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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wooten v. Hinton (03/06/2009) sp-6341

Wooten v. Hinton (03/06/2009) sp-6341, 202 P3d 1148

     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

JASON WOOTEN, d/b/a )
GLYNWOOD APARTMENTS, ) Supreme Court No. S-12883
and DENNIS RAY SKAN, )
) Superior Court No. 3AN-06-06649 CI
Appellants, )
) O P I N I O N
v. )
) No. 6341 March 6, 2009
JASON HINTON, LYDIA )
MARTINEZ, ROBERT BRANDON, )
and SAMANTHA MOFFET, )
)
Appellees. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Craig F. Stowers, Judge.

          Appearances:    Brett  von   Gemmingen,   Law
          Offices   of   Brett  von   Gemmingen,   LLC,
          Anchorage, for Appellants.  James  J.  Davis,
          Jr.,  Goriune  Dudukgian, and  Ryan  Fortson,
          Northern  Justice  Project,  Anchorage,   for
          Appellees.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Carpeneti, and Winfree, Justices.  [Eastaugh,
          Justice, not participating.]

          FABE, Chief Justice.

I.   INTRODUCTION
          This  appeal addresses the claim of the owner  and  the
senior  apartment  manager of the Glynwood Apartments  (Glynwood)
that  they  were  the prevailing parties, and  thus  entitled  to
attorneys  fees, in a lawsuit brought by four of  their  tenants.
Glynwood  argues that because the tenants chose to dismiss  their
case   with  prejudice  after  they  reached  a  settlement  with
Glynwoods insurance carrier, it is the prevailing party. Glynwood
also   appeals  the  trial  courts  refusal  to  award  discovery
sanctions against the tenants.  Because the superior court  acted
well within its discretion, because accepting Glynwoods arguments
would  lead  to a decision contrary to the policies in  favor  of
settlement agreements, and because the real dispute in this  case
is  between  Glynwood and its insurance carrier,  we  affirm  the
superior courts judgment in all respects.
II.  FACTS AND PROCEEDINGS
          On  April  5,  2006, four tenants, Jason Hinton,  Lydia
Martinez,  Robert Brandon, and Samantha Moffet, filed a complaint
for  declaratory and injunctive relief and damages against  their
landlord, Jason Wooten, and senior apartment manager, Dennis  Ray
Skan.   The  tenants  sought to remedy the  racist,  illegal  and
abusive policies they alleged Glynwood was applying to low-income
tenants  who  lived at Glynwood Apartments.  The tenants  claimed
that  the Glynwood management team had created a culture of  fear
and  intimidation  by verbally abusing them and threatening  them
with   baseless  eviction  actions  as  retaliation  for  routine
maintenance  requests.  The tenants also alleged that  Skan  used
racial  epithets  and  that  Glynwood  evicted,  intimidated,  or
bullied other African-American tenants of the apartment complex.
          All  four tenants alleged violations of Alaskas Uniform
Residential  Landlord Tenant Act,1 as well as claims of  assault,
wrongful  eviction,  threats  of eviction,  and  intentional  and
negligent   infliction  of  emotional  distress.   In   addition,
plaintiff  Hinton  alleged slander and violation  of  the  Alaska
Human  Rights  Act,2  and  in  an  amended  complaint,  plaintiff
Martinez alleged malicious prosecution.
          Glynwood   was  initially  represented  by  Brett   von
Gemmingen.   Glynwoods insurance carrier then became involved  in
the case under a reservation of rights and Donald Thomas filed an
entry of appearance as co-counsel.  Thomas later stated that  the
express  reference  to  himself as co-counsel  in  his  entry  of
appearance  was done in recognition that so long as  the  insurer
was  defending under a reservation of rights, [Glynwood] had  the
right  under AS 21.89.100 to be represented and defended  in  the
lawsuit  by  their own independent counsel.  Von  Gemmingen  then
withdrew from the case, and he stated in a letter to Thomas  that
his services as independent counsel were no longer needed [s]ince
the  insurer  has  elected  to waive  its  coverage  defenses  by
defending  with [Thomas as] counsel.  Thomas filed  a  motion  to
withdraw from the case, stating that a dispute [had] arisen as to
the  legal  effects of his appearance as co-counsel for Glynwood.
Glynwood then re-hired von Gemmingen as its attorney at [its] own
expense.
