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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kinnan v. Sitka Counseling (4/17/2015) sp-6998

Kinnan v. Sitka Counseling (4/17/2015) sp-6998

         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  



ARTHUR J. KINNAN,                                          )  

                                                            )    Supreme Court No. S-15437  

                            Appellant,                      )  

                                                           )     Superior Court No. 1SI-12-00216 CI  

         v.                                                )  

                                                           )     O P I N I O N  

SITKA COUNSELING, MICHAEL                                  )  

McGUIRE, & ERIC SKOUSEN,                                    )    No. 6998 - April 17, 2015  

                                                           )  

                            Appellees.                     )  

                                                           )  



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

                                                                                     

                   Judicial District, Sitka, David V. George, Judge.  



                  Appearances:  Arthur  J.  Kinnan,  pro  se,  Sitka,  Appellant.  

                  Brian   E.   Hanson,   Brian   E.   Hanson,   LLC,   Sitka,   for  

                            

                  Appellees.  



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

                               

                  Bolger, Justices.  



                  BOLGER, Justice.  



I.       INTRODUCTION  



                  Arthur J. Kinnan lived in a three-bedroom residence as part of a substance  



abuse treatment program operated by Sitka Counseling.  Funding for that program ended,  



and Sitka Counseling informed Kinnan that he would be required to vacate the residence.  

                                                             



Kinnan filed suit against Sitka Counseling and two of its staff members, alleging several  

                                                                                                    



torts based on the defendants' conduct when removing him from the premises, violations  

        


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

of  Alaska's  Landlord  Tenant  Act,  and  deprivation  of  constitutional  rights  under  



                                                       

42  U.S.C.    1983.    After  a  bench  trial,  the  superior  court  ruled  in  favor  of  Sitka  



Counseling on all claims.   



                                                                                             

                    Kinnan argues that the superior court wrongfully denied a continuance to  



                                                                                           

allow him to seek counsel, wrongfully excluded the testimony of a late-disclosed witness  



and two affidavits, and improperly facilitated questioning regarding Kinnan's mental  



                                                                               

disability.  We conclude that any error resulting from the exclusion of Kinnan's witness  



        

was harmless and we see no abuse of discretion in the superior court's denial of Kinnan's  



                                                                                 

continuance, its exclusion of the affidavits as hearsay, or its consideration of Kinnan's  



                                                                                                 

mental  disability.          And  we  also  reject  Kinnan's  argument  that  the  superior  court's  



adverse rulings created an appearance of judicial bias.  



II.       FACTS AND PROCEEDINGS  



                                                                                                     

                    Sitka Counseling operated a substance abuse treatment program in a three- 



                                                                                                       

bedroom residence.  Arthur J. Kinnan lived in the residence as part of this program, but  



Sitka Counseling terminated the program in September 2011, after program funding  



ended.  On August 31, 2012, Sitka Counseling provided Kinnan written notice that he  



                                                                     

had ten days to vacate the residence.  Kinnan vacated the residence on September 14,  



after  visits  to  the  residence  from  Michael  McGuire,  Sitka  Counseling's  executive  



director, and Eric Skousen, another staff member.  



                                                                                                             

                    Kinnan then filed suit against Sitka Counseling, McGuire, and Skousen  



                             

(collectively Sitka Counseling), alleging that McGuire and Skousen committed assault  



and battery in attempting to remove him from the residence.  In particular Kinnan alleged  



that on September 10, 2012, McGuire entered the residence uninvited and stated "in an  



                              

angry voice" while standing "very close" to Kinnan that because he had resigned from  



                             

Sitka  Counseling,  "he  was  not  bound  by  the  ususal  constraints  of  his  professional  



relationship with . . . Kinnan and . . . intended to engage in physical combat."  Kinnan  



                                                             -2-                                                        6998
  


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

further alleged that on September 14, Skousen "barged into" the residence and "took  



                                                              

hold of the front of [Kinnan's] shirt, lifted [Kinnan] off the ground, shook [Kinnan] and  



told [Kinnan] that if [Kinnan] didn't leave the house immediately he would throw him  



to the floor, handcuff [Kinnan] and drag [Kinnan] out into the street and hurt him."   



