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Stahlman v. State of Alaska and Anch. Daily News (7/30/93), 856 P 2d 1162
Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
or other formal errors to the attention of
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THE SUPREME COURT OF THE STATE OF ALASKA
TERRY M. STAHLMAN, )
) Supreme Court File No. S-4453
Appellant, ) Superior Court File No.
) 3AN-90-8810 Civil
STATE OF ALASKA and ) O P I N I O N
ANCHORAGE DAILY NEWS, )
Appellees. ) [No. 3987 - July 30, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Joan M. Katz, Judge.
Appearances: Edgar Paul Boyko, Boyko,
Breeze & Flansburg, Anchorage, for Appellant.
Susan D. Cox, Assistant Attorney General, and
Charles E. Cole, Attorney General, Juneau,
for Appellee State of Alaska. D. John McKay,
Middleton, Timme & McKay, Anchorage, for
Appellee Anchorage Daily News.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
Pursuant to Alaska Civil Rule 27, Terry M. Stahlman
sought pre-litigation discovery from employees of the
State of Alaska and the Anchorage Daily News. Prior to
obtaining an order for discovery he attempted to
dismiss the petition voluntarily. The superior court
entered an order which imposed conditions on the
dismissal. Stahlman seeks to have the dismissal
modified to remove the conditions. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Terry M. Stahlman filed a petition in the superior
court seeking "an Order permitting and directing the
taking of depositions before action for the purpose of
perpetuating testimony,"pursuant to Civil Rule 27(a).1
The discovery sought by Stahlman related to an action
for defamation and other torts Stahlman contemplated
filing against Randall Burns, then Director of the
Alaska State Division of Occupational Licensing
(State), the Anchorage Daily News (Daily News), and
other unidentified parties. Burns and the Daily News
were served with notice of the petition and the
petition in accordance with Civil Rule 27(a)(2).
The Daily News and the State opposed the petition. The
Daily News argued, among other contentions, that
Stahlman had failed to show that he was presently
unable to bring the suit and that there was a present
need to perpetuate the testimony. The State made
Stahlman responded, arguing that at present he was
constrained by Civil Rule 112 from filing the action,
and that he was legitimately concerned that "certain
state employees" would be reluctant to be deposed
without a court order. At the same time, however,
Stahlman submitted a pleading entitled "Voluntary
Dismissal of Petition, Without Prejudice." The
pleading requested that the Civil Rule 27(a) petition
be dismissed "without prejudice to his right or
privilege to file an appropriate legal action, alleging
the substance of the grounds for relief set forth in
the original pleadings herein."
The Daily News responded, arguing that Stahlman could
not unilaterally dismiss his petition under Civil Rule
41(a)(1).3 It argued that the petition should be
denied on its merits. Alternatively, it argued for
dismissal pursuant to Civil Rule 41(a)(2)4 on the
condition that the dismissal be with prejudice to
filing the contemplated action, unless Stahlman paid
the State's and the Daily News' costs and attorney's
The superior court dismissed Stahlman's petition
pursuant to Rule 41(a)(2). Its order imposed the
1. Petitioner shall pay to
respondents their fees and costs, or a
portion thereof reasonably incurred in
connection with this matter;* and
2. Petitioner shall bring no
further civil action relating to the causes
of action alleged in his petition to exist,
or otherwise relating to matters asserted in
his petition, unless and until he has fully
complied with this order.
*Rule 27 petitions do not fall
neatly within the parameters of Rule 41(a)
dismissals; the court does not believe the
reference in subparagraph (1) to cases in
which no answer or summary judgment motion
has been filed is applicable to Rule 27
petitions. The court has power to relax the
requirements of Rule 41(a)(1) in any event,
to condition dismissals on payment of fees
and costs as justice requires.
The trial court eventually ordered Stahlman to pay the Daily News
$6,658.40, which was 80 percent of the calculated
reasonable attorney's fees.5 The trial court noted
that the award of attorney's fees was based on "the
court's authority to condition dismissal pursuant to
Alaska Civil Rule 41, and/or the court's authority to
relax the rules as justice requires to so condition
dismissal and/or Rule 82." The State was awarded 80
percent6 of its actual attorney's fees in the amount of
Stahlman appeals the imposition of the conditions on
the dismissal of the petition. Stahlman also appeals
the award of attorney's fees.
A. STANDARD OF REVIEW
The decision to grant a motion for voluntary dismissal
by order of the court pursuant to Civil Rule 41(a)(2)
is a matter within the sound discretion of the trial
court. Dome Laboratories v. Farrell, 599 P.2d 152,
155 (Alaska 1979). Conditions, if any, attached to the
order of dismissal are also reviewed for an abuse of
discretion. Id. at 159-60.
B. DISMISSAL OF PETITION UNDER RULE 41(a)(2)
In Dome Laboratories, we reviewed three ways in which a
plaintiff may obtain voluntary dismissal of an action.
Under Rule 41(a)(1)[a], a plaintiff may voluntarily
dismiss an action without a court order at any time
before an adverse party has filed an answer, a motion
for summary judgment or "any pleading or motion
requiring the trial court to consider the merits of the
controversy." Id. at 155 n.2. Rule 41(a)(1)[b] allows
a plaintiff to file a stipulation of dismissal signed
by all parties who have appeared in the action. If the
plaintiff can not meet the above criteria, she may
obtain dismissal only upon order of the court pursuant
to Rule 41(a)(2). Id.
The superior court construed Stahlman's pleading
requesting the dismissal of his petition as a motion to
dismiss pursuant to Rule 41(a)(2). The court's ruling
implied that the Daily News' and the State's responses
to Stahlman's Rule 27 petition precluded a Rule
41(a)(1)[a] dismissal. Since the responses debated the
propriety of the petition, they required the court to
consider the merits of the controversy. The superior
court correctly decided that they terminated Stahlman's
absolute right to dismiss his petition voluntarily
under Rule 41(a)(1)[a]. Since no stipulation of
dismissal was filed, Stahlman's petition could only be
dismissed pursuant to Rule 41(a)(2). We therefore
affirm the dismissal of Stahlman's petition pursuant to
C. CONDITIONS ON THE DISMISSAL
The superior court conditioned its dismissal on payment
of 80 percent of the State's and the Daily News'
reasonable attorney's fees. Its order prohibited
Stahlman from proceeding with any related civil action
until he paid the fees. Dismissals pursuant to Rule
41(a)(2) may be made "upon such terms and conditions as
the court deems proper." Based on our review of the
record, the superior court did not abuse the broad
discretion granted to it under Rule 41(a)(2).
Stahlman claims the conditions were blatantly
unconstitutional as violative of the due process
rights, equal protection and "[r]elated [p]rovisions"
of the Alaska and United States constitutions. We
A restriction which conditions a party's right to
refile a claim on the payment of a monetary award is
not unconstitutional. The United States Court of
Appeals for the Fifth Circuit, in determining whether a
voluntary dismissal was an appealable final judgment on
the merits, determined that conditioning refiling on
the payment of fees or costs "do[es] not create
prejudice in a legal sense to the bringing of another
suit." LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 603
(5th Cir. 1976). The court explained:
Rather, the usual conditions attached to
a voluntary dismissal involve prejudice only
in a practical sense (e.g., paying costs or
expenses, producing documents, producing
witnesses). The imposition of this type
condition does not amount to the type of
"legal prejudice" which would entitle a
plaintiff to appeal the grant of the
dismissal he obtains.
Id. Stahlman's injury does not rise to a constitutional level.
Stahlman also claims that the payment of 80 percent of
reasonable attorney's fees is unjustified in light of
opposing counsels' "excessive and unnecessary
fulminations." The superior court reduced the amount
awarded to the Daily News due to its attorney's
"excessive verbiage." Eighty percent of reasonable
attorney's fees is not an unreasonable amount on which
to condition dismissal. The superior court did not
abuse its discretion.
Since the responses filed by the Daily News and the
State required the superior court to consider the
merits of Stahlman's petition, voluntary dismissal
under Rule 41(a)(1) was no longer possible. Therefore,
the superior court properly dismissed Stahlman's
petition pursuant to Rule 41(a)(2). The conditions
which the superior court imposed on its dismissal did
not amount to an abuse of discretion. We thus AFFIRM
the order of dismissal.
1. Rule 27(a) provides in part:
A person who desires to perpetuate his
own testimony or that of another person
regarding any matter that may properly be the
subject of an action or proceeding in any
court of the state, may file a verified
petition in the superior court.
2. Rule 11 provides in part:
The signature of an attorney or party
constitutes a certificate by him that he has
read the pleading, motion, or other paper;
that to the best of his knowledge,
information, and belief formed after
reasonable inquiry it is well grounded in
fact and is warranted by existing law or a
good faith argument for the extension,
modification, or reversal of existing law,
and that it is not interposed for any
improper purpose, such as to harass or to
cause unnecessary delay or needless expense
in the cost of litigation.
3. Rule 41(a)(1) provides in part:
[A]n action may be dismissed by the
plaintiff without an order of the court: [a]
by filing a notice of dismissal at any time
before service by the adverse party of an
answer or of a motion for summary judgment,
whichever first occurs . . . . Unless
otherwise stated in the notice of dismissal .
. . , the dismissal is without prejudice . .
4. Rule 41(a)(2) provides in part:
Except as provided in paragraph (1) of
this subdivision of this rule, an action
shall not be dismissed at the plaintiff's
instance save upon order of the court and
upon such terms and conditions as the court
deems proper. . . . Unless otherwise
specified in the order, a dismissal under
this paragraph is without prejudice.
5. The trial court subtracted 5 hours from the Daily News'
counsel's time because of "excessive verbiage in his
briefs." Paralegal costs were also excluded from the
award of attorney's fees. The trial court found that
"[e]ighty percent is a reasonable recovery of fees in a
case in which the petition appeared to be unfounded
under the mandates of Rule 27."
6. The trial court awarded 80 percent of actual fees "in
light of the procedurally unfounded nature of the
petition in this case."