          The  following month, the tenants reached a  settlement
with  Glynwoods insurer, under which the tenants received $45,000
in  exchange  for  the release of their claims against  Glynwood.
The  day  the settlement was reached, Glynwood filed a motion  to
consolidate  this  case  with a different  action  regarding  the
tenants  security  deposits.  On January 17,  2007,  the  tenants
          opposed the motion to consolidate and notified the court that
they  had  reached  a global settlement and  would  be  filing  a
stipulated  dismissal of this case with prejudice  in  accordance
with  Civil Rule 41(a).  The tenants also notified the court that
they  had  sent  a  copy of their opposition  to  the  motion  to
Glynwoods  counsel  on the same date.  But an  affidavit  by  von
Gemmingen dated January 24, 2007, maintained that he had not  had
any settlement discussions with Plaintiffs or their attorneys and
that  his clients had not agreed to any settlement of this  case.
A  week later Glynwood filed a motion to compel discovery  and  a
request for sanctions.
          Thirteen days later, on February 13, 2007, the  tenants
voluntarily  moved  to  dismiss their case with  prejudice  under
Alaska  Civil Rule 41(a)(2),3 stating that their motion was  [i]n
exchange for a $45,000 settlement payment from Glynwoods insurer.
Glynwood opposed the motion for voluntary dismissal and  filed  a
cross-motion, seeking an entry of final judgment and  designation
as  the  prevailing  party.  Glynwood also  asked  the  court  to
reserve  the  settlement funds in the court  registry  until  the
costs and fees owed to Glynwood could be determined.
          Superior  Court  Judge  Craig  F.  Stowers  heard  oral
arguments on the cross-motions and granted the tenants motion  to
dismiss  their case with prejudice.  The superior court concluded
that  the  tenants  were  prevailing  parties  because  Glynwood,
through  its insurer, had paid a substantial amount of  money  to
settle  the  case  and  that on those  facts  alone  .  .  .  the
plaintiffs  would be the prevailing party here.  The tenants  did
not seek attorneys fees, nor were they granted any.
          Glynwood  filed  a motion for reconsideration,  arguing
that  while the trial courts ruling was based upon the assumption
that  Defendants insurer had reached some type of agreement  with
Plaintiffs, any agreement between the tenants and the insurer was
not  a  part  of the record in th[e] case.  Glynwood also  argued
that  the courts decision was predicated upon the assumption that
the  acts  of  Defendants insurer somehow  bound  Defendants,  an
assertion it disputed.  Glynwood maintained that its insurer  had
no  contractual  rights  because  of  its  prior  breach  of  the
insurance contract when it abandoned its defense of [Glynwood] in
the  face  of  litigation.  Glynwood requested limited  discovery
regarding  the  facts  that the court found  to  be  relevant  in
reaching its decision.
          On  May  30, 2007, the superior court denied the motion
for reconsideration, concluding that Glynwood had made no showing
that the court has overlooked or misconceived a material fact,  a
material question, or a proposition of law.  The superior  courts
order  also  included  a  handwritten addendum  reiterating  that
Glynwood  was  not  the  prevailing party  and  not  entitled  to
attorneys fees:
          Moreover,  the  courts  decision  was   based
          primarily  on  the fact that the  plaintiffs,
          having  received  [$45,000] in  consideration
          from  defendants insurer to settle the  case,
          have   moved  to  dismiss  their  case   with
          prejudice against the defendants.  As long as
          the  dismissal is with prejudice,  the  court
          does  not think it can require plaintiffs  to
          continue   litigating   their   claims.    As
          recipients  of  substantial consideration  in
          settlement, they are prevailing parties,  or,
          to  put the issue in context, defendants  are
          not   prevailing  parties  for  purposes   of
          obtaining an award of attorneys fees  against
          plaintiffs.   If  defendants  are   concerned
          about  their insurers decision to settle  the
          case,  they need to take this issue  up  with
          their insurer in a different forum  not  this
          case.
          
