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.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. DeNardo v. Maassen (01/30/2009) sp-6335

DeNardo v. Maassen (01/30/2009) sp-6335, 200 P3d 305

     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,


) Supreme Court No. S- 12694
) Superior Court No. 3AN-05- 14472 CI
v. )
) O P I N I O N
MAASSEN & FITZGERALD, P.C., ) No. 6335 - January 30, 2009
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:    Daniel   DeNardo,   pro   se,
          Anchorage,  Appellant.   Peter  J.   Maassen,
          Ingaldson  Maassen  & Fitzgerald,  Anchorage,
          for  Appellees Foreman Properties Partnership
          and   Foremans.   Susan  D.  Cox,   Assistant
          Attorney  General, Anchorage,  and  Talis  J.
          Colberg,   Attorney  General,   Juneau,   for
          Appellee Rindner.

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

          WINFREE, Justice.

          Daniel  DeNardo first sued his former landlord, Foreman
Properties, and  several members of the Foreman family in  2002.1
The   litigation  has  since  gone  through  several  iterations,
including  a  separate 2004 lawsuit, DeNardo v.  Sawicki,2  which
immediately preceded the present case.  In Sawicki, DeNardo  sued
Mariuz  Sawicki (a former neighbor), Thomas Melaney (the Foremans
attorney), and the Foremans, alleging:  (1) breach of  the  lease
covenant  of quiet enjoyment by Sawicki and the Foremans  because
Sawicki  played music too loudly; and (2) harassment,  violations
of  DeNardos  civil  rights under 42 U.S.C.  1983  and  abuse  of
process  by  the  Foremans and Melaney in the  earlier  Corneloup
litigation.    Superior   Court  Judge   Mark   Rindner   granted
dispositive motions in favor of all the Sawicki defendants.
          In  2005  DeNardo  filed the present case,  DeNardo  v.
Maassen,3 alleging that the Sawicki defendants engaged  in  abuse
of  process  and  notary  fraud during  the  Sawicki  litigation.
DeNardo  added  an abuse of process claim against attorney  Peter
Maassen  and  his law firm (collectively Maassen),  the  Foremans
counsel  in Sawicki, as well as  1983 claims against Maassen  and
Judge Rindner.  After denying a disqualification motion filed  by
DeNardo, Superior Court Judge Sen K. Tan granted summary judgment
in  the defendants favor and awarded full attorneys fees to Judge
Rindner.   He  also  granted the defendants request  for  a  pre-
litigation  screening order prohibiting DeNardo from  suing  them
again,  excepting  claims  unrelated  to  his  previous  lawsuits
against them.  DeNardo appeals.4
          We  affirm the grant of summary judgment because  there
are  no  genuine  issues of material fact and the defendants  are
entitled to judgment as a matter of law.  We affirm the denial of
the  disqualification  motion,  portions  of  the  pre-litigation
screening order, and the attorneys fees award to Judge Rindner as
proper exercises of the superior courts discretion.
          DeNardo  rented  an  apartment from the  Foremans  from
approximately  March 1991 through June 1, 2004.5  In  March  2002
Pat   Corneloup  moved  into  the  apartment  next  to  DeNardo.6
Corneloup  smoked cigarettes in his apartment, but his lease  did
not  prohibit smoking.7  DeNardo sued Corneloup on June 7,  2002,
for  battery, negligence, and trespass resulting from  Corneloups
cigarette smoke, which DeNardo claimed invaded his apartment.8