                      In  addition  to  the  assault  and  battery  claims,  Kinnan  alleged  negligent  



                                                       

hiring and supervision; trespass to real estate; trespass to personal property; violations  



                                               1 

                                                                       

of the Landlord Tenant Act ; intentional infliction of emotional distress; violation of 



                                                                    

constitutional rights under 42 U.S.C.  1983; and conspiracy to violate constitutional  



rights under 42 U.S.C.  1983.  



                      According  to  Sitka  Counseling,  Kinnan  subsequently  returned  to  the  



                                                                                                        

residence.  Sitka Counseling allowed him to remain there but filed a forcible entry and  

detainer (FED) counterclaim,2 seeking to regain possession of the residence.  



                                                                         

                      A scheduling conference was held on February 5, 2013.  Both Kinnan and  



                                                                                                             

his attorney, James McGowan, were present.  The superior court then entered a pretrial  



                                                                                             

order setting the trial for the week of October 28, 2013, and establishing various pretrial  



deadlines, including due dates for Alaska Civil Rule 26 disclosures and witness lists.   



                                                                                                                             

                      A hearing on the FED action was held on February 22, 2013.  At the outset  



                                                                                                  

of the hearing, McGowan informed the superior court that Kinnan wished to "fire" him,  



and the court allowed McGowan to withdraw as counsel.  Kinnan proceeded without  



                                                                                                                                

counsel  from  this  point  forward.                        Following  the  FED  hearing,  the  court  ruled  that  



Kinnan's occupancy of the residence was not covered by the Landlord Tenant Act and  



ordered Kinnan to peacefully vacate the residence by February 28, 2013.  



           1          AS 34.03.010-.380.  



           2          See AS 09.45.070(a) ("When a forcible entry is made upon a premises, or                                



when an entry is made in a peaceable manner and the possession is held by force, the                                             

person entitled to the premises may maintain an action to recover the possession.").  



                                                                      -3-                                                               6998
  


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

                    As   for   Kinnan's   suit,   Sitka   Counseling   never   received   any   initial  



disclosures from Kinnan nor any responses to its discovery requests in the months that  

              3  Nor does it appear that Kinnan took any action or submitted any filings in his  

followed.                                                                                                                



case until October 10, 2013, when he filed a witness list that was eight days late and  



                      

included only his witnesses' names and addresses.  On October 15 Kinnan filed a request  



                                                                            

for a continuance, citing his difficulty in retaining another attorney.  He requested that  



the trial date be postponed until November 18, 2013.  



                    A pretrial conference was held on October 17, 2013.  The judge denied  



                                                                                          

Kinnan's request for continuance and explained that the trial would be held as scheduled  



on October 28, 2013.  The court also partially granted Sitka Counseling's request to  



                                   

exclude  the  witnesses  on  Kinnan's  untimely  witness  list.    The  judge  explained  that  



                                                              

Kinnan would be allowed to call himself, the other parties, and impeachment witnesses.  



                                                                                                                 

                    A bench trial on Kinnan's complaint was held on October 28, 2013.  The  



superior  court  granted  a  directed  verdict  in  Sitka  Counseling's  favor  on  Kinnan's  



Landlord Tenant Act claim, his trespass to personal property claim, and his  1983  



                                                                                                               

claims.  At the conclusion of the trial, the court ruled that Kinnan failed to carry his  



burden of proof on his remaining claims:  assault, battery, trespass to real property,  



                                                   

negligent supervision and hiring, and intentional infliction of emotional distress.  The  



                                                                                      

court then dismissed Kinnan's complaint with prejudice.  Kinnan appeals pro se, based  



                                                                     

on 1) the denial of his requested continuance, 2) the exclusion of his eyewitness,  3) the  



                                         

exclusion of two affidavits as hearsay, 4) inquiries into the nature of his mental disability,  



and 5) the judge's alleged appearance of bias.  



          3  

                                                

                    Under the pretrial order, initial Civil Rule 26 disclosures were due March  

15, 2013, and discovery was to be closed by September 27, 2013.  



                                                              -4-                                                           6998  


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

III.	     STANDARD OF REVIEW  



                                                                                              

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



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



                                                                                                                      4 

                                                                                                                         "We  

deprived of a substantial right or seriously prejudiced by the [trial] court's ruling." 



