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Foondle v. O'Brien (4/3/2015) sp-6995

         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  

                                                                                   

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                  THE SUPREME COURT OF THE STATE OF ALASKA  



WILLIAM M. FOONDLE,                                  )  

                                                     )        Supreme Court No. S-15045  

                  Appellant,                         )  

                                                     )        Superior Court No. 3KN-11-00842 CI  

                  v.                                 )  

                                                     )        O P I N I O N  

ANGELA M. O'BRIEN, DANIEL B.                         )  

LORD, JOE S. MONTAGUE, and                           )       No. 6995 - April 3, 2015  

QUINLAN G. STEINER, Executive                        )  

Director of the Alaska Public Defender )  

Agency,                                              )  

                                                     )
  

                  Appellees.                         )
  

                                                     )
  



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

                  Judicial District, Kenai, Anna Moran, Judge.  



                  Appearances: William M. Foondle, Appellant, Minot, North  

                  Dakota,  pro  se.    Ali  Moser  Rahoi,  Assistant  Attorney  

                  General,  Anchorage,  and  Michael  C.  Geraghty,  Attorney  

                                                      

                  General, Juneau, for Appellees.  



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

                                                        

                  Bolger, Justices.   



                  MAASSEN, Justice.  



I.       INTRODUCTION  



                  William Foondle appeals the superior court's dismissal of his claims for  



legal malpractice against the public defenders who represented him in a criminal case.  

                                                                     


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

In dismissing Foondle's malpractice claims, the superior court relied on the public policy  



principle that precludes criminally convicted plaintiffs from civil recovery based on the  

                                                                                                  



alleged negligence of their former defense counsel.  We hold that the superior court's  



legal analysis was correct, and we affirm the judgment on that basis.   We reject, as  

                                                                                                                    



unsupported, Foondle's argument that the dismissal violated his rights to due process and  

                                                                             



access  to  the  courts.    Finally,  we  affirm  the  award  of  attorney's  fees  to  the  public  

                                                                                                                  



defenders because they prevailed on the merits of Foondle's claims.  



II.       FACTS AND PROCEEDINGS  



          A.        Criminal Proceedings And Post-Conviction Relief  



                    A  grand  jury  indicted  William  Foondle  for  felony  driving  under  the  

                                                                                                                  



influence  (DUI)  in  2007.  The  DUI  charge  was  a  felony  because  Foondle  had  been  

                                                                                                      



convicted of DUI twice in the preceding ten years:  once earlier in 2007 and once  in  

                 



                                  1  

North Dakota in 1999.   Assistant public defenders Angela O'Brien and Daniel Lord  



were assigned to defend Foondle.  



                                                                                                           

                    Foondle testified during his jury trial that the North Dakota DUI conviction  



                                                                                               

resulted from a mistake; he explained that after he signed a plea of guilty to driving with  



                                                                                                      

a suspended license, the prosecuting attorney unilaterally changed the charge to DUI  



                                                                                                        

without Foondle's consent, then filed the altered plea with the court.  Foondle testified  



                                  

that the North Dakota DUI remained on his record because he had been unsuccessful in  



                                      

his attempts to withdraw or appeal it.  But the jury apparently rejected his testimony that  



it was a mistaken plea, finding him guilty of felony DUI.  



          1         See AS 28.35.030(n) ("A person is guilty of a class C felony if the person  

                                                           

is convicted under (a) of this section and . . . has been previously convicted two or more  

times since January 1, 1996, and within the 10 years preceding the date of the present  

offense. . . .").  



                                                              -2-                                                            6995  


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

                   O'Brien,        one     of   Foondle's         public     defenders,        filed    a    sentencing  



memorandum  arguing  that  the  North  Dakota  DUI  should  not  be  viewed  as  a  prior  

                                                                                                  



conviction for sentencing purposes and that Foondle should therefore be sentenced for  

                                                                                                      



a misdemeanor rather than felony DUI. While awaiting sentencing, Foondle made the  



same argument pro se in a habeas corpus petition and in a separate petition for post- 



conviction relief.  At some point before sentencing he discharged his public defenders,  

                                                                           



and his two petitions were consolidated for decision before Superior Court Judge Carl  



Bauman, who had presided over Foondle's criminal trial and who appointed new counsel  

                      



for purposes of the proceedings for post-conviction relief.  



