Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bush v. Elkins (1/23/2015) sp-6980

Bush v. Elkins (1/23/2015) sp-6980

         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@akcourts.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



JAMES F. BUSH,                                      )  

                                                    )        Supreme Court No. S-14947  

                          Appellant,                )  

                                                    )        Superior Court No. 3KN-10-01140 CI  

         v.                                         )  

                                                    )        O P I N I O N  

CRAIG ELKINS and THE                                )  

GOVERNMENT EMPLOYEES                                )        No. 6980 - January 23, 2015  

INSURANCE COMPANY, d/b/a                            )  

GEICO CASUALTY COMPANY,                             )  

                                                    )  

                          Appellees.                )  

                                                    )  



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

                                                                               

                 Judicial District, Kenai, Anna Moran, Judge.  



                 Appearances:  James  F.  Bush,  pro  se,  Sterling,  Appellant.  

                 Kimberlee  A.  Colbo,  Hughes  Gorski  Seedorf  Odsen  &  

                  Tervooren, LLC, Anchorage, for Appellees.  



                 Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                             

                 Bolger, Justices.  



                 FABE, Chief Justice.  



I.       INTRODUCTION  



                 An  adult  passenger  in  a  car  was  injured  in  a  single-car  accident.    The  



passenger and his family brought suit against the vehicle's unlicensed minor driver, the  

                         


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

minor's mother, the owner of the car, the insurance policy holder, the insurer, and the  



insurance adjuster who handled the claims arising from the accident.  The passenger's  



father  attempted  to  raise  a  contractual  interference  claim,  but  the  superior  court  



concluded that the complaint did not state such a claim on his behalf.  The superior court  



                                                                                                 

dismissed the father's only other claim - intentional infliction of emotional distress -  



                                                                          

removed the father's name from the case caption, and ordered the father to cease filing  



pleadings on behalf of other parties.  



                                                                                              

                   After  the  superior  court  judge  dismissed  him  from  the  action,  the  



                                                                                                    

passenger's father attempted to file a first amended complaint, which expressly stated his  



                                                                        

contractual interference claim on the theory that he was a third-party beneficiary of the  



                                                                                                       

contracts between his son and his son's doctors. But the superior court denied the father  



leave to amend the complaint because the father had already been dismissed from the  



case.    Following  a  settlement  among  all  of  the  other  plaintiffs  and  defendants  -  a  



settlement in which the father did not join - the superior court granted final judgment  



                                                                                            

to the insurer.  The insurer moved for attorney's fees against the father under Alaska  



Civil Rule 82, but the father never responded to that motion.  The superior court granted  



the award without soliciting a response from the father, and the father appeals.  



                   We affirm the superior court's order dismissing the father's claims and  



denying leave to amend the complaint because the proposed first amended complaint was  



futile.    But  because  the  superior  court  had  barred  the  father  from  filing  any  further  



                                

pleadings in the case and had removed his name from the caption, the superior court had  



                             

a responsibility to inform the self-represented father that he was permitted to file an  



                                                                                

opposition to the motion for attorney's fees.  We thus vacate the fee award and remand  



                                                                                                        

to the superior court to afford the father an opportunity to respond to the insurer's motion  



for reasonable attorney's fees.  



                                                             -2-                                                       6980
  


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

II.       FACTS AND PROCEEDINGS  



          A.       The Accident And Initial Complaint  



                   This action arises out of a single-car accident in early July 2010.  The driver  



was  16-year-old  Bradley  Luke,  who  was  not  licensed  to  drive  in  Alaska.    Bradley  



                                                                                      

crashed a car owned by Monte Luke, which was insured by Government Employees  



                                                                                                    

Insurance Company (GEICO) under a policy held by Coral Frank.  Craig Elkins is the  



                                                                        

GEICO employee in Alaska who handled claims arising from the accident.  Frank Bush,  



an adult passenger in the car, suffered severe injuries in the accident.  



                   Frank Bush, his mother, his father, and his sister filed a civil complaint  



                                                                                                 

against Bradley Luke as the driver of the car and against Bradley's mother Arlene Luke;  



                                                                       

Monte Luke, the owner of the car; Coral Frank, the policy holder; GEICO, the insurer;  



and its employee, Elkins.  The plaintiffs proceeded without representation.  Frank Bush's  



father, James Bush, is the sole appellant in this case.  



