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


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

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kirk v. Demientieff (10/06/2006) sp-6059

Kirk v. Demientieff (10/06/2006) sp-6059, 145 P3d 512

     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

KENNETH KIRK, )
) Supreme Court No. S- 11760
Appellant, )
) Superior Court No.
v. ) 4BE-02-00281 CI
)
LAVERNA DEMIENTIEFF and ) O P I N I O N
UNITED COMPANIES, )
) No. 6059 - October 6, 2006
Appellees. )
)
          Appeal  from the Superior Court of the  State
          of  Alaska, Fourth Judicial District, Bethel,
          Leonard R. Devaney, Judge.

          Appearances:  Michael  C.  Geraghty,  Delisio
          Moran Geraghty & Zobel, P.C., Anchorage,  for
          Appellant.   Laura L. Farley and Michelle  M.
          Meshke, Farley & Graves, P.C., Anchorage, for
          Appellee United Companies.

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

          BRYNER, Chief Justice.

I.   INTRODUCTION
          Attorney  Kenneth  Kirk  appeals  the  superior  courts
denial  of his motion to intervene in a tort suit brought by  his
former client, Laverna Demientieff.  Kirk sought to intervene  in
that  suit  to  appeal the superior courts order  denying  relief
from  its earlier judgment dismissing Demientieffs complaint  for
violating  the  statute  of  limitations.   Demientieff  had   no
interest  in  appealing that judgment  or  the  subsequent  order
denying relief from the judgment  because she had fired Kirk  and
was  suing him for malpractice.  In moving for intervention, Kirk
claimed  that  Demientieffs refusal to appeal the  order  denying
relief  from  the judgment gave him an adequate justification  to
intervene.  The superior court rejected his motion, finding  that
it  was  untimely because Kirk could have intervened on the  same
ground more than a year earlier, when Demientieff had refused  to
directly appeal the original judgment of dismissal.  Because  the
record  supports the superior courts finding that Kirk reasonably
should have moved to intervene sooner, we hold that the court did
not abuse its discretion in denying Kirks motion to intervene.
II.  FACTS
          A  driver employed by United Companies injured  Laverna
Demientieff  in an auto accident in Bethel on October  31,  2000.
Demientieff  hired the Anchorage law firm of   Kenneth  Kirk  and
Associates  (Kirk)  to represent her in her tort  action  against
United  Companies.  Kirk sent Demientieffs complaint  by  express
mail to the superior court in Bethel on October 30, 2002, the day
before the statute of limitations on the claim expired.  Although
the   complaint  arrived  at  the  Bethel  Post  Office  and  was
apparently  placed in the courts post office box  that  day,  the
court  did not acknowledge receiving it for filing until November
4, 2002.
          United moved to dismiss the complaint for violating the
statute  of  limitations.  Kirk opposed the motion on  behalf  of
Demientieff,  offering evidence to show that  the  complaint  had
arrived  in  Bethel  on  October 31, that  the  post  office  had
attempted delivery that day, but that the court simply missed the
delivery.   On  March 26, 2003, despite Demientieffs  opposition,
Superior Court Judge Leonard R. Devaney granted Uniteds motion to
dismiss, expressly confining his ruling to the pleadings.
          Demientieff moved for reconsideration on April 3, 2003.
Pointing  to the evidence presented in support of her opposition,
Demientieff  argued that the superior court erred by  basing  its
dismissal  entirely on the pleadings.  The superior  court  never
ruled  on  Demientieffs motion for reconsideration;  thus,  under
Alaska  Civil Rule 77, the motion was deemed denied  thirty  days
after  being filed.1  On July 22, 2003, the superior court issued
a final judgment dismissing Demientieffs case.
          Meanwhile,  on April 4, 2003, the day after Kirk  filed
Demientieffs motion for reconsideration, Demientieff hired a  new
lawyer, who sent Kirk a letter advising him  that Demientieff did
not  want  Kirk  to take any further action in her  case.   After
noting that he had reviewed the order from Judge Devaney granting
the  motion  to dismiss for failure to file the suit  within  the
statute of limitations, Demientieffs new attorney advised Kirk to
contact your malpractice carrier and put them on notice that  Ms.
Demientieff  has  hired my firm to represent  her  in  an  action
against  your office.  On April 8 Demientieffs attorney  filed  a