          As  of  June  12,  2002, DeNardo owed $677.73  for  two
months  rent;  he paid $185 on June 12, leaving him in  arrears.9
That same day the Foremans served DeNardo with an eviction notice
for failure to pay rent.10  DeNardo claimed that the Foremans knew
of  his lawsuit against Corneloup as early as June 8 and that the
eviction notice was retaliatory.11  DeNardo amended his complaint
to  name  the  Foremans as defendants, suing them  for  trespass,
battery,  nuisance,  retaliatory  eviction,  and  breach  of  the
covenant of habitability.12
          The  Foremans,  represented  by  Melany,  followed  the
eviction  notice with a Forcible Entry and Detainer (FED)  action
against DeNardo.13  DeNardo lost the FED action but was granted a
          stay of eviction pending appeal to the superior court on his
claim   that  Corneloups  secondhand  smoke  made  his  apartment
uninhabitable  and therefore excused his failure to  pay  rent.14
Corneloup  and  DeNardo stayed in their apartments while  DeNardo
proceeded with his suit against Corneloup and the Foremans,15 and
the superior court ultimately dismissed all of DeNardos claims.16
DeNardo appealed, and we affirmed the superior courts judgment.17
          In  the 2004 lawsuit, DeNardo v. Sawicki, DeNardo  sued
the  Foremans,  Melaney, and Sawicki, the neighbor who  allegedly
played his music too loudly.  DeNardo asserted a claim for breach
of  the  covenant of quiet enjoyment (due to the loud music)  and
claims  for  harassment,  abuse  of  process,  and  civil  rights
violations  under 42 U.S.C.  1983 by the Foremans and Melaney  in
the  Corneloup  litigation and FED case.  Judge  Rindner  granted
summary  judgment  in  favor  of  the  defendants  and  dismissed
DeNardos lawsuit in May 2006.  DeNardo did not appeal.
          DeNardo  filed  DeNardo v. Maassen  in  December  2005,
ultimately  including  claims  against  the  Foremans,   Melaney,
Maassen (counsel for the Foremans in Sawicki), Sawicki, and Judge
Rindner.   DeNardo  alleged that the defendants  had  used  false
statements, perjury, negligent misrepresentations, and fraud upon
the  court to defeat the abuse of process claims he had  asserted
in  Sawicki, and that Judge Rindner had denied his constitutional
rights while presiding over the Sawicki litigation.
          In  early  June  2006  Maassen and the  Foremans  filed
motions  for  summary  judgment.   DeNardo  requested  time   for
discovery  to  aid  his opposition to summary judgment.   Melaney
then  filed  a  motion  to  dismiss, adopting  Maassens  and  the
Foremans  arguments.   DeNardo opposed Melaneys  motion  in  July
2006.   In August Judge Tan denied DeNardos request for time  for
discovery  and  gave him fifteen days to respond to  the  summary
judgment motions.
           In  September Judge Rindner filed a motion for summary
judgment and asked the court to impose a pre-litigation screening
order  that  would  prevent  DeNardo from  suing  superior  court
judges.  The Foremans, Maassen, and Melaney joined in the request
for   a  pre-litigation  screening  order.   In  October  DeNardo
requested additional time for discovery to oppose Judge  Rindners
summary judgment motion and the defendants combined request for a
pre-litigation  screening  order,  but  did  not   identify   any
discovery that would be helpful to his opposition.
          In  December  Judge  Tan converted  Melaneys  dismissal
motion into a summary judgment motion because it incorporated the
Foremans   summary  judgment  filings,  and  gave   DeNardo   ten
additional  days  to respond to the dispositive  motions.   After
DeNardo  filed another motion for time for discovery  in  January
2007,  which Judge Tan denied because the issues on which DeNardo
sought  discovery  had  been litigated to conclusion  in  earlier
cases, DeNardo moved to recuse Judge Tan for cause.
          In  February  Judge  Tan  denied  DeNardos  motion  for
recusal  and granted the defendants summary judgment motions  and
the  motion  for pre-litigation screening.  Judge Rindner  timely
moved  for  attorneys fees under 42 U.S.C.  1988, and  Judge  Tan
granted  the  motion.   Judge  Tan  denied  DeNardos  motion  for
          reconsideration of the fee award.
          DeNardo appeals.
     A.   The  Superior  Court Did Not Abuse  Its  Discretion  by
          Denying DeNardos Motion To Recuse.
          DeNardo  moved to recuse Judge Tan for cause,  alleging
that  Judge  Tan was biased because he was a named  defendant  in
another  suit brought by DeNardo.  Judge Tan denied  the  recusal
motion  in the same order that granted summary judgment in  favor
of  the defendants.  Judge Tan declined to recuse himself because
[t]his court does not feel as though it must recuse itself merely
because it is being sued in another case by Mr. DeNardo.

