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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Greenway v. Heathcott (2/15/2013) sp-6750

Greenway v. Heathcott (2/15/2013) sp-6750

        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, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



SIMONE K. GREENWAY,                             ) 

                                                )       Supreme Court No. S-14321 

                  Appellant,                    ) 

                                                )       Superior Court No. 3AN-07-10280 CI 

        v.                                      ) 

                                                )      O P I N I O N 

LARRY D. HEATHCOTT,                             ) 

                                                )      No. 6750 - February 15, 2013 

                  Appellee.                     ) 

                                                ) 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Andrew Guidi, Judge. 



                Appearances:        Jeremy     Collier,   Law    Offices    of  Joshua 

                Fannon, Palmer, for Appellant.   No appearance by Appellee. 



                Before:      Carpeneti,     Chief   Justice,   Fabe,   Winfree,     and 

                Stowers, Justices, and Eastaugh, Senior Justice.* 



                EASTAUGH, Senior Justice. 



I.      INTRODUCTION 



                Simone   Greenway   sued   Larry   Heathcott   alleging,   among   other   things, 



identity theft and breach of domestic partnership and fiduciary duties.   After a long, one- 



day bench trial at which both parties were pro se, the superior court denied Greenway's 



        *       Sitting   by   assignment   made   under   article   IV,   section   16   of   the   Alaska 



Constitution. 


----------------------- Page 2-----------------------

claims.    She argues here that it was error not to continue the trial so a particular lawyer 



could represent her when he became available, so she could compose her case, and so 



she could obtain testimony from a witness whose   subpoena was quashed.                      She also 



argues that the court failed to help her sufficiently and failed to explain she could call the 



witnesses telephonically after it rejected her witness affidavits.            We conclude that the 



court did not abuse its discretion as to these issues. 



                She also asserts that the trial judge was biased, or appeared to be biased, 



against her.   The audio recording of the trial refutes these assertions and demonstrates 



that the trial judge was impartial, patient, and courteous in dealing with Greenway and 



in trying to obtain understandable evidence from her. 



                We therefore affirm the superior court judgment. 



II.     FACTS AND PROCEEDINGS 



        A.      Facts 



                Simone      Greenway      met   Larry   Heathcott     in  Alaska.     They    began    a 

relationship and Heathcott moved into Greenway's Wasilla house in February 2000.1 



                In May 2003 a vehicle driven by Heathcott struck and injured Greenway. 



Greenway later claimed that Heathcott misappropriated part of what Heathcott's insurer 



paid to settle her resulting personal injury claim. 



                In 2005 Heathcott left Alaska for Texas on his motorcycle.               After he left, 



Greenway allegedly noticed irregularities in documents and accounting records that 



        1       Our fact description relies on the trial court's findings and the appellate 



record,   including   the   audio   pretrial   and   trial   recordings.   The   recordings   have   been 

invaluable in assessing Greenway's arguments, especially her contentions the trial judge 

was biased, or appeared to be biased, against her. 



                Greenway's 78 trial exhibits were returned to her after trial, and are not in 

the appellate record.     She has submitted no trial exhibits to us. 



                                                  -2-                                            6750
 


----------------------- Page 3-----------------------

indicated to her that her identity had been stolen, and that Heathcott had stolen, or had 



helped steal, it. 



        B.     Proceedings 



               Greenway sued Heathcott in September 2007; her 2008 amended complaint 



alleged that he had breached his domestic partnership duties, breached his fiduciary 



duties, stolen her identity, taken advantage of her credit, and fraudulently collected her 



insurance and unemployment payments. 



               Superior Court Judge Stephanie E. Joannides originally scheduled trial for 



January 2009, and then scheduled a two-day trial for July 2009.  Trial was continued or 



rescheduled several times at the parties' requests, once after Heathcott was injured in an 



accident, and again after Greenway made a request that cited her health and the need to 



get legal assistance. Greenway was pro se after April 8, 2009, when her then-lawyer was 



allowed to withdraw.     Trial was ultimately rescheduled to begin April 18, 2011. 



               On April 6, 2011, 12 days before trial was to begin, Greenway moved to 



continue the April 18 trial.  Superior Court Judge Andrew Guidi denied that motion on 



April 8. On April 15 Greenway, citing different reasons, again moved for a continuance. 



Judge Guidi denied that motion.  Judge Guidi later explained both orally and in writing 



why he had denied both motions.   Greenway argues on appeal that denying her April 15 



motion was an abuse of discretion and also demonstrates judicial bias, or the appearance 



of bias, against her. 



               The morning of trial, the trial court granted the United States's motion to 



quash Greenway's subpoena for FBI Agent Charles Clapper.              She had intended to call 



him to support her identity theft claims.       Greenway   argues on appeal that the court 



abused its discretion by failing to grant her a continuance so she could obtain Agent 



Clapper's evidence. 



                                               -3-                                          6750
 


----------------------- Page 4-----------------------

                Greenway   called   lawyer   Richard   Kibby   as   her   first   witness.       He   had 



represented her in a divorce proceeding about 20 years before, perhaps in 1991. He often 



testified he could not remember when he was asked about past events.  He testified that 

it   was   a   "guess"   that   he   had   dealings   with   Heathcott   in   1994   or   1995.2 Greenway 



claimed that Heathcott had collaborated in the mid-1990's with Rhonda Jasek, a former 



girlfriend of Heathcott, to perpetrate fraud or identity theft against Greenway. 



                When Greenway called Heathcott as her second witness, the superior court 



asked if there was "some reason" Heathcott had to   testify   then, given that he would 



testify on his own behalf later in the trial.        Although the court then allowed Greenway 



to call Heathcott to the stand, she argues that this exchange demonstrates judicial bias or 



the appearance of judicial bias. 



                Greenway asked Heathcott how he was able to buy a house in Texas if he 



had no money; he replied that he bought the house with no money down.                      A document 



seemed to confirm he made no down payment. Regarding Greenway's claim that he had 



misused part of her personal injury recovery, Heathcott testified when Greenway called 



him to the stand that he used $7,000 to get a secured loan for funds needed for medical 



care for both himself and Greenway.   He testified later at trial that the other $10,000 was 



invested   at   Greenway's   request   in   high-risk   options   that   were   worthless   when   they 



expired.    He also testified later that he was penniless when he left on his motorcycle in 



2005.    Greenway   asked   Heathcott   whether   he   had   known   her   in   1995,   to   which   he 



responded "no."  She also asked him questions not obviously related to her claims, such 



as why he doesn't celebrate Christmas, whether he is a Muslim, and why he stopped her 



        2       Appellant's brief states that Kibby "testified that he knew Mr. Heathcott as 



early as 1994/95."      But Kibby's testimony was much more equivocal than appellant's 

brief asserts, and the court permissibly credited Heathcott's testimony that he first arrived 

in Alaska in 1999. 



                                                   -4-                                                6750 


----------------------- Page 5-----------------------

from skiing.   Heathcott seemed confused by these questions, and generally testified that 



he did not know what she was talking about. 



                Greenway testified on her own behalf and introduced 78 exhibits, all of 



which were admitted into evidence.  She stated that Heathcott had left her with six boxes 



of documents, some of which she thought supported her claims.  Many of the documents 



and much of her testimony seem to concern events, such as an encounter with police in 



which she was injured, that had no obvious relevance to establishing Heathcott's liability 



on the claims being tried.        The superior court often interrupted her testimony to ask 



questions   in   attempts   to   determine   what   she   meant,   or   the   significance   of   various 



documents. Greenway testified that in 1991 Rhonda Jasek, Heathcott's former girlfriend, 



had started "becoming [Greenway]."   Greenway seemed to contend that Richard Kibby 



had been given a power of attorney to act for Greenway in 1994-95, had been (in the 



court's   summarizing   words)   in   "cahoots"   with   Heathcott,   and   had   made   Heathcott 



Greenway's   fiduciary.       She   also   seemed   to   contend   that   many   of   her   exhibits   were 



documents Heathcott could not or would not have possessed unless he had been trying 



to steal her identity.  She seemed to believe that, in an attempt to intimidate her, he had 



left them for her to find when he left Alaska in 2005. 