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



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



                 5  

                                                                               

discretion."   "[D]ecisions about the admissibility of evidence" are reviewed for abuse  



                    6  

of discretion.    "We review de novo the question of whether a judge appears biased,  

which is assessed under an objective standard."7  



IV.	      DISCUSSION  



          A.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Denying  

                    Kinnan's Request For Continuance.  



                                                                                   

                    "A continuance for the purpose of finding and obtaining counsel requires  



                                    8  

                                                                                              

a showing of diligence."               "There is no general right to counsel in civil cases under the  



          4	        Greenway v. Heathcott, 294 P.3d 1056, 1062 (Alaska 2013) (quoting                                  Azimi  



v. Johns , 254 P.3d 1054, 1059 (Alaska 2011)) (internal quotation marks omitted).  



          5        Id. (quoting Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 183 (Alaska  

                                                                                                              

2009)) (internal quotation marks omitted).  



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



          7  

                                                                        

                    Sagers v. Sackinger, 318 P.3d 860, 863 (Alaska 2014); see also Phillips v.  

                                                                    

State, 271 P.3d 457, 459 (Alaska App. 2012) ("On the separate issue of whether, given  

the circumstances, reasonable people would question the judge's ability to be fair, the  

proper  standard  of  review  is  de  novo  -  because  reasonable  appearance  of  bias  is  

assessed under an objective standard."  (emphasis and internal quotation marks omitted)).  



          8         Greenway, 294 P.3d at 1067.  



                                                             -5-	                                                       6998
  


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

United States or Alaska Constitutions.  Further, many litigants successfully represent  

themselves in civil litigation."9  



                     Kinnan filed his motion for continuance on October 15, 2013, less than two                              



weeks before his case was set for trial.  In this motion   Kinnan   claimed his original  



attorney had charged him $5,000 for each telephonic appearance, "effectively wiping out               



 [his] savings."  Kinnan contended that his "first choice" attorney was unavailable and  



                                                                                                                      

that  "there  are  fewer  and  fewer  lawyers  of  experience  and  integrity,"  but  did  not  



otherwise detail any of his efforts to retain new counsel.  



                     At  the  pretrial  conference,  Kinnan  was  unable  to  further  articulate  a  



justification  for  his  requested  continuance.    The  judge  noted  that  Kinnan  had  



                                                                                       

"presumably" been seeking counsel since his original attorney had withdrawn and had  



                                                                          

not shown how his efforts would be successful given more time.  Accordingly, the judge  



                                        

denied Kinnan's request for continuance.  At trial Kinnan sought reconsideration of that  



                                                                                                                   

decision, but the judge reiterated the reasoning behind his original ruling and concluded  



there was no rationale for reconsideration.  



                                                                               

                     On appeal Kinnan claims he "lives on meager funds," his prior attorney  



exhausted his savings, and "[t]o retain an experienced, interested, available law firm,  



willing to work on a contingency basis without  retainer is a time consuming endeavor."  



But even assuming these claims are true, difficulties in retaining counsel cannot alone  



                                                                                       10  

                                                                                            Although Kinnan claimed at  

justify a continuance, absent a "showing of diligence." 



trial that he had obtained the name of a law firm to which he could try to "sell [his] case,"  

                                                                                              



he offered no other evidence of his efforts to retain counsel.  



           9         Azimi , 254 P.3d at 1061.  



           10         Greenway, 294 P.3d at 1067.  



                                                                  -6-                                                                6998  


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

                                                                           

                    Kinnan also cites his "severe mental disability" and appears to argue that  



                                                                                                                  

this favored granting a continuance.   But even considering the "particular facts  and  



                                                         

circumstances" of Kinnan's situation, denying a continuance where Kinnan's attorney  



                                                                                                                      11 

                                                                                                                          The  

had withdrawn nearly eight months prior was not "unreasonable" or "prejudicial." 



                                                                                                  

superior  court  therefore  did  not  abuse  it  discretion  in  denying  Kinnan's  requested  

continuance.12  



                                                                                                         

          B.	       Any Error Resulting From The Exclusion Of Daniel Klannot, Jr.'s  

                    Testimony Was Harmless.  



                                                                

                    Kinnan appears to argue that he should have been allowed to call Daniel  



                                                

Klannot, Jr. as an "eye witness" at trial, despite his failure to include Klannot on a timely  



submitted witness list.  We conclude that although the judge should have considered  



alternative  sanctions  for  Kinnan's  noncompliance  with  the  pretrial  order,  any  error  

resulting from the exclusion of Klannot's testimony was harmless.13  



                    Under the pretrial order entered in February 2013, the parties were required  



                                                                                         

to submit preliminary witness lists in May and final witness lists by October 2.  Neither  



Kinnan nor Sitka Counseling timely submitted a preliminary list.  Sitka Counseling  



          11	       See id. at 1062 (citation and internal quotation marks omitted).  



          12        Kinnan  also  appears  to  argue  that  it  was  unfair  not  to  grant  him  a  



continuance because Sitka Counseling received a routine extension of time to file its  

appellee's brief.  But different standards apply to a continuance as opposed to a routine  

                                                                                               

extension of time under Alaska Appellate Rule 503.5.  Compare Wagner v. Wagner, 299  

                                                                                              

P.3d 170, 175 (Alaska 2013) ("[A] motion for continuance should be denied absent a  

                                                      

weighty reason to the contrary." (citation and internal quotation marks omitted)), with  

              

Alaska R. App. P. 503.5(b), (c) (requiring "a showing of diligence and substantial need"  

                                               

only for a non-routine motion).  



          13  

                                                                 

                    See Hill v. Giani, 296 P.3d 14, 22 n.23 (Alaska 2013) ("We must disregard  

                                

harmless errors that have no substantial effect on the rights of the parties or on the  

outcome of the case.").  



                                                             -7-	                                                       6998
  


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

timely submitted a final witness list, noting that because no preliminary witness list had     



been submitted, Sitka Counseling would rely on the defendants' testimony alone. On   



October 10, 2013, Kinnan filed his first witness list, which included Klannot's name and   



address.  



                     At the pretrial conference, Sitka Counseling sought to exclude all witnesses  



                                                                                                                      

besides the parties.  The judge asked Kinnan if he could offer any excuse for his failure  



                                                                     

to timely submit a witness list.  In response Kinnan stated only that his prior attorney had  



                                                                                         

been "ineffective" and that he was merely a lay person. The judge then ruled that Kinnan  



                                                                                                    

would  be allowed  to  call only  himself, the defendants, and  impeachment  witnesses.  



                                                                           

                     "If  a  party  or  party's  attorney  fails  to  obey  a  scheduling  or  pretrial  



                  

order, . . . the judge, upon motion or the judge's own initiative, may make such orders  



                                                                                                                

with regard thereto as are just, and among others any of the orders provided in Rule  



                                      14  

37(b)(2)(B),  (C),  (D)."                   As  this  court  has  noted,  the  exclusion  of  a  witness  "falls  

                                                   15    "The trial court has broad discretion to choose an  

squarely within this language."     

appropriate sanction,"16 but in fashioning such a sanction, the court must consider:  



                      (A) the nature of the violation, including the willfulness of  

                                                                          

                     the conduct and the materiality of the information that the  

                     party failed to disclose;  



                      (B) the prejudice to the opposing party;  



                      (C) the relationship between the information the party failed  

                     to disclose and the proposed sanction;  



           14        Alaska R. Civ. P. 16(f).  



           15        Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1169 (Alaska 1998); see  



also  Alaska  R.  Civ.  P.  37(b)(2)(B)  (providing  for  "[a]n  order  .  .  .  prohibiting  [the  

disobedient] party from introducing designated matters in evidence").   



           16         Cartee v. Cartee, 239 P.3d 707, 720 (Alaska 2010) (citation and internal  



quotation marks omitted).  



                                                                   -8-                                                             6998
  


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

                    (D) whether a lesser sanction would adequately protect the  

                    opposing party and deter other discovery violations; and  



                                                                                             

                    (E) other factors deemed appropriate by the court or required  

                               [17] 

                    by law.  



                    Kinnan  indisputably  violated  the  pretrial  order  by  failing  to  disclose  



Klannot as a witness until October 10, 2013 -  more than four months after preliminary  



                                                              

                                    

witness lists were due.  But in fashioning an appropriate remedy, the superior court was  



                                                         18  

                                                                         

required to consider the above factors.                      And in light of Kinnan's pro se status and his  



alleged  mental  disability,  consideration  of  a  "lesser  sanction"  would  have  been  

particularly appropriate under the circumstances of this case.19  Accordingly, the superior  



                                                                                                  

court should have considered alternative options, such as ordering a deposition to clarify  



                                                                       20  

the content of Klannot's testimony prior to trial.                          



                    But "[w]hen the trial court has erroneously excluded evidence, a party must  



                                                                                                                              21  

                                                      

show that the error was harmful or prejudicial before we will reverse the trial court." 



                                       

"The test for determining whether an error was harmless is whether on the whole record  



          17        Alaska  R.  Civ.  P.  37(b)(3);  see  also   Cartee,  239  P.3d  at  721  (quoting  



Alaska R. Civ. P. 37(b)(3)); Sowinski  v. Walker,  198 P.3d 11                         34,  1158  (Alaska 2008) ("In  

fashioning . . .  remedies   [for discovery order violations], Rule 37 commands courts to  

consider the nature a   nd severity of  the violation, the prejudice to the opposing party, and  

any other factors it deems appropriate.").  



          18  

                     Cartee, 239 P.3d at 721 (quoting Alaska R. Civ. P. 37(b)(3)).  



          19        Alaska R. Civ. P. 37(b)(3)(D).  



          20        Cf.  Lewis  v.  Lewis,  785  P.2d  550,  557  (Alaska  1990)  (upholding  the  



                                                                                               

exclusion of testimony as a sanction for an untimely filed witness list where the trial court  

first provided an opportunity to depose the witness); Bertram v. Harris , 423 P.2d 909,  

915-17 (Alaska 1967) (same).   



          21  

                                                 

                    Barton v. N. Slope Borough Sch. Dist. , 268 P.3d 346, 353 (Alaska 2012).  



                                                              -9-                                                        6998
  


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

                                                                                                                22  

the error would have had a substantial influence on the [trier of fact]."       Here it is  



somewhat difficult to discern the likely content of Klannot's testimony, as Kinnan did  



not describe the subject of Klannot's testimony in his late-filed witness list or at the  



                                                                                      

pretrial conference, and merely characterizes Klannot as an "eye witness" in his briefing  



                                                 

to  this  court.    At  trial  Kinnan  claimed  that  Klannot  would  "affirm  that  [they]  were  



threatened," though he did not specify by whom or on what occasion.  



                     McGuire's testimony, however, suggests Klannot was initially present for  



                                                                                              

the incident on September 10, 2012, which formed part of the basis for Kinnan's assault  



                                                                                                   

claim.  Specifically McGuire testified that Klannot was sitting on the couch with Kinnan  



                                                                 

when McGuire arrived at the residence to verify that Kinnan had vacated the premises.  



                                                                                                 

But according to McGuire, Klannot "got up and left because he knew that [McGuire and  



                                         

another individual] were there to ask [Kinnan] to leave."  Kinnan did not refute this  



testimony, and it is therefore unclear how much of the September 10 incident Klannot  



                                                                                                                   

actually witnessed.  Nor is there is anything in the record to suggest Klannot was present  



                                                                                                            

for Kinnan's interaction with Skousen on September 14, 2012, which formed the basis  



for Kinnan's battery claim.  



                                                                                          

                     Moreover, Kinnan offered no information as to how Klannot's testimony  



                                                                                       

would have differed from McGuire's own recounting of events.   In particular McGuire  



admitted  to  making  a  variant  of  the  comment  that  Kinnan  described  as  threatening.  



                                                                                     

According to Kinnan's testimony at trial, McGuire told Kinnan "that he was quitting his  



                                                                                                          

job [with Sitka Counseling] but if he ever saw [Kinnan] on the street, it would be mano  



                                                          

a mano."  According to McGuire, he said to Kinnan, "You know . . . , there was a time  



                                                                                   

when we could settle this man to man."  But McGuire also testified that he was 69 years  



          22  

                                                                                                 

                    Id. (quoting Noffke v. Perez , 178 P.3d 1141, 1147 (Alaska 2008)) (internal  

quotation marks omitted).  



                                                               -10-                                                             6998  


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

old, not "in fighting shape," and recovering from a heart bypass.  In the absence of any  

                                                                                   



explanation  on  appeal  of  how  Klannot's  testimony  would  have  differed  from  this  

                                       



account, we cannot conclude that Klannot's testimony would have had a "substantial  

                                                                                 

influence" on the court's decision.23  



          C.	      The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Excluding  

                   Affidavits From Myron Fribush And Michael Boyd As Hearsay.  



                   At trial Kinnan sought to introduce two affidavits into evidence, both of  



which the superior court excluded as inadmissible hearsay.  The first affidavit was from  

                                                                         



Dr. Myron A. Fribush, who claimed to be Kinnan's primary physician.  In relevant part,  

                                         



Dr. Fribush attested that forcing Kinnan to vacate the residence had "rendered [Kinnan]  

                                                                        



homeless and deprived [Kinnan] of services under the Community Support Program."  

                     



Dr. Fribush also observed that "Kinnan has a well established mental health history."  



                   The second affidavit was from Michael J. Boyd, "past director" of Sitka  



                                                                                          

Counseling.  Boyd claimed that Sitka Counseling obtained the residence through a grant  



from the Alaska Mental Health Trust Authority requiring that the property "be used  



solely for supportive housing for the chronically mentally [ill]" and not for "general  



agency purposes."  



                                           

                   Based on Sitka Counseling's objections, the superior court excluded both  



                                                                                                           

affidavits as inadmissible hearsay.  As Sitka Counseling correctly argues, affidavits are  



                                                                       24  

"quintessentially hearsay and suspect evidence."                           Neither witness was available for  



          23       See Barton, 268 P.3d at 353 (citation and internal quotation marks omitted).  



          24       See  Greenway  v.  Heathcott,   294  P.3d  1056,  1064-65  (Alaska  2013)  



(upholding  a  superior  court's  exclusion  of  affidavits  as  hearsay  "even  absent  an  

objection" by the opposing party).  



                                                           -11-	                                                     6998
  


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

                           25  

cross-examination.             Kinnan presents no legal theory as to why the affidavits would  



have  fallen  under  an  exception  to  the  hearsay  rule,  arguing  only  that  the  judge's  



characterization of the affidavits as hearsay was "false."  Accordingly, it was not an  



abuse of discretion to exclude the Fribush and Boyd affidavits as hearsay.  



         D.	       It Was Not Plain Error To Allow And Facilitate Cross-Examination  

                   Regarding Kinnan's Mental Disability.  



                   Kinnan appears to argue that the superior court should have prohibited  



Sitka Counseling's attorney from cross-examining him about the details of his mental  



disability.  Kinnan similarly takes issue with questions the judge asked during cross- 



examination.  



                                           

                   In his complaint Kinnan stated that he had "been diagnosed with a mental  



                       

                                                                                                 

disability."  At trial Kinnan also described himself as "100 percent mentally disabled  



[due to a] . . . traumatic [brain] injury."  During cross-examination Sitka Counseling's  



attorney, Brian Hanson, asked Kinnan to state his specific diagnosis, but after sharing  



                                             

information  about  who  made  the  diagnosis,  Kinnan  responded,  "It's  100  percent  



                                                                                                             

disability.  Other than that, it's none of your businesses."  At Hanson's request the judge  



intervened  and  asked  Kinnan  to  explain  his  diagnosis,  which  Kinnan  did  without  



objection.  



                   Hanson  then  resumed  questioning,  asking  Kinnan  whether  his  mental  



               

disability created delusions or impaired his memory, which Kinnan denied.  Hanson  



asked what effect the mental disability had, and Kinnan responded that he "refuse[d] to  



answer."  The judge again intervened, inquiring about the potential impacts of Kinnan's  



mental disability, without objection.  



         25  

                                                            

                   Dr. Fribush appeared later in the trial, but only as an impeachment witness.  



                                                          -12-                                                       6998  


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

                    "We review a superior court's evidentiary rulings for abuse of discretion."26  



                                                                                                                  

But "[w]e will not consider issues on appeal that were not raised below absent plain  



error,  which  exists  'where  an  obvious  mistake  has  been  made  which  creates  a  high  



                                                               27  

                                                                                                         

likelihood  that  injustice  has  resulted.'  "                      Aside  from  his  initial  refusal  to  answer  



                 

Hanson's questions, Kinnan raised no objection to the inquiries regarding his mental  



                                                                                   

disability, nor did Kinnan argue that the effects of his mental disability were irrelevant.  



Accordingly, we review this issue only for plain error, and none is apparent from this  



record.  



                    Notably,  Kinnan  himself  referenced  his  mental  disability  both  in  his  



                                                                                           

complaint and again at trial.  In particular Kinnan raised the issue of his mental disability  



in seeking a continuance, contending that he does not "think as fast as other people."  



                                                                                             

Given  Kinnan's  own  invocation  of  the  issue,  there  is  not  a  "a  high  likelihood  that  



                                 28  

                                                                                                   

injustice . . . resulted"           when the superior court required Kinnan to clarify his diagnosis  



and answer questions regarding the effects of his disability.  



                                    

                    Nor  was  the  probative  value  of  testimony  regarding  Kinnan's  mental  

disability "outweighed by the danger of unfair prejudice."29  As the superior court noted,  



                                                                                                   

inquiries into Kinnan's mental disability were aimed at assessing his "ability to perceive,  



                                                           

recall,  recollect,  and  relate."    Both  McGuire  and  Skousen  contradicted  Kinnan's  



testimony regarding his claims of assault, battery, and intentional infliction of emotional  



          26        Janes v. Alaska Railbelt Marine, LLC , 309 P.3d 867, 875 (Alaska 2013).  



          27        David S. v. State, Dep't of Health &                  Soc. Servs., Office of Children's Servs.                 ,  



270 P.3d 767, 774 (Alaska 2012) (quoting D.J. v. P.C. , 36 P.3d 663, 667-68 (Alaska  

2001)).  



          28        See id.  



          29        See Alaska R. Evid. 403.  



                                                               -13-                                                         6998
  


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

distress.  Accordingly, evidence regarding Kinnan's memory and perception was highly   



probative, and it was not plain error to allow and even facilitate cross-examination on the                  



topic of Kinnan's mental disability.  



            E. 	       Neither The Superior Court Judge's Rulings Nor His Conduct Created   

                       An Appearance Of Bias.  



                       As we noted in              Greenway v. Heathcott, "[a] judge must recuse himself or   



herself if there is bias.   If the appearance of bias is involved, we have held that the judge     



                                                                                                                   30  

should give weight to preserving the appearance of impartiality."                                                       But we have also  



                                                                                                                                                    31  

                                                                                                                    

held "that even incorrect rulings against a party do not show bias in and of themselves." 



                       Kinnan appears to argue that the superior court judge's rulings created an  



appearance of impropriety or bias.  In particular he asserts that the judge's bias was  



                                                                                                                        

"exposed" through the denial of Kinnan's request for a continuance and the exclusion  



of  the  Fribush  and  Boyd  affidavits  as  inadmissible  hearsay.    We  rejected  a  similar  



                                                                                                  

argument in Greenway, holding that neither the denial of a continuance nor the exclusion  



                                                                                                         32  

                                                                                                                           

of affidavits as hearsay demonstrated an appearance of bias.                                                  As we have previously  



reminded pro se litigants, "judicial bias should not be inferred merely from adverse  



               33  

rulings."           And as in Greenway, nothing in the judge's demeanor or tone in denying the  



            30         294 P.3d 1056, 1063 (Alaska 2013) (footnote omitted).  



            31         Id.  



            32         Id. at 1064-68.  



            33         Khalsa v. Chose , 261 P.3d 367, 376 (Alaska 2011) (citation and internal  



quotation marks omitted).  



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

                                                                                             

continuance or excluding the affidavits "objectively permit[s] a conclusion that the court  



                                                          34  

was biased, or appeared to be biased."                         



                                                                         

                    Kinnan similarly contends that the judge viewed the defendants as "above  



reproach" and appears to argue that the judge exhibited bias by crediting the defendants'  

testimony regarding Kinnan's assault and battery claim.35  But the judge's determinations  



                                                                                                       36  

regarding witness credibility similarly fail to support a claim of bias.                                    



                                                              

                    Kinnan also argues that the denial of his requested continuance forced him  



to  appear  pro  se  and  that  the  judge's  attempts  to  explain  the  trial  process  were  

insufficient.  But Kinnan had no right to counsel,37 and the record shows that the judge  



                                                                                                           

met his obligation to "inform a pro se litigant of the proper procedure for the action he  



          34        294 P.3d at 1064.  



          35        In  this   portion   of   his   opening   brief,   Kinnan   also   makes   a   number  of  



allegations that could be interpreted   as an argument that the superior court erred in  

making certain factual findings. But Kinnan does not expressly make this argument, and      

his factual allegations are without citation to the record.  Accordingly, Kinnan waived  

any argument regarding the superior court's factual findings through inadequate briefing.  

See  A.H. v. W.P. , 896 P.2d 240, 243 (Alaska 1995) (noting in the context of a pro se  

                                                                                                 

appellant that "superficial briefing and the lack of citations to any authority constitutes  

                                                                             

abandonment of the point on appeal").  



          36        See Khalsa, 261 P.3d at 376; see also Wasserman v. Bartholomew , 38 P.3d  



1162, 1170-71 (Alaska 2002) ("Mere evidence that a judge has exercised his judicial  

discretion in a particular way is not sufficient to require disqualification." (alteration,  

citation, and internal quotation marks omitted)).  



          37  

                                     

                    See Azimi v. Johns, 254 P.3d 1054, 1061 & n.19 (Alaska 2011) ("There is  

                                                                        

no general right to counsel in civil cases" . . . , and "[t]he provision of publicly-funded  

                                                                               

counsel in some child custody, parental termination, and involuntary commitment cases  

is a notable exception to this rule.").  



                                                              -15-                                                         6998
  


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

                                                                   38  

or she is obviously attempting to accomplish."                         For instance, the judge provided an  



overview of the relevant trial procedures and explained the basis for his evidentiary  



rulings.  The judge also assisted Kinnan with the presentation of his case by inquiring  



                                       

about each cause of action listed in Kinnan's complaint, and prompting Kinnan to offer  



any testimony he had on each claim.  



                                                                      

                   Kinnan also argues that the judge's conduct at trial created an appearance  



     

of  bias.    In  particular  Kinnan  contends  that  the  judge  "openly  mocked  plaintiff's  



ignorance  and  inability."    But  this  claim  is  without  citation  to  the  record,  and  is  



contradicted by both the judge's respectful tone and his attempts to explain the relevant  



procedures.  



                   Similarly  Kinnan  argues  that  the  judge  assumed  the  role  of  Sitka  



                                       

Counseling's  attorney  by  questioning  Kinnan  about  his  mental  disability.    But  the  



superior court "may examine any witness" under Alaska Evidence Rule 614(b), and there  



was nothing in the judge's tone or demeanor during this exchange that exhibited bias  



against Kinnan.  Kinnan further argues that the judge had a duty to intervene when  



             

Kinnan  was  "badgered,  belittled,  and  deliberately  confused"  by  Sitka  Counseling's  



                                         

attorney, but a review of the record reveals no conduct that would have necessitated the  

judge's intervention. 39  



                   Finally Kinnan argues that the judge "confessed to pre-judgment" by noting  



                                 

that "he already made a ruling on . . . the ownership of the [residence]."  But there is no  



          38       See Wagner v. Wagner             , 299 P.3d 170, 174 (Alaska 2013) (citation and  



internal quotation marks omitted).  



          39       Under the Alaska Code of Judicial Conduct, "[a] judge shall be patient,  



dignified, and courteous to litigants" and "shall take reasonable steps to maintain and  

ensure similar conduct from lawyers . . . ."  Alaska Code of Jud. Conduct 3(B)(4).  



                                                          -16-                                                    6998
  


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

                                                                                40  

evidence  that  the  superior  court  "pre-judge[d]"  this  issue.      To  the  contrary,  in  



responding to one of Sitka Counseling's evidentiary objections earlier in the trial, the  



                                    

judge expressly noted that evidence regarding the ownership of the residence could be  



relevant to Kinnan's claims.  For the reasons above, neither the judge's rulings nor his  



conduct created an appearance of impropriety or bias.  



V.       CONCLUSION  



                 We therefore AFFIRM the superior court's judgment.  



         40      In  the  comments  Kinnan  cites,  the  judge  merely  noted  that  he  had  



previously issued an order upholding Sitka Counseling's "possession of the property."  



                                                     -17-                                                  6998  

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