formal notice of substitution of counsel with the superior  court
in  Bethel.  And on April 15, 2003, he sent Kirk another  letter,
expressly  refusing  to  supplement  Kirks  April  3  motion  for
reconsideration and unequivocally advising Kirk that  Demientieff
would  not appeal the superior courts order of dismissal, because
I believe that such an appeal would be without merit.
          Despite the substituted appearance by Demientieffs  new
          counsel and the April 15 letter advising Kirk to take no further
action in the case, on May 1, 2003, Kirk filed a Sworn Supplement
to  Motion to Reconsider, in which, acting as former attorney for
the  Plaintiff, he informed the court that the Bethel  Postmaster
had  told him that the post office in Bethel received an  express
mail delivery for the court on October 31, 2002, and had placed a
notice to that effect in the courts post office box that morning.
It  is  possible, Kirks supplement observed, that the person  who
picked  up the mail for the courthouse that day, simply took  the
slip  with him or her, without picking up that mail itself.  Kirk
went  on to argue that, [i]n those circumstances, the case should
not  be  dismissed  under  the statute  of  limitations.   Beyond
submitting  this  supplemental information,  Kirk  did  not  file
anything seeking further relief; nor did he seek to intervene  in
the case at that time.
          In  late  August 2003, thirty days after  the  superior
court entered its July 22  judgment dismissing Demientieffs case,
the  allowable  time for appealing that judgment expired  without
any appeal having been filed.2
          On  September 24, 2003, Demientieff filed a malpractice
action  against Kirks law firm.  About nine months later, in  May
2004,  Kirk,  through his malpractice attorney,  stipulated  with
Demientieffs  attorney to let Kirks attorney file on Demientieffs
behalf a motion for relief from judgment seeking to set aside the
order dismissing her personal injury claim as time-barred.  Under
the  terms  of  the stipulation, however, the malpractice  action
would  go  forward  regardless  of the  motion;  and  Demientieff
expressly d[id] not agree . . . or in any way bind herself to the
prosecution of an appeal if the motion is unsuccessful.
          In keeping with the stipulation, Kirks counsel filed  a
motion  for relief from judgment on June 15, 2004, nearly  eleven
months  after Judge Devaney entered the final judgment dismissing
Demientieffs  case.   The  motion  asked  the  court   to   grant
Demientieff relief from judgment under Alaska Civil Rule 60(b)(1)
on  account of mistakes of law allegedly made by the court.3  The
argument  advanced in the new motion was essentially  similar  to
the  one  set  out in the earlier motion for reconsideration  but
offered additional evidence.  The new evidence suggested that the
complaint  was  placed in the courts Bethel post  office  box  on
October  31, 2002, but that the court failed to pick up its  mail
from its box until November 4.  Citing analogous cases from other
jurisdictions,   the   motion   asserted   that,   under    these
circumstances, the complaint should have been deemed  filed  when
it was placed in the courts post office box.
          United  opposed  Demientieffs motion  for  relief  from
judgment,  characterizing it as nothing  more  than  an  untimely
appeal.   On  October  12,  2004, after considering  Demientieffs
motion  and  Uniteds opposition, Judge Devaney entered  an  order
denying  relief from judgment, primarily because the  motion  was
untimely.  In ruling that Demientieff had taken too long to  seek
relief,  the court emphasized that under Rule 60(b)(1), a  motion
for  relief  from judgment based on a mistake of  law  ordinarily
must  be filed within the time frame allowed for a direct  appeal
thirty  days.   Here, the court pointed out, Kirk  waited  nearly
          eleven months after entry of judgment before filing Demientieffs
motion.   Although  the  court  recognized  that  the  thirty-day
deadline  could be relaxed in a truly exceptional case, it  noted
that  such  exceptions would be appropriate only  upon  proof  of
compelling  circumstances  justifying  the  extraordinary  delay.
Here,  the  court  found, Demientieff  had  failed  to  show  any
arguably  compelling justification for exceeding  the  thirty-day
deadline.
          Soon  after the superior court announced its  decision,
Demientieff notified Kirk that she would not consent to an appeal
a  choice that the stipulation expressly allowed her to make.  On
October  25, 2004, Kirk moved to intervene as a matter  of  right
