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Romero v. Alaska Financial Services (5/13/94), 873 P 2d 1278
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
GEORGE M. ROMERO, )
) Supreme Court No. S-6198
) Superior Court No.
v. ) 3AN-90-4437 CI
ALASKA FINANCIAL SERVICES, ) O P I N I O N
Respondent. ) [No. 4080 - May 13, 1994]
Petition for Hearing from the Superior
Court of the State of Alaska, Third Judicial
District, Anchorage, Peter A. Michalski,
Judge, on appeal from the District Court,
Anchorage, Natalie Finn, Judge.
Appearances: Johnny O. Gibbons,
Dickerson & Gibbons, Inc., Anchorage, for
Petitioner. Gail C. Shortell, Anchorage, for
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
and Bryner, Justice, pro tem.*
I. FACTUAL AND PROCEDURAL BACKGROUND
Alaska Financial Services, Inc. (AFS) sued George M.
Romero in small claims court on an account allegedly owed by
Romero to Kent Chiropractic Clinic, AFS's assignor. Default
judgment was entered against Romero. Acting pro se, Romero later
filed a form request to set aside the default judgment, claiming
that he had never been served with a complaint and knew nothing
of the action. His request was granted. A notice calendaring
the "Mtn to Set Aside Default"was sent to Romero and AFS after
his request was granted. This is the only notice Romero
At the hearing on the "Mtn to Set Aside Default" the
district court took evidence from AFS and Romero on the issue of
whether Romero had been properly served. The default was set
aside. Immediately following setting aside the default, the
court proceeded to the merits of the case. Before court
adjourned, Romero requested a continuance to obtain counsel,
subpoena witnesses and obtain evidence. This was denied.
Judgment was entered against Romero. He then obtained counsel
and appealed to the superior court. AS 22.05.010(d).
Romero complained to the superior court that he had no
notice that a trial on the merits would be held immediately
following the hearing on his motion to set aside the default. He
cited to the superior court Alaska District Court Rule of Civil
Procedure, Small Claims Rule 16(f), which states that "[t]he date
set for trial shall be not less than 15 days from the date the
court mails notice of the trial date to the parties." No such
notice was ever mailed to Romero.
The superior court "DENIED"Romero's appeal, noting
that "proceeding to the underlying merits of a claim after
hearing a motion to set aside a default judgment is a common
practice within the District Court and [I] decline to hold such
practice in error." The court further remarked that Romero
should have been prepared to argue the merits at the hearing or,
alternatively, that Romero "should have requested a continuance
at the point at which the district court moved from hearing the
arguments on the Motion to Set Aside Default to examining the
merits of [AFS's] underlying claim." Romero sought discretionary
review in this court. Appellate Rule 302(b)(2). We granted his
Romero argues that the district court failed to afford
him the mandatory trial scheduling notice required by Rule 16(f).
Further, he contends that the superior court erred in declining
to hold the practice of the district court in error.1 We agree.
In Ford v. Municipality of Anchorage, 813 P.2d 654
(Alaska 1991), we stated that "[a] litigant should not be
penalized for the court's error." Id. at 656. Thus, we held
that the superior court's failure to notify a party of the
transfer of a fast track case to the inactive calendar, thereby
setting in motion a different dismissal rule, was reversible
Consistent with Ford, we hold that the superior court's
deference to a district court practice that conflicts with an
explicit rule of court is impermissible. Further, the district
court's failure to observe the requirements of that rule is
impermissible and in this case constitutes reversible error.
Romero was not given a trial scheduling notice as required by
Civil Rule 16(f), and thus, was denied a meaningful opportunity
to be heard on the merits of the underlying claim against him.
The judgment of the superior court 'denying' Romero's
appeal is REVERSED. The superior court is directed to enter
judgment vacating the judgment of the district court, and
remanding the case to the district court with instructions to
grant Romero a new trial on notice in accordance with Rule 16(f).
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 AFS argues that Romero was not prejudiced as a result
of the court's failure to comply with Rule 16(f). We find no
merit in this contention. Neither the district court nor the
superior court made any finding that Romero was not prejudiced by
the district court's previously unannounced intention to proceed
immediately to the merits of the underlying claim. It appears,
after reviewing the record, that Romero was not prepared for a
trial on the merits, believing himself to be in court for
precisely what was noticed on the calendaring notice. He
believed the proceeding was merely a "preliminary" one. The
prejudice to Romero is obvious.