                                                                            

                   The complaint alleged seven causes of action including four claims against  



                                          

Bradley  Luke,  Arlene  and  Monte  Luke,  and  Coral  Frank  (collectively,  "the  Luke  



                                                                    

defendants") for negligent driving, negligent supervision, negligent entrustment, and  



                                                                  

negligent  infliction  of  emotional  distress.                  The  complaint  also  alleged  three  claims  



against GEICO and its employee Elkins for contractual interference, intentional infliction  



of  emotional  distress,  and  negligent  supervision.    On  the  claim  of  contractual  



interference, the complaint alleged that GEICO "improperly interfered with contractual  



                                     

relations  betwee[n]  the  plaintiff(s)  and  various  health  care  providers,"  resulting  in  



                                  

increased physical and economic injuries to Frank Bush and "sever[e] emotional distress  



                                                                                    

and anxiety" to "the plaintiff(s)."  Whether this language effectively pleaded a claim for  



contractual interference on James's behalf is central to the subsequent proceedings before  



the superior court and to this appeal.  



                                                             -3-                                                       6980
  


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

          B.	       Procedural  History:  Motion  To  Dismiss,  Motions  For  Summary  

                    Judgment, And Motions To Amend The Complaint  



                    GEICO answered the complaint and moved to dismiss all claims raised  

                                                                     



against it for failure to state a claim.  It admitted that the vehicle involved in the accident  



was insured by GEICO and argued that it could not, as a matter of law, be held directly                       



liable for the wrongdoing of the Luke defendants.    GEICO contended that the three  



causes  of  action  brought  against  it  -  intentional  infliction  of  emotional  distress,  



                                                                           

negligent supervision, and contractual interference - were "really claims handling type  



claims" that might apply were the plaintiffs insured by GEICO but could not apply  



absent a contractual relationship between GEICO and Frank Bush, his parents, or his  



sister.  



                    The plaintiffs responded that GEICO was misreading the three causes of  



action,  arguing  that  those  claims  against  GEICO  were  for  torts  whose  viability  is  



                                                                                                         

unaffected by the existence of a contractual relationship.  The superior court granted in  



                                                                              

part and denied in part GEICO's motion to dismiss.  The order specified that the "direct  



                                                                                                                   

actions against [the Luke defendants] . . . may not be brought against [GEICO] based on  



its role as the insurer for these individuals."  But the superior court denied GEICO's  



                 

motion  to  dismiss  the  claim  for  intentional  interference  with  contractual  relations,  



                                                                                           

reasoning that the claim provided GEICO with "fair notice of the grounds on which  



                                                                                         

Plaintiffs'  claim  rests,"  and  it  denied  GEICO's  motion  to  dismiss  the  negligent  



supervision claim, noting that it did not "fully understand the basis" of the claim and that  



                          

the claim might better be addressed after it was "more fully developed."  Finally, the  



                                                                          

superior court denied GEICO's motion to dismiss the intentional infliction of emotional  



distress claim, "except for that portion pertaining to GEICO's failure to contact James  



                                                              

Bush" which it granted because "fail[ing] to contact Plaintiff James Bush as the family's  



                                              

designee . . . is not outrageous and is not actionable."  Thus, the superior court's ruling  



                                                             -4-	                                                       6980
  


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

                                                                                                 

on GEICO's motion dismissed James's only individual  claim:  intentional infliction of  



                                                                                                                       

emotional distress.   The other plaintiffs - Frank Bush, his mother, and his sister -  



                                                                                                          

retained their first four claims against the Luke defendants, as well as their three claims  



against GEICO.  



                    Before resolution of its motion to dismiss, GEICO moved for summary  



                                                                                                    

judgment on all remaining claims against it and its claims handler, Elkins, reiterating the  



                                                                   

arguments raised in its motion to dismiss.  The Luke defendants moved for summary  



                            

judgment against James because he "ha[d] not stated a claim against the defendants,"  



                                                                                                       

requested that James's "name [be] removed from the caption," and requested "an order  



prohibiting him from the unauthorized practice of law," stating their view that James  



                                                       

"should not be allowed to continue to sign any type of pleading on behalf of any of the  



parties or make appearances in court for the parties" once dismissed from the lawsuit.  



