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Airoulofski v. Alaska (8/16/96), 922 P 2d 889
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, phone (907) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
MANE AIROULOFSKI, )
) Supreme Court Nos.
Appellant, ) S-6695/S-6735
) Superior Court No.
STATE OF ALASKA, MILBURN BRANTLEY, ) 3AN-87-9488 CI
RON AUBREY, MARGARET FOSTER, its )
agents; MUNICIPALITY OF ANCHORAGE; ) O P I N I O N
ANCHORAGE POLICE DEPARTMENT; )
ANCHORAGE POLICE OFFICER KEMP )
and DISPATCHER JOHN DOE, its )
agents; YELLOW CAB COMPANY; )
GEORGE ZIMMER, its agents, )
Appellees. ) [No. 4385 - August 16, 1996]
MUNICIPALITY OF ANCHORAGE, )
ANCHORAGE POLICE DEPARTMENT, )
ANCHORAGE POLICE OFFICER KEMP )
and DISPATCHER JOHN DOE, its )
MANE AIROULOFSKI, )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Joan M. Woodward, Judge.
Appearances: Robert C. Erwin, Roberta C.
Erwin, Law Offices of Robert C. Erwin,
Anchorage, for Appellant and Cross-Appellee.
Stephanie Galbraith Moore, Assistant Municipal
Attorney, Mary K. Hughes, Municipal Attorney,
Anchorage, for Appellee and Cross-Appellant
Municipality of Anchorage.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Carpeneti,
Justice pro tem.
EASTAUGH, Justice, dissenting.
Mane Airoulofski appeals a superior court decision
granting summary judgment to the Municipality of Anchorage
("Municipality"). The superior court held that Airoulofski had
waived his tort claims against the Municipality by failing to
prosecute his case. The Municipality cross-appeals, contesting the
superior court's earlier refusal to dismiss the case pursuant to
Alaska Civil Rule 16.1.
II. FACTS & PROCEEDINGS
On December 20, 1986, the Anchorage Police Department
arrested Mane Airoulofski twice. On both occasions, the police
were mistaken. Alleging negligence, Airoulofski filed a complaint
against the State, the Municipality, the Yellow Cab Company, Super
8 Motel, and assorted agents of these entities. Airoulofski filed
his complaint on September 25, 1987. The case was assigned to the
superior court's "fast-track"calendar under Civil Rule 16.1. (EN1)
When contacted by claims adjustors from the State and
Municipality, Airoulofski agreed to provide both defendants an
unlimited extension of time to answer pending the outcome of
settlement negotiations. In a letter to Airoulofski's attorney,
the Municipality's adjustor stated that "upon a request from you we
will retain counsel and respond to the suit immediately." Super 8
Motel answered the complaint in November 1987.
Airoulofski and Super 8 Motel proceeded with discovery.
After Airoulofski failed to comply with an order compelling
responses to Super 8's discovery requests, the superior court
dismissed the complaint. Upon Airoulofski's motion for
reconsideration, the superior court vacated its order and allowed
the case to continue. In February 1989, Super 8 moved for
dismissal under Civil Rule 41(e), based upon Airoulofski's failure
to take action in the case for sixteen months. Airoulofski filed
an opposition to Super 8's motion.
On May 4, 1989, the superior court issued the following
order dismissing Airoulofski's case: "Pursuant to 41(e) plaintiff's
claim against Super 8 Motel is hereby dismissed for lack of
prosecution. It is hereby ordered, adjudged and decreed that
plaintiff's claims against Super 8 Motel are hereby dismissed."
(EN2) Airoulofski did not serve the State or Municipality with any
of the pleadings or discovery responses arising during these
proceedings with Super 8 Motel. Subsequently the case file was
administratively closed by the court system. However, the case was
never transferred to the inactive calendar according to the
procedures of Civil Rule 16.1(g).
On October 20, 1993, Airoulofski filed a Memorandum to
Set Civil Case for Trial, serving the State and Municipality. The
superior court declined to set the case for trial on December 10,
1993, giving Airoulofski sixty days to file a valid motion to set.
Airoulofski requested answers from the remaining defendants on
December 17, 1993.
