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v Lange (4/27/01) sp-5400
Brown v Lange (4/27/01) sp-5400
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) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
WESLEY A. BROWN, JR., )
) Supreme Court No. S-8745
Appellant, )
) Superior Court No.
v. ) 1JU-96-364 CI
)
ROBERT LANGE, and JOHN )
WILLIS, JR., ) O P I N I O N
)
Appellees. ) [No. 5400 - April 27, 2001]
______________________________)
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
Larry R. Weeks, Judge.
Appearances: Michael L. Lessmeier, Lessmeier &
Winters, Juneau, for appellant. Mark Clayton Choate, Choate, Guinn
& Springmeyer, San Diego, California, for appellee Robert Lange.
No appearance for appellee John Willis, Jr.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
BRYNER, Justice, with whom FABE, Justice, joins,
dissenting.
I. INTRODUCTION
Wesley Brown, a formerly pro se defendant, appeals the
superior court's denial of his motion to set aside a default
judgment against him in a personal injury case. Brown asserts that
he was entitled to notice before the entry of the default, that he
was entitled to notice before the entry of the default judgment,
and that plaintiff Robert Lange's attorney was obliged both to
inquire about Brown's intentions and to notify the court of Brown's
attempt to contact him before seeking the default. In these
matters of first impression, we disagree with Brown: The default
was validly entered and Lange's attorney owed Brown no independent
professional duty to give him notice. But because the default
judgment was entered without apportioning fault between two
defendants, we must vacate the default judgment and remand to the
superior court for further proceedings.
II. FACTS AND PROCEEDINGS
John Willis's boat struck Wesley Brown's boat near Kake
on May 7, 1995, injuring Brown and Willis's passenger, Robert
Lange. All three men had been drinking alcohol the day of the
accident when they decided to go boating. The collision occurred
while Brown's boat was stopped to retrieve a hat belonging to
Lange. Both Brown and Willis were convicted of operating
watercraft while intoxicated.
On February 22, 1996, Lange (the passenger) filed suit
against both Brown and Willis (the drivers) seeking damages in
excess of $50,000. Brown was served with a copy of the summons and
complaint at his home in Kake on March 4. The summons contained
the following language in boldface type: "IF YOU FAIL TO [ANSWER
THE COMPLAINT] JUDGMENT BY DEFAULT MAY BE TAKEN AGAINST YOU FOR THE
RELIEF DEMAND[ED] IN THE COMPLAINT."
On March 22, 1996, Brown telephoned Lange's attorney and
left a recorded message asking when he (Brown) was "going to
court." His call was returned by Lange's attorney's receptionist,
who reached Brown's mother and informed her that no court date had
been scheduled and that Brown needed to answer the complaint and
mail copies to the court and Lange's attorney.
Brown did not answer the complaint. On April 19, 1996,
a default was entered against him. Brown was not notified of this
entry of default. Willis also failed to answer, and default was
entered against him on April 29, 1997. [Fn. 1] A hearing to
determine Lange's damages was held before a special master on July
3, 1997; Brown was not notified of this hearing. The special
master recommended a damages award of $272,424.80. The superior
court accepted this recommendation and, on July 21, entered
judgment against Brown and Willis for that amount, plus interest,
attorney's fees, and costs. The judgment against Brown and Willis
totaled $321,490.15. The court did not apportion fault between
Brown and Willis. Again, Brown was not notified that the judgment
had been entered against him.
On November 3, 1997, the superior court issued an order
commanding Brown to appear and restraining him from disposing of
his property. Brown was served with this notice, which was the
first formal communication Brown received from either the court or
Lange since the complaint.
Brown then contacted Alaska Legal Services, who referred
him to its pro bono program. On January 9, 1998, an attorney made
an appearance on Brown's behalf and on April 8 Brown moved through
counsel to set aside the default judgment on two grounds: (1) that
Brown's failure to answer the complaint was "excusable neglect" and
therefore the default and default judgment should be set aside
pursuant to Alaska Rule of Civil Procedure 60(b)(1); and (2) that
Lange's attorney had engaged in "fraud" by not notifying Brown
either of the default or of the default judgment hearing, and that
therefore the judgment should be set aside pursuant to Civil Rule
60(b)(3).
The superior court declined to set aside the default
judgment against Brown on either of these grounds. This appeal
followed.
III. STANDARD OF REVIEW
Normally, we will reverse the trial court's refusal to
set aside a default judgment pursuant to Civil Rule 60(b) only for
abuse of discretion. [Fn. 2] However, this appeal turns on the
proper interpretation of the term "appear" in Civil Rule 55. When
interpreting a civil rule, we exercise our independent judgment
[Fn. 3] and "adopt the rule of law that is most persuasive in light
of precedent, reason, and policy." [Fn. 4]
Determining whether the superior court committed
reversible error by not apportioning fault in the default judgment
is an issue of statutory interpretation, which we review under the
substitution of judgment standard. [Fn. 5]
IV. DISCUSSION
A. Brown Was Not Entitled To Have Either the Entry of
Default or the Default Judgment Set Aside for Lange's Failure To
Provide Notice.