          Superior  Court  Judge Patrick J. McKay  then  reviewed
Judge Tans decision to deny the motion for recusal.18  Judge McKay
noted  that  DeNardo  did not file a peremptory  challenge  or  a
timely challenge for cause, but instead waited approximately nine
months  before filing his motion in direct response to an adverse
decision.    Judge  McKay  observed  that  DeNardo  sues   judges
frequently,  often in response to adverse rulings, but  concluded
that adverse rulings are neither a basis for a lawsuit against  a
judge  nor  sufficient evidence of bias.19  Judge McKay concluded
Judge  Tan properly refused to recuse himself and affirmed  Judge
Tans decision.
          DeNardo  now argues that Judge Tan should have  recused
himself  because  DeNardo had an existing claim  against  him  in
another case.  Recusal is governed by AS 22.20.020(a) and  Alaska
Code  of  Judicial  Conduct Canons 2 and 3.   Subsection  .020(a)
requires  a  judges  recusal if he or she  feels  that,  for  any
reason, a fair and impartial decision cannot be given.20  Canon 2
provides that judges must avoid impropriety and the appearance of
impropriety, and act in a manner that promotes public  confidence
in  the  integrity and impartiality of the judiciary.21  Canon  3
requires  judges  to  perform  their  duties  without   bias   or
          We  review  decisions on disqualification  motions  for
abuse of discretion.23  [We] will not overturn a judges [recusal]
decision  unless it is plain that a fair-minded person could  not
rationally  come  to that conclusion on the basis  of  the  known
facts.24   And  we  have  noted that a  judge  has  as  great  an
obligation not to disqualify himself [or herself], when there  is
no occasion to do so, as he [or she] has to do so in the presence
of valid reasons.25
          The record does not contain, nor does DeNardo point to,
any specific evidence of actual bias or an appearance of bias  by
Judge   Tan.    Our  past  holdings  demonstrate   that   neither
interpretations  of  the law26 nor adverse  rulings27  alone  are
sufficient to require recusal.  We now hold that disqualification
is  not  required simply because a party is separately suing  the
judge  in  the  judges official capacity or based on  the  judges
performance  of official duties, as long as the judge  reasonably
believes he or she can be fair and impartial.28  Accordingly,  we
          conclude that it was not an abuse of discretion for Judge Tan to
deny DeNardos motion for recusal.
     B.   The Superior Court Did Not Err by Granting the Foremans
          and Judge Rindners Motions for Summary Judgment.
          We  review a grant of summary judgment de novo, drawing
all  reasonable factual inferences in favor of the non-prevailing
party.29   Once  the moving party has made a prima facie  showing
that  it  is entitled to judgment on the established facts  as  a
matter  of  law,  the  non-moving party must demonstrate  that  a
genuine  issue of fact exists to be litigated by showing that  it
can produce admissible evidence reasonably tending to dispute the
movants  evidence.30  We will affirm a grant of summary  judgment
only when no genuine issues of material fact exist and the moving
party is entitled to judgment as a matter of law.31
          1.   Summary  judgment  in favor of  the  Foremans  was
               appropriate  because no genuine issue of  material
               fact  exists  as to DeNardos abuse of process  and
                1983 claims against them.
               a.   DeNardos  abuse of process claim against  the
                    Foremans is without merit.
          DeNardos   abuse  of  process  claim  in  the   Sawicki
litigation consists of three parts.  First, he alleges  generally
that  the Foremans engaged in fraudulent and underhanded  tactics
in  defending against his claims.  Second, he complains that  the
Foremans  refused to respond to his discovery requests.  Finally,
he  asserts  that  the Foremans engaged in  notary  fraud.   Each
argument is without merit because it either lacks a factual basis
in  the  record or has been litigated in prior cases between  the
                    (i)  Generalized abuse of process allegations
          Abuse  of  process is a tort comprised of two elements:
(1)  an  ulterior purpose and (2) a willful act  in  the  use  of
process  not  proper in the regular conduct of the  proceeding.32
The first element, ulterior purpose, usually consists of coercion
to  obtain a collateral advantage, not properly involved  in  the
proceeding  itself,  such as the surrender  of  property  or  the
payment of money [with] use of the process as a threat or a club.33
The  second element involves an overt act, but actions  taken  in
the  regular  course of litigation, such as threatening  suit  or
requesting  discovery, are not a proper basis  for  an  abuse  of
process claim even if done with an ulterior motive.34
          DeNardo  argues that the defendants committed abuse  of
process  in the Sawicki litigation by:  (1) filing motions  based
on  misrepresentations  of landlord-tenant  laws  and  fraudulent
affidavits with the ulterior purpose of convincing the  court  to
dismiss  his causes of action and deny his motions for discovery;
(2) using motion practice to burden [him] with a multiplicity  of
actions  at  law, appeals, costly motion practice, and  attorneys
fees accruing to [the] defendants benefit; and (3) filing the FED
action  to  retaliate  against  him  for  complaining  about  the
habitability  of his apartment.  To support these allegations  on
appeal,  he cites only to his own motions, which have no  factual
          basis.  DeNardo seems to argue that the ulterior motive element
is fulfilled by the Foremans efforts to defeat his claims through
litigation.   DeNardo  does  not  allege  any  specific  improper
willful  acts in satisfaction of the second element of the  abuse
of  process tort,35 but it may be inferred he argues the improper
willful act element was fulfilled when the Foremans used judicial
process to evict him and file an FED action against him.
          DeNardo  has  not  demonstrated  a  genuine  issue   of
material  fact  for either the ulterior purpose  or  willful  act
element  of  an  abuse  of process claim.  DeNardos  argument  is
essentially  the same as his underlying argument  in  DeNardo  v.
Cutler,  in  which  DeNardo asserted an abuse  of  process  claim
against  his former employer, its lawyer, its lawyers  law  firm,
and Judge Rindner.36  DeNardo argued that the defendants ulterior
motive  was  retribution  for suing his  employer  and  that  the
defendants  sought  to coerce him into abandoning  his  cause  of
action.37  We concluded that his claim was insufficient to support
an  inference that the defendants were attempting anything  other