under  Civil  Rule 24(a) for the purpose of appealing  the  order
denying  the  Rule 60(b) motion.  Asserting that his interest  in
the  case  sufficed to require intervention, he argued  that  his
attempt to intervene in the case was timely because he sought  to
intervene  as  soon as Demientieff informed him  that  she  would
decline to appeal.  According to Kirk, Demientieffs decision left
him no option but to seek intervention to pursue the appeal.
          Judge Devaney denied intervention, finding Kirks motion
untimely  because  his interest in intervening first  arose  long
before  Demientieff  filed her motion for relief  from  judgment.
Specifically,  the  superior court  found,  Kirk  knew  that  his
interest  in the case diverged from Demientieffs as  soon  as  he
learned  that Demientieff had hired a new lawyer and intended  to
sue  him  for malpractice; in the courts view, then, Kirk  should
have   moved  to  intervene  before  the  deadline  for  directly
appealing the original judgment.
          Kirk  filed this appeal from the superior courts ruling
on intervention.
          Since  filing  this appeal, Kirk has  entered  into  an
agreement  to  settle the malpractice claim with Demientieff;  as
part  of  the  settlement, Demientieff agreed  to  give  Kirk  an
assignment of her personal injury claim against United.
III. DISCUSSION
     A.   Parties Arguments
          On  appeal, Kirk challenges the superior courts  ruling
on  intervention, insisting that the court erred in finding  that
his  motion to intervene was untimely.  Kirk argues that he could
not  reasonably  have been expected to seek intervention  earlier
because  his interest in the personal injury action aligned  with
Demientieffs  and was being adequately represented by  her  until
she  informed him that she did not intend to appeal the  superior
courts October 12, 2004, order denying her motion for relief from
judgment.  Kirk separately argues that, if we accept his position
on  the  issue  of timeliness, we should proceed  to  review  the
superior courts decision denying Demientieffs Rule 60(b)  motion.
On  that  point,  Kirk  urges us to reverse the  superior  courts
finding that the Rule 60(b) motion was untimely and to hold  that
relief  from  judgment  should have been  granted  based  on  the
evidence indicating that Demientieffs complaint was delivered  to
the  superior  courts post office box in Bethel  on  October  31,
2001, the day before the statute of limitations expired.
          In  response,  United urges us to uphold  the  superior
courts order denying Kirks motion to intervene.  It contends that
Kirk fails to meet the requirements for intervention because: his
motion  was  indeed  untimely;  he  has  no  valid  interest   in
Demientieffs  action against United; and his  intervention  would
cause  prejudice  to United by forcing it to defend  an  untimely
appeal.   Kirk  could have attempted to intervene to  appeal  the
original  decision, United insists, but he chose not  to  do  so.
United  further  argues  that  even  if  Kirk  were  allowed   to
intervene,  there  would be no basis for reversing  the  superior
courts   order  denying  Demientieffs  motion  for  relief   from
judgment.  In Uniteds view, Kirk had no compelling reason to wait
until  eleven months after the final judgment was entered  before
filing  Demientieffs Rule 60(b) motion.  And in any event, United
maintains,  the  motion lacks merit because  the  superior  court
correctly ruled that Kirk filed Demientieffs complaint after  the
statute of limitations expired.
     B.   Civil Rule 24(a) Timeliness Requirement
          Kirk  moved  to  intervene as a matter of  right  under
Alaska  Civil Rule 24(a). The superior court denied  his  motion,
finding that it was untimely because Kirk waited for more than  a
year  after Demientieff filed her malpractice action against Kirk
before he sought to intervene in her underlying suit.  Rule 24(a)
expressly requires a motion for intervention to be timely:
          Upon  timely  application  anyone  shall   be
          permitted to intervene in an action when  the
          applicant claims an interest relating to  the
          property or transaction which is the  subject
          of   the  action  and  the  applicant  is  so
          situated  that the disposition of the  action
          may  as  a practical matter impair or  impede
          the   applicants  ability  to  protect   that
          interest,  unless the applicants interest  is
          adequately     represented    by     existing
          parties.[4]
          