As noted above, Brown telephoned Lange's attorney and
asked when he (Brown) was "going to court." Brown now claims that
this constituted an "appearance" under Civil Rule 55. Because the
application of Civil Rule 55's default procedures varies depending
on whether the defendant "appears," the threshold issue is whether
this call, which was Brown's only response to Lange's complaint,
constituted an "appearance" for Civil Rule 55 purposes. [Fn. 6] We
hold that it did not.
1. Brown did not "appear" by leaving an ambiguous
telephone message with Lange's attorney.
We have never explicitly defined the term "appear" in the
context of the Alaska Rules of Civil Procedure. But in
interpreting our civil rules we have often looked to identical
federal counterparts for guidance. [Fn. 7] Other courts
interpreting the federal analog to our Civil Rule 55 have taken an
expansive concept of what an "appearance" is. [Fn. 8] And some
federal courts have found an "appearance" even where the
defendant's action did not "involve some presentation or submission
to the court." [Fn. 9] Still, the rule in the federal system
"normally" is that "an appearance in an action 'involves some
presentation or submission to the court.'" [Fn. 10]
While we never have explicitly defined the term "appear"
in the context of the Alaska Rules of Civil Procedure, in Case v.
Winters [Fn. 11] we rejected the idea that an appearance could take
place without a presentation or submission of some sort to the
court. Case involved two superior court proceedings. In one, a
wife filed a motion to change custody and to obtain a judgment for
past child support. Attorney Hellenthal entered an appearance for
the husband. In the second case, filed a year later, the wife
filed a new complaint seeking "damages" for unpaid support.
Although Hellenthal did not appear in the second case, he contacted
the wife's attorney and requested an extension of time to answer
the complaint. His request was granted but after the time for
extension expired, the wife's attorney notified him in writing that
she intended to apply for default. Hellenthal did nothing. The
wife's attorney requested a default under Civil Rule 55(a) without
serving Hellenthal or the husband since no appearance had been
filed, and a default was entered. Shortly thereafter the two cases
were consolidated. After that a default hearing on damages was
held, again without notice. This court held that up until the time
of the consolidation neither the husband "nor attorney Hellenthal
was entitled to service of the prior entry of default because 'no
service need be made on parties in default for failure to appear.'"
[Fn. 12] We went on to hold that once the cases were consolidated
(after the default was entered in the second case) Hellenthal was
entitled to written notice of the application for default judgment
under Civil Rule 55(c)(1). We set aside the default judgment, but
we affirmed the entry of the default on liability in the second
case. [Fn. 13]
A concurrence was filed in Case. The concurring justices
would have held that the contacts between Hellenthal and opposing
counsel amounted to an appearance by Hellenthal for purposes of
Civil Rule 55. The concurrence cited a number of federal cases
that had found an appearance even without a presentation or
submission to the court. [Fn. 14] But the concurrence's view that
an appearance can arise merely by contacts between the parties was
rejected by the majority in Case.
Even if we were to adopt a more expansive notion of
"appearance," Brown's minimal conduct here would not meet the new,
more relaxed standard. Brown's only action came eighteen days
after receiving the complaint when he made a single telephone call
to Lange's attorney and left a message asking "when he was going to
court." While under a sympathetic view this action may have
evinced Brown's intention at that moment to defend the lawsuit, it
nevertheless fails to rise to the level of an "appearance" as that
word is used in Civil Rule 55. To read more into Brown's action
would strain the meaning of "appearance" so fundamentally as to
rewrite Civil Rule 55 from the bench -- an action we decline to
take. [Fn. 15]
2. Since Brown did not appear, he was not entitled to
notice of Lange's applications for entry of default or for default
judgment.
The application of Civil Rule 55 explicitly depends upon
whether the defendant has "appeared" in the action. [Fn. 16] If
the defendant does not appear, upon the plaintiff's application the
clerk of court may enter a default without requiring service of the
application upon the defendant. [Fn. 17] Then, upon application,
and again without notice to the defendant, the clerk of court may
enter a default judgment if the damages are "for a sum certain or
for a sum which can by computation be made certain." [Fn. 18] When
the damages cannot be reduced to a sum certain, as in the case at
hand, [Fn. 19] the superior court "may conduct such hearings or
order such references as it deems necessary and proper" to
"determine the amount of damages." [Fn. 20] The superior court may
conduct its damages proceedings ex parte, without requiring notice
to a defendant who has failed to previously appear in the action.
[Fn. 21]
The superior court in this case did not err by conducting
ex parte hearings to determine the plaintiff's damages, without
requiring that Brown be notified of the hearings. The superior
court's actions comported with the requirements of the civil rules.