                     GEICO joined the Luke defendants' motion for summary judgment against  



                                                                                                                   

James and their motion for an order removing James from the case caption.  In response  



                                                                       

to these motions, James acknowledged that he "[brought] no claim against [the Lukes]."  



In his response to GEICO's motions for summary judgment, James for the first time  



                                                                                                                           

stated, with regard to the contractual interference claim, his view that he "was . . . a third- 



                                                                                

party beneficiary to the contracts involved" and that he remained "a viable party" in that  



                                                                                            

claim.  He further argued that the motions were "insufficient as a matter of law" because  



                                                      

"[n]owhere in any of the pleadings proffered by GEICO . . . do they allege [James Bush]  



            

would not be a proper party to the action against them under a theory of intentional  



interference with contractual relations."  



                          

                    In  June  2012  the  superior  court  granted  the  defendants'  motions  for  



                                                                           

summary judgment against James.  The superior court read the complaint as indicating  



that James had brought a single claim for intentional infliction of emotional distress  



                                       

against GEICO and that this claim had been rejected when the superior court granted  



                                                                -5-                                                        6980
  


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

                                                           

GEICO's motion to dismiss. The superior court also concluded that "James Bush should  



                       

be removed from the caption of this case and is not allowed to file pleadings on behalf  



of other parties, as he is not a licensed attorney in the State of Alaska."  



                       On the same day that it granted complete summary judgment against James,  



                                                                                                                              

the superior court granted some of the remaining plaintiffs' motions for leave to amend  



                                                                                  

their complaint.  Frank Bush, his parents, and his sister had each moved to amend their  



                             

complaint.  All four motions were identical, asking only to add a defendant and two  



                                          1  

plaintiffs  to  the  action.     The  Luke  defendants  did  not  oppose  the  motions,  and  the  



                                                                                                       

superior court granted the motions made by Frank's mother and sister, while overlooking  

Frank's and James's identical motions.2  



                                                     

                        Shortly after the superior court granted the motions for summary judgment,  



                                                                                                                     

James filed a motion "seeking clarification and/or reconsideration upon the issue of his  



                                     

status as a plaintiff."  He argued that the superior court's order denying GEICO's motion  



                                                                                                                     

to dismiss as to the contractual interference claim had "ruled that all plaintiffs," including  



James,  "may  have  an  actionable  complaint  against  [GEICO]  for  interference  with  



contractual relations," and he reiterated the position he took in his opposition to the  



                                                                                                                        

motion for summary judgment that he was "a third party beneficiary" of Frank's attempts  



to contract with health care providers because he "was paying all costs associated with  



                                                                                                                                   

achieving performance of these contracts." Accordingly, James argued that the court had  



            1          James contends that he sought leave to amend "to add additional parties and           



to solidify his third-party beneficiary claim."   The record on appeal does not support this   

assertion.  He sought leave to amend only to add additional parties.  



            2  

                                                                                             

                       James contends that the superior court "granted his motion seeking leave  

                                                                                                    

to  amend  the  complaint."    Once  again,  the  record  on  appeal  does  not  support  this  

assertion.  



                                                                         -6-                                                                   6980
  


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

                                   

no authority to remove his name from the caption and that the removal would improperly  



interfere with James's right to appeal.  



                    The     superior       court      denied       James's       motion        for    clarification        and  



                                                                                                      

reconsideration, explaining that its order granting GEICO's motion to dismiss entirely  



disposed of James's role in the case by dismissing his intentional infliction of emotional  



                                                                                       

distress claim.  The superior court ruled that "[t]he original complaint d[id] not set forth"  



a claim by James for contractual interference and did not allege that James "is a third  



party beneficiary to contracts entered by Frank Bush."  