than  the  successful dismissal of a lawsuit,  which  is  not  an
ulterior  motive and that [f]or this reason alone,  the  superior
courts  dismissal of the claim was proper.38  We  also  concluded
that  DeNardo did not assert a clear willful act other  than  the
filing of motions which were ruled upon favorably.39
          Because  (1)  actions taken in the  regular  course  of
litigation are not a proper basis for an abuse of process claim,40
(2) DeNardo did not plead his generalized abuse of process claims
with  any  particularity,41 and (3) DeNardo pointed to  no  facts
supporting   his   claim,  summary  judgment  against   him   was
appropriate on his generalized abuse of process claim.
                    (ii) Failure   to   reply  to  requests   for
          Judge   Rindner  issued  orders  during   the   Sawicki
litigation denying DeNardos discovery requests on issues  already
litigated  in  Corneloup.  DeNardo now  argues that the  Foremans
engaged in abuse of process in the Sawicki litigation by refusing
to answer his repeated requests for admissions.
          Given  Judge  Rindners  discovery  orders  in  Sawicki,
DeNardo  has  not  specified  any  requests  for  admissions  the
Foremans wrongfully failed to answer.  DeNardo has further failed
to  demonstrate  that  he  objected  to  this  alleged  discovery
violation  during the Sawicki litigation and to explain  why  his
claim can be raised in this case when he did not appeal the final
judgment  in Sawicki.  Nor has he specifically alleged either  an
ulterior purpose or a willful act related to the Foremans failure
to  respond to his discovery requests.  Because DeNardo  has  not
demonstrated a genuine issue of material fact, we affirm  summary
judgment against him on this issue.
                    (iii)     Notary fraud allegations
          DeNardos notary fraud claim consists of two parts.   He
first  claims that the Foremans failed to swear the oath required
by  law  before signing the affidavit for documents submitted  in
this  case and other cases between these same parties.   He  also
claims  that the Foremans improperly approve[d] the use of  Penny
Foreman  as a notary knowing that she is a party to the  multiple
          actions between the parties and a named defendant in the
notarized  documents.   He argues that the  Foremans  perpetrated
notary fraud in an effort to deceive the court.
          A  notarys  certification that  the  affiant  knowingly
signed  the  document in her presence is sufficient to  make  the
document a sworn statement even without proof that the oral  oath
was administered.42  Alaska Statute 44.50.062(5) permits a notary
to  notarize a document as long as the person who is to sign  the
document  (A)  appears and signs the document before  the  notary
public . . . ; (B) gives an oath or affirmation if required under
law  or if the notarial certificate states that the document  was
signed under oath or affirmation; and (C) is personally known  to
the  notary  public  .  .  .  .  Alaska  Statute  44.50.062(6)(a)
provides  that  a notary may not perform a notarial  act  if  the
notary public . . . is a signer of or named in the document  that
is to be notarized.
          Even assuming Penny Foreman notarized an affidavit in a
case  in which she was a named party, DeNardos claim fails  as  a
matter  of  law because he did not allege any specific  facts  in
support  of  his fraud claim.  Rather, he alleged  in  conclusory
fashion that the Foremans perpetrated notary fraud to deceive the
court  and DeNardo, to present perjury, [and to] procure an  undo
[sic]  advantage  by  the  use of fraud, deceit  and  entrapment.
DeNardo points to no actual deception or false statement  in  the
notarized documents, nor has he demonstrated that he suffered any
specific harm as a result of Penny Foremans alleged misconduct.
          Because DeNardo has not demonstrated a genuine issue of
material  fact regarding the alleged notary fraud,  the  superior
court  properly  granted summary judgment  against  him  on  this
               b.   DeNardos  1983 claim against the Foremans  is
                    without merit.
          DeNardo also asserted a 42 U.S.C.  198343 claim against
the Foremans for seeking to deprive him of the property right  in
his tenancy.  According to DeNardo, by bringing an FED action and
relying  on  the  assistance of a state actor  (the  judge),  the
Foremans  acted under color of state law.  DeNardos claim  hinges
on  the idea that an FED action is a construct of state law  with
no significance outside the state court; thus, he argues, private
landlords  who  use  the  FED system are  state  actors  for  the
purposes of  1983.  Even aside from the fact that the FED  action
was  part  of  the  long-since-completed Corneloup  litigation,44
DeNardos claim has no merit.
          In DeNardo v. Cutler we held that acting under color of
state  law  requires  a  1983 defendant to have  exercised  power
possessed by virtue of state law and  made possible only  because
the  wrongdoer is clothed with the authority of state  law.45   A
private  party  conspiring with a state  actor  may  fall  within
1983s  reach, but when association with a state actor  forms  the
basis   for   necessary  state  action,  conclusory   allegations
unsupported   by   factual  assertions  are  insufficient:    the
pleadings  must  specifically  present  facts  tending  to   show
agreement and concerted action.46
          DeNardo alleged in Cutler that his former employer  and
its counsel acted under color of state law because they could not
have had his first suit dismissed if not for the intervention  of
the state judge following state court procedures.47  We held that
this was insufficient to support a finding of a conspiracy with a
state  actor and that use of the court system by private  parties
for  the  purpose of litigation is not sufficient to  bring  them
under color of state law. 48 We concluded that the superior court
correctly dismissed DeNardos  1983 claims on those grounds.49
          DeNardo  here  reprises his  1983  claim  from  Cutler,
arguing  that  FED  actions are a construct of  the  state  court
system  and that instituting an FED action is thus sufficient  to
show  requisite conspiracy with state actors.  This is  the  same
argument  we rejected in Cutler.  DeNardo has not shown that  the
Foremans  acted under color of state law, nor has he specifically
presented  any  facts  tending to show  agreement  and  concerted
action  between  the Foremans, Sawicki, and any  individuals  who
would  qualify  as state actors.50  We therefore  affirm  summary
judgment  on this issue in the Foremans favor because no  genuine
issue  of  material fact exists and the Foremans are entitled  to
judgment as a matter of law.