Moreover, Brown's interests must be balanced against the interests
of Lange, who has a right to a timely determination of his damages
so that he may begin his efforts toward the recovery of his losses.
Accordingly, we hold that the superior court did not err when it
did not require further notification when Brown failed to appear in
the action.
B. Lange's Attorney Was Under No Professional Obligation To
Notify Brown Before Seeking the Entry of Default or the Default
Judgment.
Brown further argues that our decisions in City of Valdez
v. Salomon [Fn. 22] and Hertz v. Berzanske [Fn. 23] command
reversal here. Brown argues that Lange's attorney's failure to
inquire as to Brown's intention to defend the action constituted a
breach of the duties of professional conduct. While we have held
that lawyers are obliged by professional courtesy to make such
inquiries when they know the identity of and have been in contact
with an opposing party's counsel, [Fn. 24] we have done so in a
limited context, and we have never extended the same principle to
pro se parties.
In Cook v. Aurora Motors, Inc., [Fn. 25] we first
announced the principle that when lawyers know the identity of
opposing counsel, they should inform opposing counsel of their
intent to seek an entry of default. [Fn. 26] In City of Valdez v.
Salomon, [Fn. 27] we referred to this principle [Fn. 28] in a case
in which the defendant city's attorney had written to the
plaintiff's attorney and specifically asked for the courtesy of
notification if the city's carrier did not respond to the
complaint:
I have referred the case to Providence
Washington Insurance Company for a response, and assume that you
will be hearing from them soon. In the event that no response is
forthcoming, please let me know and I will enter our appearance on
behalf of the City of Valdez to protect it against default. [Fn.
29]
Thus, the city's attorney explicitly asked for the professional
courtesy of notice in the event of its insurance carrier's failure
to respond so that the city could make an appearance to prevent a
default. [Fn. 30] But when the carrier did not respond, the
plaintiff's attorney instead applied for and obtained a default
without notifying the city's attorney. [Fn. 31] In part because
the defendant's attorney was justified in expecting that the
principle that we stated in Cook would be observed, we held that
the superior court's later refusal to set aside that default was an
abuse of discretion. [Fn. 32]
In Hertz v. Berzanske [Fn. 33] we extended the holding of
City of Valdez to cover a party's agent. [Fn. 34] In Hertz, the
defendant's agent had contacted the plaintiff's attorney to obtain
an extension of time to answer the complaint. The plaintiff's
attorney had granted the defendant's agent a twenty-day extension,
[Fn. 35] and filed for an entry of default one day after the end of
the extension without notifying the defendant's agent. [Fn. 36] In
reversing the trial court's refusal to set aside the default, we
extended the City of Valdez holding to a situation in which the
plaintiff's attorney had been communicating with the defendant's
agent. [Fn. 37]
Brown argues, "[n]o logical explanation exists as to why
a pro se litigant should receive anything but the same notice his
[or her] attorney or agent would be entitled to." We disagree.
The act of retaining an attorney is a significant step a defendant
may take in the process of defending against an action. It
unequivocally evidences an intent to defend the case. By the same
token, an agent's negotiation of a time extension to answer shows
the defendant's intention to resolve the matter by settlement or,
if settlement efforts are unsuccessful, by litigation. A pro se
defendant's single call, inquiring when to go to court, without
more, is not comparable. Moreover, when plaintiff's counsel (or,
as in this case, counsel's employee) correctly responds to the
question and properly reminds the defendant to file an answer, no
further ethical obligation should be imposed on the plaintiff.
Indeed, in light of the law's historical concern about giving legal
advice to an opposing party, [Fn. 38] it would be anomalous to
require plaintiff's counsel to do more. Finally, the scope of
Brown's proposed rule is unlimited because every defendant without
an attorney is by definition a pro se defendant. The extension of
the City of Valdez holding proposed by Brown would greatly weaken
Civil Rule 55 by making continued notification necessary in any
case where even the most casual contact was made.
For these reasons, we decline to extend the attorney's
professional obligation (to contact known opposing counsel or an
agent who has requested an extension, and to inquire of their
intentions before seeking a default) to a pro se defendant who has
made a single telephone call inquiring about a court date.
C. Alaska Statute 09.17.080(a) Requires the Apportionment of
Fault.
Brown's final argument is that the superior court was
required to apportion damages in the final judgment. We agree.
Alaska Statute 09.17.080(a) requires apportionment of
damages where there are multiple culpable parties:
In all actions involving fault of more than
one person, . . . the court, unless otherwise agreed by all
parties . . . [and] if there is no jury, shall make findings,
indicating[:] (1) the amount of damages each claimant would be
entitled to recover if contributory fault is disregarded; and (2)
the percentage of the total fault that is allocated to each
claimant, defendant, . . . or other person responsible for the
damages . . . .
This language requires the superior court to apportion fault in
rendering its final judgment. Because the superior court here did
not apportion fault in establishing damages, we must remand this
case for the court to do so.
