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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pomeroy v. Rizzo (05/16/2008) sp-6264

Pomeroy v. Rizzo (05/16/2008) sp-6264, 182 P3d 1125

     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 D. POMEROY, )
) Supreme Court No. S- 12520
Appellant, )
) Superior Court No.
v. ) 3AN-02-13346 CI
)
KRISTINE RIZZO, as next friend )
of C.R., a minor, ) O P I N I O N
)
Appellee. ) No. 6264 - May 16, 2008
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:  Richard  D.  Pomeroy,  pro  se,
          Anchorage.  No appearance by Appellee.

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

          CARPENETI, Justice.

I.   INTRODUCTION
          The mother of a child sued a person charged with sexual
abuse  of the child.  The defendant counterclaimed on the  ground
that  the  mothers suit was frivolous and fraudulent.   Following
the  defendants conviction for third degree assault of the child,
the mother failed to prosecute her civil action against him.  The
superior  court dismissed the mothers complaint because  of  this
failure   to   prosecute.   It  also  dismissed  the   defendants
counterclaim  with prejudice because his conviction  for  assault
precluded  his counterclaim.  Because we agree with the  superior
court  that  the  conviction  for assault  precludes  the  person
convicted  from arguing that the mothers suit against him  lacked
merit, we affirm the decision of the superior court.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Richard  Pomeroy met Kristine Rizzo in  the  summer  of
2001.   Between  January 2002 and November  2002  Rizzo  and  her
daughter,  C.R.,1  spent several nights at Pomeroys  house  while
Rizzos  boyfriend was incarcerated.  During these visits, Pomeroy
allegedly  sexually assaulted C.R. repeatedly by committing  acts
of sexual penetration upon her person.
          The  state  investigated and charged Pomeroy with  four
counts  of sexual assault of a minor.  On November 12, 2002,  the
police   arrested  Pomeroy  and  he  was  incarcerated.   Pomeroy
remained in prison until September 2005.  On September 13,  2005,
Pomeroy pled no contest to assault in the third degree, a felony,
for his involvement with C.R., and was sentenced to five years in
prison with two suspended. Pomeroy was subsequently released  and
currently resides in Anchorage.
     B.   Proceedings
          In  December 2002 Rizzo filed a civil suit as next best
friend  of  C.R. seeking damages for [p]ast, present  and  future
physical  and  emotional  pain  and  suffering  due  to  Pomeroys
negligence and intentional sexual assault of C.R.  Rizzo  amended
her  complaint  in  May 2003 to include a  cause  of  action  for
negligent   infliction  of  emotional  distress.   Rizzo   sought
$100,000 in punitive and compensatory damages.
          Pomeroy  counterclaimed.  He asserted three  causes  of
action  against  Rizzo  and  her attorney,  J.  Mitchell  Joyner.
Pomeroy claimed that he suffered damages due to thefrivolous  and
fraudulent  lawsuit;  wanton actions [that] constituted  a  fraud
against  [Pomeroy]; and wanton and reckless [conduct],  which  in
turn  constituted a [sic] infliction of past, present, and future
emotional  distress  and  financial  hardship.   Pomeroy   sought
$700,000 in punitive and compensatory damages.
          From  December 2002 to September 2005 Pomeroy  actively
litigated  the civil suit while awaiting his criminal  trial  for
the   sexual  assaults.  The  superior  court  granted  Rizzo   a
continuance  to  stay  the civil trial until  the  conclusion  of
Pomeroys criminal case.  Soon after pleading no contest to third-
degree assault, Pomeroy petitioned the court to proceed to  trial
in the civil case alleging that he resolved his criminal case and
all sexual assault charges have been dismiss[ed].  Superior Court
Judge Sharon L. Gleason granted Pomeroys motion and issued a pre-
trial  order  requiring  the parties to discuss  potential  trial
dates.   In December 2005 Joyner, Rizzos attorney, filed a motion
to  withdraw  citing lack of contact with the plaintiff  and  her
refusal  to participate in the prosecution of this case.   Joyner
later  amended the certificate of counsel accompanying his motion
to  withdraw  asserting that difference of opinion would  prevent
him  from adequately representing Rizzo.  Joyner withheld  Rizzos
address from his certificate of counsel so that Pomeroy could not
contact her directly.  The superior court granted Joyners  motion
to  dismiss  upon  the  condition that Pomeroy  would  serve  all