The State and Municipality responded by filing a motion
to dismiss, arguing that Airoulofski's delay in bringing the case
to trial mandated dismissal under Rule 16.1(g). The superior court
denied the motion on February 11, 1994, holding:
Defendants were always at liberty to request
issuance of a notice of intent to dismiss
under Rule 16.1. Plaintiff was entitled to
such notice prior to dismissal. Defendants
are not precluded from filing a motion to
dismiss on the basis of laches, if such motion
can be supported by the facts of this case.
This decision forms the basis of the Municipality's cross-appeal.
The State and Municipality filed their answers on
February 24, 1994, and the superior court issued an order setting
trial for September 26, 1994. The State moved for, and was
granted, judgment in its favor on the pleadings. Default was
entered against Yellow Cab and its agent on April 4, 1994.
The Municipality commenced discovery in March 1994. On
July 19, 1994, the Municipality moved for summary judgment
"pursuant to the doctrines of laches, estoppel, waiver, and
abandonment, based on plaintiff's six year delay in prosecuting the
action." On September 13, 1994, the superior court granted the
Municipality's motion, ruling:
The dismissal is not based on laches. Ford v.
Municipality of Anchorage, 813 P.2d 654
(Alaska 1991); Munn v. Bristol Bay Housing
Authority, 777 P.2d 188 (Alaska 1989). The
dismissal is based on implied waiver/estoppel.
Milne v. Anderson, 576 P.2d 109 (Alaska 1978);
Wausau Ins. Co. v. Van Biene, 847 P.2d 584
(Alaska 1993). Plaintiff's failure to notify
the Municipality of his intent to litigate
against it for this extended period of time
all the while litigating against Super 8 Motel
without notice to or service of papers on the
Municipality constituted actions inconsistent
with an intent by plaintiff to pursue its
action against the Municipality. Plaintiff
[sic] was prejudiced in not retaining an
attorney and preserving evidence.
(Emphasis deleted.) Airoulofski appeals.
Airoulofski argues that his delay in prosecuting his
claim was not direct unequivocal conduct sufficient to evidence a
waiver. The Municipality contends that the superior court's
February 11, 1994 refusal to dismiss Airoulofski's claim pursuant
to Rule 16.1 was erroneous. (EN3)
A. Superior Court's Refusal to Dismiss for Failure to
Prosecute Under the Civil Rules
Alaska's Civil Rules contain two provisions by which
cases may be dismissed for failure to prosecute. Rule 16.1(g)
allows dismissal of dormant cases governed by the fast-track
procedures of Rule 16.1. Under Rule 41(e), cases operating by
standard civil procedures may be dismissed for want of prosecution.
The Municipality's cross-appeal involves the interpretation of
these rules; accordingly, this court exercises its own independent
judgment. Ford v. Municipality of Anchorage, 813 P.2d 654, 655
1. Rule 16.1(g) does not allow dismissal without
transfer and notice.
Rule 16.1(g) establishes the following procedures for
dismissal of inactive cases on the court's fast-track calendar:
Where a motion to set trial and certif-
icate have not been filed within 270 days
after the service of the summons and com-
plaint, the case shall be transferred to the
inactive calendar by the clerk of the court.
The clerk shall promptly notify counsel in
writing of the transfer. All cases which
remain on the inactive calendar for more than
60 days shall be dismissed, unless within that
period: (1) A proper motion to set trial and
certificate is filed; or (2) the court on
motion for good cause orders a case continued
on the inactive calendar for a specified
additional period of time. Notwithstanding
Civil Rule 41(b), the dismissal does not
operate as an adjudication upon the merits
unless a previous dismissal has been entered
by the court under this rule, or by the
plaintiff or parties under Civil Rule
The Municipality argues that despite the court system's failure to
transfer the case to the inactive calendar and notify the parties
of its intent to dismiss, the superior court should have dismissed
Airoulofski's case under this rule. We disagree.
The superior court's February 11, 1994 refusal to dismiss
Airoulofski's case was based upon this court's decision in Ford v.