V. CONCLUSION
The superior court was correct in concluding that Brown
did not "appear" for purposes of Civil Rule 55 and was therefore
not entitled to notice of either the entry of default or the
default judgment. In addition, counsel for Lange was under no
obligation of professional courtesy to notify Brown of his
intention to seek default judgment. We accordingly AFFIRM the
default judgment against Brown. However, the superior court was
required to apportion damages in the final judgment. Because there
was no apportionment, we VACATE the final judgment and REMAND this
case to the superior court for further proceedings.
BRYNER, Justice, with whom FABE, Justice, joins, dissenting.
I agree that Brown's call to Lange's attorney did not
amount to a Rule 55 "appearance" but disagree with the court's
conclusion that Lange's attorney had no duty to notify Brown of his
intent to apply for entry of default. In my view, this court's
caselaw obliged Lange's attorney to inform Brown of the impending
default.
Cook v. Aurora Motors, Inc. was the first of our cases to
recognize an attorney's professional duty to give reasonable notice
to an opposing party before applying for a default. [Fn. 1] As the
court's opinion today correctly notes, [Fn. 2] Cook drew this duty
from the American College of Trial Lawyers Code of Trial Conduct,
which, at the time, advised:
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.[
[Fn. 3]]
The Trial Lawyers Code obviously regards this duty a
"professional courtesy" -- that is, as an obligation that one
lawyer owes another by virtue of their common bond in the legal
profession. Yet even though both parties in Cook were represented
by counsel, [Fn. 4] Cook carefully avoided describing the notice
requirement as this kind of narrow, lawyer-to-lawyer duty. After
quoting the Trial Lawyers Code approvingly, Cook found that "[t]his
practice is a highly desired courtesy to the opposing side." [Fn.
5]
We reaffirmed Cook's notice requirement in City of Valdez
v. Salomon. [Fn. 6] Like Cook, Salomon involved lawyers on both
sides of the litigation. [Fn. 7] More recently, though, in Hertz
v. Berzanske, [Fn. 8] we expressly extended the notice requirement
to situations involving unrepresented litigants. [Fn. 9] In Hertz,
an injured motorist sued Hertz for injuries arising from a
collision. Hertz's insurance adjuster, Dean, contacted the
plaintiff's attorney, Gregg, and asked for twenty additional days
to answer the complaint. [Fn. 10] After the twenty-day deadline
passed, Gregg moved for entry of default without informing either
Hertz or Dean of his intentions. [Fn. 11] This court, relying on
Cook and Salomon, found the default improper, holding that Gregg
breached his duty to notify his opponent:
While Gregg did send a letter to Dean advising
him of the twenty day extension, he made no effort to notify Dean
of his intent thereafter to seek a default, or to inquire about
Dean's intention to proceed. We have adopted the following rule of
trial conduct:
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.
The same rule of inquiry should apply when a
lawyer knows the identity of an agent representing an opposing
party, even if he does not know the identity of opposing counsel.
"[T]he purpose of the default procedure is to prevent a
procrastinating defendant from unduly delaying a case; it should
not be regarded as a tactical tool by which a plaintiff may obtain
judgment without the bother and expense of litigation." While
Gregg had the procedural right to seek a default entry, he was
obligated to inquire into Hertz's intent to proceed and to inform
Hertz of his intent to seek a default entry.[ [Fn. 12]]
Hertz thus recognizes that the duty of pre-default
inquiry and notice can arise when a plaintiff's attorney is
contacted by a non-lawyer on behalf of the defendant. [Fn. 13]
More significantly, in holding that Gregg "was obligated to inquire
into Hertz's intent to proceed and to inform Hertz of his intent to
seek a default entry," Hertz expressly recognizes that the
plaintiff's lawyer owes this duty not to the defendant's agent, but
directly to the defendant. [Fn. 14]
Thus, in concluding that Cook merely establishes a rule
of "professional courtesy," today's opinion misreads our caselaw.
Until now, we have always viewed Cook's notice requirement not just
as a courtesy among lawyers, but as a duty owed directly to the
defendant. [Fn. 15]
The court offers two reasons for limiting Cook to
attorneys and agents. Neither is persuasive.
First, the court asserts, "[t]he act of retaining an
attorney . . . unequivocally evidences an intent to defend the
case." [Fn. 16] But surely this overstates the case. A defendant
who has just been served with a complaint will often consult an
attorney as a tentative first step in deciding what to do. If the
defendant ultimately decides to hire the attorney and defend the
case, the event that "unequivocally evidences" this decision is the
lawyer's formal entry of appearance. And because this entry
formally signals a commitment to defend, a lawyer who is consulted
about defending but subsequently fails to appear and answer
necessarily raises serious questions about the defendant's intent.