          2.   Summary  judgment  in favor of Judge  Rindner  was
               appropriate  because no genuine issue of  material
               fact  exists as to DeNardos 42 U.S.C.  1983 claims
               against him.
          Again   invoking   1983,  DeNardo  sought   unspecified
injunctive  and  declaratory relief  against  Judge  Rindner  for
allegedly  violating DeNardos constitutional rights  in  Sawicki.
Judge  Tan  granted summary judgment for Judge Rindner  based  on
judicial  immunity and collateral estoppel.  DeNardo  now  argues
that   1983 authorizes declaratory and injunctive relief  against
state actors in their official capacity.
          DeNardos  claim that he is entitled to declaratory  and
injunctive  relief  fails as a matter of law.   The  doctrine  of
judicial  immunity bars DeNardo from suing Judge  Rindner  except
for  non-judicial  acts  or acts clearly outside  Judge  Rindners
subject  matter jurisdiction.51  DeNardo has failed to  establish
either element here.  Accordingly, we affirm summary judgment  in
favor of Judge Rindner.
     C.   The  Superior  Court Did Not Abuse  Its  Discretion  by
          Ordering Pre-Litigation Screening.
          Judge Rindner asked the superior court to enter a  pre-
litigation  screening order requiring DeNardo  to  submit  future
complaints  against  Alaska judges to the  court  for  pre-filing
screening.   The  Foremans  and  Maassen  joined  Judge  Rindners
motion,  asking  the  court to impose a pre-litigation  screening
order   for  their  benefit  as  well.   Rather  than  filing   a
substantive response, DeNardo moved for a continuance to  conduct
discovery he believed necessary to respond to the  pre-litigation
screening motion, even though the motion was based solely on  his
litigation history.  Judge Tan granted a protective order against
          further discovery, holding no response to DeNardos discovery
requests was needed because they address issues that were  either
actually  litigated  in previous cases on these  same  facts,  or
should have been.
          Judge Tan then granted the screening motion in part and
issued an order requiring DeNardo to seek court permission before
filing  any new complaints against the named defendants  in  this
case.  He ordered that the court would grant permission only if:
               a.)   The complaint does not restate a  cause
          of  action that has already been asserted or could
          have  been  asserted in a prior case  against  the
          same parties;
               b.)   The  complaint is definitive, detailed,
          and  legally  sufficient to survive  a  motion  to
          dismiss; and
               c.)   Unless a stay of execution is in place,
          DeNardo  has submitted proof that he has paid  any
          court-ordered  sanctions and awards  of  attorneys
          fees  and  costs that he owes defendants named  in
          the  new  complaint under existing  judgments  and
DeNardo  asserts that the pre-litigation screening order  is  not
factually supported and denies his constitutional rights to court
access, redress of grievances, and trial by jury.
          In DeNardo v. Cutler we considered a similar request by
Judge  Rindner  for  a  pre-litigation screening  order  limiting
DeNardos ability to sue superior court judges.52  We declined  to
consider  Judge  Rindners request because it was raised  for  the
first  time  on  appeal, but nevertheless stated  that  screening
orders  may be permissible if they meet certain requirements:   A
request for an injunction . . . should be raised initially in the
superior  court  in  order to allow all parties  the  proper  due
process  which must include a hearing, adequate justification  in
the record, and a narrowly tailored order.53
          We have not yet determined the appropriate standard for
reviewing  a  pre-litigation screening order.  The  Foremans  and
Judge  Rindner  urge  us to look to the Ninth  Circuit  Court  of
Appeals, which has held that pre-litigation screening orders  are
reviewed for abuse of discretion.54  We agree and now hold that a
pre-litigation  screening order will be  reviewed  for  abuse  of
discretion,  but we will affirm an order only if it  is  narrowly
tailored and based on adequate justification in the record.
          As  a  preliminary step, the question  of  whether  the
subject  of  a  pre-litigation screening order received  adequate
procedural  due  process  is a constitutional  question  that  we
review  de  novo.55  [P]rocedural due process  under  the  Alaska
Constitution   requires  notice  and  opportunity   for   hearing
appropriate to the nature of the case.56  Notice of the matter at
issue  in  the  proceedings provides parties  with  a  reasonable
opportunity  to  be  heard.57  A hearing  gives  the  parties  an
opportunity  to  present the quantum of evidence that  the  court
needs to make an informed and principled determination.58  A party
          may waive the right to an evidentiary hearing on disputed
material  questions of fact by failing to request one before  the
court rules on the matter.59
          DeNardo  received adequate procedural due process  with
respect  to the pre-litigation screening order, including  notice
and  the  opportunity to be heard.  The defendants requested  the
order  in  the superior court, thus giving DeNardo an opportunity
to be heard on the matter.  Although DeNardo unsuccessfully moved
for  discovery  to  respond to the motion, he failed  to  file  a
substantive  response.  He thus had  but  did  not  utilize   the
opportunity to respond, and he waived any right to a  hearing  on
the  motion by not requesting one.  Finally, there are no genuine
issues  of  fact about the number of times DeNardo has previously
sued  the  Foremans or Judge Rindner or about the basis  for  his
prior claims against them.
          We also conclude that it was not an abuse of discretion
to  determine that the circumstances of this case justify a  pre-
litigation  screening order.  By their very nature, requests  for
pre-litigation screening orders require a court to  consider  the
sum  of  a litigants actions.  DeNardo has named the Foremans  as
defendants  in at least eleven suits, all of which have  involved
claims  about  the  habitability of the  apartment  at  issue  in
Corneloup  and  some of which have involved  the  same  abuse  of
process  claims.   As  the  Foremans argue,  [a]  case  for  pre-
litigation screening with more adequate justification  than  this
one  is hard to imagine.60  Although the facts of this case alone
warrant a pre-litigation order, the sum and character of DeNardos
long  history  with  the court system also support  the  superior
courts determination.61
          The  pre-litigation screening order, limited  to  suits
against  the named defendants in this case, is for the most  part
appropriately  tailored to the particular circumstances  of  this
case  and  therefore does not constitute an abuse of  discretion.
The first condition, found in section (a), prohibits DeNardo from
filing a complaint that restates an existing cause of action or a
cause  of  action that could have been litigated in a prior  case
against the same parties.  This does not restrict DeNardos access
to  the  courts on new claims against these defendants  or  other
parties.   It  limits  only his ability to file  complaints  that
would  already be barred by res judicata or collateral  estoppel.
It  is therefore reasonable to require DeNardo to present each of
the  prior  complaints involving the defendants and to  show,  by
reference to those prior cases, that any new complaint contains a
distinct  and viable new issue.  The second condition,  found  in
section   (b),   requires  DeNardos  future  complaints   to   be
definitive, detailed, and legally sufficient to survive a  motion
to  dismiss.  This is also reasonable because all complaints must
state  a  claim for which relief may be granted.62  We  therefore
conclude   that  sections  (a)  and  (b)  of  the  pre-litigation
screening order fall squarely within the courts discretion.
          The  third  condition, found in section  (c),  requires
DeNardo  to  submit  proof  that he has paid  outstanding  court-
ordered  sanctions and attorneys fees.  In short,  this  requires
DeNardo  to settle up with the defendants before he may pursue  a
          new case against them.  Judge Tan explained that this merely
ensures  that  DeNardo  is able to pay debts  previously  ordered
before he may [impose] further expenses on the defendants and the
court.   Requiring  a  litigant to satisfy  his  debts  to  named
defendants  before he may sue them again is not  unprecedented.63
But  we  conclude that sections (a) and (b) of the pre-litigation
screening  order provide the defendants adequate  protection  and
that  it  is inappropriate to limit DeNardos access to the  court
system  based  on  his  failure to satisfy debts  resulting  from
previous  unrelated  lawsuits.   We  therefore  affirm  the  pre-
litigation screening order as to sections (a) and (b), but strike
section (c).