                   Judge Bauman held an evidentiary hearing at which he received records  



from the North Dakota proceedings and heard testimony from a North Dakota court clerk  



and state attorney; he then issued a written decision.  He found by clear and convincing  

                                                   



evidence  that  the  North  Dakota  plea  agreement  Foondle  signed  was  changed  from  



driving with a suspended license to a DUI without Foondle's knowledge or consent,  



compromising his fundamental constitutional rights.  Judge Bauman concluded that the  

                                                                   



North Dakota DUI conviction would therefore be "set aside for purposes of sentencing  

                                                                               



[Foondle] on his 2008 DUI conviction in [Alaska]."  By another order entered the same  

                                                                             



day, Judge Bauman ruled that "Defendant's felony DUI conviction is set aside and a  

                                                                                    



conviction under the misdemeanor DUI criteria shall be entered and Defendant shall be  



sentenced   under   [those]   misdemeanor   criteria."      Foondle   was   sentenced   for   a  



misdemeanor DUI.   



          B.       Civil Suit For Legal Malpractice  

                                                                       



                   In 2011, acting pro se, Foondle sued O'Brien and Lord along with their  

                                                                   



supervisors, Joe Montague and Quinlan Steiner.  In an amended complaint he alleged  



negligence and intentional tort for the attorneys' alleged failure to adequately investigate  

                       



                                                            -3-                                                      6995
  


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

       

the North Dakota DUI.  He alleged that the judgment of conviction was void because of  



                                                                        

a "fatal flaw" in the indictment:  it charged a felony, but one of the facts that made it a  



                                                               

felony was successfully challenged and then disregarded for sentencing purposes.  He  



                                        

alleged that he had rights to appeal his DUI conviction, the decision on post-conviction  



                                                    

relief, and the  sentencing, but he lost those rights because his attorneys failed to appeal.  



                                                                                                                    

He claimed that his attorneys' negligence caused him to serve a longer time in prison and  



                                                                             

triggered a revocation of his federal probation, all of which resulted in debt, lost income,  



                                                  2  

                                                                             

lost consortium, and depression.   He alleged that his post-conviction relief petition was  



badly handled as well, though he did not sue the lawyer who handled it.  



                                                                   

                     The public defenders moved under Alaska Civil Rule 12(b)(6) to dismiss  



Foondle's complaint for failure to state a claim.3  

                                                                               Superior Court Judge Anna Moran  



                                                                                                

granted Foondle leave to amend his complaint, but a day later she granted as unopposed  



                                                                             

the public defenders' motion to dismiss the case with prejudice.  The public defenders  



                                                     

asked the court to clarify whether the dismissal with prejudice mooted the order granting  



leave to amend, then moved for entry of final judgment.  Foondle opposed the entry of  



                                                                                                             

final judgment; he also filed his amended complaint, which attached as an exhibit a copy  



of Judge Bauman's order granting his petition for post-conviction relief.   



          2          Foondle alleges that he served "almost nineteen (19) months" because of                          



his  attorneys'  malpractice,  and  that  his  DUI  conviction  also  constituted  a  probation  

violation that triggered a "substantially longer" federal sentence.   The specifics of these  

                                                                                                      

claims are not apparent from the record on this appeal.  



          3          Though denominated a motion to dismiss, the motion attached a number of  

                                                                                            

exhibits consisting of documents from Foondle's criminal case.  The public defenders  

cited  Nizinski  v.  Currington ,  517  P.2d  754,  756  (Alaska  1974),  in  support  of  the  

                                                                                                               

proposition that records from other court cases are properly considered on a motion to  

                                                                                                                     

dismiss.  There is no dispute about the course of proceedings in the criminal case.  



                                                                 -4-                                                          6995
  


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

                    Judge Moran issued another written decision in which she again dismissed  



Foondle's claims with prejudice pursuant to Civil Rule 12(b)(6) and granted the public  

                                  



defenders' request that final judgment be entered in their favor.  Relying on Shaw v.  