                                                                                                        

                    After denial of James's motion, the plaintiffs, including James, submitted  



                                                                     

a first amended complaint.  Along with adding another defendant and two new plaintiffs,  



the amended complaint also revised the contractual interference claim to state that James  



                                                                                             

"invest[ed] personal funds for the express purpose of obtaining medical care for his son,"  



                  

that James "invested these funds with the expressed intent . . . of assisting [Frank] in  



                                                                                                      

contracting with various health care providers to receive treatment," that James "sought  



                                                                                                

no other, no[r] did he receive any other, consideration for having provided these funds,"  



                                                 

and that "to date [James] has not received the contractual consideration he had expected  



when investing these funds and as a result has sustained economic loss and personal  



injury in the form of emotional distress."  



                    The superior court rejected James's first amended complaint, ruling that  



James "can't be added back in; I've already dismissed him out."  The superior court  



returned the amended complaint for re-filing without James as a plaintiff.  



          C.        Settlements, Final Judgment, And Attorney's Fees  



                                                                         

                    All of the plaintiffs and defendants, except James, reached a settlement and  



                                                                                                                        

agreed to dismiss the action with prejudice and bear their own litigation expenses.  James  



                                                                                  

separately agreed to dismiss with prejudice any claims against the Luke defendants, but  



                                                                                                    

he  did  not  agree  to  a  settlement  with  GEICO.    Having  failed  to  reach  a  settlement,  



                                                              -7-                                                        6980
  


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

GEICO filed a motion for entry of final judgment against James, which the superior court  

                                                                                             



granted in light of its prior orders dismissing all of James's claims.  



                    GEICO then moved for attorney's fees from James pursuant to Alaska Civil  



Rule  82.    GEICO  stated  that  its  actual  costs  were  $24,700  and  sought  an  award  of  

           3  James did not respond to the motion for attorney's fees.  Instead, in his points  

$7,410.                                                  



on  appeal  filed  with  this  court  a  month  before  the  superior  court's  order  awarding  



attorney's fees to GEICO, James expressed his view that the superior court erred by  



                                                                                               

"removing [James's] name from the caption" while "continu[ing] to accept and rule upon  



                                                                                

pleadings offered by other parties seeking procedural decisions and judgments against  



[him] and not permitting him to file any sort of responsive pleadings."  



                    GEICO filed a motion requesting a ruling on its motion for an award of  



                                                                                

attorney's fees, and the superior court awarded GEICO $3,533.68 in attorney's fees from  



                                                                                                   

James, noting that it had deducted fees incurred after James's claims were dismissed, and  



                                                          

that it awarded only 20% of the actual reasonable fees, per Rule 82(b)(2), because the  



case did not go to trial.  



III.      STANDARDS OF REVIEW  



                                                           

                   "We review for abuse of discretion a trial court's decisions concerning  



                                                              

whether to inform a pro se litigant of the specific defects in a pleading and whether to  



                                                   

provide an opportunity to remedy those defects.  'We will find an abuse of discretion if  



                                                  

our review of the record leaves us with a definite and firm conviction that the [trial court]  



                              4  

                                 Similarly, "[w]e review a superior court's denial of a motion to  

made a mistake[.]' " 



          3         GEICO argued that it was the prevailing party and therefore was entitled  



to 30% of reasonable actual fees, despite the fact that the case did not go to trial.  



          4         Genaro v. Municipality of Anchorage, 76 P.3d 844, 845 (Alaska 2003)   



(alteration in original) (quoting Hughes v. Bobich , 875 P.2d 749, 755 (Alaska 1994)).  



                                                             -8-                                                          6980  


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

                                                                    5  

            

amend a complaint for abuse of discretion."   However, "[i]t is within a trial court's  



discretion to deny such a motion where amendment would be futile because it advances  



                                                                                               6  

a  claim  or  defense  that  is  legally  insufficient  on  its  face."     "We  consider  with  



                                                                 

independent judgment whether a proposed amended complaint could survive dismissal;  



                                                                                                                     

if we conclude that it could not, we will hold that the superior court did not abuse its  



                                                                                7  

                                                                                    "We review rulings on motions  

discretion by denying the motion for leave to amend." 