Municipality of Anchorage, 813 P.2d 654 (Alaska 1991). Ford
involved a one-year period of inactivity by the plaintiff, during
which the court system failed to place her case upon the inactive
calendar. Id. at 655. This court held that as a result of this
failure, Rule 16.1(g) could not be invoked. "A litigant should not
be penalized for the court's error. Rule 16.1(g) establishes a
particular procedure for dismissal of inactive fast-track
cases. . . . [T]he court assigned [the plaintiff's] case
specifically to the fast-track. Therefore, [plaintiff] was
entitled to the procedures outlined in Rule 16.1(g)." Id. at 656.
The plain language of Rule 16.1(g) precludes dismissal of
fast-track cases without transfer to the inactive calendar and,
importantly, notice to the parties. Rule 16.1(g) does not mandate
dismissal of cases which are inactive for 330 days; only cases that
remain inactive for sixty days following their placement upon the
inactive calendar are properly dismissed. Transfer and notice to
the parties are thus explicitly incorporated as prerequisites to
dismissal under Rule 16.1(g).
Thus, we hold that the superior court did not err in
refusing to dismiss Airoulofski's claim under Rule 16.1.
2. Rule 41(e) does not apply to fast-track cases.
In Ford, this court ruled that "the language in Rule
16.1(g) and (m) provides that the rule is the exclusive means to
dismiss fast-track cases." Ford, 813 P.2d at 656. Thus, Rule
41(e) does not apply to fast-track cases. While the Municipality
recognizes this, it argues that the general policies favoring the
speedy resolution of disputes that underlie Rule 41(e) should be
applied to this case in such a way as to allow dismissal of the
claim and to make a dilatory plaintiff bear the burden of the
court's oversight. However, we note that even Rule 41(e) would not
allow dismissal of this claim.
Rule 41(e) provides:
Actions which have been pending in a
court for more than one year without any
proceedings having been taken may be dismissed
as a matter of course, for want of
prosecution, by the court on its own motion or
on motion of a party to the action. The clerk
shall review all pending cases semi-annually
and in all cases in which no proceedings have
been taken for more than one year, the court
shall hold a call of the calendar or the
clerks shall send notice to the parties to
show cause in writing why the action should
not be dismissed. If good cause to the
contrary is not shown . . . within 30 days of
distribution of the notice, the court shall
dismiss the action.
First, then, even Rule 41(e) gives the plaintiff notice
of the dismissal and an opportunity to show cause why the action
should not be dismissed. Such notice and opportunity was not given
Second, Rule 41(e) only allows dismissal if no proceeding
has been taken in the case for a period of more than one year.
This court has held that where a previously inactive party mails a
request for a trial date and pre-trial conference to the court
before its opponent files a motion to dismiss under Rule 41(e), the
request constituted a "proceeding"so that dismissal was improper.
Zeller v. Poor, 577 P.2d 695, 697 (Alaska 1978). Cf. Power
Constructors, Inc. v. Acres American, 811 P.2d 1052, 1054 (Alaska
1991) ("A pretrial memorandum filed after the court issues its
notice of dismissal does not constitute a 'proceeding' under Civil
Rule 41(e)."(emphasis added)). Here, Airoulofski made a request
for a trial date before the Municipality filed its motion to
dismiss the claim. Therefore, as in Zeller, by the time the
Municipality filed its motion a proceeding had occurred within the
prior year and dismissal would have been improper even if the case
were subject to Rule 41(e).
B. Dismissal of Claims for Implied Waiver and Estoppel
The superior court granted summary judgment based upon
implied waiver and estoppel. (EN4) In review of summary judgment,
this court must determine whether there are any genuine issues of
material fact, and whether the moving party was entitled to
judgment as a matter of law. We draw all reasonable inferences in
favor of the non-moving party and against the movant. Swenson
Trucking & Excavating, Inc. v. Truckweld Equipment Co., 604 P.2d
1113, 1116 (Alaska 1980). (EN5)
The superior court concluded that Airoulofski implicitly
waived his claim against the Municipality by failing "to notify the
Municipality of his intent to litigate against it for this extended
period of time all the while litigating against Super 8 Motel
without notice or service of papers on the Municipality."
Airoulofski argues that his delay in prosecuting his claim was not
unequivocal conduct constituting waiver.