          We  have adopted the four-part analysis widely used  by
federal  courts to determine whether a motion to intervene  meets
Rule 24s timeliness standard; this test requires us to consider:
          (1) the length of time the applicant knew  or
          reasonably   should  have  known   that   its
          interest  was imperilled before it  moved  to
          intervene;  (2) the foreseeable prejudice  to
          existing  parties if intervention is granted;
          (3)   the   foreseeable  prejudice   to   the
          applicant if intervention is denied; and  (4)
          idiocratic   circumstances   which,    fairly
          viewed,     militate    for    or     against
          intervention.[5]
          
          We  will  address each of these timeliness  factors  in
turn, and then will assess their combined effect.
          1.   Knowledge of imperilled interest
          Regarding the first factor of this analysis  the length
of  time  [Kirk] knew or reasonably should have known that  [his]
          interest was imperilled before [he] moved to intervene6  the
superior court observed that it should have been apparent to Kirk
that   his  interest  in  the  action  might  not  be  adequately
represented as soon as Demientieffs new counsel notified Kirk  in
April  2003  that Demientieff planned to sue Kirk for malpractice
and  did  not  intend to appeal Judge Devaneys March  2003  order
dismissing  her  complaint  as  time-barred.   Relying  on   this
finding,  the  superior court determined that  Kirk  should  have
known  that  he  needed to intervene no later  than  April  2003,
eighteen months before he actually moved to intervene in  October
2004.  Even viewing events in a light most favorable to Kirk, the
court  observed, his motion to intervene should have  been  filed
within the time for appealing the final judgment (July 22, 2003).
          The superior courts analysis of this factor finds ample
support in the record.  Demientieffs new counsel sent two letters
to  Kirk in April 2003, soon after Kirk filed Demientieffs motion
for   reconsideration   of  the  order  dismissing   Demientieffs
complaint as time-barred.  The first letter to Kirk told him that
Demientieff had hired a new attorney and planned to sue Kirk  for
malpractice.   The  second informed him  that  Demientieff  would
refuse  to  appeal  the  superior  courts  statute-of-limitations
ruling.   These  communications  gave  Kirk  clear  notice   that
Demientieff had terminated their attorney-client relationship and
that their interests had sharply diverged.
          Demientieff,  having opted to sue Kirk for  malpractice
instead  of  pursuing her claim against United, now  had  a  keen
interest  in  establishing that Kirks failure to  file  a  timely
complaint had caused her to lose a meritorious claim.   From  her
perspective,  then,  it  would  have  been  counterproductive  to
overturn  the  order  dismissing her  claim.   Thus,  Demientieff
immediately let Kirk know that she would refuse to appeal.
          Kirk, on the other hand, having just been told that  he
faced  a  potential malpractice claim by his former  client,  now
found  himself with a personal stake in the superior courts order
dismissing  Demientieffs case: he could fend off the  malpractice
claim,  or  at  least minimize his potential  liability,  if  the
superior  courts  order were overturned  either  on  the  pending
motion  for reconsideration or by appealing the order. The record
makes  it  clear that Kirk understood this situation: soon  after
receiving the letters from Demientieffs new attorney telling  him
to  take no further action in Demientieffs  case, Kirk, acting as
Demientieffs  former attorney, filed a supplement to  the  motion
for  reconsideration  that unmistakably  sought  to  bolster  the
pending  motion.           Thus, when the superior  court  denied
reconsideration   and   entered  its   final   judgment   against
Demientieff  in  July 2003, Kirks interest in directly  appealing
that  judgment was precisely the same as the interest he asserted
the following year when he moved to intervene for the purpose  of
appealing  the  October  2004  order  denying  relief  from  that
judgment.  Moreover, his situation in relation to Demientieff was
precisely  the same at both times: Demientieff refused to  appeal
the  July 2003 final judgment, just as she would later refuse  to
appeal the October 2004 order denying relief from the judgment.
          In  short,  Kirk could have filed a motion to intervene
          in July 2003  for the purpose of directly appealing the superior
courts  freshly entered judgment of dismissal  on  precisely  the
same  ground that he asserted in October 2004, when he  attempted