                                                  8  

for summary judgment de novo."   "When applying the de novo standard of review, we  

                                                                                                 



apply our 'independent judgment to questions of law, adopting the rule of law most  



                                                                                9  

                                                                                   Finally, "[t]his court reviews an  

persuasive in light of precedent, reason, and policy.' " 



award of attorney's fees for an abuse of discretion.  Under this standard, the trial court  



has broad discretion in awarding attorney's fees; this court will not find an abuse of  



discretion  absent  a  showing  that  the  award  was  arbitrary,  capricious,  manifestly  

unreasonable, or stemmed from improper motive."10  



          5         Krause v. Matanuska-Susitna Borough , 229 P.3d 168, 174 (Alaska 2010).
     



          6         Id. (internal quotation marks omitted).
  



          7         Id. at 177.
  



          8  

                                                                

                    ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d
  

114, 122 (Alaska 2014) (citing Witt v. State, Dep't of Corr., 75 P.3d 1030,1033 (Alaska  

2003)).  



          9         Id.  (quoting  Russell  ex  rel.  J.N.  v.  Virg-In ,  258  P.3d  795,  802  (Alaska  



2011)).  



          10        Id. at 137 (quoting  Ware v. Ware, 161 P.3d 1188, 1192 (Alaska 2007))  



(internal quotation marks omitted).  



                                                               -9-                                                        6980
  


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

IV.	      DISCUSSION  



                                                                                                         

                   On appeal, James raises arguments related to the dismissal of his claims at  

                                                                                                                    11   We  

summary judgment and the superior court's award of attorney's fees against him. 



address each in turn.  



          A.	      The Superior Court's Grant Of Summary Judgment And Refusal To  

                                                                                                      

                   Grant Leave To Amend The Complaint  



                   James argues first  that summary judgment was improperly granted because  



he had raised a contractual interference claim in the original complaint and GEICO failed  

                                                         



to satisfy its burden to establish no genuine issue of material fact under Alaska Civil  

                                                                               



                 12  

Rule 56(c).          Alternatively, James argues that the superior court should either have  



informed him of the need to amend his complaint before granting summary judgment  

                                                      



against him or adopted the first proposed amended complaint submitted to the court after  



                                   

his dismissal from the  case.  Because James ultimately filed an amended complaint,  



           

which  clearly  articulated  his  contractual  interference  claim,  any  error  regarding  the  



superior court's interpretation of the original complaint or its failure to instruct James  



                                  

regarding  the  need  to  amend  his  complaint  was  cured,  leaving  the  superior  court's  



decision not to grant leave to amend as the only potential source of error.  



                                                         

                   In rejecting James's first amended complaint, the superior court reasoned  



                                                                                               

only  that  it  could  not  add  James  back  in  after  it  had  "already  dismissed  him  out."  



          11       James raised an additional argument in his points on appeal related to a                  



discovery dispute with GEICO.    But James did not discuss the issue in his brief on  

appeal.    Therefore  the  issue  is  forfeited  despite  GEICO's  briefing  on  the  issue  and  

James's response in his reply brief.  See Lyman v. State, 824 P.2d 703, 706 (Alaska  

1992) ("Generally, points on appeal not briefed are considered abandoned.").  



          12  

                                                                                                    

                   Civil Rule 56(c) provides in part that "[t]here must . . . be served and filed  

with  each  motion  a  memorandum  showing  that  there  is  no  genuine  issue  as  to  any  

material fact and that the moving party is entitled to judgment as a matter of law."  



                                                            -10-	                                                     6980
  


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

                                                                                                                     13 

                                                               

Ordinarily, under Alaska Civil Rule 15(a), leave to amend "shall be freely given."                                      We  



                                                                                                

have elaborated on this rule, recognizing that absent an "apparent or declared reason -  



             

such as undue delay, bad faith or dilatory motive on the part of the movant, repeated  



                                         

failure to cure deficiencies by amendments previously allowed, undue prejudice to the  



                                                                                               

opposing party by virtue of allowance of the amendment, futility of amendment, etc. -  



                                                                                         14  

                                                                                             Although the superior  

the leave sought should, as the rules require, be freely given." 



court did not undertake any analysis of whether leave to amend should have been freely  



                                                  

given or whether there was basis to deny leave under Rule 15(a), we conclude that the  



proposed amendment to the complaint was futile and would not have survived a motion  

for summary judgment.15  



                   Even  if  the  proposed  amended  complaint  had  been  adopted,  James's  



contractual interference claim would have failed as a matter of law because James did  



not allege that he was a direct party to any of the contracts with Frank's healthcare  



                                                                                                                    

providers, and he was not a third-party beneficiary to those contracts as a matter of law.  