We have noted:
A waiver can be accomplished either expressly
or implicitly. An implied waiver arises where
the course of conduct pursued evidences an
intention to waive a right, or is inconsistent
with any other intention than a waiver, or
where neglect to insist upon the right results
in prejudice to another party. To prove an
implied waiver of a legal right, there must be
direct, unequivocal conduct indicating a
purpose to abandon or waive the legal right,
or acts amounting to an estoppel by the party
whose conduct is to be construed as a waiver.
Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978) (citations
"[N]eglect to insist upon a right only results in an
estoppel, or an implied waiver, when the neglect is such that it
would convey a message to a reasonable person that the neglectful
party would not in the future pursue the legal right in question."
Van Biene, 847 P.2d at 589. Even where neglect results in
prejudice to another party, for an implied waiver to arise there
must be direct, unequivocal conduct indicating a purpose to abandon
the right. Milne, 576 P.2d at 112; Miscovich v. Tryck, 875 P.2d
1293, 1301 (Alaska 1994). The superior court held that
Airoulofski's prolonged failure to notify the Municipality of his
intent to litigate against it, while proceeding against Super 8
Motel without service of papers on the Municipality, signified a
waiver according to these standards.
Under the circumstances, we believe that proceeding
against one defendant while allowing others to postpone their
answers pending the outcome of settlement negotiations did not give
rise to a waiver. The parties had agreed to "an unlimited
extension of time"pending settlement negotiations, with the
Municipality noting that upon Airoulofski's request it would
"retain counsel and respond to the suit immediately." A reasonable
person would not necessarily conclude that Airoulofski did not
intend to prosecute his claim against the Municipality.
Airoulofski took no actions that would constitute direct,
unequivocal conduct indicating a purpose to abandon his claim
against the Municipality. His silence toward the Municipality
while prosecuting his claim against Super 8 could be the product of
any number of factors, including mistake, negligence, or
incompetence, or even of a misunderstanding as to the status of the
settlement negotiations. See Van Biene, 847 P.2d at 589 (no
implied waiver where conduct amounts at most to neglect or internal
The Municipality presented evidence that several
witnesses were unavailable, or had left Alaska, that records of
Airoulofski's mistaken arrest had been destroyed, and that
"[m]emories have faded in the eight year interim since the
incident." It argues that allowing Airoulofski to proceed would
force it alone to bear the cost of the court's oversight in not
transferring the case to the inactive calendar. But, as noted
above, prejudice to a party alone is not sufficient to support a
waiver argument. See Miscovich, 875 P.2d at 1301. And as the
superior court noted when it declined to dismiss the case under
Rule 16.1(g), the Municipality was perfectly free, at any time
after 270 days had passed from the service of the summons and
complaint without a motion to set trial, to ask the court to
transfer the case to the inactive calendar and give Airoulofski
notice of intent to dismiss. It was under no obligation to match
Airoulofski's silence with its own.
We find no merit to the Municipality's argument that the
superior court should have dismissed Airoulofski's claim earlier
under Rule 16.1(g), since that rule does not allow dismissal
without transfer and notice. We REVERSE the superior court's grant
of summary judgment to the Municipality, since we find that
Airoulofski did not demonstrate conduct sufficient to waive his
claim. The case is REMANDED to the superior court for proceedings
consistent with this opinion. EASTAUGH, Justice, dissenting.
I dissent because I would hold that Mane Airoulofski
waived his claim against the Municipality of Anchorage (MOA).
MOA was served with Airoulofski's complaint in the fall
of 1987. On October 9, 1987, MOA's adjuster wrote Airoulofski's
attorney a letter which purported to memorialize their conversation
of that date in which MOA (1) denied all liability, (2) proposed to
make a joint offer of $3,000 for dismissal of MOA and the State,
and (3) was granted an "unlimited extension of time to make an
appearance and answer the complaint pending a possible settlement."
The letter reassured Airoulofski's attorney that upon request, the
adjuster would retain counsel and respond to the suit immediately.
Airoulofski's attorney did not respond and did not then or later
dispute this memorialization.
Airoulofski thus agreed to suspend prosecution of his
lawsuit against MOA pending possible settlement. He knew MOA had
not retained counsel. He knew MOA understood that it would not be
required to respond to his suit until he notified MOA that he would
proceed with the litigation against it.