                             



State, Department of Administration4                                                                                          5  

                                                        and Howarth v. State, Public Defender Agency ,  



among other Alaska precedents, Judge Moran explained that  Foondle's conviction of  



misdemeanor DUI barred him from any civil recovery for attorney malpractice related  



to  that  conviction  because,  for  reasons  of  public  policy,  his  incarceration  had  to  be  

                                                                                                                        



viewed as resulting solely from his own criminal acts.  Judge Moran awarded attorney's  



fees to the public defenders, as prevailing parties, in the amount of $4,740.   



                    Foondle argues on appeal that the superior court erred in three ways in  

                                                                                      



dismissing   his   malpractice   complaint:      1)   it   misapplied   public   policy;   2)   it  



unconstitutionally deprived him of due process and access to the courts by deciding the  

                                                                                                



case  short  of  trial;  and  3)  it  should  not  have  awarded  attorney's  fees  to  the  public  



defenders as prevailing parties.  



III.      STANDARDS OF REVIEW  



                    We review de novo an order dismissing a complaint for failure to state a  

                                      



claim.6                                                                                                     

            "The court must presume all factual allegations of the complaint to be true and  



                                                                                                        7  

                                                     

[make] all reasonable inferences . . . in favor of the non-moving party."   We affirm the  



                                                                                                    

dismissal of a complaint for failure to state a claim only if "it appears beyond doubt" that  



          4         861 P.2d 566, 571 (Alaska 1993).  



          5         925 P.2d 1330, 1336-37 (Alaska 1996).  



          6         Valdez Fisheries Dev. Ass'n v. Alyeska Pipeline Serv. Co.                         ,  45 P.3d 657, 664  



(Alaska 2002).  



          7         Caudle v. Mendel, 994 P.2d 372, 374 (Alaska 1999) (quoting Kollodge v.  

                                                

State, 757 P.2d 1024, 1026 (Alaska 1988)) (alteration in original).  



                                                             -5-                                                        6995
  


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

                                                                                                        8 

                                                                                            

the plaintiff "can prove no set of facts which would entitle [him] to relief."   Whether the  



                                                           

right to due process has been violated  "is  a question of law to which we apply our  



                                   9  

independent judgment."                      

                                     We review "a trial court's prevailing party determination for  

abuse of discretion."10  



IV.	      DISCUSSION  



          A.	      The  Superior  Court  Did  Not  Err  When  It  Relied  On  Shaw  And  

                   Howarth To Dismiss Foondle's Malpractice Claims.  



                                                                                                      

                   We have recognized significant public policy constraints on the ability of  



persons  convicted  of  crimes  to  recover  from  their  criminal  defense  attorneys  for  



                                                                                                             

professional malpractice, observing that "civil recovery should not be a tool for shifting  



an individual's responsibility for the individual's criminal acts."11  

                                                                                                We held in Shaw v.  



State, Department of Administration that "if plaintiffs engaged in the criminal conduct  



they are accused of, then they alone should bear full responsibility for the consequences  



                                                                                                         

of their acts, including imprisonment.  Any subsequent negligent conduct by a plaintiff's  



attorney is superseded by the greater culpability of the plaintiff's criminal conduct."12  



          8	        Valdez Fisheries, 45 P.3d at 664.  



          9        Godfrey  v.  State,  Dep't.  of  Cmty.  &  Econ.  Dev.,   175  P.3d  1198,  1201  



(Alaska 2007).  



          10       Schultz v. Wells Fargo Bank, N.A., 301 P.3d 1237, 1241 (Alaska 2013)  

                                                                        

(quoting Taylor v. Moutrie-Pelham, 246 P.3d 927, 928-29 (Alaska 2011)).  

                                                      



          11  

                                                                               

                   Shaw v. State, Dep't of Admin., 861 P.2d 566, 571 (Alaska 1993); see also  

Howarth v. State, Public Defender Agency , 925 P.2d 1330, 1335-36 (Alaska 1996).  



          12       861 P.2d at 572.  