to  intervene to collaterally appeal that judgment.   The  record
fails  to  establish  any  satisfactory justification  for  Kirks
failure to seek intervention at the earlier juncture.7
          In  challenging the superior courts decision to  reject
his Rule 60(b) motion as untimely, Kirk argues that his delay  in
filing  the motion was justified because his malpractice  counsel
needed  time  to  study the case and negotiate with  Demientieffs
counsel  for the stipulation to file the Rule 60(b) motion.   The
same  argument could conceivably be offered to justify Kirks late
intervention, as well.  But the decision to take this  collateral
course,  which  required  Demientieffs  permission,  appears   to
reflect  a tactical choice.  Kirk fails to explain why  he  could
not  have  promptly  sought leave to intervene  for  purposes  of
directly  appealing the judgment, a course that did  not  require
Demientieffs negotiated consent.
          Kirk   also   insists   that   Demientieff   adequately
represented  his  interests  until  she  refused  to  appeal  the
superior  courts order denying the Rule 60(b) motion.   But  this
argument  is  unavailing.  As we have already  noted,  Kirks  and
Demientieffs  interests diverged fundamentally  when  Demientieff
fired  Kirk as her attorney, announced her intent to sue him  for
malpractice, and told him that she would not appeal the  superior
courts  order of dismissal.  Although Kirks malpractice  attorney
later  negotiated a stipulation allowing Kirk to move for  relief
from  judgment, the realignment of interests resulting from  this
agreement  was temporary and provisional, at best.   The  express
terms  of  the  stipulation made it clear  that  the  malpractice
action  would go forward despite the Rule 60(b) motion, that  the
stipulation would not bind Demientieff to pursue an appeal if the
superior  court denied relief, and that no appeal could be  filed
without  her express, written approval.  When viewed in light  of
the stipulations specific disclaimers, Demientieffs later refusal
to  appeal  was  foreseeable and merely served to  reinstate  the
status   quo  existing  before  the  stipulation.   Neither   the
stipulation nor Demientieffs ensuing refusal to appeal  justifies
Kirks failure to seek intervention in time to appeal the original
judgment.
          On  these  facts, the superior court permissibly  found
that Kirk knew or reasonably should have known of his grounds for
intervening before the court entered its final judgment.
          2.   Foreseeable prejudice to existing parties
          The   next  factor  to  consider  in  determining   the
timeliness  of  Kirks  motion  to intervene  is  the  foreseeable
prejudice  that granting the motion would cause to  the  existing
parties.   This factor requires us to focus specifically  on  the
prejudice   flowing  from  Kirks  delay  rather  than   potential
prejudice that might generally result from granting intervention.8
In assessing this factor, the superior court focused primarily on
the  prejudice  that  Kirks  late  intervention  would  cause  to
Demientieff.   The court noted that Demientieff and  her  counsel
had  chosen  the malpractice suit as the best means of  achieving
          Demientieffs interests.  If Kirk intervened in the personal
injury case, the court feared, his appeal of the Rule 60(b) issue
might  sidetrack Demientieffs chosen claim and drag out an action
based on events that occurred over four years ago.
          These concerns for Demientieffs procedural rights  seem
to  be  greatly  diminished now that Kirk  and  Demientieff  have
settled  the malpractice action and Demientieff has assigned  her
personal injury claim to Kirk.  But a similar concern extends  to
United  and remains unabated.  United vigorously argues  that  in
the  absence  of  compelling circumstances it  will  be  unfairly
prejudiced if it is forced to defend a judgment that has now been
final  and  no  longer  appealable since August  2003.   Although
United fails to pinpoint any case-specific disadvantage it  might
face as a result of Kirks delay, Uniteds procedural right to rely
on  settled  rules  of  finality nonetheless merits  considerable
weight.   On prior occasions we have observed that, of  the  four
factors  included  in  the  timeliness analysis,  courts  usually
regard  potential  prejudice  to existing  parties  as  the  most
important  consideration.9  Courts have been especially reluctant
to  allow  intervention  after the trial  court  enters  a  final
judgment,  adhering to the cardinal principle  that  intervention
will not be permitted to breathe life into a nonexistent lawsuit.10
Here,  Kirks  efforts would strain this principle not  once,  but
twice, for he effectively seeks to breathe life into a Rule 60(b)