          On  September 6, 2007, the superior court  entered  its
final  judgment  dismissing the tenants  claims  with  prejudice,
denying  prevailing party status to Glynwood,  and  declining  to
enter discovery sanctions against the tenants.
          Glynwood appeals.
III.      STANDARD OF REVIEW
          We review a superior courts determination of prevailing
party  status  and attorneys fees for abuse of discretion.4   The
abuse  of  discretion  standard also applies  to  review  of  the
superior  courts rulings on discovery issues.5  We will  find  an
abuse  of  discretion only where the record as a whole leaves  us
with a definite and firm conviction that a mistake has been made.6
IV.  DISCUSSION
          Glynwood   presents  two  issues  on  appeal.    First,
Glynwood  argues  that  it  is the prevailing  party  and  should
therefore be awarded attorneys fees on remand.  Second,  Glynwood
argues that it was an abuse of discretion for the superior  court
to deny sanctions for the tenants failure to respond to discovery
and for their failure to confer regarding their lack of discovery
responses.  We address these challenges in turn.
     A.   The  Superior  Courts Entry of a Dismissal  Without  an
          Award of Fees Was Proper.
          
          1.   The superior court did not abuse its discretion by
               refusing to place conditions on the dismissal.
               
Alaska Civil Rule 82(a) provides that the prevailing
party in a civil case shall be awarded attorneys fees.  Glynwood
argues that because the tenants chose to dismiss their case with
prejudice, Glynwood was the prevailing party and thus entitled to
attorneys fees.  Glynwood relies on case law that recognizes a
dismissal with prejudice as an adjudication on the merits of a
lawsuit.7  Glynwood analogizes this case to our decision in Bovee
v. LaSage, where the defendant was found to be the prevailing
party and awarded attorneys fees after plaintiff Bovees suit was
dismissed with prejudice.8  But Glynwoods reliance on Bovee is
misplaced.  In Bovee, we recognized that a plaintiffs dismissal
with prejudice makes a prevailing party determination possible.9
We have never held that a plaintiffs dismissal with prejudice
automatically makes the defendant a prevailing party.  Instead,
as the tenants note, we have adopted a more common sense approach
to determine prevailing party status: the prevailing party is the
party who has successfully prosecuted or defended against the
action, the one who is successful on the main issue of the action
and in whose favor the decision or verdict is rendered and the
judgment entered.10  With few exceptions, the party who obtains an
affirmative recovery is considered prevailing.11  The tenants are
also correct in noting that in Bovee, the police officer was
declared to be the prevailing party not simply because Bovee had
dismissed his case with prejudice, but because as a result of the
dismissal the officer had prevailed on every claim in the
lawsuit.  In this case, the tenants received $45,000 in exchange
for their dismissal and were therefore successful on the main
issue of the action.
          Glynwood  further argues that the settlement  agreement
between  its  insurer  and  the  tenants  is  collateral  to  the
prevailing  party  issue.   Glynwood relies  on  Municipality  of
Anchorage v. Baugh Construction & Engineering Co.12 as instructive
on the question whether payments by a collateral source influence
a  prevailing party determination.  In Baugh, the Municipality of
Anchorage  contracted  with  Baugh  to  build  a  waste-shredding
facility.13  An explosion and fire severely damaged the facility,