pleadings on Joyner until Rizzo obtained a post office box.
          Following that ruling, Rizzo never registered a mailing
address with the court and failed to respond to Pomeroys motions.
          In September 2006 the superior court issued a notice of intent to
dismiss.  This notice required Rizzo to file an intent to proceed
within  thirty  days.  Less than a week later,  Pomeroy  filed  a
request  for  a default judgment.  In November 2006 the  superior
court  issued  an  order dismissing Rizzos  action  and  Pomeroys
counterclaim.   The  superior court held  that  Pomeroys  assault
conviction  precluded him from maintaining  a  counterclaim  that
Rizzos action was a frivolous lawsuit.
          Pomeroy  filed  a motion for reconsideration  asserting
that  his  no  contest  plea  was  not  binding  against  him  in
subsequent civil actions.  The superior court denied the  motion,
relying  upon our recent decision in Lamb v. Anderson.2   Pomeroy
now  appeals the dismissal of his counterclaim on the basis  that
(1)  his  no contest plea cannot be used against him in  a  civil
proceeding, (2) the court improperly treated assault  and  sexual
assault   as   the  same  crime,  (3)  the  court  acted   in   a
representative  capacity by supplying points and  authorities  on
behalf  of  Rizzo,  (4) the dismissal denied  him  the  right  to
confront witnesses against him, and (5) his constitutional rights
to due process and trial by jury were violated.
III.  STANDARD OF REVIEW
          We  review a dismissal with prejudice under an abuse of
discretion  standard.3  Under this standard, we will  overturn  a
superior  court decision only when left with a definite and  firm
conviction,  after  reviewing the whole record,  that  the  trial
court erred in its ruling.4
          Pomeroys assertions that the court erred in denying  an
unopposed  motion and applying law outside the  briefing  of  the
parties are questions of law.  We review these claims de novo.5
          We   review  Pomeroys  constitutional  claims  that   a
dismissal  of  his  counterclaim violates his  rights  under  due
process,  the confrontation clause, and his right to a  trial  by
jury using our independent judgment.6
IV.  DISCUSSION
          Pomeroy    represented   himself    throughout    these
proceedings  (refusing  the  assistance  of  counsel   from   his
insurance  agency).   In  Alaska, pro se litigants  are  afforded
greater  leniency.7  We hold Pomeroys pleadings to less stringent
standards than those of lawyers.8  Accordingly, we must interpret
Pomeroys  claims  to  discern the legal nature  of  his  appeal.9
Pomeroys  five issues on appeal substantively form the  basis  of
three  legal claims: (1) the superior court abused its discretion
in  dismissing his counterclaim on the merits, (2)  the  superior
court  improperly ruled on behalf of Rizzo by supplying her  with
points  and  authorities,  and (3) the dismissal  resulted  in  a
violation of Pomeroys constitutional rights.
     A.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Dismissing Pomeroys Counterclaim with Prejudice.
          Pomeroy  first challenges the courts dismissal  of  his
counterclaim.  Pomeroys counterclaim effectively raised  a  claim
of  abuse  of  process.  Abuse of process  is  comprised  of  two
elements: (1) an ulterior purpose; and (2) a willful act  in  the
use  of  the  process not proper in the regular  conduct  of  the
proceeding.10
          Although  Pomeroys generalized allegations may  satisfy
the  ulterior  purpose element of an abuse of process  claim,  he
fails to present any evidence to satisfy the willful act element.
We  have  held that the willful act contemplates some  overt  act
done  in addition to the initiating of the suit.  The mere filing
or maintenance of a lawsuit  even for an improper purpose  is not
a proper basis for an abuse of process action.11  As we have noted
in  earlier cases, there is no liability where the defendant  has
done  nothing  more than carry out the process to its  authorized
conclusion,  even  though  with bad intentions.12   Pomeroy  only
alleges  that  Rizzo is a fugitive and a criminal;  he  does  not
allege any act beyond the filing of this suit and therefore fails
to  plead  an actionable claim of abuse of process.  The superior
court  therefore did not abuse its discretion in  dismissing  the
counterclaim.
          Further,   the   superior  court  dismissed    Pomeroys
counterclaim  because  his no contest plea  foreclosed  him  from
seeking legal recovery.  Pomeroy contends that the superior court