                Greenway introduced into evidence a sheet of thumbnail-sized photographs 



and asserted that they depicted her.          She argues on appeal that the judge then made 



comments that demonstrate judicial bias or the appearance of bias. 



                Greenway       interrupted    her   own    testimony    to   present   the   telephonic 



testimony of Carl Bauman.          He is a superior court judge who explained that he was 



testifying under subpoena in his private capacity and not as a judge.   He explained that 



he was then in a relationship with Greenway.  He testified that his current law clerk was 



Jeremy Collier, that Collier had known Greenway and her son for many years, that 



Collier had "indicated that he would represent" Greenway in the future, but that Bauman 



                                                  -5-                                             6750
 


----------------------- Page 6-----------------------

had    not  encouraged      Collier   to  represent   her.    Bauman      testified  that  he   believed 



Greenway's difficulty in opening bank accounts may have resulted at least in part from 



identity theft issues, but that he had no personal knowledge of who may have stolen her 



identity and no independent knowledge Heathcott was responsible for the theft. 



                When Greenway resumed her testimony, she introduced documents, such 



as   telephone   bills   and   medical   records,   to   support   her   claim   of   identity   theft.  For 



example, she introduced a medical record of a test that she claimed had been conducted 



in Texas, where she had never lived.   The superior court pointed out that the document 



showed that the test had been conducted in Alaska, but had been sent for evaluation to 



a laboratory in Texas.  She also introduced a document describing a student loan for her 



son and bearing the date of "1998," before her son had begun college.                     The superior 



court   remarked   that   it   appeared   "1998"   was   on   the   document   because   that   was   the 



effective date of the interest rate, not necessarily the date of the loan. 



                Toward the end of trial, when Greenway asked about affidavits she had 



gathered, the court told her it would not accept affidavits in lieu of testimony. She argues 



on appeal that the court abused its discretion by failing to tell her the witnesses could 



testify telephonically, and that the episode demonstrates judicial bias or the appearance 



of bias. 



                Late in the trial, the court asked Greenway which exhibits most clearly 



supported her claims and whether she thought there was one document (a "smoking 



gun") that proved her claims, or whether she considered a combination of things and 



documents proved her claims.  She argues here that these questions demonstrate bias or 



the appearance of bias. 



                Heathcott      testified  again,    on   his  own    behalf.     He    denied    stealing 



Greenway's identity, talking with Rhonda Jasek after she left Alaska in 2000, or being 



in Alaska when many of the incidents of supposed identity theft occurred.  He stated that 



                                                   -6-                                             6750
 


----------------------- Page 7-----------------------

Greenway had accused him of being a member of Al Qaeda, having a secret Russian 



bride, and sending subliminal messages from his computer to her television.  When the 



court asked her about this, Greenway confirmed that she still thought Heathcott was 



sending subliminal messages to her television. 



              Three days after trial ended, the court issued written fact findings and legal 



conclusions rejecting Greenway's claims, including her identity theft and fraud claims. 



The court concluded that Greenway had not met her burden of showing fraud or identity 



theft.  We set out in an appendix some of the findings and conclusions most pertinent to 



this appeal. 



              Greenway appeals. 



III.   STANDARD OF REVIEW 



              We "will not disturb a trial court's refusal to grant a continuance unless an 



abuse of discretion is demonstrated.  An abuse of discretion exists when a party has been 

deprived of a substantial right or seriously prejudiced by the lower court's ruling."3  We 



consider "the particular facts and circumstances of each individual case to determine 



whether the denial was so unreasonable or so prejudicial as to amount to an abuse of 

discretion."4  We review for abuse of discretion "decisions about guidance to a pro se 



litigant, and decisions about the admissibility of evidence."5    We also review denial of 



a motion to disqualify a judge for abuse of discretion.6 



              It is not obvious what standard of review applies to an appellate claim that 



a trial court was biased, if the trial court had no opportunity - such as by motion for 



       3      Azimi v. Johns , 254 P.3d 1054, 1059 (Alaska 2011) (quoting House v. 



House , 779 P.2d 1204, 1206 (Alaska 1989)). 

       4      Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 183 (Alaska 2009). 



       5      Shooshanian v. Dire, 237 P.3d 618, 622 (Alaska 2010). 



       6       Wasserman v. Bartholomew, 38 P.3d 1162, 1170 (Alaska 2002). 



                                             -7-                                       6750
 


----------------------- Page 8-----------------------

recusal, disqualification, or new trial - to resolve a claim of judicial bias.  The apparent 

choices seem to be de novo review and abuse of discretion review.7                    But the choice is 



irrelevant here, because we would reach the same conclusion under either standard. 



IV.     ANALYSIS 



        A.       Was There Judicial Bias Or An Appearance Of Judicial Bias? 



                 In what appear to be claims of actual bias, Greenway argues that the trial 



judge was biased against her and "acted as defense counsel for Mr. Heathcott, elevating 



the court's and Mr. Heathcott's agendas over that of Ms. Greenway."                     She argues that 



"the judge's demeanor, tone, and words" demonstrate bias. 



                 Citing   five   incidents,   Greenway   also   argues   that   the   judge   gave   "the 



appearance of bias" against her by giving her the impression "through his rulings, his 



demeanor, and his tone" that he was "acting as [Heathcott's] defense counsel."  She also 



appears to argue that the trial judge should have disqualified himself sua sponte.  She 



asks for a new trial. 



                 Greenway's brief presents her bias arguments last.  We address them first, 



because judicial bias could moot an appellant's other contentions, and because judicial 



impartiality and the appearance of judicial impartiality are so important in our society. 



                 It is   not   obvious   what   must   be   done   to   preserve   for   review   a   claim   of 



judicial bias, if, as here, there has been no motion for recusal, disqualification, or new 



         7       Greenway did not ask the trial court to rule on the issue of judicial bias, so 



there is no ruling for us to review.  In reviewing a trial court's conduct, it would be odd 

to   apply   the   less-deferential   de   novo   standard   of   review,   rather   than   the   abuse   of 

discretion standard, if an appellant raises no claim of bias in the trial court. 



                 Phillips   v.   State ,   271   P.3d   457,   459   (Alaska   App.   2012),   contains   an 

excellent discussion of the standard to be applied in reviewing denial of a recusal motion 

when it is alleged the trial court should have been disqualified for an appearance of bias. 



                                                    -8-                                              6750
 


----------------------- Page 9-----------------------

trial alleging judicial bias or the appearance of bias.8       We assume, without deciding, the 



bias issues Greenway raises are properly before us. 

                A judge must recuse himself or herself if there is bias.9   If the appearance 



of bias is involved, we have held that the judge should give weight to preserving the 

appearance of impartiality.10      The justifiable reasons for recusal due to bias are listed in 



AS 22.20.020(a).11     We have held that even incorrect rulings against a party do not show 



bias in and of themselves.12      Finally, if a party alleges the appearance of bias, a "greater 



showing" is required for recusal.13 



                Alaska   Code   of   Judicial   Conduct   Canon   3(E)(1)   provides   that   if   "the 



judge's impartiality might reasonably be questioned," the judge "shall disqualify himself 



or herself." This requirement includes "instances where: (a) the judge has a personal bias 



        8       In Cook v. State, 36 P.3d 710, 726 (Alaska App. 2001), the court of appeals 



rejected, as unpreserved, Cook's claim that the trial judge had engaged in a continuing 

course of conduct demonstrating apparent bias because that contention was not raised in 

Cook's unsuccessful motion for disqualification. 

        9       Amidon     v.  State ,  604  P.2d   575,  577-78    (Alaska    1979)   (holding    that 



AS 22.20.020(a) requires recusal if there is bias). 

        10      Id . (noting that AS 22.20.020 does not require recusal, but that the judge 



should give weight to preserving the appearance of impartiality in light of provisions in 

the Alaska Code of Judicial Conduct). 