and  the  Municipality sued Baugh, asserting a number  of  claims
including one for products liability.14  The Municipality reached
a  settlement with the third-party defendant manufacturer of  the
equipment   and  then  dismissed  with  prejudice  its   products
liability  claims  against  Baugh.15   Because  the  verdict  was
unequivocally in Baughs favor, Baugh was declared the  prevailing
party and awarded attorneys fees.16  Glynwood contends that it is
the  prevailing party and entitled to attorneys fees because,  as
in  Baugh, the tenants dismissed their case against Glynwood with
prejudice  after  settlement with a  third  party.   But  as  the
superior  court  correctly recognized, Baugh  is  distinguishable
because while in Baugh, the settlement was reached with a  third-
party  defendant,  the  settlement agreement  in  this  case  was
reached with Glynwoods own insurer.
          We have never endorsed such an inflexible definition of
prevailing  party as that advocated by Glynwood and instead  have
held  that  the prevailing party is the one who succeeds  on  the
main  issue of the case.17  In addition, a party need not prevail
on  every  issue to enjoy prevailing party status, nor  need  the
party obtain formal judicial relief.18
          The  tenants requested that the superior court  dismiss
their case with prejudice under Civil Rule 41(a)(2).  Civil  Rule
41(a)(2) covers situations where dismissal is requested after the
answer  has  been filed and the defendant has not  stipulated  to
dismissal.   In  deciding  a voluntary dismissal  motion,  Alaska
courts  balance  the  interests of both  the  plaintiff  and  the
defendant in the dismissal in order to obtain a result which will
be  fair and equitable under all the circumstances of the case.19
But  as  the tenants have noted, federal courts have held that  a
          plaintiffs motion for dismissal with prejudice must be granted.20
          Voluntary  dismissal  with prejudice  carries  a  heavy
price  for  a  plaintiff: unless the court has  made  some  other
provision, a dismissal with prejudice is subject to the rules  of
res  judicata,21  and  one who acquiesces  to  a  dismissal  with
prejudice  waives  the right to an appeal.22  Legal  commentators
Charles  Wright  and  Arthur Miller state  that  [s]ince  such  a
dismissal is a complete adjudication of the claims and a bar to a
further action on them between the parties, it has been held that
the  [federal] district court has no discretion to refuse such  a
dismissal and cannot force an unwilling plaintiff to go to trial.23
          Civil  Rule 41(a)(2) also provides that an action shall
not  be  dismissed at the plaintiffs instance save upon order  of
the  court and upon such terms and conditions as the court  deems
proper.  In Dome Laboratories v. Farrell, we determined that this
rule  provides  an  independent basis for an award  of  attorneys
fees.24   In this case, the tenants voluntarily moved to  dismiss
their case with prejudice under Civil Rule 41(a)(2), stating that
their   action  was  necessary  because  Glynwoods  counsel   had
refus[ed]  to  sign  off on any stipulation for  dismissal.   The
superior court had the discretion to grant the dismissal  on  any
conditions  it  found  to  be just.  Its  choice  to  not  impose
conditions  in  this  case was reasonable  given  that  a  global
settlement  had been reached in which Glynwoods own insurer  paid
the  tenants $45,000.  As the superior court recognized, the real
issue in this case is between Glynwood and its insurance carrier.
          2.   The  real  dispute  is between  Glynwood  and  its
               insurance carrier.
               