                                                                                                  

"In determining whether a third party is an intended beneficiary of a contract, we refer  



                                                                             16  

                                                                                   We  look  to  the  intent  of  the  

to  the  Restatement  (Second)  of  Contracts  [  302]."                                                            



          13       Alaska R. Civ. P. 15(a).  



          14       Miller v. Safeway, Inc. , 102 P.3d 282, 294 (Alaska 2004) (quoting                              Betz v.  



Chena Hot Springs Group, 742 P.2d 1346, 1348 (Alaska 1987)) (internal quotation  

marks omitted).  



          15  

                                          

                   See Krause v. Matanuska-Susitna Borough, 229 P.3d 168, 177 (Alaska  

2010) ("We consider with independent judgment whether a proposed amended complaint  

could survive dismissal; if we conclude that it could not, we will hold that the superior  

                                                           

court did not abuse its discretion by denying the motion for leave to amend.").  



          16       Rathke v. Corr. Corp. of Am., Inc. , 153 P.3d 303, 310 (Alaska 2007).  The  



Restatement (Second) of Contracts  302 provides:  

                                                                                                          (continued...)  



                                                            -11-                                                      6980
  


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

                                  

promisee, in this case Frank Bush, "to give the beneficiary the benefit of the promised  



                      17  

performance."             In doing so, we look for objective manifestations of intent rather than  



                             18  

                                                        

subjective motives.              Applying this standard, the proposed amended complaint would  



                                                                                                

not have survived summary judgment because it did not allege that Frank intended for  



                                                                                                  

his contracts with health care providers to benefit James. Rather, the proposed amended  



complaint states only that James gave money to Frank with the intent that Frank use it  



to obtain medical care.  Moreover, the benefit of the promised performance - medical  



             

care - did not run to James.  It was directed entirely to Frank, the patient undergoing  



                                                                     

treatment.  Because the proposed amendment did not state a valid claim for relief, it was  



                                                             

futile and we affirm the superior court's refusal to permit James to amend his complaint.  



          B.        The Superior Court's Award of Attorney's Fees To GEICO  



                    Following James's dismissal and GEICO's settlement with the remaining  



                                        

plaintiffs, GEICO sought and obtained entry of final judgment against James.  GEICO  



          16(...continued)  



                    (1)  Unless otherwise agreed between promisor and promisee,  

                    a  beneficiary  of  a  promise  is  an  intended  beneficiary  if  

                    recognition of a right to performance in  the  beneficiary is  

                                                                                          

                    appropriate to effectuate the intention of the parties and either  

                                                                                 



                              (a)    the  performance  of  the  promise  will  satisfy  an  

                                                                                                

                              obligation  of  the  promisee  to  pay  money  to  the  

                                                     

                              beneficiary; or  



                              (b)  the   circumstances  indicate   that  the   promisee  

                                                                                         

                              intends  to  give  the  beneficiary  the  benefit  of  the  

                                                                                                    

                              promised performance.  



          17        RESTATEMENT (SECOND) OF CONTRACTS  302(1)(b) (1979).  



          18        Rathke , 153 P.3d at 310.  



                                                              -12-                                                         6980
  


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

then moved for attorney's fees as the prevailing party pursuant to Alaska Civil Rule 82.19  



                       

James did not respond to the motion in superior court.  Instead he filed points on appeal  



                                                                       

in this court indicating that the superior court had "not permitted him to file any sort of  



responsive  pleadings."    James's  belief  that  he  was  not  permitted  to  file  responsive  



                                                        

pleadings may have derived from a combination of factors including his dismissal from  



the  case,  the  removal  of  his  name  from  the  case  caption,  and  the  superior  court's  



instruction to cease filing "pleadings on behalf of other parties."  Following GEICO's  



renewed request for a ruling on its motion for attorney's fees, and without receiving a  



                                         

response from James, the superior court granted an award of $3,533.68, or 20% of the  



                                                                                                       20  

                                                                                                           James argues on  

reasonable fees incurred while James was still a party to the case. 