                                                            -6-	                                                     6995
  


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

                                                                 

                    We also held in Shaw that the plaintiff's "actual innocence" is critical to his  



malpractice claim.13  

                                Other courts have recognized that "[t]he rationale for requiring  



proof of actual innocence is to eliminate the possibility that someone who has been found  

                                                                                        



guilty  of  a  crime  would  profit  from  his  criminal  activity,"14  

                                                                                               and  we  agree  with  this  



rationale.  It follows that "actual innocence"  requires the malpractice plaintiff to be  



innocent not only of the crime charged, but of lesser included offenses as well.15  

                                                                                                                           



                    We  held  in  Shaw  that  the  burden  of  proof  on  this  element  is  with  the  



attorney-defendant, who must raise actual guilt as an affirmative defense and prove it by  

                                                                                                 



                                                 16  

a preponderance of the evidence.  

                                                                        

                                                     In this case, the public defenders' motion to dismiss  



          13        Id.  



          14        Fink v. Banks , 996 N.E.2d 169, 174 (Ill. App. 2013).  



          15        See Shaw, 861 P.2d at 570 n.4 (citing                   Bailey v. Tucker , 621 A.2d 108, 113   



(Pa. 1993)); see also id. at 571-72; Howarth v. State, Public Defender Agency , 925 P.2d  

1330, 1332 (Alaska 1996) ("One whose incarceration results from his own intentional  

acts may not receive a damage award from another whose negligence also caused or  

contributed to the incarceration."); Sangha v. La Barbera, 52 Cal. Rptr. 3d 640, 646 (Cal.  

                                                                                                              

App. 2006) (holding that the malpractice plaintiff must show actual innocence and post- 

                                                                                                                     

conviction exoneration on "any guilty finding for a lesser included offense, even though  

plaintiff alleges he received negligent representation only on the greater offense"); Fink,  

                                                          

996  N.E.2d  at  174  ("[T]he  hallmark  of  actual  innocence  is  'total  vindication'  or  

'exoneration.' ") (citation omitted); MALLEN  &   SMITH ,  LEGAL MALPRACTICE  27:13,  

at  1268  (2014  ed.)  (explaining  that  courts  have  invoked  policy  considerations  in  

                                                                                                        

imposing the requirement that "actual innocence" mean that the client be "free of guilt  

of a lesser or otherwise related offenses").  

                                                                 



          16        861 P.2d at 572.  



                                                               -7-                                                         6995
  


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

                                                                                      

properly raised the affirmative defense that Foondle was actually guilty of misdemeanor  



        17  

DUI.         



                                                    

                    The  superior  court  granted  the  motion  to  dismiss  on  that  basis.    The  



superior  court  noted,  correctly,  that  while  Foondle  "successfully  challenged  the  



categorization  of  [his  DUI]  conviction  as  a  felony  .  .  .  ,  the  facts  of  his  conduct  



                                                                                                                

underlying the DUI charge - whether it be felony or misdemeanor DUI - remain the  



                                                                                                                      

same:  that plaintiff Foondle had committed the criminal conduct of driving under the  



influence."  Foondle "stood accused and convicted of the essential elements of DUI  



under AS 28.35.030."   



                    Our decision in this case is guided by our decision in Howarth v. State,  



                                      18  

Public Defender Agency .                                                                                  

                                         The plaintiff in Howarth had pleaded nolo contendere to first  



                                               

degree sexual assault and was sentenced to ten years in prison; seven years later he was  



                                                                                 

allowed to withdraw his plea after a court found that his public defender had counseled  



                                                              19  

                                      

him inadequately about certain evidence.                          Pending retrial, he pleaded nolo contendere  



                                                                                                                         

to second degree sexual assault on the prosecution's agreement that it would seek no  



                    

more than a six-year sentence; the plaintiff was immediately released as a result, having  



                                                       20  

already  served  nearly  seven  years.                       He  sued  the  public  defender  for  malpractice,  



                                                        

contending that he spent more time in prison than he would have if his lawyer had not  



          17        A complaint may be dismissed under Alaska Civil Rule 12(b)(6) "when an   



affirmative defense appears clearly on the face of the pleading."                                 Providence Wash. Ins.  

Co. of Alaska v. McGee,  764 P.2d 712, 714 (Alaska 1988).  



          18         925 P.2d 1330 (Alaska 1996).  



          19        Id. at 1331.  



          20        Id.  



                                                                -8-                                                         6995
  


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

been negligent.  But we affirmed the superior court's grant of summary judgment to the           



public defender, and our reasoning applies to this case as well.  