          Glynwoods  arguments for prevailing  party  status  and
discovery  sanctions are based on its refusal to acknowledge  the
settlement  agreement between its insurer and the  tenants.   The
real dispute in this case is between Glynwood and its insurer  as
to the coverage guaranteed by its policy.
          The  record  on  appeal reveals that Glynwood  knew  or
should  have known of the settlement between the tenants and  its
insurer at least two weeks before it moved to compel discovery: a
filing by the tenants attorney on January 17, 2007, informed  the
court that a global settlement had been negotiated with Glynwoods
insurer  on  December 26, 2006.  Yet a filing by  Glynwood  dated
January  24,  2007, included an affidavit from Glynwoods  counsel
stating:   I  have  not  had  any  settlement  discussions   with
Plaintiffs or their attorneys.  My clients have not agreed to any
settlement of this case.  A week later Glynwood filed  its  order
seeking a motion to compel discovery and sanctions.
          When  asked  about the settlement at the May  16,  2007
hearing,  Glynwoods  attorney answered,  I  dont  know  that  the
insurer has paid or agreed to pay anything other than what I  see
in  the pleadings.  Glynwoods attorney also twice referred  to  a
secret  agreement  between  its insurer  and  the  tenants.   The
tenants, in turn, claimed that Glynwoods attorney was made  aware
of  the  settlement  agreement,  yet  refused  to  agree  to  the
dismissal  of  the  case even though it would have  absolved  his
clients from any liability.  At the hearing, the tenants attorney
          stated, as far as what weve heard from the insurance adjuster,
they  were  in  constant  communication with  Glynwoods  attorney
during the settlement process.
          We have not been provided with a copy of the settlement
agreement.  But the transcript of the hearing before the superior
court  indicates  the  tenants attorney provided  the  court  and
Glynwoods  attorney  with copies of the  settlement  checks  made
payable to each of the tenants individually.  It is thus puzzling
that Glynwood continues to refer to the tenants settlement as  if
it did not actually occur.25
          The  real dispute in this case is between Glynwood  and
its  insurer.   Under  most  liability  insurance  policies,  the
insured  relinquishes to the insurer its right to  settle  claims
and its right to control the litigation during the post-injury to
pre-judgment period.26  As the superior court remarked, usually an
insurance  contract  says that an insurance company  retains  the
right  to  control  the  litigation  and  the  insureds  have  an
obligation to cooperate with the insurance company.  There is  no
copy of Glynwoods insurance contract in the trial record.
          Glynwoods  insurer  has settled with  the  tenants  and
fully  indemnified  Glynwood as to all  the  allegations  in  the
tenants  complaint.  Yet Glynwood maintains it has been abandoned
by  its  insurer  and  has  been forced  to  bear  the  costs  of
litigation.  Glynwood put forth this argument at the May 16, 2007
hearing,  arguing that this abandonment constitutes a  breach  of
the  insurance contract and that, as a consequence,  its  insurer
has  no right to settle on its behalf.  But as the superior court
recognized, the questions whether the insurance contract gave the
insurance  company  the  right  to settle  without  the  insureds
consent  and  whether Glynwood was abandoned by its insurer  were
not  capable  of  resolution within the context  of  the  tenants
lawsuit: I hear the argument, but its not a fact that Im  finding
or  Im  able to find today.  As the trial court recognized, those
issues can be fully litigated in a separate case between Glynwood
and its insurer.
          3.   Awarding  fees  to  Glynwood in  this  case  would
               undermine public policy.
               