        11      Jourdan v. Nationsbanc Mortg. Corp. , 42 P.3d 1072, 1082 (Alaska 2002). 



These reasons include, among other things, the judge being a party to the case, being 

related to a party or the party's attorney, being a material witness in the case, or having 

a direct financial interest in the case.     AS 22.20.020(a). 

        12      Id. (holding that even if an evidentiary ruling were to be held improper, the 



ruling would not rise to the level of bias). 

        13      Lacher v. Lacher , 993 P.2d 413, 420-21 n.21 (Alaska 1999) (quoting Long 



v. Long , 816 P.2d 145, 156 (Alaska 1991) (holding that a judge's involvement in past 

cases with negative outcomes for the appellant did not require recusal). 



                                                  -9-                                           6750
 


----------------------- Page 10-----------------------

or   prejudice   concerning   a   party   .   .   .   ." Greenway   quotes   Canon   3(B)(5)   and        its 



commentary.       They provide in pertinent part: 



                 In   the  performance       of  judicial   duties,   a  judge   shall   act 

                 without bias or prejudice and shall not manifest, by words or 

                 conduct, bias or prejudice based upon race, color, sex, . . . 

                 disability, . . . or social or economic status. . . . 



                 Commentary. - A judge must refrain from speech, gestures, 

                 or other conduct that manifests bias or prejudice. . . . 



                 A judge must perform judicial duties impartially and fairly. 

                 A   judge   who   manifests   bias   on   any   basis   in   a   proceeding 

                 impairs the fairness of the proceeding and brings the judiciary 

                 into   disrepute.    Facial   expression      and   body   language,   in 

                 addition     to   oral   communication,         can    give    others    an 

                 appearance of judicial bias.        A judge must be alert to avoid 

                 behavior that may be perceived as an expression of prejudice. 



                 We first reject any implicit argument that the judge should have recused 



himself here. Greenway never asked for that relief, and there is no indication  of any pre- 



existing   bias   or   prejudice   that   would   have   justified   pretrial   recusal.    And,   having 



reviewed the trial proceedings and listened to the audio recording, we also conclude that 



there is no indication of any bias or prejudice justifying recusal after trial began. 



                 We     now    consider     the   five  incidents     that,  according     to  Greenway, 



demonstrate   that   the   court   acted,   or   appeared   to   be   acting,   as   Heathcott's   "defense 



counsel," and that gave at least the appearance of bias against her. 



                 1.      Heathcott as Greenway's witness 



                 Greenway first asserts that when she called Heathcott as a witness during 



her    case-in-chief,   the   trial   judge   "interrupted    and   demanded"   an      explanation     why 



Heathcott had to testify at that point in the trial.  We have listened to the audio recording 



to   assess    Greenway's       arguments      that  the   judge's    "demeanor,      tone,   and   words" 



demonstrate bias. This is the verbatim exchange when she called Heathcott as a witness: 



                                                    -10-                                              6750
 


----------------------- Page 11-----------------------

               Judge Guidi:  I think it would be more effective to let you - 

               I'm assuming, Mr. Heathcott, were you planning to take the 

               stand in this case? 



               Heathcott:   Yeah on my own terms, basically. 



               Judge Guidi:  Then - then I think that the app - then what 

               I think I'd rather have you do is wait until Ms. - the rest of 

              - well, Ms. Greenway is there some reason he has to testify 

               now?   Can you do him -      
 



               Greenway:     It's quite important before we go on to these
 

               exhibits.
 



Immediately after Greenway stated that it was "quite important" that Heathcott then 



testify, the court permitted Greenway to call Heathcott as her witness.       Nothing in the 



court's "demeanor, tone, or words" during this exchange indicates actual bias or gives 



an appearance of bias.    Nor did the court appear to act as "defense counsel." 



               It was not problematic that the court, on its own initiative, asked whether 



it was better for Heathcott to testify only once, later in the trial.  Both parties were pro 



se, and the exchange took place about half an hour after trial began.  By then, Greenway 



had demonstrated her difficulty in adducing relevant evidence.        The court might have 



permissibly concluded that it would help the parties, and the court as the trier of fact, if 



the court were to help guide the efficient presentation of evidence. 



               2.     Witness affidavits 



               Greenway next argues that the trial judge objected "on his own volition" 



to her witness affidavits; she also contends that his objection was contrary to "indications 



by   Judge   Joannides   that  Ms.  Greenway    would    be  able  to  support  her  case  with 



affidavits."  In support, she cites the recording of the July 15, 2010 pretrial conference 



conducted by Judge Joannides. 



              Nothing in the exchange at trial supports a claim of bias.      When the trial 



court, near the close of the trial day, said it was planning to close the evidence "today," 



                                             -11-                                        6750
 


----------------------- Page 12-----------------------

Greenway   asked,   "How   about   affidavits?"         The   court   answered   that   "affidavits   are 



hearsay," and explained the importance of cross-examination.                 The audio recording of 



the court's ruling, words, demeanor, and tone does not objectively permit a conclusion 



that the court was biased, or appeared to be biased. 



                And nothing at the pretrial conference should have caused Greenway to 



think she could present witness evidence by affidavit at trial.             Judge Joannides did not 



say expressly that Greenway could do so.               Nor were her words "indications" such a 



practice would be permitted at trial.  The pretrial discussion of affidavits appears to have 



concerned the pretrial exchange of documents and discovery and motion practice, not 



how the parties could present witness testimony at trial.               Greenway invokes no legal 



theory,   such   as   law   of   the   case,   to   support   a   claim   that   any   pretrial   "indications" 



prevented the trial judge from rejecting untrustworthy evidence. 



                Finally,     it  was   not   remarkable     that   the  trier  of   fact  rejected    this 

quintessentially hearsay and suspect evidence even absent an objection by Heathcott.14 



Greenway did not argue any legal theory why the affidavits were admissible, nor does 



        14      See Vachon v. Pugliese, 931 P.2d 371, 381 (Alaska 1996) (citing 1 JOHN 



W. STRONG , MCCORMICK ON EVIDENCE  55, at 244 (4th ed . 1992)) ("It is not an abuse 

of   discretion   for   a  judge    to  make   sua    sponte    evidentiary    rulings   under    certain 

circumstances . . . .    Hearsay objections go to the competence of the evidence, are not 

mere technical exclusions, and therefore are within the discretionary power of the judge 

to exclude if justice requires."). 



                                                  -12-                                             6750
 


----------------------- Page 13-----------------------

she on appeal.15     Moreover, both parties were pro se.         It was not an abuse of discretion 



to decline to accept affidavits in lieu of testimony subject to cross-examination. 



                3.      Thumbnail photos 



                Greenway next refers to the exchange that occurred when she introduced 



a proof sheet of thumbnail-sized photographs into evidence and testified that the images 



depicted her.      This is how her brief at page 23 describes the exchange:              "[T]he judge 



commented that Ms. Greenway looked like a man in a picture presented at trial, and then 



sought confirmation of that opinion from Mr. Heathcott, to which both the judge and Mr. 



Heathcott laughed." 



                This   description   mischaracterizes   the   exchange.       These   are   the   court's 



actual words:  "My question, Ma'am, is can you tell for sure that that's your body in that 



picture, because that seems to me - it looks like a male body."   The court did not state 



at any time that "Ms. Greenway looked like a man" in that or any other picture.  The 



court was trying to determine whether, as she had testified, the image depicted her; the 



court was clearly referring to the image, not to her, when it said "it looks like a male 



body." 



                And contrary to the assertion that "the judge and Mr. Heathcott laughed" 



when the court commented about what the picture depicted, the only laughter audible to 



us during this exchange was uttered by Greenway and another female; the recording 



        15      Greenway   identifies   no   evidentiary   rule   that   might   have   rendered   the 



affidavits admissible.      They are not in the record and she has not described how many 

there were, who made them, what they stated, or how they supported her claims.  We 

therefore could not say their rejection was either error or prejudicial.   Because she does 

not explain how she was prejudiced, there is no basis for reversal.               Barton v. N. Slope 

Borough   Sch.   Dist. ,   268   P.3d   346,   353   (Alaska   2012)   ("When   the   trial   court   has 

erroneously      excluded    evidence,   a   party  must   show    that   the  error  was   harmful   or 

prejudicial before we will reverse."). 