                     Noting that the plaintiff was precluded from denying that he committed  



sexual assault because "the conviction stands," we nonetheless assumed for purposes of  

                                                                                                                     



argument "that if his attorney had not been negligent his sentence would have been four  

                                                           



years and that because of the attorney's negligence the sentence was seven years."21  



                                                                                                                   

Still, under Shaw, the plaintiff's "intentional criminal conduct is a legal cause of the  



                                                                                            

entire period of his imprisonment.  [The plaintiff] has no redress against his attorney  



                                           

because [his] conduct was intentional and in violation of the criminal law, whereas his  



                                                      22  

attorney's was merely negligent."                                                   

                                                          Quoting  Shaw , we again held that "subsequent  



                                                                                                             

negligent conduct by a plaintiff's attorney is superseded by the greater culpability of the  



plaintiff's criminal conduct."23  



                                      

                     Here, too, we can assume to be true Foondle's allegation that he spent more  



                                                                   

time incarcerated than he would have if his defense attorneys had not neglected the issue  



of the North Dakota DUI.  But under Howarth  and Shaw, "the greater culpability of  



[Foondle's] criminal conduct" still supersedes any subsequent negligence of his attorneys  



and,  as  a  matter  of  public  policy,  is  the  "legal  cause  of  the  entire  period  of  his  



          21        Id. at 1336-37.  



          22        Id. at 1337.  



          23        Id.  



                                                                 -9-                                                              6995  


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

                        24  

imprisonment."              The superior court therefore did not err in dismissing Foondle's legal  



                             25  

malpractice claims.                     



                                                                                           

          B.	       The  Superior  Court  Did  Not  Err  When  It  Relied  On  Foondle's  

                    Conviction For Misdemeanor DUI To Dismiss His Malpractice Claims.  



                                                                                    

                    Foondle makes two arguments in support of a contention that the superior  



                                                                                                           

court erred in relying on his DUI conviction to dismiss his malpractice claims.  First, he  



                                        

argues that the conviction suffered from a fatal jurisdictional defect - the inconsistency  



                                                          

between the grand jury's indictment for felony DUI and his ultimate conviction and  



sentencing for misdemeanor DUI.  But a conviction for misdemeanor DUI does not  



                                                                                                                     

signal a jurisdictional flaw, because misdemeanor DUI under AS 28.25.030(a) is a lesser  



                                                                                   26  

                                                                                        

included offense of felony DUI under AS 28.25.030(n).                                  The jury could lawfully have  



          24	       Id. ; Shaw v. State, Dep't of Admin., 861 P.2d 566, 572 (Alaska 1993).  



          25        In several stages of tort reform, both before and after  Shaw and Howarth  



were decided, the Alaska legislature revised the statutes that govern the allocation of   

damages based on fault.  See Sowinski v. Walker, 198 P.3d 1134, 1149-50 (Alaska 2008).  

For example, AS 09.17.080 requires that a jury (or the court if there is no jury) make  

findings allocating fault among all responsible parties, considering, among other things,  

"both the nature of the conduct of each person at fault, and the extent of the causal  

relation between the conduct and the damages claimed."  And AS 09.17.900 defines  

              

"fault" to include  "acts  or omissions that are in any measure negligent, reckless, or  

intentional."  Whether the rule of Shaw and Howarth is consistent with these statutory  

                      

changes has not been raised in this case, and we therefore do not address it.  



          26  

                                                                                         

                    A charge of felony DUI adds to the elements of misdemeanor DUI only a  

history  of  convictions,  and  a  defendant  cannot  commit  the  greater  offense  without  

committing the lesser.  See Lampkin v. State, 141 P.3d 362, 365 n.5 (Alaska App. 2006)  

                                                                    

("A lesser offense is 'included' within the charged offense if, under the facts of the case,  

                                                                                            

it  would  be  impossible  for  the  defendant  to  commit  the  charged  offense  without  

committing the lesser offense, and when conviction of the greater offense requires the  

                    

jury to find a disputed fact that is not required for conviction of the lesser.");  see also  

                                                                                                   

Elisovsky  v.  State ,  592  P.2d  1221,  1225-26  (Alaska  1979)  (adopting  the  "cognate  

                                                                                    

                                                                                                              (continued...)  