          In  addition to having little plausible basis  in  law,
awarding  attorneys  fees  against the  tenants  after  they  had
settled  their case would undermine public policy.  As  noted  by
the   tenants,  Glynwoods  proposed  rule,  whereby  an   insured
defendant could be declared the prevailing party in a case  where
the  defendants  insurer  has agreed to a substantial  settlement
with the plaintiffs, would chill future settlements in Alaska and
contravene well-settled public policy.  We recently recognized:
          [T]here is a strong public policy in favor of
          the  settlement of disputes.  Settlements and
          settlement  hearings facilitate communication
          and  compromise; they encourage litigants  to
          voluntarily resolve their disputes; and  they
          simplify,   shorten  and  settle   litigation
          without  taking up valuable court  resources.
          Accordingly,    private    settlements    and
          stipulations are to be favored and should not
          be lightly set aside.[27]
          
But  if  a  defendant  could be considered the  prevailing  party
simply  by  refusing  to accept a settlement  negotiated  by  its
insurer,  this  would  force  plaintiffs  either  to  accept  the
settlement  and  risk  being liable for the defendants  attorneys
fees  or  to  continue  litigating the case after  an  acceptable
resolution has already been reached.
          We review a superior courts determination of prevailing
party  status  and attorneys fees for abuse of discretion.28   We
will  find an abuse of discretion only if the record as  a  whole
leaves us with a definite and firm conviction that a mistake  has
been  made.29   Glynwood has not shown that  the  superior  court
abused  its  discretion  in  denying  Glynwood  prevailing  party
status.  Furthermore, accepting Glynwoods arguments would lead to
a  decision  that is contrary to the public policy  in  favor  of
settlement  agreements.  Accordingly, we affirm the  judgment  of
the superior court.
     B.   Glynwood Was Not Entitled to Discovery Sanctions.
          Glynwood argues that it was an abuse of discretion  for
the  superior court to deny sanctions for the tenants failure  to
respond  to discovery and the tenants failure to confer regarding
their  lack of discovery responses.  Glynwood claims that by  the
time  it  moved  to compel the tenants discovery  responses,  the
responses  were  five months overdue and that  the  tenants  also
ignored  Glynwoods efforts to discuss the matter.   We  review  a
superior  courts  rulings  on  discovery  issues  for  abuse   of
discretion.30  We will find an abuse of discretion  only  if  the
record  as  a whole leaves us with a definite and firm conviction
that a mistake has been made.31
          Under   Civil   Rule   37(a)(4)(A),32   sanctions   are
appropriate  in  two  situations: when the motion  to  compel  is
granted  or the requested discovery is provided after the  motion
is  filed.  Neither situation took place here.  Although  it  did
not  provide the reasons for its denial, the superior court could
have   found   that   the  tenants  alleged   nondisclosure   was
substantially   justified  because  they  had  entered   into   a
settlement  agreement with Glynwoods insurer and understood  that
Glynwood  was  aware  of  the negotiations.   Alternatively,  the
superior court could have found that other circumstances, such as
the  settlement  of the case, made discovery unnecessary  and  an
award of discovery sanctions unjust.
          Glynwood  cites Civil Rule 37(a)(4)(A) and argues  that
it  is  entitled  to the $1,440 spent to prepare  the  motion  to
compel,  filed on January 30, 2007.  But as the tenants correctly
note,  Glynwoods motion to compel was moot because the settlement
agreement  had  already  been reached  between  the  tenants  and
Glynwoods insurer.  Glynwoods counsel conceded this point at oral
argument  on October 7, 2008:  Glynwoods counsel agreed  that  it
would not have been an abuse of discretion for the superior court
to  deny  the  motion to compel and the motion for  sanctions  if
those  motions were filed after the plaintiffs had  notified  the
court  and Glynwood that a settlement had been reached  and  that
          they would be dismissing their case with prejudice.  This is, in
fact,  exactly what happened.  On January 17, 2007,  the  tenants
notified  the court and Glynwoods counsel of the settlement  with
Glynwoods  insurer when they filed their opposition to  Glynwoods
motion to consolidate.  A week later Glynwood filed its motion to
compel discovery and for sanctions.  Glynwood has thus failed  to
show   the  superior  court  abused  its  discretion  in  denying
discovery sanctions.
V.   CONCLUSION
          Because  the  superior  court  acted  well  within  its
discretion, because accepting Glynwoods arguments would lead to a
decision  that  is contrary to the policy in favor of  settlement
agreements, and because the real dispute in this case is  between
Glynwood and its insurance carrier, we AFFIRM the judgment of the
superior court.
_______________________________
     1    AS 34.03.010 et seq.

     2    AS 18.80.010.300.

     3    Civil Rule 41 provides in pertinent part:

               (a)(2)    By Order of Court.  Except  as
          provided in paragraph (1) of this subdivision
          of   this  rule,  an  action  shall  not   be
          dismissed  at  the plaintiffs  instance  save
          upon  order of the court and upon such  terms
          and conditions as the court deems proper. . .
          .  Unless otherwise specified in the order, a
          dismissal  under  this paragraph  is  without
          prejudice.
          
     4    Olivit v. City & Borough of Juneau, 171 P.3d 1137, 1142
(Alaska 2007).

     5     Stone v. Intl Marine Carriers, Inc., 918 P.2d 551, 554
(Alaska 1996).

     6    Hopper v. Hopper, 171 P.3d 124, 128 (Alaska 2007).

     7      (Alaska 1997) (internal quotation marks omitted). Id.
722   P.2d   919   (Alaska  1986).Id.  at  921.   Id.   at   922.
Id.  at  922  n.1.Id.  at 929. Halloran v.  State,  Div.  of  Ele
ctions, 11

     8    P.3d 547, 553 (Alaska 2005).Id.

     9    Sherry v. Sherry, 622 P.2d 960, 964 (Alaska 1981) (inte
rnal quotation marks omitted).s.  Thus, it is possible to make  a
prevailing  party  determination for purposes of  applying  Civil
Rule  82 if a case is dismissed with prejudice pursuant to Alaska
R. Civ. P. 41(a)(2). (emphasis added) (citation omitted)).