                                                  -13-                                            6750
 


----------------------- Page 14-----------------------

contains no audible laughter attributable to the judge or Heathcott.                   The court asked 



Heathcott to look at the disputed image and say whether it seemed to depict a male's 



body,   but   it   did   not   ask   Heathcott   to   agree   that   Greenway   "looked   like   a   man,"   as 



Greenway's brief suggests. 



                 Greenway       contends    that   she  found    the  court's    remarks    "distasteful," 



"demeaning," and "sexist," and it appears that she genuinely believed she had been 



insulted.    But   having   carefully   listened   to   this   exchange,   we   are   convinced   that   her 



subjective belief at trial was not objectively justified by what the judge actually said or 



how he said it.  When Greenway told the court she thought its comment was "insulting," 



the court patiently and calmly explained that "ma'am, I'm not trying to insult you." 



Considered   in   context   of   the   identity   question,   the   court's   comments   do   not   seem 



"sexist," and the audio recording does not support the contention that the court and 



Heathcott   shared   a   private,   distasteful   joke   at   her   expense. We   detect   no   offensive 



content or tone in what the court said.           The audio recording establishes that the court 



asked about the disputed image respectfully, and did not, in its words or tone, demean 



her appearance. 



                 Greenway's testimony that these very small photos, including the disputed 



image, were of her, made it relevant for the court to determine whether they actually 



depicted her. The court described the proof sheet images as being only "one-half by one- 



half inch."  The exhibits are not available to us, but the appellant's claim of bias turns on 



what she claims - erroneously - the judge said and how he said it. 



                 4.      "Smoking gun" 



                 Greenway next argues that something the court said about her exhibits at 



the   close   of   her   case   demonstrates   bias.  Her   brief   at   page   24   states   that   the   court 



"indicated . . . Ms. Greenway would need to show him a 'smoking gun' if she had it, or 



rest her case." 



                                                   -14-                                              6750
 


----------------------- Page 15-----------------------

                Here is what the court actually said: 



                I just want to give you one more chance to tell me if - and 

                I hate to use this term, it's such an overused term, but is there 

                a document - you've brought a whole box of [inaudible] 

                records - that you think is just an absolute smoking gun 

                proof that Mr. Heathcott stole your identity and was - or 

                was,   you   know,   we'll   just   stop   there,   that   or   is   it   just   the 

                combination of little things and all these little doc - all these 

                other documents adding up, and that's the conclusion you 

                want me to draw from it? 



                Appellant's brief misdescribes the court's actual words and the court's 



objectively apparent purpose. The court was giving Greenway an opportunity to specify 



which of her many documents most clearly supported her claims.                   It was also asking 



whether she thought there was one document that proved her claims, or whether she 



thought a combination of things and documents proved her claims.                 The court's words 



made it clear it would consider all her admitted exhibits and all the evidence, even if 



there were no "smoking gun." The court admitted all of Greenway's exhibits and agreed 



to consider them and it did not tell her she would have to either produce a "smoking gun" 



or rest her case. 



                The court's words implicitly expressed some doubt about the strength of 



Greenway's claims against Heathcott.  Given the evidence, any such doubt would have 



been both unremarkable and appropriate, and would not have indicated bias against 



Greenway.       The   court's   inquiry   came   at   the   end   of   a   long   trial   day   during   which 



Greenway had failed to adduce evidence that Heathcott had harmed her.                    The inquiry 



gave Greenway an additional opportunity to focus her case and emphasize her most 



probative evidence. 



                                                 -15-                                            6750
 


----------------------- Page 16-----------------------

                 We   conclude   that   the   court's   words,   tone,   and     demeanor      during    this 



exchange do not objectively support an assertion that the court was biased against her 



or gave a reasonable appearance of bias against her. 



                 5.      Continuance denial 



                 Finally, Greenway contends that denying her a continuance shows bias. 



She asserts that the court elevated the interests of the court and Heathcott above hers. 



She also asserts that the court "insinuated" it knew better than she her proper trial tactic, 



favoring Heathcott and harming "the unprepared" Greenway. 



                 Nothing   in   the   court's   rulings,   words,   demeanor,   or   tone   in   denying   a 



continuance   or   explaining   its   denial   reflects   bias,   or   an   appearance   of   bias,   against 



Greenway.       The   court   did   not   demonstrate   bias   when   it   noted   the   potential   effect   a 



continuance       might   have    on   Heathcott   and    explained     that   a  continuance    might   be 



detrimental      to  Greenway.       Party     prejudice    and   judicial    convenience      are   always 

potentially relevant to a continuance motion.16           And there is no indication the court gave 



unjustified importance to its own availability and convenience.17 



                 In short, Greenway's contentions of bias and the appearance of bias are 



unwarranted.       The   audio   recording   instead   demonstrates   that   the   trial   judge   dealt 



patiently,     fairly,  and    courteously     with    both   parties,    and   gave    Greenway       extra 



        16       Gottschalk v. State, 602 P.2d 448, 451 (Alaska 1979) (noting that denial of 



a    continuance      was    not   an   abuse    of   discretion    when     granting     it  would    have 

inconvenienced the court and at least one witness); see Green v. State, 544 P.2d 1018, 

1023 (Alaska 1976) ("While blind adherence to the requirements of court calendaring 

should     never    be  used   as   an  excuse    to  deny    one   accused    of   a  serious   crime   the 

fundamental right to organize his defense, there is a compelling public interest in the 

prompt and orderly disposition of such matters."). 

        17       For reasons we discuss in Part IV.B, the trial court did not err by failing to 



continue the trial. 



                                                    -16-                                              6750
 


----------------------- Page 17-----------------------

opportunities   to   explain   her   claims   and   address   the   court's   reservations   about   her 



evidence. 



        B.	     Was   It   An   Abuse   Of   Discretion   Not   To   Grant   Greenway   Another 

                Continuance? 



                Greenway filed suit in September 2007. Trial was originally set for January 

2009, but was rescheduled or continued several times upon requests by both parties.18 



It was re-set for a two-day trial in July 2009 and then, after Greenway filed a request 



citing her health and her need to get legal assistance, rescheduled for February 2010. 



(She nonetheless remained self-represented after April 2009.)                 At the July 15, 2010 



pretrial   conference,   Judge   Joannides   rescheduled   trial   for   April   18,   2011;   the   order 



stated, "The trial will last [three] trial days."      Judge Joannides told the parties:       "I have 



you set for three mornings." 



                Greenway advances three arguments in contending that it was an abuse of 



discretion not to grant her an additional continuance. 



                1.	     Continuance so Greenway could retain a particular attorney 



                Greenway first argues that the court should have granted her request for a 



three-month continuance, "at least until September," so "her chosen attorney" could 



represent her.  The only motion seeking that relief was her April 15, 2011 motion, filed, 

and denied, three days before trial was to begin.19 



                That    motion     described    Greenway's       personal    and    medical    history, 



indigency, and emotional state and argued that the absence of counsel would compromise 



        18      In denying Greenway's April 6, 2011 continuance motion, the court noted 



that she "has previously been granted two continuances of trial as well as continuances 

on other matters." 

        19      Counsel other than Greenway's present lawyer made limited appearances 



for Greenway in filing the April 6 and April 15 continuance motions. 



                                                 -17-	                                           6750
 


----------------------- Page 18-----------------------

her "right to a fair trial on a level playing field."20          It asserted that Jeremy Collier, a 



recent Alaska Bar admittee and friend of her son, had said he would represent Greenway 



"after he becomes available in mid August, 2011."              It asked that trial be continued "at 



least until September [2011]." Greenway moved for expedited consideration, but did not 



request oral argument or ask the court to personally assess her ability to represent herself. 



                The court entered a short written order denying the April 15 motion the 



same day it was filed, thus giving it the expedited consideration Greenway requested. 



Trial was held on April 18, 2011, as scheduled.              After hearing the trial evidence, the 



court explained the continuance denial both orally and in writing.  Appendix A includes 



its written explanation. 