Airoulofski then pursued his lawsuit against another
defendant, Super 8, without serving MOA with any pleadings or
discovery responses. Six years passed before he made any further
attempt to pursue MOA and before he first requested an answer from
MOA. A reasonable person viewing this course of conduct would
conclude that Airoulofski had no intention of pursuing his claim
against MOA. The complete failure to do anything whatsoever for
six years regarding the MOA claim under these circumstances is a
prima facie demonstration of waiver, because it unequivocally
signalled Airoulofski's intention to forego that claim.
In opposing MOA's motion, Airoulofski produced no
evidence of a contrary intent. Airoulofski's attorney executed an
affidavit listing two circumstances allegedly bearing on why the
case was not pursued: the attorney's health problems during some
intervening years and the destruction of Airoulofski's file by a
disaffected legal secretary. These circumstances are unpersuasive.
Counsel's periodic health problems did not prevent him from
representing Airoulofski in his claim against Super 8 and in
unrelated legal matters in 1988, 1989, and 1990. The file's
destruction cannot explain why no effort at all was made to
resuscitate the claim against MOA. The complaint naming MOA was in
the court file, where counsel filed it. Counsel needed no file to
make an oral or written demand on MOA for an answer, had he or
Airoulofski intended to pursue that claim. Airoulofski has offered
no evidence of any conduct during the six-year hiatus that might
have suggested to MOA or objective observers that Airoulofski
intended to litigate against MOA. Most notably, neither
Airoulofski nor his attorney asserted that between October 1987 and
1993 Airoulofski subjectively harbored any intention whatsoever to
prosecute the MOA claim. Assuming that Airoulofski did have that
intent, he could easily have offered affidavits so stating. I
regard his failure to do so as determinative.
Assuming implied waiver is, under these circumstances,
akin to equitable estoppel, Wausau Insurance Cos. v. Van Biene, 847
P.2d 584, 588-89 (Alaska 1993), I also note that MOA established
that it had reasonably relied to its prejudice on the October 1987
understanding and Airoulofski's subsequent failure to prosecute his
claim against MOA for six years. The court recognizes that MOA
presented evidence that it suffered prejudice. Op. at 12.
Airoulofski and his attorney offered no affidavits or other
evidence rebutting MOA's assertions of reasonable reliance and
Because I would hold that the doctrine of waiver prevents
Airoulofski from prosecuting his claim against MOA, I would affirm.
1. Alaska Civil Rule 16.1 establishes special procedures designed
to reduce delay in civil litigation. Cases are assigned to the
fast-track calendar by administrative order of the judicial
district's presiding judge.
2. This order was entered before we decided Ford v. Municipality
of Anchorage, 813 P.2d 654 (Alaska 1991). Under Ford, dismissal
under Rule 41(e) is improper when the case has been placed under
the fast-track provisions of Rule 16.1. Id. at 656.
3. The Municipality also argues that the superior court's
dismissal of Airoulofski's claims against Super 8 operated to
dismiss Airoulofski's claim against all defendants. This argument
is without merit. The superior court's order stated: "[P]lain-
tiff's claims against Super 8 Motel are dismissed." This was not
a dismissal of Airoulofski's claims against the State or
Municipality. Dismissal of claims against one defendant was within
the court's authority. S & B Mining Co. v. Northern Commercial
Co., 813 P.2d 264, 269 (Alaska 1991).
4. While we have on occasion treated equitable estoppel and
waiver as separate defenses arising from delay in asserting a
right, see Miscovich v. Tryck, 875 P.2d 1293, 1301-2 (Alaska 1994),
we have also recognized that "[t]he type of implied waiver created
by neglect to insist upon a right is, in reality, a type of
equitable estoppel." Wausau Ins. Cos. v. Van Biene, 847 P.2d 584,
589 (Alaska 1993). In this case, the claim under either doctrine
is the same: Airoulofski's delay constituted an assertion that he
did not intend to prosecute the case against the Municipality, and
the Municipality would be prejudiced were he allowed to contradict
5. Normally, the "issue of whether a waiver occurred is a
question of fact; a trial court's finding will be set aside on
review only if clearly erroneous." Miscovich v. Tryck, 875 P.2d
1293, 1302 (Alaska 1994). However, because the superior court
decided this matter without trial, the summary judgment standard is