                                                                                                      

appeal that the superior court lacked authority to remove his name from the case caption  



and  abused  its  discretion  in  granting  GEICO's  motion  for  attorney's  fees  while  



simultaneously prohibiting him from filing a response.  



                            

                     We need not address the superior court's authority to amend the caption  



because         that     question        relates      primarily         to    James's        argument          that     he     was  



unconstitutionally  denied  access  to  the  court  and  that  he  was  unaware  that  he  was  



allowed to file an opposition to GEICO's motion for attorney's fees.  We vacate the  



                                       

attorney's fee award on the ground that the superior court erred by failing to inform  



James that he was permitted to file a response to GEICO's motion despite the court's  



                                                                                         

earlier  direction  that  James  not  file  further  pleadings.                         Thus  we  do  not  address  the  



superior court's unusual decision to remove James's name from the caption.  



           19        Alaska R. Civ. P. 82(a) ("[T]he prevailing party in a civil case shall be     



awarded attorney's fees calculated under this rule.").  



           20        Id. 82(b)(2) ("In cases in which the prevailing party recovers no money  



judgment, the court shall . . . award the prevailing party in a case resolved without trial  

                                                                              

20 percent of its actual attorney's fees which were necessarily incurred.").  



                                                                -13-                                                         6980
  


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

                                                                     

                     Turning to the superior court's duty to self-represented litigants, trial court  



judges must strike an appropriate balance between their role as a neutral and impartial  



                       21                                                                                            22 

               

decision maker             and their affirmative duty to advise self-represented litigants.                               We first  



                                                                        

addressed this balancing act in Breck v. Ulmer , which established a duty to "inform a pro  



se litigant of the proper procedure for the action he or she is obviously attempting to  



                    23                                                                                                     24 

accomplish."             Since Breck , we have delineated the contours of this obligation.                                      We  



                                                                                                                  

have also acknowledged that while the rules of court "may be models of clarity to one  



                                                                                            25  

                                                                                                Thus while "open-ended  

schooled in the law, a pro se litigant might not find them so." 



                                                                

participation by the court [that] would be difficult to contain" is outside the scope of the  

superior court's duty to self-represented litigants,26 where a self-represented litigant is  



                                                          

obviously attempting to accomplish a discrete action and his procedural failing is the  



                                                         

result of "a lack of familiarity with the rules rather than gross neglect or lack of good  



           21        See Bauman v. State, Div. of Family & Youth Servs.                             , 768 P.2d 1097, 1099  



(Alaska 1989) ("To require a judge to instruct a pro se litigant as to each step in litigating     

a claim would compromise the court's impartiality in deciding the case by forcing the  

judge to act as an advocate for one side.").  



           22        See Breck v. Ulmer, 745 P.2d 66, 74 (Alaska 1987).  



           23        Id.  



           24  

                                                                                                                          

                     For instance, "the trial court ha[s] no obligation to be lenient with a pro se  

                                                                                                    

litigant who ha[s] made 'no effort to cooperate with the trial court or to request assistance  

                                                  

in complying with its orders.' "  Genaro v. Municipality of Anchorage, 76 P.3d 844, 846  

(Alaska 2003) (quoting Coffland v. Coffland, 4 P.3d 317, 321 (Alaska 2000)).  



           25        Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska 1998).  



           26        Bauman ,  768  P.2d  at  1099.    We  have  also  noted  that  open-ended  



participation  by  the  court  would  tax  limited  judicial  resources  and  impair  judicial  

efficiency.  See Greenway v. Heathcott, 294 P.3d 1056, 1072 (Alaska 2013).  



