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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dickerson v. Goodman (06/22/2007) sp-6135

Dickerson v. Goodman (06/22/2007) sp-6135, 161 P3d 1205

     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,


JIN HEE LEE DICKERSON, )Supreme Court Nos. S-11497/12257
Appellant, ) Superior Court No.
) 4FA-02-2556 CI
v. ) 4FA-04-2335 CI
Appellee. ) No. 6135 June 22, 2007
          Appeals from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks,  Richard D. Savell and  Robert  B.
          Downes, Judges.

          Appearances:  Randall J. Weddle,  Jeffrey  D.
          Holloway, Selena R. Hopkins-Kendall,  Matthew
          D.   Regan,  Holmes  Weddle  &  Barcott,  PC,
          Anchorage, and Joseph L. Paskvan,  Paskvan  &
          Ringstad,  P.C.,  Fairbanks,  for  Appellant.
          Paul   W.  Waggoner,  Law  Offices  of   Paul
          Waggoner, Anchorage, for Appellee.

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

          MATTHEWS, Justice.

          Lisa  Goodman  sued  Jin Hee Lee Dickerson.   Dickerson
answered but did not file a counterclaim.  Dickersons motion  for
summary  judgment  was granted and the case  was  dismissed  with
prejudice.  Dickerson then moved to vacate the judgment  so  that
she  could  file a counterclaim.  This motion was denied.   Next,
Dickerson asserted the same claim in a new suit.  This  case  was
dismissed on the ground that the claim should have been  asserted
as  a  compulsory  counterclaim in  the  first  suit.   Dickerson
appeals  the denial of her motion to vacate the judgment  in  the
first suit and the dismissal of the second suit.  We affirm  both
          On  October 5, 2002, motor vehicles operated by Goodman
and  Dickerson  collided.   On October  30,  2002,  Goodman  sued
Dickerson  for  her  injuries arising out of the  collision.   On
November  29,  2002, Dickerson, who was represented  by  counsel,
answered Goodmans complaint but did not file a counterclaim.  The
superior  court entered a pretrial order requiring  that  motions
seeking  to amend pleadings be filed before May 28, 2003.   Trial
was  set  for  April 19, 2004.  The May 28, 2003 deadline  passed
with neither party seeking a pleading amendment.  Dickerson moved
for summary judgment.  The motion was unopposed, and on March 12,
2004,  the  superior court granted the motion and  dismissed  the
case with prejudice.
          On  March  31,  2004,  Dickerson,  acting  through  new
counsel,  sought  to  intervene in the  case.   Dickerson  sought
intervention  to support an anticipated Alaska Civil  Rule  60(b)
motion  to  be  filed by Dickersons original counsel  so  that  a
counterclaim  against Goodman could be filed and prosecuted.   On
April  15,  2004, Dickerson, through her original counsel,  filed
the  Civil Rule 60(b) motion that had been forecast in the motion
to  intervene.   As  the reason for relief,  she  explained  that
English  is not her first language and that as a result of  [her]
misunderstanding of her legal rights and obligations, she has not
previously  exercised  her right to file a  counterclaim  against
plaintiff.   She also argued that Goodman would not be prejudiced
if  the  motion was granted, noting that the two-year statute  of
limitations had not yet run.
          On  May 5, 2004, Superior Court Judge Richard D. Savell
denied  the  motion  to  intervene, noting that  intervention  is
unavailable and unnecessary.  Defendant has always been a  party.
Judge  Savell also denied the Rule 60(b) motion, noting that  the
deadline   for  filing  a  counterclaim  expired  in  May   2003.
Dickerson filed a timely appeal from this denial.
          Dickerson  then  filed a separate case against  Goodman
for  damages resulting from the same accident.  Goodman moved  to
dismiss,  arguing  that Dickersons claim  could  only  have  been
brought  as  a compulsory counterclaim in the earlier action  and
therefore  was  barred by Civil Rule 13(a) and the principles  of
res  judicata.  Superior Court Judge Robert B. Downes agreed with
respect  to  the  argument  concerning  Rule  13(a)  and  granted
Goodmans  motion  to  dismiss.1   Dickerson  appeals  from   this
dismissal.  The appeals have been consolidated.
          We review a refusal to set aside a judgment pursuant to
Civil Rule 60(b) for abuse of discretion.2  Review of a dismissal
based  on  Civil Rule 13(a) presents a question of law, which  we
review  de  novo.3  A refusal to apply Civil Rule 94 is  reviewed
for abuse of discretion,4 and questions of constitutional law are
reviewed de novo.5
     A.   The Civil Rule 60(b) Motion
            Dickerson  argues that the denial of her  Rule  60(b)
motion was error since her failure to assert her counterclaim  in
the  first suit was justified.  She claims that she misunderstood
her  rights,  noting  that  English is not  her  first  language.
Dickerson also argues that she attempted to assert a counterclaim
before the order dismissing the action was entered.
          We  conclude that the superior court did not abuse  its
discretion in denying Dickersons motion.  Under Rule 60(b)(1),  a
court may relieve a party . . . from a final judgment, order,  or
proceeding for reasons including mistake, inadvertence,  surprise
or  excusable  neglect.6  In exercising this  discretion,  courts