                "[A] party who seeks to continue a case for trial must show that he acted 

with due diligence upon the grounds for which continuance is sought."21                    There is no 



general right to counsel in civil cases under the United States or Alaska Constitutions, 

and Greenway had no constitutional right to counsel in this case.22            A continuance for the 



        20      The   April   15   motion   requested   reconsideration   of   Greenway's   April   6 



continuance   motion,   and   argued   that   the   court   had   "overlooked   or   misconceived" 

material facts about Greenway's inability to proceed pro se.               But the April 15 motion 

alleged numerous new facts and did not reassert the only continuance ground - her 

sister's illness - raised by the April 6 motion.   It was therefore deficient as a motion for 

reconsideration.      Alaska R. Civ. P. 77(k)(2); Miller v. Miller , 890 P.2d 574, 576 n.2 

(Alaska 1995) (holding that a dispute over parental responsibility cannot be raised for 

the first time in a motion for reconsideration).           Rather than decide whether the court 

should have reconsidered the April 6 motion, we decide whether it should have granted 

the April 15 request for a continuance.  Greenway does not argue that a continuance was 

required for the only reason raised in her April 6 motion. 

        21      Azimi v. Johns , 254 P.3d 1054, 1061 (Alaska 2011) (quoting Sparks v. 



Gustafson, 750 P.2d 338, 341 (Alaska 1988)). 

        22      Id . 



                                                  -18-                                             6750
 


----------------------- Page 19-----------------------

purpose of finding and obtaining counsel requires a showing of diligence.23              When, as 



here, a party seeks a continuance so a particular lawyer can represent her in the future, 



the trial court must weigh various, often circumstantial, considerations, including the 

diligence of the moving party.24      In arguing that the court erred, Greenway emphasizes 



the complexity of her claims, her limited ability to represent herself, and the absence of 



prejudice to Heathcott. 



                The April 15 motion sought a continuance so a particular lawyer who was 



then unavailable could represent Greenway.            It did not explain why it was being made 



on the eve of trial, when the lawyer first expressed willingness to represent Greenway, 



or   whether   this   was   a   new   development.  All   the   other   circumstances   asserted   - 



Greenway's long history of hardship, trauma, and tragedy, and the fact she had no lawyer 



- could have been raised in ample time before trial to prevent undue delay or possible 



inconvenience or prejudice to Heathcott. As of April 15 the lawsuit was more than three 



and a half years old. 



        23     See Taylor v. Gill St. Invs., 743 P.2d 345, 349 (Alaska 1987) ("A party is 



not automatically entitled to a continuance when counsel withdraws, especially if the 

party is not free from fault or does not use due diligence to obtain substitute counsel." 

(citing Barrett v. Gagnon , 516 P.2d 1202, 1203 (Alaska 1973))). 

        24     See Azimi, 254 P.3d at 1061 ("We are mindful that it is difficult for lay 



persons to represent themselves in court, but the superior court was correct to consider 

that Johns was also entitled to his day in court and that the case had already been stayed 

for six months at Azimi's request.").  Cf. Gregoire v. Nat'l Bank of Alaska, 413 P.2d 27, 

32-33 (Alaska 1966) (holding that it was not an abuse of discretion to deny a 30-day 

continuance so identified counsel could represent the moving party at trial, where the 

movant had agreed to the withdrawal of other counsel shortly before trial). 



                                                -19-                                          6750
 


----------------------- Page 20-----------------------

                 The   motion   was   procedurally   and   substantively   deficient.         It   was   not 

supported by affidavit, as Civil Rule 40(e)(2) requires.25               Its unsworn assertions that 



Greenway could not effectively represent herself were not supported by any assessment 



of a third person, such as a physician, counselor, or friend.   The motion did not describe 



Greenway's past efforts to obtain replacement counsel after her prior lawyer had been 



allowed to withdraw on April 8, 2009, two years before the scheduled trial.  The motion 



simply asserted that her "previous hopes to obtain an attorney have not panned out."  It 



therefore failed to establish her diligence in finding replacement counsel.                  The motion 



was     unsupported     by   any   direct   representation    by   Collier   that  he   would    represent 



Greenway - an omission that might explain why the court's post-trial explanation noted 



the "possibility . . . Collier may ultimately choose not to" represent Greenway.  The 



motion did not describe Greenway's diligence in preparing for a pro se trial, although she 



had had ample time to prosecute her case since its inception and since the withdrawal of 



her lawyer two years before. 



                 Additional facts came out at trial, three days after the motion was denied. 



There   was   testimony   Collier   was   then   a   judicial   law   clerk,   had   known   Greenway's 



family for many years, and had told his judge he was willing to represent Greenway after 



        25       Continuance motions "must be supported by the affidavit of the applicant 



setting forth all reasons for the continuance."           Alaska R. Civ. P. 40(e)(2).        The motion 

was not sworn or verified by Greenway, and was not accompanied by an affidavit from 

herself or anyone else, including Collier.            She cosigned the motion and stated, "[T]he 

statements are mine . . . and are true," but that statement did not make the motion an 

affidavit and did not satisfy alternative standards applicable when a notary is unavailable, 

in part because the motion did not state that it was certified "under penalty of perjury." 

AS 09.63.020(a).  Cf. Bennett v. Weimar, 975 P.2d 691, 695 n.10 (Alaska 1999) (holding 

that   the   trial   court   was   correct   to   not   consider   a   plaintiff's   response   to   a   summary 

judgment      motion     because    the   response    was   not   notarized    and   did   not   meet   the 

requirements of AS 09.63.020(a)). 



                                                   -20-                                              6750
 


----------------------- Page 21-----------------------

his clerkship ended in August.      But Collier did   not   testify or otherwise confirm his 



willingness to represent Greenway. And although her difficulty in presenting a coherent 



case against Heathcott became evident after trial began, that circumstance did not require 



sua sponte reconsideration of the April 15 motion.      Never after April 15 did Greenway 



renew her motion for a continuance so Collier could represent her. 



               Greenway made occasional comments at trial about the difficulty she had 



preparing and representing herself, but she did not again ask the court to continue the 



trial.  She also commented after trial began that she had "wanted to wait until September 



to   continue   this,"  but  this  comment   communicated     no  renewal    of  her  April  15 



continuance request.     She has not argued that the court abused its discretion by failing 



to grant, sua sponte, a three-month continuance that she did not again request after her 



April 15 motion was denied. 



               We first conclude that the superior court did not abuse its discretion by 



denying the April 15 continuance   motion as it was presented.          Although Greenway 



focuses on the future availability of the particular attorney, she failed to demonstrate 



diligence in trying to replace prior counsel, who had withdrawn two years before trial. 



The apparently recent development that a particular lawyer would represent her in the 



future did not render irrelevant all other pertinent considerations, such as her diligence, 



the total delay likely, and potential prejudice.   The information conveyed by the motion 



justified the court's factual finding (as expressed later orally and in writing) that granting 



the requested continuance would cause a very long additional delay. Greenway does not 



argue that the court erred in so finding. That additional delay would have made the case 



five years old before it could be tried. 



               Our conclusion is also confirmed by the relevant trial evidence, most of 



which the trial court discussed in its oral and written explanations for the denial.        Its 



explanations discussed Kibby's fading memory and failing health and potential loss of 



                                             -21-                                        6750
 


----------------------- Page 22-----------------------

evidence, the possibility Kibby and other witnesses may not be around, the staleness of 



events   that   "occurred   up   to   17   years   ago,"   Greenway's   prior   continuances,   and   the 



"possibility . . . Collier may ultimately choose not to engage himself to Ms. Greenway's 



service." The court found that if it had granted the requested continuance, "it is clear that 



trial would have to be continued for at least another year in order to allow counsel to re- 



open   discovery."      As   the   court   recognized,   whatever   discovery   there   had   been   was 



unlikely to satisfy new counsel.  And we observe that co-defendant Rhonda Jasek, who 



had allegedly stolen Greenway's identity or defrauded Greenway with Heathcott's help, 



had never even been served.           After noting that the law clerk was not an experienced 



lawyer, the court orally explained that "even an experienced attorney from the time they 



started a case like this would need probably a year in the [indiscernible] to get this case 

ready."26     The     court   also  orally   observed     that  Heathcott     was   entitled   to  finality. 



