You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Alaska Dept. of Corrections v. Kila, Inc. (11/4/94), 884 P 2d 661
<![CDATA[
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
STATE OF ALASKA, )
DEPARTMENT OF CORRECTIONS, ) Supreme Court No. S-5971
)
Appellant, )
) Superior Court No.
v. ) 4FA-92-456 CI
)
KILA, INC., ) O P I N I O N
)
Appellee. )
______________________________) [No. 4141 - November 4, 1994]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks,
Niesje J.
Steinkruger, Judge.
Appearances: Marilyn May, Assistant
Attorney General, Anchorage, Bruce M.
Botelho, Attorney General, Juneau, for
Appellant. Ward M. Merdes, Merdes & Merdes,
P.C., Fairbanks, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
PER CURIAM
Alaska Civil Rule 4(d)(7) provides that service of
process upon the State is effected
by sending a copy of the summons and the
complaint by registered or certified mail to
the Attorney General of Alaska, Juneau,
Alaska, and
. . . .
[b] to the chief of the attorney
general's office in Fairbanks, Alaska, when
the matter is filed in the Fourth Judicial
District.
Subsection (8) of Civil Rule 4(d) provides for service
on an officer or agency of the State
by serving the State of Alaska as
provided in the preceding paragraph of this
rule, and by delivering a copy of the summons
and of the complaint to such officer or
agency.
What passed for service in this case was accomplished
by mailing the summons and complaint by certified mail to "Larry
McKinstry, Assistant Attorney General, Criminal Division Central
Office, P.O. Box KC, Juneau, AK 99811"and to "Attorney General's
Office, 100 Cushman Street, Key Bank Building, Fairbanks, AK
99701." This did not comply with Civil Rule 4(d)(7) because it
was not mailed to the Attorney General in Juneau, nor to the
Chief of the Attorney General's Office in Fairbanks. Further, as
to service on the Department of Corrections, the service did not
comply with Civil Rule 4(d)(8) because, in addition to the
defects noted above, the summons and complaint was not delivered
to an officer, managing or general agent, or other agent
authorized by appointment or by law to receive service of process
on behalf of the Department of Corrections. These deficiencies
in service of process render the default judgment void. Alaska
State-Operated School System v. Mueller, 536 P.2d 99, 104 (Alaska
1975).
KILA relies on a theory of substantial compliance,
citing such cases as Murat v. F/V Shelikof Strait, 793 P.2d 69
(Alaska 1990); Case v. Winters, 689 P.2d 467 (Alaska 1984); and
Balchen v. Balchen, 566 P.2d 1324 (Alaska 1977). These cases are
distinguishable as they involved technical noncompliance with
some aspect of Civil Rule 5, which concerns service of pleadings.
By contrast, this case involves noncompliance with Civil Rule 4,
which deals with the service of the summons and complaint,
documents necessary to effect personal jurisdiction. We have
never employed a substantial compliance doctrine in connection
with Civil Rule 4. Further, assuming that such a doctrine might
be applicable, it is our view that there was not substantial
compliance in this case in view of the three defects in service.
Moreover, the attorney for KILA violated the following
precept:
When [a lawyer] knows the identity of a
lawyer representing an opposing party, he
should not take advantage of the lawyer by
causing any default or dismissal to be
entered without first inquiring about the
opposing lawyer's intention to proceed.
Hertz v. Berzanske, 704 P.2d 767, 772 (Alaska 1985) (quoting
American College of Trial Lawyers Code of Trial Conduct No.
14(a), at 149 (1971-72)); see also City of Valdez v. Salomon, 637
P.2d 298, 299 (Alaska 1981); Cook v. Aurora Motors, Inc., 503
P.2d 1046, 1049 n.6 (Alaska 1972). Here, the record indicates
that the attorney for KILA knew that Larry McKinstry was
representing the State concerning this dispute and did not
inquire about his intention to proceed before seeking a default
or dismissal. Thus, were this matter not void for want of proper
service of process under Civil Rule 60(b)(4), it would have been
subject to attack based on this violation.
For the above reasons the order of the superior court
denying the motion of the State to set aside the default judgment
is REVERSED and this case is REMANDED to the superior court with
instruction to set aside the default judgment.
IN THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
DEPARTMENT OF CORRECTIONS, ) Supreme Court No. S-5971
)
Appellant, )
) O R D E R
v. )
)
KILA, INC., )
)
Appellee. )
______________________________)
Superior Court No. 4FA-92-456 Civil
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
On consideration of appellant's motion to publish
opinion, filed on September 27, 1994,
IT IS ORDERED:
1. The motion is GRANTED.
2. Memorandum Opinion and Judgment No. 0737, issued
on September 14, 1994, is WITHDRAWN.
3. Opinion No. 4141 is issued on this date in its
place.
Entered by direction of the Court at Anchorage, Alaska
on November 4, 1994.
CLERK OF THE SUPREME COURT
__________________________
JAN HANSEN
]]>