                                                              -10-	                                                        6995
  


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

convicted Foondle of misdemeanor DUI on the basis of the indictment charging the  



                       27 

greater offense,                                                                                              

                          and Judge Bauman, having found that the facts did not support the  



felony conviction, acted within his authority when he reduced it to the lesser included  



                     28  

misdemeanor.              



                    Second,  Foondle  argues  that  the  superior  court  should  not  have  given  



collateral estoppel effect to his DUI conviction because he lacked the opportunity to  



              29  

appeal it.                                                                                      

                  He acknowledges that he had the right to appeal, but he faults his criminal  



             

defense attorneys for failing to exercise it.  He contends that the civil and appellate rules  



                     

did not allow him to file an appeal pro se as long as he was represented by counsel who  



          26(...continued)  



approach"  to  the  question  whether  offenses  are  "  'necessarily  included'  in  other  

offenses";  the  approach  "focuses  closely  on  the  facts  charged  in  the  indictment  to  

                 

determine whether the defendant had actual notice of possible lesser included offenses").  



          27        See Alaska R. Crim. P. 31(c) ("The defendant may be found guilty of an  

                                          

offense necessarily included in the offense charged.").  



          28        See Hurd v. State, 107 P.3d 314, 322-23 (Alaska App. 2005) ("[W]hen we  

                                                                                           

have found a flaw in the evidence or procedures leading to a defendant's conviction for  

                                                       

a greater offense, but when this flaw did not affect the validity of the jury's finding or  

the defendant's plea with regard to a lesser offense, we have authorized the State to  

forego further prosecution of the greater offense and simply ask the trial court to enter  

                                                                         

judgement on the lesser offense.");  S.R.D. v. State, 820 P.2d 1088, 1093 (Alaska App.  

                                                                                                   

 1991) (vacating conviction for first-degree assault as unsupported by the evidence, but  

                                                                                                            

directing  that  "[b]ecause  the  jury's  verdict  convicting  S.  of  first-degree  assault  

                                                          

necessarily encompasses all the elements necessary to a finding of guilt on the lesser- 

included offense of assault in the fourth degree, the trial court may, on remand, enter a  

                                                                                                         

judgment against S. for the lesser offense").  



          29        Issue  preclusion,  or  collateral  estoppel,  "bars  the  relitigation  of  issues  



                                                                                                                  

actually determined in earlier proceedings."  McAlpine v. Pacarro , 262 P.3d 622, 627  

(Alaska 2011) (citations and alterations omitted).  



                                                            -11-                                                       6995
  


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

                                                               30 

                                          

declined to file an appeal on his behalf;                         that he was thus effectively prohibited by law  



                                                                                                                          

from appealing; and that his case therefore falls within an exception to the general rule  



of issue preclusion, applicable when "[t]he party against whom preclusion is sought  



                                                                              

could  not,  as  a  matter  of  law,  have  obtained  review  of  the  judgment  in  the  initial  



             31  

action."                                                                                                

                But as explained in the Restatement of Judgments, this exception "applies only  



                                                                                                                    

when review is precluded as a matter of law.  It does not apply in cases where review is  



                                            32 

available but is not sought."                                                                   

                                                Foondle admits that appellate review was available but not  



sought (indeed, it is one of his complaints against his attorneys).  



                      Alaska Appellate Rule 209(b)(4) provides that a criminal defense attorney  



who does not intend to pursue an appeal despite his client's wishes may not withdraw  



                                                                                                                                33  

                                                                                                                      

without  first  filing  a  notice  of  appeal  in  order  to  preserve  his  client's  rights.                                        The  



                                                                                                 

attorney's  failure  to  do  so,  as  Foondle  alleges  happened  in  his  criminal  case,  may  



           30         Foondle relies on Alaska Civil Rule 81(c)(2), which provides in part that   



"[e]xcept as otherwise ordered by the court . . . a party who has appeared by an attorney             

may not thereafter appear or act in the party's own behalf in any action or proceeding,         

unless  order  of  substitution   shall  have  been  made  by  the  court  after  notice  to  such  

attorney";  and  on  Alaska  Appellate  Rule  209(b)(4),  which  provides  that  "[c]ounsel  

appointed to represent a defendant in the trial court pursuant to Criminal Rule 39 shall  

                                                                                                        

remain  as  appointed  counsel  throughout  an  appeal  or  petition  for  review  at  public  

expense . . . and shall not be permitted to withdraw except upon grounds authorized."  