Greenway argues that a continuance would not have prejudiced Heathcott.  (She asserts 



he   would   have   incurred   no   additional   legal   fees   or   travel   expenses   because   he   was 



unrepresented and because, even though he lived in Texas, he periodically flew through 



Anchorage to work.)         But the trial court justifiably thought a continuance would have 



caused substantial further delay, likely into the fall of 2012, and would have significantly 



delayed the end of the lawsuit, and thus Heathcott's repose.                 Even as early as the July 



2010 pretrial conference, Heathcott had expressed frustration that the lawsuit was then 



lingering on, that he did not understand the basis of the claims against him, and that he 



considered the lawsuit "malicious and frivolous." 



                 In the abstract, given the general value of having trial counsel, we assume 



that courts would be reluctant to deny a well-supported motion for a continuance so an 



        26       The    law   clerk   was    prohibited    from    representing     Greenway,      or  even 



preparing to do so, until after his clerkship ended in mid-August. Alaska Admin. R. 2(d). 



                                                   -22-                                                 6750 


----------------------- Page 23-----------------------

identified lawyer could represent the moving party at trial.  But that consideration would 



not render irrelevant other pertinent circumstances, such as party prejudice, undue delay 



of trial, or lack of diligence.     That is the situation here. 



                Finally, neither in the superior court nor on appeal has Greenway addressed 



how counsel might have altered the outcome.               She has not discussed how the outcome 



might have been different in a case the trial court found, after reviewing the evidence, 



to have no merit.     Her relative disorganization did not prevent the admission of all the 



exhibits she offered, and it is apparent the trial court considered them. We acknowledge 



the difficulty of demonstrating on appeal how a lawyer would have helped at trial, given 



the theoretical possibility Greenway's lack of counsel kept her from doing the very 



things that might demonstrate prejudice.   But that difficulty does not excuse her from at 

least addressing how lack of trial counsel now prevents her from showing prejudice.27 



                We conclude that the court did not abuse its discretion by denying the April 



15 motion. 



                2.      Continuance to obtain Agent Clapper's evidence 



                When trial commenced, the court granted the United States's motion to 



quash Greenway's subpoena for FBI Agent Clapper. Greenway had intended to call him 



to support her identity theft claim.  She asserted that he was investigating that claim and 



had relevant information. 



                Greenway does not argue that it was error to quash the subpoena. Her brief 



instead    asserts   that   the   court  should  have   granted    "the   requested   continuance"   of 



        27      To show an abuse of discretion in denying a continuance, a party must 



show the party was deprived of "a substantial right" or was "seriously prejudiced" by the 

denial.  Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 204 

P.3d   1013,   1018-19   (Alaska   2009)   (declining   to   reverse   on   the   basis   of   a   denied 

continuance,   noting   that   the   appellant   had   failed   to   show   how   a   recently   appointed 

attorney had prejudiced him). 



                                                  -23-                                             6750
 


----------------------- Page 24-----------------------

unspecified duration so she could attempt to satisfy the government's requirements to 



obtain the agent's testimony.       Her brief also contends that her "repeated exclamations 



that   she  needed    Agent   Clapper    to  prove   her  case"  should    have  demonstrated      the 



necessity of granting her "requested continuance."  Her brief concludes that the "denial 



of the requested continuance" prejudiced her because Agent Clapper had documents and 



testimony "crucial" to her case. 



                The    record   contains   no   formal   continuance     request,  written   or  oral, 



pertinent to Agent Clapper.  We must therefore decide whether her words conveyed an 



informal request that should have put the court on notice that it needed to decide whether 



to "extend" or "continue" the trial so Agent Clapper's presence might be obtained. 



                Greenway was pro se, and did not effectively represent herself.  But there 



was    nothing   inherently    complex    about   asking   the  court   for  time  to  secure  Agent 



Clapper's evidence, if Greenway desired that relief.  Nor was there anything inherently 



complex about telling the court what documents she had given Agent Clapper and how 



they supported her claims against Heathcott.  Doing so also would have helped the court 



realize she was asking for relief and would have helped it assess the importance of any 

such request.28    Likewise, when   the court informed the parties it hoped to close the 



        28      Although she generally argued below that documents she had given Agent 



Clapper were critical to her claims, she did not describe the documents in a way that 

would have allowed the court to appreciate their relevance or potential admissibility, nor 

does she do so on appeal. 



                She also did not tell the trial court that she expected to follow the procedure 

outlined by the Assistant U.S. Attorney to get Agent Clapper's testimony.               The record 

does not indicate how long that procedure might have taken, but it required a written 

request that had to be evaluated by several individuals.          The trial court interpreted the 

comments of the government as indicating the government did not want Agent Clapper 

to testify. 



                                                -24-                                           6750
 


----------------------- Page 25-----------------------

evidence that day, it would have been simple for Greenway to ask the court to allow 



Agent Clapper to testify in the future, if that is what she wished. 



                 Neither her actual words nor the tenor of her comments put the court on 



notice that Greenway was asking for relief, rather than expressing disappointment.  Her 



expressions of concern about her case, and of the importance of Agent Clapper, were not 



the equivalent of an informal continuance request.              We therefore conclude that she did 



not request, even informally, a continuance for this purpose. 



                 Because Greenway did not ask for a continuance so Agent Clapper could 



testify,   the   court   had   no   opportunity   to   ask   for   Heathcott's   response,   to   weigh   the 



pertinent   factors   after   hearing   from   both   parties   and   considering   whether   relief   was 

appropriate, and if it was, to fashion relief after weighing the parties' interests.29                 The 



circumstances are not so self-evident that we can say that it was plain error not to grant 

a continuance.30     And we decline here to make a discretionary assessment the trial court 



was not asked to make. 



        29       Salazar v. State, 559 P.2d 66, 72 (Alaska 1976), lists factors a trial court 



should consider when ruling on a request for a continuance to secure testimony: 



                 (1) whether the testimony is material to the case; (2) whether 

                 the   testimony     can   be   elicited   from    another    source;    (3) 

                 whether     the   testimony     is  cumulative;     (4)  probability     of 

                 securing the absent witness in a reasonable time; (5) whether 

                 the requesting party was diligent and acting in good faith; (6) 

                 the   inconvenience   to   the   court   and/or   others;   and   (7)   the 

                 likelihood that the testimony would have affected the jury's 

                 verdict. 

        30       Cf.   Merrill   v.   Faltin,   430   P.2d   913,   917  (Alaska   1967)   ("[W]e   shall 



consider plain errors, even though not objected to below, which are so substantial as to 

result in injustice."). 



                                                    -25-                                              6750
 


----------------------- Page 26-----------------------

                 The leniency granted to pro se litigants did not excuse Greenway from 



requesting,   at   least   informally,   a   continuance   so   she   could   obtain   Agent   Clapper's 



testimony.     Greenway was not unaware that she could request a continuance; she had 



previously made four continuance requests, two of which were successful, and two of 



which had been made in the past 12 days. 



                 Greenway's   argument   here   rests   on   her   assertion   that   she   asked   for   a 



continuance to obtain Agent Clapper's evidence.                She does not contend that the court 



abused its discretion by failing to grant a continuance she did not request.  Because she 



did   not   ask   for   a   continuance   with   regard   to   Agent   Clapper,   there   is   no   basis   for 



considering whether the court abused its discretion. 



                 3.      One-day continuance to prepare case for trial 



                 When trial began and the court announced that it "hope[d] to close the 



evidence . . . today,"      Greenway protested; she told the court that "you didn't give me 



much time at all," that she had left at home trial resources she had intended to present at 



trial the next day, and that her case was complex. 