improperly relied on the holding in Lamb v. Anderson,13 which the
superior court interpreted as providing that his no contest  plea
to  assault  on the minor is legally binding in subsequent  civil
actions.14   Pomeroy argues that the holding in Lamb  should  not
apply  to  him  because  he  was  never  informed  of  the  legal
implications of his plea.
          Although the superior court correctly interpreted  Lamb
in dismissing Pomeroys claims, Burcina v. City of Ketchikan15 also
governs  Pomeroys case.  In Lamb, we held that a no contest  plea
is binding against a civil defendant;16 in Burcina, we held that a
no contest plea is binding against a civil plaintiff.17  Although
Pomeroy  was the defendant in Rizzos action against him,  Pomeroy
appealed to maintain his counterclaims against Rizzo.  Thus, with
respect  to his abuse of process claims, Rizzo is in the position
of a civil plaintiff and Burcina controls.
          In  that case, a mentally ill patient, Burcina, pled no
contest  to  arson charges after setting the clinic at  which  he
received  psychiatric  services on  fire.18   After  pleading  no
contest, Burcina brought suit against the psychiatric clinic  and
his  doctor for injuries he suffered in the blaze.19  He  alleged
that  negligent treatment caused him to set fire to the clinic.20
In  order to maintain that claim, Burcina had to show that he did
not  have the requisite criminal intent when he set fire  to  the
clinic.21   We  held  that  the superior court  properly  granted
summary  judgment  to the clinic and the doctor  because  Burcina
could  not  relitigate the issue of his intent as he had  already
pled no contest  to the crime.22  We found that a civil plaintiff
is  collaterally  estopped from relitigating  any  element  of  a
criminal  charge  to which he has pled nolo contendere.23   Under
Burcina,  Pomeroy is estopped from denying the  elements  of  the
assault  charge  to which he pled no contest.  As Pomeroy  cannot
contest  the elements of the assault charge, it follows that  the
mother  of his victim had probable cause to believe that  Pomeroy
committed the acts alleged in her complaint.
          Pomeroy argues that his plea should not estop him  from
pursuing  his counterclaims because the judge did not inform  him
          that his plea would have preclusive effect in later civil
litigation,  relying  on language in Lamb  But,  as  we  recently
noted in Wilson v. MacDonald:24
          [T]he  question  of whether  a  defendant  is
          aware of all the relevant consequences of his
          or  her plea is a question as to whether  the
          plea  itself is knowing or voluntary.   Since
          this is a question as to the validity of  the
          plea itself, it should be resolved through  a
          motion  for post-conviction relief or  appeal
          in the criminal case.[25]
And in Moore v. Peak Oilfield Service Co.,26 we noted that Wilson
dismissed  the application of Lamb in a case where  the  criminal
defendant  pled  no  contest  before  Lamb  clarified  the  civil
implications of this plea.27  We reiterated that the party seeking
to  avoid the civil consequences of a no contest plea must do  so
through  a  motion for post-conviction relief or  appeal  in  the
criminal case 28  In short, Pomeroys plea estops him from pursuing
his counterclaims because his plea has not been vacated on appeal
or on a motion for post-conviction relief.
          Finally,  Pomeroys  argument that  the  superior  court
erred  in  holding  his no contest plea to third  degree  assault
against  him  in a civil action for sexual assault is unavailing.
In  order  to substantiate her claim, Rizzo only needed to  prove
that  she  had  probable cause that Pomeroy sexual assaulted  her
daughter in bringing her suit.  When Rizzo initially brought  her
action  in December 2002, Pomeroy was already incarcerated facing
charges  for  the  sexual assault of C.R.  Just  because  Pomeroy
later  pled  no  contest in September 2003  to  a  lesser  felony
assault does not mean that Rizzo did not have probable cause  for
bringing  a  civil  suit based on the greater  charges  when  she
brought  suit in 2002.  Moreover, Pomeroys conviction for  felony
assault  against Rizzos daughter further supports a finding  that
Rizzo had probable cause to bring a civil suit against him.
     B.    The Superior Court Did Not Err in Relying on Case  Law
Not       Cited in Rizzos Pleadings.
          In  addition  to  alleging that  the  court  improperly
dismissed  his  counterclaim, Pomeroy claims the  superior  court
