning  of the lower court or an insistence  upon  matter
overlooked or ignored by it.).

     5    Civil Rule 55(c)(1) provides:

               In all other cases the party entitled to
          a  default judgment shall apply to the  court
          therefor;  but no default judgment  shall  be
          entered  against  an  infant  or  incompetent
          person unless represented in the action by  a
          general guardian, committee, conservator,  or
          other  such  representative who has  appeared
          therein.   If the party against whom  default
          judgment  is  sought  has  appeared  in   the
          action,  that  party  (or,  if  appearing  by
          representative,  the  partys  representative)
          shall  be served with written notice  of  the
          application  for  judgment at  least  3  days
          prior to a decision on the application.  This
          written notice requirement and the memorandum
          requirement  of (c)(2) do not  apply  if  the
          party fails to appear for trial in which case
          the  court  may  proceed ex  parte  upon  any
          motion for default or default judgment.   If,
          in   order  to  enable  the  court  to  enter
          judgment  or to carry it into effect,  it  is
          necessary  to take an account or to determine
          the  amount  of  damages or to establish  the
          truth of any averment by evidence or to  make
          an  investigation  of any other  matter,  the
          court may conduct such hearings or order such
          references as it deems necessary and  proper.
          (Emphasis added.)
          
     6    Brown, 21 P.3d at 826 (footnotes omitted).

7    See Alaska R. Civ. P. 55(b)(1), (c)(1).

     8     Syndoulos Lutheran Church v. A.R.C. Indus., Inc.,  662
P.2d  109,  112 (Alaska 1983) (citations omitted).  In  Syndoulos
these  principles  were  applied to a  liability  rather  than  a
damages question.  But we believe that they should apply to  this
case  because  this  is  in part an accounting  action  in  which
liability and damages are inextricably intertwined.

1     Am.  Rest.  Group  v.  Clark, 889  P.2d  595,  598  (Alaska
1995).

     2    Alaska R. Civ. P. 37(b)(3) states:

               Prior to making an order [for sanctions]
          under   sections   (A),  (B),   or   (C)   of
          subparagraph (b)(2) the court shall consider
          
               (A)    the   nature  of  the  violation,
          including the willfulness of the conduct  and
          the  materiality of the information that  the
          party failed to disclose;
          
               (B)   the prejudice to the opposing
               party;
               
               (C)    the   relationship  between   the
          information the party failed to disclose  and
          the proposed sanction;
          
               (D)   whether  a  lesser sanction  would
          adequately  protect  the opposing  party  and
          deter other discovery violations;  and
          
               (E)       other   factors
                         deemed
                         appropriate  by
                         the  court   or
                         required     by
                         law.
                         
               The  court shall not make an order  that
          has  the effect of establishing or dismissing
          a  claim  or defense or determining a central
          issue  in  the  litigation unless  the  court
          finds that the party acted willfully.
          
     3     See,  e.g.,  Underwriters  at  Lloyds  London  v.  The
Narrows,  846  P.2d  118,  119 (Alaska  1993);  Schandelmeier  v.
Winchester Western, 520 P.2d 70, 74-75 (Alaska 1974).

     4    See Alaska R. Civ. P. 55(a)-(c).

     5    See Alaska R. Civ. P. 55(c)(1); Brown v. Lange, 21 P.3d
822,  825  n.7 (Alaska 2001) (Although no Federal Rules of  Civil
Procedure  are  worded  exactly the same as  Alaska  Civil  Rules
55(a)(1)  or  55(c)(1), the similarities between the federal  and
the  Alaska  schemes make it appropriate for us to  look  to  the
federal case law for guidance.); 10A Charles A. Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure  2685  (3d
ed. 2005) (When an application is made to the court . . . for the
entry of a judgment by default, the district judge is required to
exercise  sound  judicial discretion in determining  whether  the
judgment should be entered.).

     6    Guard v. Benson, 438 P.2d 219, 221 (Alaska 1968).

     7     Cf. Alaska Cent. for the Envt v. Rue, 95 P.3d 924, 932
(Alaska  2004)   (We  have recognized that  outright  refusal  to
consider  the  various  alternatives available  as  a  matter  of
discretion . . . is a failure to exercise any discretion at  all.
The   commissioners  refusal  here  to  consider  any  scientific
information  except  taxonomic classification  in  the  technical
sense amounted to an abuse of discretion.).

8      The   only  other  verified  information  in  the   record
suggesting misconduct was an allegation that, at some unspecified
later time, Snyder was asked to produce receipts to back up these
checks  but  said that he had given them to the Posts  accountant
an assertion that Freeman denied in his deposition.

     9    662 P.2d 109 (Alaska 1983).

     10    In  any event, given Civil Rule 9s provision requiring
claims  of  fraud  to  be  pleaded with particularity,  it  seems
questionable to assume that the conclusory charges in  the  Posts
complaint  would  qualify as well pleaded  allegations  of  fraud
establishing a liquidated damages claim for the full amount.

     11    Syndoulos  Lutheran Church, 662 P.2d at 112  (internal
citations omitted).