motion that his stipulation gave him no right to appeal; and  his
underlying  purpose is to resurrect Demientieffs  lawsuit,  which
has  been  nonexistent  since  the  deadline  for  appealing  the
original judgment expired in August 2003.
          3.   Potential prejudice to Kirk
          The third factor in the timeliness analysis focuses  on
the   offsetting  question  whether  denying  intervention  would
prejudice Kirk.  Kirk argues that denying his motion to intervene
seriously  prejudiced him because [a]llowing  the  order  denying
relief   from  judgment  to  stand  unchallenged  through  appeal
significantly  impairs Kirks right to vindicate  himself  of  the
ruling and impairs his right to pursue subrogation against United
Companies.  But this argument jumps too quickly to the  prejudice
Kirk  might  suffer if he were unfairly denied  the  relief  from
judgment  he  claimed  in the Rule 60(b)  motion.   As  a  failed
intervenor,  Kirk  has  standing to appeal  only  the  denial  of
intervention.11   Thus, Kirks claim of potential  prejudice  must
focus  on  the  specific harm he suffered  by  being  denied  the
opportunity  to  appeal the superior courts  order  denying  Rule
60(b)  relief.   To  establish a substantial risk  of  prejudice,
then,  he  would need to show a likelihood of prevailing  in  the
event he were allowed to appeal the order denying his motion  for
relief from judgment.
          Although this likelihood might prove hard to predict in
many situations, it seems fairly straightforward here because the
question  that  drives Kirks right to intervene   timeliness   is
functionally  identical  to the threshold timeliness  requirement
that  governed Kirks motion for relief under Rule 60(b).  Indeed,
the  timeliness  requirement under Rule  60(b)  would  seem  more
stringent  than  the corresponding requirement for  intervention,
          since, as we have seen, in the Rule 60(b) context, Kirk had the
burden  of  establishing a compelling need to justify  any  delay
exceeding  the  thirty  days  allowed  to  appeal  the   original
judgment.
          It  follows  that  the third factor of  the  timeliness
analysis   potential prejudice to Kirk   is essentially  neutral:
standing  alone, it neither favors nor disfavors  Kirk.   If  the
other   timeliness   factors  establish   a   strong   case   for
intervention, the potential prejudice from having  the  right  to
appeal  the  Rule  60(b) decision would  also  tip  in  favor  of
intervention;  conversely,  if the other  factors  weigh  against
intervention,  there  would be no apparent basis  for  finding  a
likelihood of reversible error on appeal, so the prejudice factor
would weigh against Kirk.
          4.      Idiocratic   circumstances   for   or   against
intervention
          The  fourth  timeliness factor requires us to  consider
any  unique  circumstances  in this case  that  militate  for  or
against  intervention.  In our view, the only unique circumstance
that  warrants discussion arises from Kirks recent settlement  of
Demientieffs malpractice claim  a settlement that left Kirk  with
an  assignment  of  Demientieffs personal  injury  claim  against
United.   Although neither party discusses how this  circumstance
might affect the issue of intervention, we believe that the point
warrants at least a brief mention.
          In  moving to intervene below and pursuing the point on
appeal,  Kirk has relied heavily on the theory that his interests
conflict  sharply  with Demientieffs and were imperilled  by  her
tactical  choices.   Yet  as the current  owner  of  Demientieffs
claim, Kirk appears to have no further conflict with Demientieff:
his  sole  remaining interest would seem to lie in attempting  to
win  Demientieffs assigned claim against United.  On what  basis,
then, and for what purpose, can Kirk now claim that he should  be
allowed  to intervene for the purpose of appealing the denial  of
Demientieffs  motion  for relief from  judgment?   And  if  Kirks
ultimate  goal  is  to  pursue Demientieffs assigned  claim,  why
should  he  be  entitled to reassert her interest  in  the  claim
against  United,  or  to breathe fresh life  into  her  cause  of
action?   After  all,  Kirk presumably acquired  the  claim  from
Demientieff as it stood at the time of assignment; the assignment
could  not  have restored or rekindled any right Demientieff  had
already  lost.  And it seems undisputed that by the time  of  the
assignment,  Demientieff had deliberately abandoned her  personal
injury  claim  for  tactical reasons by  failing  to  appeal  the
superior  courts final order dismissing the claim as time-barred;
she  had similarly abandoned her later motion for relief from the