     10     Alaska Ctr. for the Envt v. State, 940 P.2d 916,  921
(Alaska 1997) (internal quotation marks omitted).

     11    Id.

     12    722 P.2d 919 (Alaska 1986).

     13    Id. at 921.

     14    Id. at 922.

     15    Id. at 922 n.1.

     16    Id. at 929.

     17    Halloran v. State, Div. of Elections, 115 P.3d 547, 553
(Alaska 2005).

     18    Id.

     19     Sherry  v.  Sherry, 622 P.2d 960, 964  (Alaska  1981)
(internal quotation marks omitted).

     20     9  Charles  A.  Wright & Arthur  R.  Miller,  Federal
Practice  and  Procedure  2367 (3d ed. 2008)  (If  the  plaintiff
moves  for  an order under Rule 41(a)(2) for voluntary dismissal,
specifically requesting that the dismissal be with prejudice,  it
has  been held that the district court must grant that request.);
see  also  Smoot v. Fox, 340 F.2d 301, 302 (6th Cir. 1964),  cert
denied,  384 U.S. 909 (1966) (No case has been cited to  us,  nor
have  we  found any, where a plaintiff, upon his own motion,  was
denied the right to dismiss his case with prejudice.); Shepard v.
Egan, 767 F. Supp. 1158, 1165 (D. Mass. 1990).

     21    Wright & Miller, supra note 22,  2367.

     22     See Singh v. State Farm Mut. Auto. Ins. Co., 860 P.2d
1193, 1197 (Alaska 1993).

     23     Wright  & Miller, supra note 22,  2364.   Wright  and
Miller  note that other federal courts have disagreed  with  that
holding  and  have required court discretion in all  cases.   Id.
However,  in the cases requiring court discretion, the court  was
either concerned about prejudice to defendants because litigation
was  in an advanced stage or concerned about possible effects  on
third  parties.   Id.; see also Hudson Engg Co. v.  Bingham  Pump
Co.,  298 F. Supp. 387, 389 (S.D.N.Y. 1969).  In the current case
there are only two parties  the tenants and Glynwood  and despite
a  flurry  of  filings, the litigation had  not  progressed  past
discovery.

     24    599 P.2d at 160.

     25     The  appellants  brief refers to  the  settlement  as
allegedly received monies and monies allegedly received by  [the]
[t]enants from Mr. Wooten and Mrs. [sic] Skans insurer.

     26    See Guin v. Ha, 591 P.2d 1281, 1290 (Alaska 1979); see
also CHI of Alaska, Inc. v. Employers Reinsurance Corp., 844 P.2d
1113,  1115-16  (Alaska  1993).  In CHI, we  recognized  that  an
insured  is  entitled to an independent attorney to  control  the
defense  litigation after an irreconcilable conflict of  interest
between  the insured and the insurer has appeared.  Id. at  1120.
Here,  neither party explains why von Gemmingen was not  retained
as CHI counsel.

     27     Mullins  v.  Oates, 179 P.3d 930, 937  (Alaska  2008)
(internal quotation marks and citations omitted).

     28    Olivit v. City & Borough of Juneau, 171 P.3d 1137, 1142
(Alaska 2007).

     29    Hopper v. Hopper, 171 P.3d 124, 128 (Alaska 2007).

     30    Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1146
(Alaska 1999).

     31    Hopper, 171 P.3d at 128.

     32    Civil Rule 37(a)(4)(A) provides:

          If the motion is granted or if the disclosure
          or  requested discovery is provided after the
          motion  was  filed,  the court  shall,  after
          affording an opportunity to be heard, require
          the   party   or   deponent   whose   conduct
          necessitated  the  motion  or  the  party  or
          attorney  advising such conduct  or  both  of
          them   to   pay  to  the  moving  party   the
          reasonable  expenses incurred in  making  the
          motion, including attorneys fees, unless  the
          court finds that the motion was filed without
          the  movants first making a good faith effort
          to obtain the disclosure or discovery without
          court  action,  or that the  opposing  partys
          nondisclosure,  response  or  objection   was
          substantially   justified,  or   that   other
          circumstances  make  an  award  of   expenses
          unjust.
          
(Emphasis added.)

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