                                                                                     



           31         RESTATEMENT (SECOND) OF JUDGMENTS  28(1) (1982).  



           32        Id. at  28 cmt. a.  



           33  

                                                                                   

                      See, e.g., Broeckel v. State, 900 P.2d 1205, 1207-08 (Alaska App. 1995)  

                                                                                                                    

(finding ineffective assistance of counsel where trial attorney withdrew before ensuring  

that defendant had succeeded in retaining new counsel to file appeal).  



                                                                   -12-                                                             6995
  


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

                                                                 34  

constitute ineffective assistance of counsel.                        But a claim for ineffective assistance of  



                                                                                                   35 

                                                               

counsel must be pursued in an application for post-conviction relief.                                  Although such an  



                      

application, if successful, could result in a reversal of Foondle's DUI conviction, that has  



not happened.  The conviction stands, and Foondle is precluded from religitating his  



innocence in this civil lawsuit for legal malpractice.36  



                                                                                                                     

          C.	       The Superior Court Did Not Err In Its Award Of Attorney's Fees To  

                    The Public Defenders As Prevailing Parties.  



                                                                                           

                    Foondle identifies one of the issues on appeal as whether the superior court  



                                                               

abused its discretion "as to the amount of the award" of costs and attorney's fees to the  



                                                                           

public defenders.  His brief does not explain why the amount was erroneous, however;  



          34	       Id. at 1208.  



          35        See Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984) (holding  



that, except where the error is "plain," claims of ineffective assistance of counsel must  

be brought "either in a motion for new trial or [in] an application for post-conviction  

                                                                                                    

relief").  



          36        Foondle also contends that the dismissal of his malpractice case on the  



State's  motion  was  "arbitrary  and  premature"  and  interfered  with  his  rights  to  due  

process and access to the courts.  But even on appeal Foondle identifies no genuine issue  

of material fact that should have been the subject of discovery or trial; the superior court  

                              

decided the case on legal grounds based on the facts as alleged in Foondle's complaint  

                          

and as further explained in the order Foondle attached to his complaint as an exhibit.  See  

                                                                                        

Adkins v. Stansel , 204 P.3d 1031, 1035 n.20 (Alaska 1996) ("Attachments to a complaint  

                                                  

are properly considered a part of the complaint in connection with a motion to dismiss.").  

We have held that the summary judgment standard, limiting summary disposition to  

cases in which there is no genuine issue of material fact and the moving party is entitled  

                                                                                                           

to judgment as a matter of law, "is adequate to prevent the violation of a party's due  

process right or right to a jury trial," Capolicchio v. Levy, 194 P.3d 373, 380-81 (Alaska  

                                                                                     

2008),  and  the  same  is  true  of  the  standards  for  dismissal  if  properly  applied.    See  

                                                                                               

DeNardo v. ABC Inc. RVs Motorhomes , 51 P.3d 919, 927 (Alaska 2002) (finding no due  

process violation when superior court dismissed complaint after adequate warning that  

                                                          

dismissal would occur if the plaintiff did not comply with a discovery order).  



                                                             -13-	                                                       6995
  


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

it contends only that the public defenders should not have been deemed the prevailing  



                                                                                                   

parties because the superior court erred in dismissing his suit on its merits.   Affirming  



the dismissal, we necessarily agree with the superior court's determination that the public  



defenders were the prevailing parties. Any challenge to the amount of the attorney's fees  

                                                        



award is not briefed and is therefore waived.37  

                                                                     



V.        CONCLUSION  



                   The judgment of the superior court is AFFIRMED.  



          37       See Gilbert v. Sperbeck, 126 P.3d 1057, 1062 (Alaska 2005) ("[E]ven when  



a pro se litigant is involved, an argument is considered waived when the party 'cites no  

                                                                

authority and fails to provide a legal theory' for his or her argument." (quoting Peterson  

                                           

v. Ek , 93 P.3d 458, 464 n.9 (Alaska 2004))).  



                                                            -14-                                                         6995  

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