should  consider  whether the moving party had  good  reason  for
failing to litigate effectively before dismissal.7
          It  appears  to  us  that  Dickersons  claim  that  she
misunderstood  her  rights  because  English  is  not  her  first
language   lacks  merit.   No  factual  material  was   submitted
indicating  that Dickerson lacked an understanding of English  to
the  extent that she could not understand that she would lose her
right to assert a claim against Goodman unless she asserted it in
a  timely fashion in the original action.  Dickerson was  at  all
times  represented by counsel.  Her attorneys do not  claim  that
they  attempted to advise Dickerson of her rights in this respect
and  were unable to make their point.  Dickersons claim that  she
actually  attempted to assert a counterclaim before the  judgment
was entered is not supported by the record.  She cites as support
for  this  proposition the motion to intervene that she  made  on
March 31, 2004.  But this was more than two weeks after the order
of dismissal with prejudice was entered.
          Under  the  civil rules Dickersons counterclaim  should
have  been  asserted  with her answer that she filed on  November
29,  2002.8   Once Dickerson omitted the counterclaim  she  could
have  sought  leave  of  court to plead it  by  amendment.9   The
deadline  for  seeking such an amendment as  established  by  the
pretrial order was May 28, 2003.  Even after this deadline passed
Dickerson  could have sought leave to assert a counterclaim.   If
she had, a close question might have been presented as to whether
leave  should  have  been granted, especially  if  there  was  no
prejudice to Goodman.  But Dickerson did not seek leave to assert
a counterclaim until after final judgment dismissing the case was
entered.   In our view, based on the absence of any justification
for  the  delay  in  moving to amend, it  was  not  an  abuse  of
discretion to refuse to reopen the case at that point.  We  reach
this  conclusion even though no convincing showing  of  prejudice
has  been  made  by  Goodman.  Once a judgment  is  entered,  the
interests  associated  with maintaining the  integrity  of  final
judgments  weigh heavily, and, as Rule 60(b) itself  illustrates,
more than a mere lack of prejudice on the part of the opponent is
     B.   Dismissal Under Civil Rule 13(a)
          Dickersons second suit was dismissed as barred by  Rule
13(a).   Dickerson  states dismissal under this  rule  was  error
because  her  claim was not mature when she filed  an  answer  to
Goodmans claim and thus the rule does not apply.  The gist of her
          argument is that the eight-week period between the accident and
the time that she filed her answer was not long enough for her to
evaluate and present her claim.
          We  conclude that the superior court properly dismissed
Dickersons  second suit.  Under Rule 13(a) a pleading must  state
as  a  counterclaim any claim which at the time  of  serving  the
pleading the pleader has against any opposing party, if it arises
out  of  the transaction or occurrence that is the subject matter
of  the  opposing partys claim.  Failure to assert  a  compulsory
counterclaim bars a party from asserting it in subsequent suits.10
          Rule 13(a) only bars claims the pleader has at the time
of  serving the answer.  For purposes of Rule 13(a) a pleader has
a  claim  and it therefore is mature when all of the elements  of
the  claim  are  known  or reasonably should  be  known.11   When
Dickerson filed her answer in the first suit, Dickerson  knew  of
Goodmans allegedly negligent driving and also knew that  she  had
suffered property damage and a significant personal injury.12   A
plaintiff need not know the full extent of her damages before her
claim is mature.13  As Judge Downes correctly observed,
          maturity  as used in Civil Rule 13(e)  refers
          to  claims which do not yet exist rather than
          those  whose  value  or  extent  is  not  yet
          determined . . . .  Here, although the  Court
          agrees  that  Dickerson would not  have  been
          able  to fully assess her claims at the  time
          she  filed  a responsive pleading, she  would
          certainly have been able to comply  with  the
          notice pleading requirements of Rule 8(a) and
          the  verification requirements  of  Rule  11.
          Should  those  averments  later  have  proved
          incomplete  or  inaccurate,  she  could  have
          amended her pleadings under Rule 15.
          Dickerson  also argues that the superior court  in  the
second  case  should  have  granted  her  leave  to  include  her
counterclaim  under Civil Rule 13(f).  Rule 13(f)  provides  that
[w]hen   a  pleader  fails  to  set  up  a  counterclaim  through
oversight,  inadvertence  or excusable neglect  or  when  justice
requires,  the  pleader  may  by  leave  of  court  set  up   the
counterclaim  by  amendment.  By providing  for  amendment,  Rule
13(f) permits a pleader to seek to assert an omitted counterclaim
in  the  suit in which it was omitted.  But Rule 13(f)  does  not
encompass claims omitted in a previous case.14
          The judgments in both cases are AFFIRMED.15
     1    Judge Downes found it unnecessary to decide whether the
case was also barred by res judicata.