So too, a defendant's early discussion of settlement
through a lawyer or a non-attorney agent signals neither a
commitment to settle nor an unequivocal decision to defend. Hertz
provides a useful example. Hertz's adjuster, Dean, discussed the
possibility of settlement with plaintiff's counsel, Gregg, before
Gregg had even filed a complaint. [Fn. 17] Later, after asking
Gregg for an informal extension of time to answer, Dean failed even
to acknowledge Gregg's letter granting the extension and discussing
a settlement. [Fn. 18] At the time Gregg applied for default,
Hertz's insurer, Providence Washington, had not yet assigned an
attorney to the case, and it is unclear whether Providence
Washington had even made a final decision to cover Hertz's claim.
[Fn. 19]
These circumstances hardly constitute "unequivocal
evidence" of Hertz's commitment to defend his claim. To the
contrary, when viewed in conjunction with Hertz's failure to meet
the deadline for filing his answer, they raise serious questions
about his intent. Yet despite these uncertainties -- indeed,
because of these uncertainties -- this court concluded that, Gregg
was "obligated to inquire into Hertz's intent to proceed and to
inform Hertz of his intent to seek a default entry." [Fn. 20] By
specifying that Gregg's duty encompassed the duty to "inquire into
Hertz's intent to proceed," [Fn. 21] we unmistakably signaled that
our decisions in Cook, Salomon, and Hertz are founded on the
existence of doubt concerning the defendant's intent to defend, not
on unequivocal evidence of a decision to defend. Thus, the force
driving the duty is uncertainty, not certainty.
In the case at hand, the circumstances surrounding
Brown's failure to file a timely answer raised substantial
questions about his intent to defend. Brown called Lange's
attorney's office within the allowable time for filing an answer;
he was not represented by counsel but expressed a clear interest in
defending the case. Brown left his message on the law firm's voice
mail. He also left his telephone number in Kake, where he lived
with his parents. A legal assistant returned Brown's call but was
unable to reach him because he was out fishing; she spoke with his
mother instead, and asked her to relay the firm's message. The
legal assistant told Brown's mother that no court date had yet been
set and that Brown would need to file an answer to the complaint.
But the legal assistant did not remind Brown of the deadline for
answering or the consequences of failing to answer. Neither did
she encourage him to consult an attorney if he had further
questions. [Fn. 22] Less than a month later, with no further
effort to establish contact or inquire into Brown's intentions,
Lange's attorney moved for entry of default.
As we emphasized in Hertz and Salomon, "[t]he purpose of
the default procedure is to prevent a procrastinating defendant
from unduly delaying a case." [Fn. 23] Here, the circumstances
surrounding the default hardly suggest deliberate procrastination;
to the contrary, they strongly suggest a delay stemming from
miscommunication, misunderstanding, or confusion. In my view,
these circumstances generate the same kind of uncertainty that led
us to impose the duty of inquiry and notice in Cook, Salomon, and
Hertz.
Nor do the circumstances of this case suggest that
compliance with the duty of inquiry and notice would have been
burdensome or impractical. Lange's attorney knew Brown's telephone
number and knew that Brown lived with his parents in the small
community of Kake. Nothing in the record indicates that Brown
could not have been reached with a minimal expenditure of time and
effort. [Fn. 24] Given these circumstances, I fail to see why
Lange's attorney should be relieved of the duty that would have
applied had Brown been represented by counsel or helped by an
agent. In effect, the court simply punishes Brown for being a pro
se litigant.
As its second reason for declining to apply Cook,
Salomon, and Hertz to cases involving pro se litigants, the court
expresses the fear of ethical problems grounded on "the law's
historical concern about giving legal advice to an opposing party."
[Fn. 25] But the court's fear is groundless. The court bases its
ethical concern on Rule 4.3 of the Model Rules of Conduct, [Fn. 26]
which Alaska has adopted as Rule 4.3 of the Alaska Rules of
Professional Conduct:
In dealing on behalf of a client with a
person who is not represented by counsel, a lawyer shall not state
or imply that the lawyer is disinterested. When the lawyer knows
or reasonably should know that the unrepresented person
misunderstands the lawyer's role in the matter, the lawyer shall
make reasonable efforts to correct the misunderstanding.[ [Fn. 27]]
Alaska's commentary to this rule explains:
An unrepresented person, particularly one
not experienced in dealing with legal matters, might assume that a
lawyer is disinterested in loyalties or is a disinterested
authority on the law even when the lawyer represents a client.[ [Fn.
28]]
As can be seen, the Alaska Rule and its commentary have
nothing to do with the present situation. Rule 4.3 and its Alaska
commentary address the issue of communicating with unrepresented
litigants in a way that might cause them to misunderstand the
opposing lawyer's true intentions and interests. But compliance
with Cook, Salomon, and Hertz creates no such danger. These cases
require a plaintiff's attorney, before applying for default, "to
inquire into [the defendant's] intent to proceed and to inform [the
defendant] of [plaintiff's] intent to seek a default." [Fn. 29]
Because the core purpose of this requirement is to ensure full
disclosure of an impending conflict, nothing in Rule 4.3 or the
Alaska commentary could conceivably bar such inquiry and notice.