original  judgment  by expressly refusing to appeal  the  October
2004 order denying that motion.
          Thus, as the case currently stands, if we allowed  Kirk
to intervene in his own right with the ultimate goal of asserting
Demientieffs  assigned  cause of action, we  would  seemingly  be
condoning his right to assert, in Demientieffs name, a  cause  of
action  that  she herself had abandoned and could never  hope  to
pursue.   Because this idiocratic circumstance leads to anomalous
consequences it militates strongly against intervention.
          5.   Combined effect of four-factor timeliness analysis
          On balance, when considered as a whole, our analysis of
the  four  timeliness  factors  decidedly  favors  upholding  the
superior  courts  conclusion that Kirks motion to  intervene  was
untimely and was properly denied on that basis.
          Our  recent decision in Scammon Bay v. Ulak provides  a
useful  comparison.12   There,  Ulak  was  seriously  injured  by
exposure  to propane while working for Scammon Bay.   After  Ulak
recovered substantial workers compensation benefits from  Scammon
Bay, he sued two of Scammon Bays propane suppliers, claiming that
they were liable for his injuries.  Under Alaska law, Scammon Bay
had  a right to recoup benefits it paid Ulak from any funds  Ulak
recovered  against  the defendants, provided  that  his  recovery
exceeded Scammon Bays share of Ulaks total damages based  on  its
allocated fault.  Despite this right of recovery, Scammon Bay did
not  initially join in the action, since Ulaks interests appeared
to  align  with  its  own: even though the  defendants  moved  to
allocate  fault  to Scammon Bay, Ulak had opposed  their  motion,
evidently   hoping  to  maximize  his  own  recovery   from   the
defendants.
          As  the  trial date approached, however, Ulak  and  the
defendants  struck an unusual bargain designed to allocate  fault
to  Scammon Bay in a way that might have enabled Ulak to  receive
settlement   payments  from  the  defendants  without  triggering
Scammon Bays right of recoupment.  The settling parties scheduled
a  hearing before the superior court, seeking approval  of  their
plan  and  acceptance of the agreed-upon allocation of  fault  to
Scammon  Bay.   Scammon Bay received no notice  of  the  hearings
purpose  until  six days before the hearing was  held;  two  days
before  the  hearing, Scammon Bay moved to intervene so  that  it
could  oppose  the  proposed allocation of fault.   The  superior
court  denied  the  motion,  finding, among  other  things,  that
Scammon  Bays  last-minute  attempt  to  intervene  was  untimely
because the case had been pending for more than two years.13
          We  reversed  the superior courts ruling.  Noting  that
Scammon  Bays  interests initially aligned with  Ulaks  and  that
Ulaks  counsel  had  actively  represented  those  interests   by
opposing  the defendants motion to allocate fault,  we  found  no
reason  for Scammon Bay to have intervened early, and no need  to
require premature intervention.  Emphasizing the sudden change in
Ulaks  settlement  strategy and the settling parties  failure  to
notify  Scammon  Bay  of  the purpose of  the  hearing  they  had
scheduled  to  allocate Scammon Bays fault, we held that  Scammon
Bays  last-minute motion to intervene was reasonably  timely  and
should have been granted.14
          Here,  in  sharp contrast to Scammon Bay, Kirk received
clear  and  early  notice  that Demientieffs  interests  actively
conflicted with his own and that Demientieff would not adequately
represent  his interests.  Despite this knowledge,  Kirk  allowed
the  superior court to enter its judgment of dismissal and,  well
aware that Demientieff did not intend to appeal, let the time for
appealing  that  judgment expire without  seeking  to  intervene.
Almost  eleven months then passed before Kirk secured  a  limited
          stipulation that allowed him to file a collateral attack on the
judgment  but  left him no right of appeal.  Four  months  later,
when the superior court denied the request for relief, Kirk,  for
the  first  time, sought to intervene, grounding  his  motion  on
Demientieffs  refusal to authorize an appeal  a ground  he  could
have  asserted more than a year earlier, before the  time  for  a
direct appeal expired.15
          Considering  the  totality of  these  circumstances  in
light  of  the  four-factor timeliness test and our  decision  in
Scammon  Bay, we hold that the superior court did not  abuse  its
discretion in denying Kirks motion to intervene.
IV.  CONCLUSION
          For  these reasons, we AFFIRM the superior courts order
denying Kirks motion to intervene.
_______________________________
     1    See Alaska R. Civ. P. 77(k)(4).