erred because Judge Gleason acted in a representative capacity on
behalf  of  Rizzo by deciding the case pursuant to case  law  she
found from her own research after Rizzo had failed to respond  to
the  courts notice of intent to dismiss or to Pomeroys motion for
a default judgment.  Pomeroys claim lacks merit.
          Pomeroy relies on State v. Johnson29 for the proposition
that it is . . . not the duty of the trial court to supply points
and  authorities for either side.30  Pomeroy fails to include the
sentence  immediately following: neither may a court  accept  one
partys  assertions  as to the present state  of  the  law  simply
because  the opposing party fails to adequately respond to  those
assertions.31  In  Johnson,  we  reversed  a  dismissal   of   an
indictment.32   We held that a dismissal for want of  information
and ineffective briefing were overly harsh remedies.33  A sanction
or  a  request  for  further briefing  would  have  been  a  more
appropriate remedy.34  Pomeroy misreads Johnson as restricting  a
          trial court from using case law outside the pleadings of the
parties.  Johnsons narrow holding is that a trial court  may  not
dismiss an indictment for insufficient legal pleadings when  less
harsh remedies are available to the court.35  Furthermore, Johnson
referenced Alaska Civil Rule 77, which holds only that the moving
party,  here  Pomeroy,  is responsible for providing  points  and
authorities.36  Under Rule 77, Rizzo had no obligation to provide
points and authorities, and the court did not err in refusing  to
accept  Pomeroys  analysis of case law.   Finally,  there  is  no
language  in  Johnson that implies that the court  is  prohibited
from relying upon case law outside the pleadings.37
          Putting  aside Pomeroys misinterpretation  of  Johnson,
his  argument in essence raises two claims: (1) the court may not
deny an unopposed motion, and (2) the court may not independently
research the law in deciding pending motions.
          Pomeroy  contends that the court erred  in  failing  to
grant his motion for default judgment because Rizzo did not  file
any  pleadings  in  opposition to Pomeroys  motion  nor  file  an
intent  to  proceed.  Pomeroys argument hinges on the  idea  that
judges  are forbidden from denying an unopposed motion.   But  we
have  consistently  found  that  [t]he  fact  that  a  motion  is
uncontested does not mean that it must be granted as a matter  of
right.38  Accordingly, the superior court did not err in  denying
Pomeroys  unopposed  motion simply because  Rizzo  did  not  file
pleadings  with the court.  Rather, the court properly researched
the issue and correctly decided it.
          Pomeroy  further  alleges  impropriety  in  the  courts
citation to Lamb v. Anderson39 and Wyatt v. Wyatt.40  Because Rizzo
did  not  file an intent to proceed or an opposition to  Pomeroys
motion  for  default  judgment, these  cases  were  independently
located  by  the  trial  court.  The court  relied  on  Wyatt  in
dismissing  Pomeroys claim, although Rizzo never cited  Wyatt  in
pleadings,   motions,  memoranda,  or  briefs.   Pomeroy   argues
generally  that the superior courts decision violated the  common
law.   But  the Alaska legislature has vested the superior  court
with  all  power and authority necessary to carry  into  complete
execution all its judgments, decrees, and determinations  in  all
matters  within  its jurisdiction according to the  constitution,
the  laws of the state, and the common law.41  The superior court
is  statutorily  bound to consider common  law,  in  addition  to
constitutional and statutory law, in formulating its decisions.42
Restricting a court to considering only those cases mentioned  in
the  parties briefs would violate this requirement.  Furthermore,
there  is  no  common law or statute that prohibits  courts  from
applying  case  law  outside  the  parties  briefs.   The  court,
therefore,  did  not  err in relying on the Alaska  case  law  it
located through its own research.43
V.   CONCLUSION
          Because  Pomery failed to make out a prima facie  claim
for abuse of process, because Pomeroys no contest plea to assault
precluded  his  counterclaim against Rizzo, and because  a  trial
court  is  not  bound  to  grant  an  unopposed  motion  but  may
independently  consult the sources of Alaska law, we  AFFIRM  the
dismissal of Pomeroys counterclaim with prejudice.
_______________________________
     1     The  initials C.R. were used by the superior court  to
protect the identity of the eight-year-old victim.