     2    Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996,
1001  (Alaska  2005); Parks v. Brown, 368 P.2d 220,  222  (Alaska

     3     See Providence Wash. Ins. Co. of Alaska v. McGee,  764
P.2d 712, 714 (Alaska 1988); Ellingstad v. State, Dept of Natural
Res., 979 P.2d 1000, 1004 (Alaska 1999).

     4     See City & Borough of Juneau v. Commercial Union  Ins.
Co., 598 P.2d 957, 960 (Alaska 1979).

     5     Rollins v. State, Dept of Revenue, Alcoholic  Beverage
Control  Bd., 991 P.2d 202, 206 (Alaska 1999); State v.  Anthony,
810 P.2d 155, 156-57 (Alaska 1991).

     6     Dickerson does not specify on appeal the subsection of
Rule  60(b)  under  which she is entitled  to  relief.   She  was
similarly  noncommittal in the superior court.   We  assume  Rule
60(b)(1) comes closest to fitting her claim.

     7    Harris v. Westfall, 90 P.3d 167, 174-75 (Alaska 2004).

     8     Under  Civil  Rule 13(a) the answer must  include  any
compulsory  counterclaims.  A counterclaim is  compulsory  if  it
arises  out of the transaction or occurrence that is the  subject
matter  of  the opposing claim.  Alaska R. Civ. P.  13(a).  Since
both  Goodmans claim and Dickersons counterclaim concern the same
accident, Dickersons counterclaim was compulsory.

     9    Alaska R. Civ. P. 13(f).

     10     Andrews v. Wade & De Young, Inc., P.C., 950 P.2d 574,
576 (Alaska 1997).

     11    Andrews v. Wade & De Young, Inc., P.C., 875 P.2d 89, 91
(Alaska 1994).

     12     The  record indicates that shortly after the accident
Dickerson  had  an MRI examination that showed a herniated  disk.
The MRI report was made some two weeks before Dickersons answer.

     13    Cf. Wettanen v. Cowper, 749 P.2d 362, 365 (Alaska 1988)
(holding that the statute of limitations for attorney malpractice
may  begin  to run before the plaintiff knows the full extent  of
his damages).

     14    See 6 Charles Alan Wright, Arthur R. Miller &  Mary Kay
Kane,   Federal  Practice  and  Procedure   1430  (3d  ed.  1998)
(reporting  on  Federal Rule of Civil Procedure 13(f),  which  is
essentially identical to Alaska Civil Rule 13(f)).

     15    Dickerson raises two other points in the appeal of the
second  case that we determine summarily against her.  The  first
is  that  the  court erred in refusing to relax the  rules  under
Civil  Rule 94.  We find no abuse of discretion.  See  Jerrel  v.
Kenai  Peninsula Borough Sch. Dist., 567 P.2d 760, 764-65 (Alaska
1977)  (holding that the trial court did not abuse its discretion
in  refusing to relax the civil rules and hear a motion that  was
essentially  a  filing long overdue).  Second,  Dickerson  argues
that  application of Rule 13(a) violates her due process  rights.
Due process guarantees that each person shall have notice and  an
opportunity  to be heard.  Dickerson was afforded both  of  these
important rights but failed to avail herself of the latter.

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