     D.   The Attorneys Fees Issue is Waived.
          In  April 2007 Judge Rindner moved for an award of full
attorneys fees under 42 U.S.C.  1988,64 contending that  DeNardos
claims  against him were frivolous, vexatious, and in bad  faith.
DeNardo  opposed  the motion, but presented only  one  contention
relevant to the attorneys fees issue:  he claimed that the  award
of  attorneys fees was not based on any findings of fact.   Judge
Tan granted Judge Rindners motion.
          DeNardo did not raise the attorneys fees issue  in  his
Points  on  Appeal and his briefing on the issue  is  inadequate.
Because an issue is waived when a party fails to raise it in  the
points  on  appeal and then inadequately briefs  the  argument,65
DeNardos challenge to the attorneys fee award is waived.
          We  AFFIRM  Judge  Tans denial of DeNardos  motion  for
recusal.  We AFFIRM summary judgment in favor of the Foremans and
Judge Rindner, as well as the award of attorneys fees in favor of
Judge  Rindner.  Finally, we AFFIRM the pre-litigation  screening
order as to sections (a) and (b), but we strike section (c).
     1     See  DeNardo v. Corneloup, 163 P.3d 956,  958  (Alaska
2007).   We  refer  to  Foreman  Properties  and  the  individual
Foremans collectively as the Foremans.