     2    See Appellate Rule 204(a).

     3     Under  Alaska  Civil Rule 60(b)(1),  [T]he  court  may
relieve a party . . . from a final judgment, order, or proceeding
for the following reasons: . . . mistake, inadvertence, surprise,
or excusable neglect.

     4     We  have previously recognized that an applicant  must
meet  four  criteria to intervene under this rule, the  first  of
which is timeliness:

          (1)  the  motion  must  be  timely;  (2)  the
          applicant  must  show  an  interest  in   the
          subject matter of the action; (3) it must  be
          shown that this interest may be impaired as a
          consequence of the action; and (4) it must be
          shown  that  the  interest is not  adequately
          represented by an existing party.
          
State v. Weidner, 684 P.2d 103, 113 (Alaska 1984).

     5     Scammon  Bay Assoc., Inc. v. Ulak, 126 P.3d  138,  143
(Alaska   2005)  (quoting  Banco  Popular  de  Puerto   Rico   v.
Greenblatt, 964 F.2d 1227, 1231 (1st Cir. 1992)).

     6    Scammon Bay, 126 P.3d at 143.

     7     We  have  not previously had an occasion  to  consider
whether an attorney accused of malpractice would ever be entitled
to  intervene as a matter of right in the claimants original case
in  order  to  challenge the legal ruling that  precipitated  the
malpractice claim.  We note that at least some courts considering
Rule   24(a)  have  expressed  policy-based  doubts   about   the
desirability  of  allowing attorneys to  intervene  in  analogous
settings.  See, e.g., Butler, Fitzgerald & Potter v. Sequa Corp.,
250  F.3d 171, 177 (2d Cir. 2001) (rejecting the attempt of a law
firm  that  held  a  charging lien against  a  former  client  to
intervene  in that former clients suit because [t]he interest  of
discharged  counsel  seemingly is  not  in  the  subject  of  the
underlying  action  . . . that precipitated the  litigation,  [as
required  by Rule 24(a)], but is rather an interest in recovering
delinquent  attorneys fees following an award  in  favor  of  its
former  client).   Our analysis assumes that any  policy  reasons
weighing against allowing an attorney to intervene in such  cases
would not categorically preclude intervention under Rule 24(a).

     8     Scammon  Bay,  126 P.3d at 145 (citing  Stallworth  v.
Monsanto Co., 558 F.2d 257, 267 (5th Cir. 1977)).

     9     Id.  at 143 (citing 7C Charles Alan Wright, Arthur  R.
Miller  &  Mary  Kay Kane, Federal Practice and  Procedure   1916
(1986)).

     10     Fuller v. Volk, 351 F.2d 323, 328 (3d Cir. 1965); see
also  Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 840 (4th Cir.
1999)  (rejecting  an attempt to intervene  to  file  Rule  60(b)
motion  two  months  after  entry  of  final  judgment);  Federal
Practice and Procedure, supra, note 9,  1916, at 444-45.

     11    Scammon Bay, 126 P.3d at 142-43.

     12    126 P.3d 138 (Alaska 2005).

     13    Id. at 142.

     14    Id. at 142, 144-45.

     15     In other cases, we have allowed late intervention  by
applicants who had no prior notice of their interests in the case
or sought to intervene promptly after learning of their interest.
See  Mundt  v. NW Explorations, Inc., 947 P.2d 827,  830  (Alaska
1997); McCormick v. Smith, 793 P.2d 1042, 1044 (Alaska 1990).

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC