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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hester v. Landau (6/29/2018) sp-7254

Hester v. Landau (6/29/2018) sp-7254

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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                                      



TRACY  HESTER,                                                      )  

                                                                    )      Supreme  Court  No.  S-15809  

                                Appellant,                          )  

                                                                                                                                     

                                                                    )      Superior Court No. 3AN-11-06873 CI  

           v.                                                       )  

                                                                                               

                                                                    )     O P I N I O N  

                                      

AURORA LANDAU; SHOWBOAT                                             )  

                                                     

SHOW CLUB ANCHORAGE, LLC;                                                                                    

                                                                    )     No. 7254 - June 29, 2018  

                                  

TERRY MAURICE STAHLMAN;                                             )  

                                           

and ESTATE OF JAMES GOARD;                                          )  

                                                                    )  

                                Appellees.                          )  

                                                                    )  



                                                                                                             

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

                                                                                              

                     Judicial District, Anchorage, Mark Rindner, Judge.  



                                                                                                          

                     Appearances:  Michael A.  Stepovich, Stepovich & Vacura  

                                                                                                        

                     Law Office, Fairbanks, for Appellant.  Kenneth W. Legacki,  

                                                                                                                

                     Anchorage,   for  Appellee  Landau.                             No   appearance  by  

                                                                                                            

                     Appellees  Showboat  Show  Club  Anchorage,  LLC;  Terry  

                                                                                    

                     Maurice Stahlman; or Estate of James Goard.  



                                                                                                         

                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                           

                     and Carney, Justices.  



                                         

                     CARNEY, Justice.
  

                                                       

                     WINFREE, Justice, concurring.
  



I.         INTRODUCTION  



                                                                                                                                      

                     A woman sued her former employer for unpaid compensation, naming the  



                                                                                                                                     

company and both of its owners as defendants.  One of the owners died while the suit  


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

                                                                                                                                     

was pending, and the former employee substituted the owner's estate in the proceedings.  



                                                                                                                               

Judgment was eventually entered in favor of the former employee.   A year later the  



                                                                                                                                 

deceased owner's widow moved for relief from the judgment as the sole beneficiary of  



                                                                                                                             

his estate, arguing that neither her husband nor the estate had been properly served with  



                                                                                                                             

notice of the suit. The former employee responded that service had been proper and that,  



                                                                                                                                     

in any case, the widow did not have authority to file a motion on behalf of the estate.  



                                                                                                                                

The court denied the motion on the ground that the widow had not shown good cause for  



                                                                                                                             

relief from the judgment. We affirm on the alternate ground that the widow did not have  



                                               

authority to act on the estate's behalf.  



                                  

II.       FACTS AND PROCEEDINGS  



                                                                                                                  

                    Aurora Landau was a dancer at the Showboat Show Club in Anchorage.  



                                                                                                                            

In April 2011 she filed a complaint in superior court against Showboat Show Club  



                                                                                                                             

Anchorage,  LLC,  seeking  to  recover  unpaid  wages,  overtime  compensation,  and  



                                                                                                                             

impermissible  deductions  from  her  earnings.                           Her  suit  also  named  the  LLC's  two  



                                                                                                                          

members and managers, Terry Stahlman and James Goard.  Stahlman, also the LLC's  



                                                                                             

registered  agent,  was  personally  served  a  summons  and  complaint  for  all  three  



                                                                                                                      

defendants at his Anchorage residence, which was listed in the LLC's state licensing  



                                                                                                                                     

reports as the entity's principal office and both Stahlman's and Goard's member address.  



                                                                                                                      

                    It appears undisputed that Goard actually lived in Fairbanks. Yet Landau's  



                                                                                                                     

efforts to serve Goard consisted of unsuccessfully sending the summons and complaint  



                                                                                                                                 

by certified mail to Stahlman's Anchorage residence and then serving Goard's copies of  



                                                                                                   

the summons and complaint on Stahlman at the same residence.  



                                                                                                                              

                    Stahlman responded to the summons and complaint stating that he had  



                                                                                                                              

settled the claim, but Landau later advised the court that no payment had been made and  



                                                                                                                               

the settlement had failed. Landau then moved for entry of default against Goard and the  



                                                                                                                       

LLC.  When Landau sought Goard's default, Landau's attorney asserted in his affidavit  



                                                               -2-                                                         7254
  


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that service on Goard had been accomplished by leaving the summons and complaint                                                                                                                                                                                                                                                                                                                                                                 



with Stahlman, "a person of reasonable age and discretion at the address of record                                                                                                                                                                                                                                                                                                                                                                                  



pursuant to the Corporations Section, State of Alaska, for service on James Goard," and                                                                                                                                                                                                                                                                                                                                                                                              



 attaching the return of service to his affidavit.                                                                                                                                                                                                                 The attached return of service for Goard                                                                                                                                                           



 said   that   the   summons   and   complaint   were   left   with   Stahlman   at   his   Anchorage  



residence, which was described as "the defendant['s] usual place of residence."                                                                                                                                                                                                                                                                                                                                                                                                          A  



 deputy clerk entered their default in February 2012.                                                                                                                                                                                                                                                   In April the LLC appeared before                                                                                                                             



the court through counsel, and shortly thereafter the court set aside the default with                                                                                                                                                                                                                                                                                                                                                                                         



respect to it.                                                          The default remained in effect as to Goard.                                                                                                                                                                                                                



                                                                            Goard died in April 2012.                                                                                                                                       His widow, Tracy Hester, is evidently his                                                                                                                                                                                                  



 estate's sole beneficiary.                                                                                                                      Robert Nesbitt sought appointment as the estate's personal                                                                                                                                                                                                                                             



representative in September but was not appointed by the probate court until April 2013.                                                                                                                                                                                                                                                                                                                                                                                                                     



                                                                            On August 21 the court held a trial setting conference for Landau's claims                                                                                                                                                                                                                                                                                                               



 against the LLC, Stahlman, and Goard.                                                                                                                                                                                             The court noted that Goard was dead and re-                                                                                                                                                                                                            



 entered default against the LLC because it no longer was represented by counsel.                                                                                                                                                                                                                                                                                                                                                                                               In a   



later colloquy between the court and Landau's attorney, the court noted that once notice                                                                                                                                                                                                                                                                                                                                                                                



 of a party's death is on the record, the court must dismiss claims against the decedent                                                                                                                                                                                                                                                                                                                                                               

                                                                                                                                                                                                                                                                                 1  Landau's attorney acknowledged that  

unless there is a party                                                                                                substitution within 90days.                                                                                                                                                                                                                                                                                                                                    



                                      1                                     Alaska Civil Rule 25(a) provides:                                                                                                                                                                 



                                                                            If a party dies and the claim is not thereby extinguished, the
                                                                                                                                                                                                                                                                  

                                                                            court   may   order   substitution  of   the   proper   parties.     The
  

                                                                            motion for substitution may be made . . . by any party, and
                                                                                                                                                                                                                                                                 

                                                                            shall be served on the parties as provided in Rule 5 and upon
                                                                                                                                                                                                                                                        

                                                                            persons not parties in the manner provided in Rule 4 for the
                                                                                                                                                                                                                                                                    

                                                                            service of a summons.                                                                                                           Unless the motion for substitution is
                                                                                                                                                                   

                                                                            made not later than 90 days after the death is suggested upon
                                                                                                                                                                                                                                                        

                                                                            the   record   .   .   .   ,   the   action   shall  be   dismissed   as   to   the
  

                                                                                                                                                                                                                                                                                                                                                                                                                                (continued...)  



                                                                                                                                                                                                                                              -3-                                                                                                                                                                                                                               7254
  


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

he "may have to bring in the estate."                                                



                               Trial began on December 19 and was then continued to a later date.                                                                                           On  



 December 31 - more than 90 days after the August 21 hearing, after the first day of trial                                                                                                  



had concluded, and while Nesbitt's petition for appointment was pending in probate                                                                                                  



 court - Landau moved to substitute the Estate of James Goard as a defendant in Goard's                                                                                            



place. The court granted the substitution the following month, even though an estate had                                                                                                     

                                               2   Landau then notified the putative estate that she had an interest.3  

not yet been opened.                                                                                                                                                                                   



                               Trial concluded June 18, 2013. In July the court found Stahlman, Goard's  

                                                                                                                                                                                   



 estate, and the LLC jointly and severally liable for Landau's damages.   Landau was  

                                                                                                                                                                                            



 awarded atotal of$74,383.23 indamages, prejudgment interest, penalties, andattorney's  

                                                                                                                                                                               



 fees and costs. She then notified the Goard estate by filing a copy of the judgment in the  

                                                                                                                                                                                              



probate proceeding.  

                                                



                               In November 2014, a year after the estate was notified, Hester moved for  

                                                                                                                                                                                              



relief from judgment under Alaska Civil Rule 60(b) "as sole beneficiary of the Estate of  

                                                                                                                                                                                                 



 James Goard."  She argued that neither Goard, his estate, nor herself as sole beneficiary  

                                                                                                                                                                            



                1	             (...continued)
  



                                                                    

                               deceased party.
  



                                                                                                                                                                                           

But cf. Estate of Lampert ex rel. Thurston v. Estate of Lampert ex rel. Stauffer, 896 P.2d  

                                                                                                                                                                           

 214, 217-18 (Alaska 1985) (holding court did not err by enlarging time for substitution  

                                                 

 after death of party).  



                2              We have previously made clear that a party may not sue a decedent without  

                                                                                                                                                                                    

 first  obtaining  appointment  of  a  personal  representative  to  give  the  court  personal  

                                                                                                                                                                                 

jurisdiction.                      Hamilton  v.  Blackman,  915  P.2d  1210,  1215-16  (Alaska  1996).  

                                                                                                                                                                                                       

 Rule 25(a)'s substitution process appears to similarly contemplate that there actually be  

                                                                                                                                                                                                

 an estate opened and a personal representative named who would substitute for the  

                                                                                                                                                                                             

 deceased party.  

                       



                3              See AS13.16.070 (providing for filing demand for noticeagainstunopened  

                                                                                                                                                                                

 estate).  

                   



                                                                                                -4-	                                                                                      7254
  


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

had ever been properly served with the complaint.  She further argued that Landau had  

                                                                                                                               



moved to substitute the estate after the deadline set by Civil Rule 25(a). Throughout the  

                                                                                                                                



motion Hester asserted her status as "sole beneficiary of the Estate" as the basis for her  

                                                                                                                                



action.  

             



                     Landau responded that all relevant persons, including Hester, had been  

                                                                                                                             



properly  served  and  that  Hester  had  not  shown  good  cause  to  vacate  the  default  

                                                                                                                         



judgment.  She also noted that Hester was not the estate's personal representative and  

                                                                                                                               



argued that she therefore lacked standing to object to the substitution of the estate or to  

                                                                                                                                  



the default judgment.  Hester's reply repeated her arguments that Goard had not been  

                                                                                                                             



properly served and argued that Hester had interest-injury standing because, as the sole  

                                                                                                                               



beneficiary, her financial interest in the case was identical to that of the estate.  

                                                                                                                         



                     The superior court denied Hester's motion in December 2014, stating that  

                                                                                                                               



the defendants had been properly served and that both Goard and Hester "were aware of  

                                                                                                                                  



the litigation and the default."  The court found that Hester had not shown good cause  

                                                                                                                    



to vacate the judgment because she had not shown that the outcome of the suit might be  

                                                                                                                                 



different if relief were granted.   The court did not address the dispute over Hester's  

                                                                                                                        



standing to act for the estate.  

                                              



                     Hesterappealed, arguing that neither Goard nor his estatehadbeenproperly  

                                                                                                                        



served with notice of the litigation and that the default judgment entered against the  

                                                                                                                    



estate should be vacated. We ordered supplemental briefing on Hester's standing to seek  

                                                                                                                              



relief from judgment on behalf of the estate.  

                                                           



III.       STANDARD OF REVIEW  

                                        



                     Statutory  interpretation  is  a  question  of  law  to  which  we  apply  our  

                                                                                                                               



                                                                -5-                                                         7254
  


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

                                       4  

independent judgment.                      



IV.        DISCUSSION  



                       We have not previously addressed whether the sole beneficiary of an estate  

                                                                                                                                           



who is not its personal representative has legal authority to appear in court on behalf of  

                                                                                                                                                 



the estate.   We conclude that Alaska's probate code gives that authority only to the  

                                                                                                                                               



estate's personal representative. We therefore affirm the superior court's order denying  

                                                                                                                                       



Hester's motion for relief from judgment on the alternate ground that Hester did not have  

                                                                                                                                             

the authority to file the motion.5  

                                         



                       "Weinterpretstatutes'accordingtoreason,practicality,and common sense,  

                                                                                                                                           



taking into account the plain meaning and purpose of the law as well as the intent of the  

                                                                                                                                               

                  6                                                                                                           7  but we also  

                      Statutory interpretation begins with the text's plain meaning,                                                         

drafters.' "                                                                                                   

                 

                                                                                                                                 8   Because  

consider legislative history, even when the text "is facially unambiguous."    

                                                                                          

Alaska adopted the Uniform Probate Code (UPC) "in its entirety" in 1972,9  the UPC's  

                                                                                                                                         



           4           Statev. Ketchikan GatewayBorough                             ,366P.3d86,90 (Alaska2016) (citing                    



State v. Schmidt            , 323 P.3d 647, 655 (Alaska 2014)).              



           5           Brandner v. Pease, 361 P.3d 915, 920 (Alaska 2015) ("We may affirm the  

                                                                                                                                               

superior court on any basis supported by the record, even if that basis was not considered  

                                                                                                                                  

by the court below or advanced by any party." (quoting Smith v. Stafford, 189 P.3d 1065,  

                                                                                                                                           

 1070 (Alaska 2008))).  

                         



           6           Colemanv.McCullough, 290 P.3d413,414(Alaska2012) (quoting Thoeni  

                                                                                                                                         

v. Consumer Elec. Servs., 151 P.3d 1249, 1258 (Alaska 2007)).  

                                                                                                 



           7           Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012).  

                                                                                                                                



           8           Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 387 (Alaska 2013)  

                                                                                                                                          

(quoting State, Commercial Fisheries Entry Comm'n v. Carlson, 270 P.3d 755, 762  

                                                                                                                                              

(Alaska 2012)).  

               



           9           In re Estate of Bavilla, 343 P.3d 905, 909 (Alaska 2015) (citing Jaworski  

                                                                                                                                     

                                                                                                                             (continued...)  



                                                                       -6-                                                                 7254
  


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

commentary is "instructive in interpreting the Alaska probate statutes."                                                  10  



                                                                                                                                        

                       Alaska  probate  law  defines  and  establishes  various  roles  for  people  



                                                                                  

connected to a decedent or an estate.  One role is that of an "interested person," which  



"includes heirs, devisees, children, spouses, creditors, beneficiaries, and other persons  

                                                                                             11  Hester is an interested person  

                                                                                                                                         

having property rights in or claims against" the estate. 



with respect to the Goard estate because she is a beneficiary of the estate. Landau is also  

                                                                                                                                              



an interested person because she has a claim against the Goard estate. Interested persons  

                                                                                                                                        



have specific rights under Alaska law. For example, they have the right to seek informal  

                                                                                                                                      

probate of a will,12  to receive notice of hearings and other actions of the court,13  and to  

                                                                                                                                                 

demand that a personal representative give bond.14  

                                                                           



                       Personal representatives play a key role in administering and distributing  

                                                                                                                                 

                 15   They are "under a duty to settle and distribute the estate of the decedent in  

the estate.                                                                                                                                      

       

accordance with the terms of" the will16  and "have statutory powers enabling them to  

                                                                                                                                                 



collect, protect, sell, distribute and otherwise handle all steps in administration without  

                                                                                                                                       



            9          (...continued)  



                                                                                                               

v. Estates of Horwath ex rel. Streets, 277 P.3d 753, 759 (Alaska 2012)).  



            10         In re Estate of Baker                , 386 P.3d 1228, 1233 (Alaska 2016) (citing                                   In re   



Estate of Maldonado, 117 P.3d 720, 728 (Alaska 2005)).  

                                                                                      



            11         AS   13.06.050(26).  



            12         See  AS   13.16.090(a)(3),  (d).  



            13         See  AS   13.06.110;  AS   13.16.620.  



            14         See  AS   13.16.265.  



            15         See  AS   13.16.015;  AS   13.16.245-.440.  



            16         AS  13.16.350(a).  

                              



                                                                        -7-                                                                7254
  


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

                                             17  

further order of the [c]ourt."                   Personal representatives are authorized to take a number                       



of   different   types   of   actions   in   "acting   reasonably   for   the   benefit  of   the   interested  



               18  

                                                                                                                        

persons."          One of these is the authority to "prosecute or defend claims[] or proceedings  



                                                                   19  

                                                                                                                             

                                                                          Another  provision  gives  the  personal  

.  .  .  for  the  protection  of  the  estate." 



                                                                                                                        

representative "the same standing to sue and be sued . . . as the decedent had immediately  



                       20  

                                                                                                                             

before death."             Although neither provision explicitly states that this grant of authority  



                                                                                                                                       

is exclusive or that no other person may take such actions on behalf of the estate, the  



                                                                                                                                    

only person to whomthey delegate authority is the personal representative. Neither these  



                                                                                                                                    

provisions nor any other part of the probate code grants such authority to anyone else.  



                                                                                                                                   

                     A provision of a related statute bolsters this reading. Part of Alaska's Code  



                                                                                                                         21  

                                                                                                                                Alaska  

of  Civil  Procedure  deals  with  "Survival  and  Wrongful  Death  Actions." 



                                                                                                                                           

Statute 09.55.570 specifies that "[a]ll causes of action by one person against another . . .  



                                                                                                                             

survive  to  the  personal  representatives  of  the  former  and  against  the  personal  



                                              22  

                                                                                                                                    

                                                  The legislative record of Alaska's adoption of the UPC  

representatives of the latter." 

                                                                                                                          23  and was  

                                                                                                                                     

                                                                                                                     

indicates that AS 09.55.570 was offered as an amendment to the UPC bill 



           17        UNIF . P     ROBATE   CODE   art. III, general cmt. (U                      NIF . L  AW   COMM'N   1969),  



                                                                                                                                  

http://www.uniformlaws.org/shared/docs/probate%20code/upc_scan_1969.pdf.  



           18        AS   13.16.410.  



           19        AS   13.16.410(22).  



           20        AS   13.16.350(c).  



           21        AS  09.55.570-.585.  



           22        AS  09.55.570.  



           23         1972  House  Journal  937,  940.  



                                                                   -8-                                                             7254
  


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

                                             24  

subsequently adopted.                             Both the version adopted in 1972 and the current statute specify                                               



that it is the personal representative who is authorized to proceed in actions relating to                          

                                                                                                    25  When considered together with the  

the death of the person whose estate they represent.                                                                                                                     



grant of standing to sue and be sued in AS 13.16.350(c), this provision confirms that the  

                                                                                                                                                                         



legislaturespecifically intended thepersonal representativeto bethelegalactor on behalf  

                                                                                                                                                                   



of an estate.  

            



                           The probate code's provisions concerning the appointment and removal of  

                                                                                                                                                                           



a personal representative also support this view.   They establish requirements for a  

                                                                                                                                                                            



person to be appointed as personal representative and, critically, to exercise the powers  

                                                                                                                                                                



of the office.  In order "to acquire the powers and undertake the duties and liabilities of  

                                                                                                                                                                           



a personal representative of a decedent, a person must be appointed by order of the court  

                                                                                                                                                                     

                                                                                      26    The personal representative may also be  

or registrar, qualify, and be issued letters."                                                                                                        

                                                                       

required to file a bond.27                          The personal representative's duties and powers "commence  

                                                                                                                                                       



upon  appointment,"  although  they  also  "relate  back  in  time"  to  prior  acts  by  the  

                                                                                                                                                                        

                                    28   The personal representative has the power to ratify actions taken on  

appointed person.                                                                                                                                                         

                      



behalf of the estate by others prior to the representative's appointment, but this ability  



does   not   extend   to   actions   taken   by   others   after   appointment   of  a  personal  

                                                                                                                                                           



             24            See Ch. 78,  4, SLA 1972.  The statute was amended slightly in 1973 to        



its present form.                  See  Ch 56,  34, SLA 1973.                   



             25            Compare AS 09.55.570 with Ch. 78,  4, SLA 1972.  

                                                                                                                          



             26            AS 13.16.015 (with exception regarding Foreign Personal Representatives  

                                                                                                                                               

in AS 13.21 not applicable here).  

                                                        



             27            See AS 13.16.255.  

                                            



             28            AS 13.16.340.  

                                   



                                                                                    -9-                                                                             7254
  


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

representative.29  



                            The probate code takes care to ensure that there is no lapse in the estate's                                                                 



representation once a personal representative is appointed.                                                                    Under AS 13.16.290(c), a                               



personal representative may resign the position after giving notice, but the resignation  



is not effective until a successor has been appointed and the estate's assets have been                                                                                       



turned   over   to   the   successor.     A   personal  representative's   appointment   ultimately  

                                                                            30       The  code's  careful  prevention  of  a  gap  in  

terminates   when   probate   is   over.                                                                                                                                           



representation of the estate would not be necessary if a beneficiary could simply step in  

                                                                                                                                                                                    

to perform the representative's duties or exercise the representative's authority.31  

                                                                                                                                                     



                            The probate code provides other remedies to interested persons short of  

                                                                                                                                                                                    



authorizing them to act as an estate's legal representative. First, AS 13.16.275(a) allows  

                                                                                                                                                                                          



any  interested  person  to  petition  the  probate  court  for  an  order  "to  secure  proper  

                                                                                                                                                                         



performance of the personal representative's duty."  Second, AS 13.16.295(a) permits  



an interested person to "petition for removal of a personal representative for cause at any  

                                                                                                                                                                                 



time." And if an interested person is unable to prevent a personal representative's breach  

                                                                                                                                                                           



              29            Id.  (relating to the "[t]ime of accrual of duties and powers" of the personal                                                             



representative);  see  UNIF . P                            ROBATE  CODE,  supra  note 17,  3-701 cmt. ("The sentence                                                 

concerning ratification is designed to eliminate technical questions that might arise                                                                                         

concerning the validity of acts done by others                                                  prior to         appointment." (emphasis added)).                      



              30            See AS13.16.290(a)-(b) (providing thattermination ofappointment occurs  

                                                                                                                                                                           

through an order closing the estate or one year after the filing of a closing statement).  

                                                                                                                                                               



              31            As Landau notes, a personal representative has a fiduciary duty to the  

                                                                                                                                                                                 

estate; interested parties do not.  See AS 13.16.350(a) ("A personal representative is a  

                                                                                                                                                                                      

fiduciary who shall observe the standards of care applicable to trustees . . . .  A personal  

                                                                                                                                                                       

representative is under a duty to settle and distribute the estate . . . as expeditiously and  

                                                                                                                                                                                 

efficiently as is consistent with the best interests of the estate."). In cases with more than  

                                                                                                                                                                               

one interested person, allowing a single interested person to act on behalf of the entire  

                                                                                                                                                                    

estate could lead to serious conflicts of interest.  

                                                                                     



                                                                                        -10-                                                                                 7254
  


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

of   fiduciary   duty   by   one   of   these   methods,   that   person   may   sue   the   personal  



representative for the damage or loss under AS 13.16.395.                                      



                          Alaska   probate   law   thus   establishes   a   comprehensive   scheme   for   the   

                                                                                          32      This  scheme  relies  on  the  personal  

representation   of   an   estate   in   legal   matters.                                                                                                 



representative to act on the estate's behalf and does not allow others to exercise those  

                                                                                                                                                                 



powers.  Because Hester was not the estate's personal representative, she did not have  

                   

the authority to act on its behalf.33                                  Whatever defects may have existed in the original  

                                                                                                                                                            



service of Goard or the later substitution of his estate, Hester did not have the legal right  

                                                                                                                                                                  



to move for relief from judgment on the estate's behalf.  

                                                                                                 



V.           CONCLUSION  



                           The order of the superior court is AFFIRMED on the alternate ground that  

                                                                                                                                                                     



Hester did not have the legal authority to bring the motion for relief from judgment.  

                                                                                                                                                   



             32            Cf. Sinka v. N. Commercial Co.                              , 491 P.2d 116, 118 (Alaska 1971) (holding                          



that the Uniform Commercial Code provides "a comprehensive scheme for recovery of                                                                                       

damages" for certain types of injuries).                    



             33           Because we do not address or resolve the merits of the motion for relief  

                                                                                                                                                                 

from judgment, our opinion does not foreclose the estate, as the party with the proper  

                                                                                                                                                               

legal authority, from bringing a similar motion in the superior court.  

                                                                                                                                         



                          Hester also argued in her supplemental briefing that she is a real party in  

                                                                                                                                                                     

interest pursuant to Alaska Civil Rule 17(a) and thus has the authority to bring the  

                                                                                                                                                                  

motion for relief from judgment. Rule 17(a) is inapplicable to Hester's motion for relief  

                                                                                                                                    

from judgment because Hester is not prosecuting  an action in the name of a real party  

                                                                                                                                                                             

in  interest  as  required  by  the  text  of  the  civil  rule.                                               See  Alaska  R.  Civ.  P.  17(a).  

                                                                                                                                                              

Accordingly, given the rule's inapplicability to the facts of this case, we do not further  

                         

address this argument.  



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

WINFREE, Justice, concurring.                           



                                    I agree with today's decision. I write separately to highlight what I believe                                                                                                      



to be serious service of process questions that will remain unanswered in light of that                                                                                                                                           



decision.  



                                    Effective service of a summons and complaint on a competent individual                                                                                                      



requires:   (1) actual personal service; (2) leaving the papers at the person's dwelling                                                                                                                            



house or usual place of abode with another person of suitable age and discretion then                                                                                                                                           



residing there; (3) delivering the papers to an agent authorized by appointment or law to                                                                                                                                              



receive them; or (4) completed signed delivery by registered or certified mail with return                                                                                                                                  

                    1  If service cannot be made through these methods, a party may apply to the court  

receipt.                                                                                                                                                                                                                      

for alternative service methods.2  

                                                             



                                    James Goard apparently lived in Fairbanks. AuroraLandau'sinitial service  

                                                                                                                                                                                                                         



efforts for Goard consisted of unsuccessfully sending the summons and complaint by  

                                                                                                                                                                                                                                     



certified mail to Terry Stahlman's Anchorage residence and then delivering Goard's  

                                                                                                                                                                                                                     



copies of the summons and complaint to Stahlman at that same residence.  But Landau  

                                                                                                                                                                                                                       



had not applied to the court for permission to serve Goard at Stahlman's residence.  

                                                                                                                                                                                                       



                                    When Landau sought Goard's default, Landau's attorney asserted in his  

                                                                                                                                                                                                                                    



affidavit that service on Goard had been accomplished by leaving the summons and  

                                                                                                                                                                                                                                 



complaint  with Stahlman, "a person of reasonable age and discretion at the address of  

                                                                                                                                                                                                                                      



record pursuant  to the Corporations Section, State of Alaska, for service on James  

                                                                                                                                                                                                                          



Goard,"  attaching  the  return  of  service  to  his  affidavit.                                                                                                  It  is  unclear  exactly  what  

                                                                                                                                                                                                                              



Landau's  attorney  meant  by  address  of  record  with  the  Corporations  Section  for  

                                                                                                                                                                                                                                  



"service" on Goard, but it is clear that the address was the one listed for Goard with the  

                                                                                                                                                                                                                                   



                  1                 Alaska  R.  Civ.  P.  4(d)(1),  (h).  



                  2                 See  Alaska  R.  Civ.  P.  4(e).  



                                                                                                                -12-                                                                                                                     7254  


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Corporations  Section  for  purposes  of  his  relationship  to  Showboat  Show  Club  



                                                                                                                               

Anchorage LLC.  The attached return of service for Goard said that the summons and  



                                                                                                                                  

complaint were left with Stahlman at his Anchorage residence, which was described as  



                                                                                                                             

"the defendant[']s usual place of residence." The return of service as to Goard was false;  



                                                                                                                              

Stahlman's  Anchorage  residence  was  not  Goard's  usual  place  of  residence,  it  was  



                                  

Goard's LLC-related address.  



                                                                                                                                  

                    This raises questions that will remain unanswered by this court in light of  



                                                                                                                             

today's decision that Goard's widow lacked standing to bring an Alaska Civil Rule 60(b)  



                                                                                                                          

motion on Goard's estate's behalf. Alaska Civil Rule 4(d)(1) permits individual service  



                                                                                                                         

by leaving papers at a person's dwelling house or usual place of abode.  Could Landau  



                                                                                                                           

effectively ignore that provision by instead unilaterally choosing to leave service papers  



                                                                                                                     

at an address Goard had listed with the state for LLC purposes, even though it apparently  



                                                                                                                        

was not Goard's dwelling house or usual place of abode?  When an individual member  



                                                                                     

of an LLC, a partner in a partnership, or a shareholder in a corporation has an address  



                                                                                                                             

listed  with  the  state  on  a  required  filing,  is  that  address  -  as  a  matter  of  law,  



                                                                                                                          

notwithstanding Rule 4(d)(1) and without regard to Rule 4(e) - an effective service  



                                                                                                                   

address for the individual with respect to a lawsuit arising from the entity's operations?  



                                                                                                                            

                    The superior court apparently answered "yes" to one or both of those  



                                                                                                       

questions.  Today's decision leaves the superior court's answer(s) unreviewed.  



                                                               -13-                                                         7254
  

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