     2    147 P.3d 736 (Alaska 2006).

     3    De Salvo v. Bryant, 42 P.3d 525, 527 (Alaska 2002).

     4     Peter  Pan Seafoods, Inc. v. Stepanoff, 650 P.2d  375,
378-79 (Alaska 1982).

     5    Forshee v. Forshee, 145 P.3d 492, 497 (Alaska 2006).

     6     State, Dept of Fish & Game v. Manning, 161 P.3d  1215,
1219 (Alaska 2007).

     7     Casciola v. F.S. Air Serv., Inc., 120 P.3d 1059, 1062-
63 (Alaska 2005).

     8    Id.

     9     See id. (To avoid waiver, a pro se litigant's briefing
must allow his or her opponent and this court to discern the  pro
ses legal argument.).

     10    Meidinger v. Koniag, Inc., 31 P.3d 77, 86 (Alaska 2001)

     11     Id. (quoting DeNardo v. Michalski, 811 P.2d 315,  317
(Alaska 1991)).

     12    Kollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988).

     13    147 P.3d 736 (Alaska 2006).

     14    Id. at 741.

     15    902 P.2d 817 (Alaska 1995).

     16    147 P.3d at 742.

     17    902 P.2d at 821.

     18    Id. at 819.

     19    Id.

     20    Id.

     21    Id. at 821.

     22    Id. at 822.

     23    Id.

     24    168 P.3d 887 (Alaska 2007).

     25    Id.

     26    175 P.3d 1278 (Alaska 2008).

     27    Id. at 1279.

     28    Id. (quoting Wilson, 168 P.3d at 889).

     29    525 P.2d 532 (Alaska 1974).

     30    Id. at 535 n.4.

     31    Id.

     32    Id. at 536.

     33    Id.

     34    Id.

     35    Id.

     36    Id. at 535 n.4;  Alaska R. Civ. P. 77(b)(2) (requiring
the  moving party to provide a brief, complete written  statement
of  the  reasons in support of the motion, which shall include  a
memorandum of the points and authorities).

     37    See generally Johnson, 525 P.2d 532.

     38    Gallagher v. Gallagher, 866 P.2d 123, 124 (Alaska 1994)
(citing Willie v. State, 829 P.2d 310, 312 (Alaska 1992);  Bauman
v.  State,  Div.  of Family & Youth Servs., 768 P.2d  1097,  1099
(Alaska  1989); Weaver Bros., Inc. v. Chappel, 684 P.2d 123,  126
(Alaska  1984);  Greater Anchorage Area  Borough  v.  Real  Prop.
Taxpayer's Ass'n, 513 P.2d 1103, 1104 (Alaska 1973)).

     39    147 P.3d 736 (Alaska 2006).

     40    65 P.3d 825 (Alaska 2003).

     41    AS 22.10.050.

     42    Id.

     43      We   have   reviewed  Pomeroys   claims   that   his
constitutional  rights  were  violated.   Most  are  inadequately
briefed; all of them lack merit.

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