                 Greenway's   brief   argues   at   pages   18   and   19   that   it   was   an   abuse   of 



discretion to "refuse" to grant "the alternative motion for a one-day continuance" to 



permit her to prepare her exhibits and prepare for trial.               But Greenway made no such 



"alternative   motion,"   and   the   court   did   not   "refuse"   to   grant   any   such   unrequested 



continuance.  Greenway did not ask on April 18, even informally, for any continuance. 



There was no continuance motion before the court after April 15.   The last continuance 



motion was made and denied three days before trial began. 



                 Greenway does not argue that a court must consider whether to grant sua 



sponte an unrequested one-day continuance, even in a pro se case. She cites no authority 



that   would   justify   granting   an   unrequested   one-day   trial   continuance,   or   that   would 



justify, much less require, reversal for failing to grant an unrequested continuance. 



                                                   -26-                                              6750
 


----------------------- Page 27-----------------------

                In general, pro se litigants are granted considerable leeway with regard to 

procedural requirements.31  In Pieper v. Musarra , the question was whether a party had 



preserved an issue on appeal.32         We noted that the procedural leeway given to pro se 



litigants had to be balanced against concerns for judicial finality,judicial efficiency, and 

fairness to the opposing party.33      A pro se's procedural defects have been excused when 



a deficiency results from "lack of familiarity with the rules."34             But here appellant did 



nothing that informed the trial court it should advise her how to accomplish something 

she might have been attempting to do.35 



                Greenway's brief alleges circumstances that might have been relevant to 



an exercise of the trial court's discretion had she requested a one-day continuance.  For 

example, she alleges that she was unable to effectively prepare or represent herself,36 that 



        31      See,    e.g., Smith    v.  Sampson,      816   P.2d   902,    906-07    (Alaska    1991) 



(considering pro se litigant's due process claims despite his failure to argue them on 

appeal). 

        32      Pieper v. Musarra , 956 P.2d 444, 446 (Alaska 1998). 



        33      Id . 



        34       Wright v. Shorten, 964 P.2d 441, 444 (Alaska 1998) (internal quotation 



marks and citation omitted) (holding  that the superior court should have considered 

Wright's procedurally deficient letter to be an answer to a complaint, in part because the 

letter stated that he did not know what he was supposed to do). 

        35      Judges have a duty to inform pro se litigants how to correct procedural 



defects in what they are trying to accomplish, Breck v. Ulmer , 745 P.2d 66, 75 (Alaska 

1987), but Greenway does not argue that the court breached any possible duty to inform 

her that she needed to move for a one-day continuance.                And her comments were not 

sufficient to alert the court that she needed any guidance on how to correct any possible 

procedural deficiency in something she was trying to do. 



        36      Her   brief   asserts   that   she   was   exhausted   from   reviewing   exhibits   and 

preparing for trial, that she was in pain and on pain medication, and that Heathcott had 

"systematically taunted and traumatized" her. 



                                                  -27-                                             6750
 


----------------------- Page 28-----------------------

a one-day delay would not have prejudiced Heathcott, that because trial was originally 



scheduled for three days, it was inappropriate for the court to state that trial would only 

last   one   day,37  that   a   one-day   continuance   would   have   allowed   her   to   prepare   her 



exhibits, and that she had left trial resources at home in the expectation that trial would 

last   more    than   one  day.38   But    alleging    these  circumstances      on   appeal   does   not 



demonstrate that the trial court abused its discretion by not granting an unrequested one- 



day continuance.   The failure to request relief in the trial court presumptively precludes 



appellate review; a meaningful request would have allowed the trial court to hear from 



both sides, learn the relevant facts, and exercise its discretion after weighing the parties' 



needs. 



        C.	     Was It An Abuse Of Discretion Not To Tell Greenway She Could Call 

                Witnesses Telephonically? 



                Greenway   argues   that   after   it   rejected   her   witness   affidavits,   the   court 



should have informed her she could call those witnesses telephonically. 



        37      The scheduling order did not guarantee three trial days, or even a second 



trial day, if there was no more relevant evidence to present. The order granted each party 

"1.5 trial days."      And Judge Joannides told the parties that the trial was set for "three 

mornings."  Trial began at 8:42 a.m. and ended at 4:55 p.m.; it thus lasted 6.5 hours, not 

including breaks.  Heathcott took only about 21 minutes of trial time to present his direct 

evidence. 

        38      The case was tried in Anchorage. Greenway resided in the Kenai Peninsula 



Borough.      As far as we can determine from the audio recording, Greenway did not 

describe the "trial resources" she left at home or explain their bearing on her claims. 

Even if she had made a formal continuance request, the court would not have been 

justified in granting it for the "trial resources" reason absent any showing how her case 

would be harmed by not having those materials at trial. 



                                                  -28-	                                            6750
 


----------------------- Page 29-----------------------

                 Even though pro se litigants are granted considerable leeway with regard 

to procedural requirements,39 we observed in Bauman v. State, Division of Family & 



Youth   Services  that   "[c]ourts   should   not   save   a   litigant   from   his   choice   of   lawyer, 

including when a litigant chooses himself as legal representative."40                We also stated that 



informing a pro se litigant of the need to do something (there, file a responsive affidavit) 



would require the court to become too involved in the litigant's case and that "[t]his 

open-ended participation by the court would be difficult to contain."41 



                 Here, Greenway had already presented telephonic witness testimony earlier 



in the trial.  She did not need to be told of a procedure she had so recently followed. We 



conclude that the court did not abuse its discretion by failing to inform Greenway that 



she could present witness testimony telephonically. 



                 We    also   observe    that   the  court   often  asked    Greenway      to  clarify   her 



testimony or to tie proffered evidence to her claims against Heathcott.                   It did so in an 



appropriate   manner   that   should   have   helped   Greenway   understand   and   address   the 



court's possible reservations about her evidence and her claims.  In closing remarks, the 



superior court noted, "I had two choices: - I could either sit here and smile politely at 



you and nod my head and look like I understood what you were talking about or I could 



basically tell you that I didn't understand what you were talking about at times and ask 



you questions on it."       The record reveals that the trial court frequently went out of its 



way to help this pro se litigant focus her case and introduce relevant evidence.  It was not 



required to do more. 



        39       See supra note 31. 



        40       768 P.2d 1097, 1099 (Alaska 1989). 



        41       Id . 



                                                   -29-                                                 6750 


----------------------- Page 30-----------------------

                Greenway also argues that the court should not have told her the affidavits 



were   inadmissible   absent   objection   from   Heathcott,   and   that   Judge   Joannides   had 



suggested   at   the   pretrial   hearing   that   Greenway   would   be   allowed   to   introduce   the 



affidavits at trial.   We discussed the affidavits and the relevance of the pretrial hearing 



in Part IV.A.2.      We concluded there that the trial court did not abuse its discretion by 



rejecting    the  affidavits,   and  that   Greenway's   failure    to  demonstrate   how      she  was 



prejudiced by their rejection also forecloses reversal. 



V.      CONCLUSION 



                For these reasons, we AFFIRM the judgment of the superior court. 



                                                  -30-                                            6750
 


----------------------- Page 31-----------------------

              IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
 



                     THIRD JUDICIAL DISTRICT AT ANCHORAGE
 



SIMONE K. GREENWAY,                              )
 

                                                ) 

                        Plaintiff,	            ) 

                                                ) 

        v.                                      )
 

                                                )
 

LARRY D. HEATHCOTT, et al.,                      )
 

                                                )
 

                        Defendants.	           ) 

                                                )        Case No. 3AN-07-10280 CI 



                                         TRIAL ORDERS 



                The parties appeared before the Court on April 18, 2011 for trial.                Both 



were self-represented.      The Court now enters the following orders: 



                              I. MOTION FOR CONTINUANCE 



                At the start of trial Ms. Greenway, renewed her motion for a continuance. 



The motion was denied for the reasons stated on the record, as again summarized in the 



Court's   comments at the close of the evidence.             The reasons include the following: 



(1)   This   action   was   filed   in   2007   and   plaintiff   has   already   been   granted   two   trial 



continuances; (2) plaintiff relies on testimony about events that occurred up to 17 years 



ago and which have already dimmed appreciably in the memory of the testimony of her 



witnesses, such as Richard Kibby, and (3) there is a significant risk of losing further 



evidence if trial is again delayed if the health of witnesses (such as Mr. Kibby) declines. 