The court nonetheless suggests possible problems arising
from a sentence of commentary that appears in Model Rule 4.3; this
Model Rule commentary warns: "During the course of a lawyer's
representation of a client, the lawyer should not give advice to an
unrepresented person other than the advice to obtain counsel." [Fn.
30] But, Alaska's commentary to Rule 4.3 conspicuously omits this
sentence of the Model Rule commentary, even though the Alaska rule
incorporates the rest of Model Rule 4.3's commentary. Because the
omitted commentary strays so far from the text of the Rule itself,
Alaska's decision to omit the commentary is hardly surprising. [Fn.
31] Moreover, even if the Model Rule's comment did apply in
Alaska, it would not advance the court's position, since a
plaintiff's attorney who notifies a pro se defendant that the
plaintiff intends to apply for a default cannot plausibly be deemed
to be giving the kind of "advice to an unrepresented litigant" that
the commentary forbids.
The court thus fails to offer any sound reason why Cook
should not extend the present situation. In Cook we emphasized
that the chief purpose of requiring a pre-default warning is to
"help avoid unnecessary, time-consuming motions before the court."
[Fn. 32] Lange's attorney's decision to seek entry of default
without prior inquiry or notice to Brown promised exactly this kind
of lengthy and unnecessary litigation. The present appeal fulfills
the promise. To avoid similar problems, I would hold that the Cook
duty of inquiry and notice applied in this case. [Fn. 33]
Accordingly, I would reverse the superior court's
judgment, vacate the default, and remand for trial on the merits.
FOOTNOTES
Footnote 1:
Willis has not appealed. The record does not show why, after
obtaining an entry of default against Brown in April 1996, Lange
waited over a year before obtaining entry of default against
Willis.
Footnote 2:
See Benedict v. Key Bank of Alaska, 916 P.2d 489, 491 (Alaska
1996) (citing Bauman v. Day, 892 P.2d 817, 828-29 (Alaska 1995)).
Footnote 3:
See Ford v. Municipality of Anchorage, 813 P.2d 654, 655
(Alaska 1991) (holding that in cases that "involve the
interpretation of a civil rule, we exercise our independent
judgment").
Footnote 4:
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
Footnote 5:
See Longwith v. State, Dep't of Natural Resources, 848 P.2d
257, 260 n.5 (Alaska 1992) (citing Madison v. Alaska Dep't of Fish
and Game, 696 P.2d 168, 173 (Alaska 1985); Kelly v. Zamarello, 486
P.2d 906, 917 (Alaska 1971)).
Footnote 6:
Civil Rule 55(a)(1) provides:
When a party against whom a judgment for
affirmative relief is sought has failed to appear and answer or
otherwise defend as provided by these rules, and that fact is shown
by affidavit or otherwise, the clerk shall enter a default.
Service of the application is not required if the party has failed
to appear.
Civil Rule 55(c)(1) governs default judgments entered by courts.
It provides that "[i]f the party against whom default judgment is
sought has appeared in the action, that party (or, if appearing by
representative, the party's representative) shall be served with
written notice of the application for judgment at least three days
prior to a decision on the application."
Footnote 7:
See generally Hertz v. Berzanske, 704 P.2d 767, 770 (Alaska
1985) ("Since Rules 55(e) and 60(b) are identical to their federal
counterparts, . . . we look to federal case law for guidance.")
superseded by statute on other grounds as noted in McConkey v.
Hart, 930 P.2d 402, 407 n.4 (Alaska 1996). Although no Federal
Rules of Civil Procedure are worded exactly the same as Alaska
Civil Rules 55(a)(1) or 55(c)(1), the similarities between the
federal and the Alaska schemes make it appropriate for us to look
to the federal case law for guidance in interpreting "appearance."
Footnote 8:
See generally Morrow County Sch. Dist. v. Oregon Land and
Water Co., 716 P.2d 766, 769 n.4 (Or. App. 1986) ("The federal
cases give a broad reading to . . . appearance. Almost anything
that indicates that the party is interested in the case will
suffice.") (citation omitted); 10A Charles Alan Wright et al.,
Federal Practice and Procedure sec. 2686, at 47 (3d ed. 1998)
(noting
"the general liberality in defining what conduct constitutes an
appearance").
Footnote 9:
Wright et al., supra note 8, sec. 2686, at 44; see also New
York
Life Ins. Co. v. Brown, 84 F.3d 137, 141-42 (5th Cir. 1996)
(finding appearance where claimant spoke with opposing counsel and
informed him that claimant would contest suit and participated in
a telephonic settlement conference before a magistrate judge); Key
Bank v. Tablecloth Textile Co., 74 F.3d 349, 353 (1st Cir. 1996)
(finding appearance where defendant's informal contacts with
plaintiff during negotiations, including an informal agreement not
to seek an entry of default without notice, indicated a clear
intent to defend suit).