     2    3AN-04-5236 CI (Alaska Super., May 19, 2004).

     3    3AN-05-14472 CI (Alaska Super., December 30, 2005).

     4     After filing his appeal, DeNardo stipulated to dismiss
the  attorneys from the case.  Nothing in the record  shows  that
Sawicki  ever  was  served  or appeared  in  the  superior  court
litigation.   Nor does anything in the record show that  DeNardos
putative claim against Sawicki was resolved in any way; the final
judgments  entered  to  close the case do  not  mention  Sawicki.
Thus, the appellees here are the Foremans and Judge Rindner.

     5    Corneloup, 163 P.3d at 958.

     6    Id.

     7    Id.

     8    Id.

     9    Id.

     10    Id.

     11    Id.

     12    Id. at 958-59.

     13    Id. at 958.

     14    Id.

     15    Id.

     16    Id. at 959.

     17    Id. at 957-58.

     18     See  AS  22.20.020(c) (If a judicial  officer  denies
disqualification  the question shall be heard and  determined  by
another judge assigned for the purpose by the presiding judge  of
the next higher level of courts or, if none, by the other members
of the supreme court.).

     19     Judge  McKay disclosed that DeNardo had in fact  sued
Judge  McKay in an unrelated matter, but determined that he could
be  fair  to  Mr.  DeNardo  and maintain  the  required  judicial
detachment to make decisions in this case.

     20    AS 22.20.020(a)(9).

     21    Alaska Code of Judicial Conduct Canon 2(A).

     22    Alaska Code of Judicial Conduct Canon 3(B)(5).

     23    Corneloup, 163 P.3d at 959.

     24    Amidon v. State, 604 P.2d 575, 577 (Alaska 1979).

     25    Id. at 577.

     26    Corneloup, 163 P.3d at 967.

     27     Wasserman v. Bartholomew, 38 P.3d, 1162, 1171 (Alaska

     28     See,  e.g.,  Corneloup, 163 P.3d at 967  (The  record
reveals  no basis for claiming an appearance of bias or  conflict
of  interest despite DeNardos two civil suits against  the  trial
judge.  Cf. DeNardo v. Muni. of Anchorage, 974 F.2d 1200, 1200-01
(9th  Cir.  1992) (affirming trial judges decision not to  recuse
himself when judge was a member of state bar association, a named
defendant  in  the case, and when plaintiff had  sent  letter  to
senate  judiciary  committee opposing  judges  nomination,  which
court  noted  was probative of DeNardos dislike for [the  judge],
not the other way around.).

     29    Perkins v. Doyon Universal Servs., 151 P.3d 413, 415-16
(Alaska 2006).

     30     Harrold  v. Artwohl, 132 P.3d 276, 279 (Alaska  2006)
(quoting French v. Jadon, Inc., 911 P.2d 20, 23 (Alaska 1996)).

     31    Id.

     32     DeNardo  v.  Cutler, 167 P.3d 674, 678 (Alaska  2007)
(quoting  Kollodge v. State, 757 P.2d 1024, 1026  (Alaska  1988))
(internal quotation marks omitted).

     33    Id. (quoting W. Page Keeton et al., Prosser and Keeton
on  the  Law  of  Torts   121, at 897 (5th ed.  1984))  (internal
quotation marks omitted).

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

     35    DeNardo alleged in conclusory fashion that the Foremans
used   perjury  and  deceit,  fraudulent  affidavits,   negligent
misrepresentations to misstate the law, and fraudulent  arguments
unsubstantiated  by case decisions.  He also  alleged  that  they
acted  to curtail and deny [his] access to the evidence and acted
to  hide  the facts and evidence by refusing to produce relevant,
material, and probative evidence.

     36    Cutler, 167 P.3d at 676, 678.

     37    Id. at 678.

     38    Id.

     39    Id.

     40    Id. (internal quotation marks omitted).

     41     See Alaska R. Civ. P. 9(b) (In all averments of fraud
or mistake, the circumstances constituting fraud or mistake shall
be stated with particularity.).

     42     Gargan  v. State, 805 P.2d 998, 1004-05 (Alaska  App.
1991)  (citing  Anchorage Sand & Gravel Co., Inc. v.  Wooldridge,
619 P.2d 1014, 1016 (Alaska 1980)).

     43     42  U.S.C.  1983  provides a cause of action  against
persons acting under color of any statute, ordinance, regulation,
custom or usage, of any State who violate federal rights.

     44    Corneloup, 163 P.3d at 957-58.

     45    Cutler, 167 P.3d at 678-79 (quoting West v. Atkins, 487
U.S. 42, 50 (1988) (internal quotation marks omitted)).

     46     Id. at 679 (quoting Sooner Prods. Co. v. McBride, 708
F.2d   510,  512  (10th  Cir.  1983)  (internal  quotation  marks

     47    Id.

     48    Id.

     49    Id.

     50    See id. at 679 (quoting Sooner Prods. Corp. v. McBride,
708  F.2d  510,  512 (10th Cir. 1983)) (internal quotation  marks

     51     See  DeNardo v. Michalski, 811 P.2d 315, 316  (Alaska
1991)  (citing  Stump v. Sparkman, 435 U.S.  349  (1978)).   This
court   has  specifically  explained  to  DeNardo  that  judicial
immunity  applies  to  1983 claims against judges.   Cutler,  167
P.3d  at  679  ([T]he  absolute immunity  traditionally  accorded
judges  [is]  preserved under  1983. (quoting  Owen  v.  City  of
Independence,  445  U.S.  622, 637 (1980)))  (internal  quotation
marks omitted).