Ms. Greenway and her significant other, Carl Bauman, testified that she expected to have 



the assistance of counsel at the end of August of this year, and she urges a delay until 



                                        Appendix A - 1 of 5                                         6750 


----------------------- Page 32-----------------------

then.    They testified that a superior court law clerk in Kenai, Jeremy Collier, who is a 



long-time friend of Ms. Greenway's family, wishes to take on Ms. Greenway's case after 

his clerkship expires in August.1          The Court cannot discount the possibility that upon 



becoming more familiar with the facts of the case, regardless of his present intentions, 



Mr. Collier may ultimately choose not to engage himself to Ms. Greenway's service. 



Beyond that problem, if the Court were to grant Ms. Greenway's request to allow for her 



retention of counsel in August, it is clear that trial would have to be continued for at least 



another year in order to allow counsel to re-open discovery.   For all of these reasons, the 



Court does not find good cause for the continuance requested by Ms. Greenway. 



                II.  FINDINGS OF FACT AND CONCLUSIONS OF LAW 



                 Based on the testimony and exhibits presented at trial, the Court makes the 



following findings and determinations: 



                                            Findings of Fact
 



                 . . . .
 



                 8.      Ms. Greenway testified that even though she did not meet or have 



any contact with Mr. Heathcott until October 1999, Mr. Heathcott and Ms. Jasek began 



conspiring from Texas, as early as 1991, to steal her identity.  As Ms. Greenway puts it, 



she believes that Rhonda Jasek "was becoming her," i.e., Ms. Greenway, years before 



Ms. Greenway and Mr. Heathcott actually encountered one another. 



                 . . . . 



                 14.     Ms.   Greenway's   pleadings   allege   an   implied   contract   with   Mr. 



Heathcott that they would share a permanent domestic partnership, and on that basis she 



seeks an equitable division of the property accumulated during their relationship.  She 



        1        Attorney     Alexander      Schutz,    recently    entered    an  appearance      for  Ms. 



Greenway that was limited to moving for a continuance. 



                                         Appendix A - 2 of 5                                            6750 


----------------------- Page 33-----------------------

also   claims   that   he   made   promises   to   take   care   of   her   for   the   rest   of   her   life. Mr. 



Heathcott   denies   she   is   due   anything   and   responds   that   if   any   property   division   is 



warranted, it should favor him because he paid the mortgage on their home for years, 



supported Ms. Greenway when she stopped working, and left her vehicles and other 



property for which she has never paid.            Mr. Heathcott has not filed a counterclaim, but 



he did present evidence at trial of the value of contributions he made to the home, to Ms. 



Greenway and evidence of the value of property he left with her. 



                 15.    Ms.     Greenway      focused    the   entirety   of  her  energy    at  trial  on 



attempting to prove claims that Mr. Heathcott was her fiduciary and participated in a 



scheme to steal her identity and defraud her.               Among other things, she alleged that, 



before he even met her, he somehow appropriated her tax refunds and took out student 



loans in the name of the children.  Mr. Heathcott insists he never knew of Ms. Greenway 



until they met.     He denies he ever lived in Alaska prior to 1999.  He denies that he has 



ever attempted to steal Ms. Greenway's tax refunds or identity, or conspire with Rhonda 



Jasek to do so.     He further denies that he has ever been Ms. Greenway's "fiduciary" or 



held a power of attorney over her affairs.            He denies all of her charges of fraud and 



misrepresentation. 



                 16.     The parties admit they never held each other out as husband and 



wife.   The parties filed separate tax returns.   The parties did not jointly own the house at 



975 Plymouth Circle; title was solely in Ms. Greenway's name.                   There is no evidence 



they held joint title to any of the motor vehicles.          The parties had no children together 



and   did   not   participate   in   a   joint   business. There   was   evidence   that   Mr.   Heathcott 



contributed to the improvement and expense of the home.   Mr. Heathcott had a separate 



bank account but also set up a joint bank account with Ms. Greenway only so that he 



could, on occasion, transfer funds to her while he was on the North Slope. Mr. Heathcott 



                                        Appendix A - 3 of 5                                           6750 


----------------------- Page 34-----------------------

testified that he transferred funds to Ms. Greenway for a couple of months after he left 



Alaska "just to try to help her get on her feet." 



                 17.     Neither party presented any evidence that they had an express or 



written agreement that they would live together indefinitely and share in the fruits of 



their   relationship   as   though   they   were   married.    They   did   not   present   any   evidence 



concerning whether and how property accumulated during their cohabitation should be 



redistributed, nor did they present any evidence that they had an expectation that it would 



be. 



                                         Conclusions of Law 



                 1.      As   the   plaintiff,   Ms.   Greenway   has   the   burden   of   proving   by   a 



preponderance         of   the    evidence     her    claims     of   domestic      partnership,     fraud, 



misrepresentation, and breach of fiduciary relationship, including her claims that Mr. 



Heathcott and/or Rhonda Jasek, stole and profited from her identity. 



                 2.      In  Bishop   v.   Clark ,   54   P.3d   804,   811   (Alaska   2002),   the   court 



explained      that  "property     accumulated       during    cohabitation     should    be   divided    by 



determining the express or implied intent of the parties."  Quoting Wood v. Collins, 812 



P.2d 951, 956 (Alaska 1991).          The Bishop opinion offered the following guidance: 



                 In   determining      the  intent   of  cohabitating     parties,   courts 

                 consider, among other factors, whether the parties have (1) 

                 made joint financial arrangements, such as joint savings or 

                 checking accounts, or jointly titled property; (2) filed joint 

                 tax returns; (3) held themselves out as husband and wife; (4) 

                 contributed      to  the  payment      of  household      expenses;     (5) 

                 contributed      to  the  improvement       and   maintenance      of   the 

                 disputed   property;   and   (6)   participated   in   a   joint   business 

                 venture.     Whether      they   have   raised   children    together    or 

                 incurred joint debts is also important. 



                 3.      Insofar   as Mr. Heathcott may seek an interest in the property in 



Wasilla at 975 Plymouth Circle, he has the burden of presenting clear and convincing 



                                         Appendix A - 4 of 5                                            6750 


----------------------- Page 35-----------------------

evidence to controvert the express terms of title to the property.    Callahan v. Dye, No. 



S-11390/11440, 2006 WL 2667668, at *8 (Alaska June 14, 2006).   He has not met that 



burden. 



              4.       At trial, Ms. Greenway did not present any evidence supporting her 



claim  of a  domestic partnership, implied contract, or of express promises to provide 



future support.  The Court does not find sufficient evidence presented at trial to establish 



any of these claims.   Insofar as Mr. Heathcott claims Ms. Greenway owes him for any 



of the property he left behind, the same conclusion applies.       Indeed the parties' own 



testimony borders on a waiver of the domestic partnership claim. 



               5.      Based on the evidence presented at trial, the Court does not find 



sufficient   evidence    to  establish  Ms.    Greenway's     remaining   claims   of   fraud, 



misrepresentation, and breach of fiduciary relationship, particularly her claims that Mr. 



Heathcott and/or Rhonda Jasek, stole and profited from her identity.  Ms. Greenway was 



unable to provide a rational and  coherent factual basis for her allegations concerning 

stolen identity.4 The Court finds Mr. Heathcott to be a much more reliable reporter of 



events.  Based on the evidence presented, it is impossible for the Court to conclude that 



Ms. Greenway's identity was necessarily stolen, let alone that defendant was the culprit. 



              Accordingly, IT IS HEREBY ORDERED the Court will separately enter 



judgment dismissing t his action with prejudice, with costs to be awarded in defendant's 



favor. 



               ORDERED this 21st day of April, 2011, at Anchorage, Alaska. 



                                           /s/ Andrew Guidi 

                                           Superior Court Judge 



       4       The Court has considered the records submitted as exhibits and cannot find 



they provide support for plaintiff's claims. 



                                   Appendix A - 5 of 5                                   6750 

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