Footnote 10:
Wright et al., supra note 8, sec. 2686 at 41-42, and see
authorities listed at 47-49.
Footnote 11:
689 P.2d 467 (Alaska 1984).
Footnote 12:
Id. at 469 (quoting Alaska R. Civil P. 5(a)).
Footnote 13:
See id. at 470 n.8.
Footnote 14:
See id. at 471.
Footnote 15:
See Caterpillar Tractor Co. v. Beck, 624 P.2d 790, 793 (Alaska
1981) ("Rule changes are more appropriately accomplished by
amendment upon recommendation of the rules committee, the bench,
and the bar.").
Footnote 16:
See Alaska R. Civ. P. 55(a)(1), (b)(1), (c)(1)-(4).
Footnote 17:
See Alaska R. Civ. P. 55(a)(1).
Footnote 18:
Alaska R. Civ. P. 55(b)(1).
Footnote 19:
In the context of Civil Rule 55, we have stated that
"[d]amages for bodily injury or pain and suffering by their very
nature are not a fixed or liquidated sum, nor can the sum be made
certain by computation." Davis v. Criterion Ins. Co., 754 P.2d
1331, 1333 n.3 (Alaska 1988).
Footnote 20:
Alaska R. Civ. P. 55(c)(1).
Footnote 21:
See id.
Footnote 22:
637 P.2d 298 (Alaska 1981).
Footnote 23:
704 P.2d 767 (Alaska 1985), superseded by statute on other
grounds as noted in McConkey v. Hart, 930 P.2d 402, 407 n.4 (Alaska
1996).
Footnote 24:
See City of Valdez, 637 P.2d at 299 (citations omitted).
Footnote 25:
503 P.2d 1046 (Alaska 1972).
Footnote 26:
See id. at 1049 n.6 (quoting American College of Trial Lawyers
Code of Trial Conduct No. 14(a), at 149 (1971-72)).
Footnote 27:
637 P.2d 298.
Footnote 28:
See id. at 299.
Footnote 29:
Id. at 298 (quoting the letter).
Footnote 30:
See id.
Footnote 31:
See id. at 298-99.
Footnote 32:
See City of Valdez, 637 P.2d at 299.
Footnote 33:
704 P.2d 767 (Alaska 1985), superseded by statute on other
grounds as noted in McConkey v. Hart, 930 P.2d 402, 407 n.4 (Alaska
1996).
Footnote 34:
See id. at 772-73.
Footnote 35:
See id. at 768-69. At the trial court level, the parties
disputed whether the extension was an "open twenty-day extension,"
which meant "that the plaintiffs granted an open extension of the
time to answer the complaint and would not seek entry of default
except upon twenty days' notice to the defendant," or was simply a
twenty-day extension, which meant that the deadline for filing an
answer was extended for only twenty days. Id. at 768.
Footnote 36:
See id. at 772 & n.2.
Footnote 37:
See id. at 772-73.
Footnote 38:
See Model Rules of Professional Conduct Rule 4.3 cmt. (1998)
("During the course of a lawyer's representation of a client, the
lawyer should not give advice to an unrepresented person other than
the advice to obtain counsel."); Model Code of Professional
Responsibility, DR 7-104(A)(2) (1980).
FOOTNOTES (Dissent)
Footnote 1:
503 P.2d 1046, 1049 n.6 (Alaska 1972).
Footnote 2:
See Slip Op. at 12 n.26.
Footnote 3:
American College of Trial Lawyers Code of Conduct No. 14(a),
at 149 (1971-72), incompletely quoted in Cook, 503 P.2d at 1049
n.6; accurately quoted in City of Valdez v. Salomon, 637 P.2d 298,
299 (Alaska 1981).
Footnote 4:
Cook, 503 P.2d at 1049 n.6.
Footnote 5:
Id. (emphasis added).
Footnote 6:
637 P.2d at 299.
Footnote 7:
See id.
Footnote 8:
704 P.2d 767 (Alaska 1985).
Footnote 9:
See id. at 772-73.
Footnote 10:
See id. at 768-69.
Footnote 11:
See id. at 769.
Footnote 12:
Id. at 772-73 (citations omitted) (emphasis added).
Footnote 13:
Although Hertz's adjuster, Dean, was hired to investigate by
Providence Washington, our decision specifically described Dean as
Hertz's agent, not Providence Washington's. See id.
Footnote 14:
Id. at 773.
Footnote 15:
Indeed, it is noteworthy that, although the court's opinion
today calls the duty of notice that we adopted in Cook a
"professional courtesy," see Slip Op. at 11, 12, our relevant cases
-- Cook, Salomon, and Hertz -- never used this term.
Footnote 16:
Slip Op. at 14. The court similarly reasons that, "[b]y the
same token, an agent's negotiation of a time extension to answer
shows the defendant's intention to resolve the matter by settlement
or . . . by litigation." Id.
Footnote 17:
See Hertz, 704 P.2d at 768.
Footnote 18:
See id. at 768-69.
Footnote 19:
See id. Our opinion in Hertz suggests that, at the time of
the default, Providence Washington had not yet decided whether it
would provide Hertz with counsel. Id. at 769.
Footnote 20:
Id. at 773 (citations omitted).
Footnote 21:
Id.
Footnote 22:
The law firm's records summarized the contact as follows:
Lange, Robert Ernest, 18350 - for DLF -
3/22/96 -- On 3/22/96, 10:38 DLF wrote:
Wesley Brown Jr. called this am and
wanted to know when he was going to be going to court. I returned
his call to let him know there wasn't a court date yet but that he
needed to answer the complaint - mail it to the courts w/a copy to
CHP.
I left the message w/his mother as he had
left to go fishing shortly before I called. The mother did tell me
that John Willis the other person you are wanting to serve is in
Juneau attending a . . . program. She did say that Mr. Brown has
not attended his . . . program yet. Mr. Brown's phone # is . . . .
Brown would later indicate that he never received the
message. The trial court did not question his explanation.
Footnote 23:
Hertz, 704 P.2d at 772 (quoting Salomon, 637 P.2d at 299 n.1).
Footnote 24:
The court suggests that the failure to comply with Cook might
be excused on equitable grounds because "Brown's interests must be
balanced against the interests of Lange, who has a right to a
timely determination of his damages." Slip Op. at 11. But the
record demonstrates that this equitable concern is unfounded:
Lange's attorney applied for entry of default less than two months
after filing Lange's complaint. Having secured the default, he
waited more than fourteen months before moving for entry of
judgment. Obviously, then, Lange's attorney was in no hurry to
obtain "a timely determination of [Lange's] damages." Id.
Footnote 25:
Slip Op. at 14.
Footnote 26:
Slip Op. at 14 & n.38 (quoting Model Rule 4.3 cmt. (1998)).
Footnote 27:
Alaska R. Prof. C. 4.3.
Footnote 28:
Alaska R. Prof. C. 4.3 cmt.
Footnote 29:
Hertz, 704 P.2d at 773.
Footnote 30:
See Slip Op. at 14 n.38 (quoting Model Rule of Prof. Conduct
4.3 cmt (1998)).
Footnote 31:
The omitted commentary's overbreadth can be readily
illustrated by applying the commentary to the present case. Here,
Lange's attorney instructed his legal assistant to tell Brown that
"he needed to answer the complaint -- mail it to the courts [with
a] copy to [Lange's attorneys]." This advice seems sensible and
proper. Yet under the literal terms of the omitted Model Code
commentary, we would have to conclude that the advice violated Rule
4.3 by (1) improperly advising Brown (an unrepresented litigant)
how to handle his case ("he needed to answer the complaint" and
"mail it to the court"); and (2) failing to give him the only
advice that the comment actually permits -- the advice "to obtain
counsel."
Footnote 32:
503 P.2d at 1049 n.6.
Footnote 33:
In comparable circumstances, courts in other jurisdictions
have recognized an ethical duty to inquire or give notice before
seeking a default. See, e.g., Bellm v. Bellia, 198 Cal. Rptr. 389,
390 (Cal. App. 1984) (suggesting that "as a matter of professional
courtesy counsel should have given notice of the impending
default"); Smith v. Johnston, 711 N.E.2d 1259, 1264 (Ind. 1999)
(specifying that "courtesy, common sense and the constraints of
[the] judicial system" required an attorney to attempt to make
contact with his opponent before seeking a default judgment and
suggesting that failure to do so was an ethical violation);
Lalumera v. Nazareth Hosp., 456 A.2d 996, 999 (Pa. Super. 1983)
(discussing the court's frequent suggestion that courtesy required
counsel to give notice before seeking a default); Hartwell v.
Marquez, 498 S.E.2d 1, 4 n.5 (W. Va. 1997) (requiring a lawyer
seeking a default or dismissal to first notify opposing counsel and
observing that the ethical duties of "courtesy, candor, honesty,
diligence, fairness and cooperation" are owed not only to courts
and counsel, but also to the parties themselves); Miro Tool & Mfg.,
Inc. v. Midland Mach., Inc., 556 N.W.2d 437, 440-43 (Wisc. App.
1996) (Anderson, J., concurring) (lamenting that Wisconsin did not
follow California in recognizing an ethical duty to inform opposing
counsel before seeking entry of a default). Some of these rulings
confirm that this duty extends to the opposing party, not just to
opposing counsel. See, e.g., Smith, 711 N.E.2d at 1263-64;
Hartwell, 498 S.E.2d at 4 n.5.