     52    Cutler, 167 P.3d at 680-81.

     53    Id. at 681.

     54    E.g., Molski v. Evergreen Dynasty Corp., 500 F.3d 1047,
1056  (9th  Cir.  2007)  (We  review a pre-filing  order  entered
against a vexatious litigant for abuse of discretion.); DeLong v.
Hennessey,  912  F.2d 1144, 1147 (9th Cir. 1990) ([W]e  recognize
that  [there] is strong precedent establishing the inherent power
of federal courts to regulate the activities of abusive litigants
by imposing carefully tailored restrictions under the appropriate
circumstances.) (internal quotation marks omitted).

     55    Skinner v. Hagberg, 183 P.3d 486, 489 (Alaska 2008) (We
review constitutional questions de novo, adopting the rule of law
that  is  most  persuasive  in light of  precedent,  reason,  and

     56     Price  v.  Eastham, 75 P.3d 1051, 1056 (Alaska  2003)
(quoting  Walker  v.  Walker, 960 P.2d 620,  622  (Alaska  1998))
(internal quotation marks omitted).

     57    Id. (quoting Potter v. Potter, 55 P.3d 726, 728 (Alaska

     58     Id.  (quoting  Walker, 960  P.3d  at  622)  (internal
quotation marks omitted).

     59    Corbin v. Corbin, 68 P.3d 1269, 1274 (Alaska 2003); see
also In re C.L.T., 597 P.2d 518, 522 (Alaska 1979) (By consenting
to  certain procedures or by failing to object to others, a party
may  waive those rights which are arguably encompassed within due

     60     DeNardo  already has been subject  to  at  least  one
injunction  preventing him from filing additional  federal  suits
against  certain  defendants.  See DeNardo v.  Murphy,  781  F.2d
1345,  1348 (9th Cir. 1986).  In Murphy, the Ninth Circuit  Court
of Appeals affirmed the district courts injunction, noting:

          [a]lthough  litigiousness alone is  no  reason  to
          enjoin  future litigation, frivolous claims  by  a
          litigious  plaintiff  may be extremely  costly  to
          defendants and can waste valuable court time.
               In  view  of the number of times DeNardo  has
          forced  these  defendants to defend themselves  on
          the  same claim, the age of the underlying  claim,
          and  the  resolution of the issue in both  federal
          and state courts, the district court did not abuse
          its   discretion  by  enjoining  litigation   over
          DeNardos  1978 discharge. Id. (internal  citations
     61     DeNardo has filed at least sixty-two cases  in  state
trial  court  since 1990.  A supplement to the record  on  appeal
indicates  that  DeNardo  has  named  superior  court  judges  as
defendants  on  at least thirty occasions.  This supplement  also
indicates  that  DeNardo has sued Judge Rindner  at  least  three
times other than in this case.

     62    See, e.g., Perry v. Gold & Laine, P.C., 371 F. Supp. 2d
622,  631-32 (D.N.J. 2005) (enjoining vexatious litigants ability
to  file suit unless litigant shows her claim can survive,  among
other things, a motion for judgment on the pleadings).

     63    The Seventh Circuit Court of Appeals recently imposed a
similar  requirement on a vexatious litigant, noting:  [t]he  due
process  clause  entitles  every litigant  to  a  full  and  fair
opportunity to be heard; it does not entitle anyone to  be  heard
on  the same question over and over.  The law of preclusion  (res
judicata  and collateral estoppel) rests on the proposition  that
once  is  enough.  In re City of Chicago, 500 F.3d 582, 585  (7th
Cir. 2007).

     64     1988(b) provides as follows:

          (b)  Attorney's fees.  In any action or proceeding
          to  enforce  a provision of sections 1981,  1981a,
          1982,  1983, 1985, and 1986 of this title, .  .  .
          the  court,  in  its  discretion,  may  allow  the
          prevailing party, other than the United States,  a
          reasonable  attorney's fee as part of  the  costs,
          except  that  in  any  action  brought  against  a
          judicial  officer for an act or omission taken  in
          such  officer's  judicial  capacity  such  officer
          shall  not be held liable for any costs, including
          attorney's fees, unless such action was clearly in
          excess of such officer's jurisdiction.
     65     See  Brady v. State, 965 P.2d 1, 7 n.5 (Alaska  1998)
(concluding  that [d]espite our solicitude for pro se appellants,
pro se appellant waived attorneys fee issue by failing to include
it in points on appeal and to brief it adequately).

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

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

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights