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Zok v Municipality Of Anchorage (12/14/2001) ap-1776
Zok v Municipality Of Anchorage (12/14/2001) ap-1776
NOTICE
The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate Courts:
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Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
HASSAN ZOK, )
) Court of Appeals No. A-7863
Appellant, ) Trial Court No. (Citation No.) A1184062
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1776 - December 14, 2001]
)
Appeal from the District Court, Third Judicial District,
Anchorage, Ron Wielkopolski, Magistrate.
Appearances: Hassan Zok, pro se, Anchorage, for Appellant.
John E. McConnaughy III, Assistant Municipal Prosecutor, and
William A. Greene, Municipal Attorney, Anchorage, for Appel-
lee.
Before: Coats, Chief Judge, and Mannheimer and Stewart,
Judges.
STEWART, Judge.
In November 1999, the district court entered a default judgment against
Hassan Zok for failing to respond to a traffic citation. Nearly a year after this judgment
was entered, Zok filed a "Request and Order to Set Aside Judgment." He alleged in this
request that he had not received notice of any hearing. The Municipality opposed,
countering that Zok had never requested a hearing as provided in the traffic citation he
received. The Municipality also asserted that Zok had not carried his burden of showing
that "good cause" existed for setting aside the judgment. Magistrate Ron Wielkopolski
denied Zok's request, and Zok appeals. Because the record does not show that Zok was
notified that a default judgment would be entered as required by District Court Criminal
Rule 8(d)(5), we vacate the district court's order and remand for further proceedings.
Facts and Proceedings
On August 4, 1999, Zok was issued a citation for careless driving. The
citation provided for an optional court appearance: Zok could either pay the fine listed
on the citation, or appear in court within five days to contest the ticket. He did neither,
and the court entered a default judgment on November 17, 1999. On November 6, 2000,
Zok moved to have the default judgment set aside.
Zok sought relief from the judgment under District Court Criminal Rule 8
(i) for "lack of notice." On the form Zok used to request that the default judgment be set
aside, he admitted he had failed to respond to the ticket. And in an affidavit attached to
the form, Zok admitted that he had not paid the fine or contacted the court as instructed
by the citation. But Zok also claimed that he had not received notice of any hearing.
As set out above, the Municipality opposed Zok's request, asserting both
that he had not requested a hearing and that he had not shown that there was good cause
for setting aside the judgment. Magistrate Wielkopolski denied Zok's request.
Discussion
District Court Criminal Rule 8(d)(5) permits the district court to enter a
judgment of conviction against a person who, like Zok, is charged with a minor offense
and fails to respond within the required period.[ Fn. 1] However, this rule also provides that
"[a]t least 15 days before judgment is entered, a notice advising the person of the
consequences of a failure to respond must be sent to the person at the address on record
with the Division of Motor Vehicles or the address shown on the citation." There is
nothing in the record that shows that this notice was sent to Zok. Although the
Municipality asserts that Zok waived this claim because he did not specifically cite Rule
8 in his argument below, looking at the pleadings in the light most favorable to Zok, and
assuming his allegations to be true, his motion and his affidavit indicate that he sought to
set aside the default judgment because he had not received notice under Rule 8(d)(5).
In this case, after judgment was entered, Zok sought relief under District
Court Criminal Rule 8(i), which provides that "[u]pon a showing of good cause, the court
may vacate or modify a judgment of conviction entered under (d)(5)." Although we have
not previously decided in a published opinion what constitutes "good cause" to vacate a
judgment under Rule 8, the general analysis of whether there is "good cause" to set aside
a default judgment in the civil context includes three considerations: "1) whether the
plaintiff will be prejudiced; 2) whether the defendant has a meritorious defense; and 3)
whether culpable conduct of the defendant led to the default (whether he acted willfully
or in bad faith)." [Fn. 2] The moving party generally has to allege a meritorious defense, [Fn. 3] and
allege a "reason, such as excusable neglect, for not answering on time." [Fn. 4] We believe that
these considerations are appropriate when determining whether "good cause" exists to
vacate a default judgment under Rule 8.
However, under Pew v. Foster, [Fn. 5] the requirement that the moving party show
a meritorious defense does not apply when a due process violation is the basis for
requesting relief from a default judgment.6 Looking at Zok's request in the light most
favorable to him, and assuming that his allegations are true, the court did not mail Zok the
notice that a default judgment would be entered if he did not respond to the traffic
citation. Thus, Zok's request to set aside the judgment was based on a lack of notice, a
due process violation. Under Pew, this lack of notice would justify vacating or setting
aside the default judgment.
In light of Pew, the district court should have conducted a hearing to resolve
this contested issue - that is, whether the court sent Zok the notice that the court
intended to enter default judgment under Rule 8(d)(5). If the trial court determines that
the court did not send Zok notice of the court's intention to enter default judgment, then
the default judgment should be set aside.
Conclusion
The order of the district court denying Zok's request to set aside the
judgment is VACATED and this case is REMANDED for proceedings consistent with
this decision. We do not retain jurisdiction.
FOOTNOTES
Footnote 1:
District Court Criminal Rule 8(a) provides that Rule 8 "is intended to provide for the just determination of [minor offenses] and to that effect shall be construed to secure simplicity and uniformity in procedure, fairness in administration and the elimination of unjustifiable expense and delay."
Footnote 2:
Hertz v. Berzanske, 704 P.2d 767, 771 (Alaska 1985) superseded by statute on other grounds as stated in McConkey v. Hart, 930 P.2d 402, 407 n.4 (Alaska 1996).
Footnote 3:
See id. at 771 n.5 ("... a default judgment will not be set aside, except in very unusual cases, unless the defendant has presented a meritorious defense.") (citing Gregor v. Hodges, 612 P.2d 1008, 1009-10 (Alaska 1980); Balchen v. Balchen, 566 P.2d 1324, 1328 n.11 (Alaska 1977); Markland v. Fairbanks, 513 P.2d 658, 659-60 (Alaska 1973)); cf. Disciplinary Matter Involving Beconovich, 884 P.2d 1080, 1083 (Alaska 1994) ("respondent
attorney must show a meritorious defense and excusable neglect to warrant relief from the operation of Bar Rule 22(a)," which provides that failure to answer grievance within prescribed time will be deemed an admission.).
Footnote 4:
Gregor, 612 P.2d at 1009-10 (citing Balchen, 566 P.2d at 1328).
Footnote 5:
660 P.2d 447 (Alaska 1983).
Footnote 6:
See 660 P.2d at 448-49.
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