                                                                -14-                                                         6980
  


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

          27 

                                                                                             

faith,"      the superior court retains an obligation to inform  that litigant of the proper  



                                       28  

procedure for that action.                 Although the superior court has no general duty to inform  



                                                                                                                           29 

                                                                                                                              here  

a self-represented litigant of the opportunity or need to file a responsive pleading, 



                                             

a duty to inform James of his ability to file a response to GEICO's motion arose from the  



                                                                      

superior court's actions in removing James's name from the case caption and instructing  



                                                                                      

James to cease filing pleadings on behalf of other parties once he had been dismissed and  



his name was no longer listed in the caption as a party to the case.  



                     We emphasize that this holding is limited to the unique facts presented.  



                                                          

The dismissal of James from the case, the removal of his name from the case caption, and  



                                                                        

most importantly the instruction to cease filing "pleadings on behalf of other parties" left  



                                                         

James with the belief that he was not permitted to file responsive pleadings in the matter  



arising   out   of   his   son's   injuries.      The   superior   court   was   on   notice   of   this  



                                    

misunderstanding.  In his response to GEICO and the Luke defendants' motions for  



                                                                              

summary judgment James expressed his belief that the removal of his name from the case  



                                                                                               

caption, and the prohibition against filing pleadings, would impermissibly curtail his  



                                                        

access to the court system and right to an appeal.  James's  misunderstanding reflects "a  



                                                                                                                         30  

                                                                                                                              Such  

lack of familiarity with the rules rather than gross neglect or lack of good faith." 



a  lack  of  familiarity,  particularly  here  where  James  had  actively  engaged  with  the  



          27         Wagner v. Wagner, 299 P.3d 170, 174 (Alaska 2013) (quoting Kaiser v.  



Sakata, 40 P.3d 800, 803 (Alaska 2002)) (internal quotation marks omitted).  



          28        See Breck, 745 P.2d at 74.  



          29        See Capolicchio v. Levy, 194 P.3d 373, 379 (Alaska 2008) (declining to     



require a trial court judge to inform a pro se litigant of the need to file an opposition to             

a motion for summary judgment).  



          30  

                                    

                     Wagner,  299  P.3d  at  174  (quoting  Kaiser ,  40  P.3d  at  803)  (internal  

quotation marks omitted).  



                                                               -15-                                                          6980
  


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

                                                  

litigation process up to the point of being instructed to cease filing pleadings, required  



                            

the superior court to inform James of his ability to respond to the motion for attorney's  



                                                  

fees.  This error is not harmless.  Because the superior court failed to clarify that James  



                                                                 

was  permitted  to  respond,  he  was   not  afforded  an  opportunity  to  dispute  the  



                                                                                                  

reasonableness of the fees or the reasonableness of using the total fees incurred against  



                                                                                                            

all of the plaintiffs as the base for applying the Rule 82 percentage for an award against  



                                                                                              

him,  or  to  argue  for  a  downward  deviation  from  the  default  20%  fee  award  at  the  

                                                                                    31   To grant an award without  

                                                                                        

discretion of the superior court under Civil Rule 82(b)(3). 



notice of the opportunity to respond to the motion for attorney's fees requires that we  



vacate the superior court's order granting an award of attorney's fees to GEICO and  



remand to provide James leave to file a response to GEICO's attorney's fees motion.  



V.        CONCLUSION  



                    We AFFIRM the grant of summary judgment and AFFIRM the superior  



court's order denying leave to amend because the proposed amendment to the complaint  

                                                                                                         



was futile.  We VACATE the fee award and REMAND to the superior court to afford  

                                                                                    



James Bush an opportunity to respond to the insurer's motion for reasonable attorney's  

                                                          



fees.  



          31        Civil Rule 82(b)(3) provides discretion to the superior court to deviate  



downward from the 20% default award based on factors such as "the extent to which a  

given  fee  award  may  be  so  onerous  to  the  non-prevailing  party  that  it  would  deter  

                                                                                              

similarly situated litigants from the voluntary use of the courts," "the extent to which the  

                                                                          

fees  incurred  by  the  prevailing  party  suggest  that  they  had  been  influenced  by  

considerations apart from the case at bar," and "other equitable factors deemed relevant."  



                                                             -16-                                                          6980  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


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

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC