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Snyder v. American Legion Spenard Post No. 28 (09/02/2005) sp-5940
Snyder v. American Legion Spenard Post No. 28 (09/02/2005) sp-5940
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| RICHARD SNYDER,
| ) |
|
| ) Supreme Court Nos. S-
10860/S-11220 |
|
Appellant, | ) |
|
| ) Superior Court
No. |
|
v. | ) 3AN-01-10786
CI |
|
| ) |
|
AMERICAN LEGION SPENARD | ) O P I N I O
N |
|
POST NO. 28, a Non-Profit Corporation,
| ) |
|
| ) |
|
Appellee. | ) [No. 5940 - September 2,
2005] |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Eric T. Sanders, Judge.
Appearances: Richard Snyder, pro se,
Anchorage, and Darryl L. Thompson, Law
Office of Darryl L. Thompson, Anchorage, for
Appellant. Ronald A. Offret, Aglietti,
Offret & Woofter, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
BRYNER, Chief Justice, dissenting.
I. INTRODUCTION
The superior court granted summary judgment to the
American Legion Spenard Post No. 28 after the defendant, Richard
Snyder, failed to appear at trial. After final judgment was
entered, Snyder appealed. Subsequently, he moved for relief
under Alaska Civil Rule 60(b)(1) and (4). The superior court
denied this motion, and from this denial Snyder has also
appealed. In this opinion we consider both appeals and conclude
that neither has merit. We therefore affirm.
II. PROCEEDINGS
On September 25, 2001, Post 28 sued Snyder, its former
finance officer. The complaint alleged that from January 1998 to
October 1999 Snyder wrote over 144 checks payable to himself in
an amount in excess of $110,000 for which no receipts were
provided. The complaint alleged that Snyder misappropriated
funds for his own use and failed to provide an accounting. The
complaint requested compensatory damages and punitive damages.
Attached to the complaint as Exhibit A was a listing of 144
checks by date and number that Snyder had allegedly fraudulently
written to himself. The total amount of the checks set forth in
the exhibit is $111,522.51.
Snyder answered the complaint through counsel. The
answer denied the allegations of wrongdoing and stated various
affirmative defenses such as unclean hands, estoppel, and
comparative negligence. Snyders attorney was permitted to
withdraw on June 12, 2002. A hearing was held on that date at
which Snyder was present. Snyder confirmed his mailing address
to the court for purposes of service of pleadings. All
subsequent notices and motions were mailed to that address and
not returned. Nevertheless, Snyder did not defend the case after
his lawyer withdrew. He did not appear for his August
deposition, respond to discovery propounded in July, file a
witness or exhibit list, respond to Post 28s motions for summary
judgment and discovery sanctions filed on August 30, or appear at
trial on September 23, 2002.
Snyder, a North Slope worker on a three-week-on/three-
week-off rotation, claims he received no notice of discovery or
trial, although he concedes that the documents may have been
received and misplaced while he was working. Snyder also claims
his attorney did not advise him of critical dates in the case
before his withdrawal, but he admits that he had the pretrial
planning report that listed three proposed trial dates, with the
first choice as September 23.
When Snyder failed to appear at trial, the superior
court granted Post 28s motion for summary judgment. Post 28 had
requested that Snyders answer and affirmative defenses be struck
as a discovery sanction, thereby warranting summary judgment
because there would be no disputed factual issues. On September
23, 2002, the superior court signed the order prepared by the
counsel for Post 28, which provided in relevant part as follows:
The Court hereby orders summary judgment
in favor of Plaintiff and strikes Defendant
Snyders Answers and Affirmative Defenses.
And the Court further finds that
Defendant Snyder breached his fiduciary
responsibility to the Post and trial of this
matter set for the week of September 23,
2002, is cancelled.
The court also added in handwriting the following additional
language: The motion for summary judgment was also granted
because the defendant did not oppose the motion. The court did
not sign a separate proposed form order submitted by Post 28 that
would have granted its motion for discovery sanctions; instead a
line was drawn across the form and moot was written on it.
On September 27, 2002, counsel for Post 28 submitted a
form final judgment in the principal amount of $111,522.51, the
sum of the 144 checks that Snyder had written to himself, plus
interest, costs, and attorneys fees. The document was served by
mail on Snyder but he did not respond to it. On October 10,
2002, the superior court signed the proposed judgment. Snyder
filed a timely appeal.
During the pendency of the appeal Snyder, on February
24, 2003, filed a motion for relief from the judgment. He
contended that (1) he was entitled to relief under Civil Rule
60(b)(4) because the trial court acted in a manner that was
inconsistent with due process, and (2) his failure to respond to
discovery, failure to appear at his deposition, and failure to
appear for trial were the result of excusable neglect under Civil
Rule 60(b)(1).
Superior Court Judge John Suddock denied this motion in
an opinion that carefully reviewed both the facts and the law.
Snyder timely appealed from this denial. The appeals were
consolidated by this court. We set forth Judge Suddocks opinion
at this point:
ORDER
The American Legion Spenard Post No. 28
(Legion) sued Richard Snyder, a former
officer, for embezzlement of about one
hundred thousand dollars. Mr. Snyder
retained counsel, Jody Brion. The Court
issued an order setting trial for September
23, 2002. When Mr. Snyder failed to pay
Brion, he was permitted to withdraw, on June
12, 2002.
On July 19, 2002, the Legion promulgated
discovery requests seeking Mr. Snyders bank
account and investment statements, so that it
could trace the allegedly embezzled funds.
Mr. Snyder did not answer this discovery.
Also on July 19, the Legion sent Mr.
Snyder a Notice of Deposition for August 9,
2002. Mr. Snyder did not appear for his
deposition.
On August 30, 2002, the Legion moved for
discovery sanctions, and for summary judgment
on liability and damages. Mr. Snyder did not
respond to either motion. He filed no
witness list or exhibit list. To all
appearances, from the withdrawal of his
attorney on June 10, through the trial date
and the entry of judgment on October 10,
2003, a period of some four months, Mr.
Snyder completely ignored his litigation. He
did so, even though by his own admission he
actually possessed the Report of Partys
Planning Meeting signed by his attorney on
December 18, 2001, requesting a trial date of
either September 23, September 30, or October
23, 2002.
On September 23, 2002, Mr. Snyder did
not appear for trial. The Court granted the
unopposed Motion for Summary Judgment, and
denied the Motion for Discovery Sanctions as
moot.1 The Court signed a judgment on
October 10, 2002, without objection from
Snyder.
On February 24, 2003, Mr. Snyder moved
pursuant to ARCP 60(b)(1,4) for relief from
judgment. He alleges excusable neglect under
60(b)(1), and a due process violation under
60(b)(4).
Mr. Snyder explains his failure to
answer the summary judgment motion, as
follows:
Regarding the Motion for
Summary Judgment, and the
Motion for Discovery
Sanctions, I do not
remember ever receiving
those documents. It is
possible that the
documents arrived when I
was out-of-town and then
misplaced, but I
certainly do not remember
seeing them. I work on
the North Slope on a 3-
week rotationand I was on
the North Slope on 23
September 2002, the trial
date. I did not know
that I was supposed to be
in trial, as the only
document that I had was a
copy of a document
entitled the parties
planning order, which
listed three possible
trial dates.
Had I been warned and
properly advised as a pro
se defendant, either by
my counsel or by the
Court, I would have been
able to file some kind of
response or sought out
some help in filing a
response. But I received
no warnings or advice
from anyone regarding
discovery, or the Motion
for Summary Judgment.
Also, I am not familiar
with the rules regarding
procedure in the trial
courts, and I have no
experience in civil
matters.
Affidavit of Richard Snyder, Ex. G to
Plaintiffs opening memorandum.
[Snyders] claim of excusable neglect in
failing to oppose the summary judgment motion
thus rests on a service related ground and a
pro se ineptitude ground. The pleadings were
all sent to his address, the same address at
which his wife signed for the service of the
original complaint. Mr. Snyder makes no
allegation of postal irregularity or problems
with receiving mail. The items were not
returned to the Legion as undeliverable. He
raises no issue of fact as to whether the
pleadings were properly served on him
pursuant to the civil rules.
Nor does Mr. Snyder offer an explanation
of why he did not read his mail in the normal
course. As a litigant, he is required to
provide a service address. Since a Court
cannot literally move a litigants eyes across
a page, service alone constitutes
constructive knowledge of the data contained
in a pleading. In the exercise of reasonable
caution, a litigant must understand that
pleadings requiring affirmative responses
will be served at varied times during the
litigation. If a litigant chooses to absent
himself from his address for periods of time,
he must make provision for forwarding of
mail, given that the civil rules can require
a response to a pleading within ten days. At
the very least, a litigant must make
provision to gather and read his mail upon
his return to the service address.
Here, Mr. Snyder offers absolutely no
explanation for his failure to read his mail.
Indeed, he does not exclude the possibility
that he simply declined to open the
envelopes, set them aside, and lost track of
them. He does not aver that he is a
particularly messy housekeeper; or that he is
an alcoholic; or that he was depressed; or
that he was fighting with his wife, who
perhaps sabotaged him. He simply states that
he does not presently recall the documents,
and that they were possibly misplaced.
Were this deemed a basis for a finding
of excusable neglect, any litigant willing to
swear to a lack of present recollection of
receipt of any pleading would have an
automatic excuse for derailing a lawsuit.
Absent some explanation of the reasons why he
did not behave as postal patrons normally
behave, and as litigants are required to
behave, Mr. Snyder raises no basis on which
the Court can ground a finding of excusable
neglect.
Secondly, Mr. Snyder argues that once
his counsel withdrew, the Court should have
explained litigation procedure to him,
including the necessity to oppose motions for
summary judgment. If, as he alleges, he did
not read the Motion for Summary Judgment,
such an advisement would not have mattered.
Further, our Supreme Court has neither
required nor encouraged trial courts to
conduct training seminars for pro se
litigants. The superior court was under no
duty to warn [Mr. Snyder] of the necessity of
opposing the [Legions] Motion for Summary
judgment. Bauman v. State, Div. of Family &
Youth Servs., 768 P.2d 1097, 1099 (Alaska
1989).
Mr. Snyder does not allege that, in
fact, he was unaware that motions for summary
judgment need to be opposed. In effect, he
is arguing that pro se litigants are entitled
to be read their rights, like defendants at a
criminal arraignment; further, failure to do
so per se entitles a litigant to relief from
procedural defaults.
The Alaska Supreme Court has
consistently held that litigants who are
litigating in good faith but who manifest
ignorance of procedural requisites are
entitled to solicitude. See Kaiser v.
Sakata, 40 P.3d 800 (Alaska 2002). However,
courts are not required to train pro se
litigants in rudimentary matters of civil
procedure that are either common knowledge or
readily discerned through the most cursory
reading of the civil rules:
We decline to extend
Breck to require judges
to warn pro se litigants
on aspect of procedure
when the pro se litigant
has failed to at least
file a defective
pleading. It strikes us
as common knowledge that
initiating and pursuing a
civil lawsuit can be a
difficult and complex
procedure. The Alaska
Rules of Civil Procedure
have been promulgated for
the specific purpose of
giving fair and
reasonable notice to all
parties of the
appropriate procedural
standards that should be
uniformly applied when
any party, including a
pro se litigant, seeks
relief in the pending
actionwe also choose not
to extend the protections
some courts have afforded
pro se prisoners to other
pro se litigants. To
require a judge to
instruct a pro se
litigant as to each step
in litigating a claim
would compromise the
courts impartiality in
deciding the case by
forcing the judge to act
as an advocate for one
side. We hold that the
superior court was under
no duty to warn [the
litigants] of the
necessity of opposing the
defendants motion for
summary judgment.
Bauman, supra p. 115.
Mr. Snyder does not appear before this
Court as a good faith litigant trying to do
his best, defeated by esoteric procedural
requisites. He makes no showing that he made
the least effort prior to entry of judgment
to be a responsible litigant. He makes no
showing of extraneous difficulties, such as
mental illness or alcoholism, which explain
his conduct. Since neither of Mr. Snyders
asserted bases for a finding of excusable
neglect is sustainable, relief under ARCP
60(b)(1) is denied.
Mr. Snyder also argues that any
imposition of litigation ending sanctions for
discovery violations was impermissible.
Judge Sanders did not impose discovery
sanctions, but rather denied the Motion for
Sanctions as moot. Instead, he granted an
unopposed Motion for Complete Summary
Judgment. He did so against a litigant who
had not appeared for his deposition; who had
not responded to discovery requests; who had
not answered the summary judgment motion; who
plausibly appeared from the summary judgment
motion and supporting affidavits to have
embezzled in fact; who had filed no witness
nor exhibit list; and who had not appeared
for trial.
In Bauman, supra, the Supreme Court
noted that the proponent of a summary
judgment motion has no absolute right to
prevail, merely because the opponent fails to
respond. The Court analyzed defendants
claims, and found them unlikely to overcome
the States qualified immunity defenses. The
defendants had moved below for
reconsideration, but had still not raised
issues of material fact. On these facts, the
Court allowed the summary judgment to stand.
In the instant case, Mr. Snyder first
established the existence of material issues
of fact in his affidavits filed February 24,
2003, five months after the grant of summary
judgment. Had he done so in a timely motion
for reconsideration, Bauman suggests that the
case should have proceeded to trial.
This case is not Bauman. The Baumans
were behaving as active litigants. As Mr.
Snyder notes, the instant case is more
analytically akin to a default. Mr. Snyder
was not physically present for trial. He was
constructively on notice of his trial date,
because his attorney was served with the
Courts pretrial order. He had actual
knowledge that his attorney had requested a
trial setting in the September-October time
frame. He does not allege that his attorney
withheld the file from him, or refused to
divulge the trial date. Mr. Snyder simply
abandoned the litigation, for a period
exceeding four months.
Under those circumstances, the grant of
summary judgment to the Legion was a
reasonable way to resolve the lawsuit. Mr.
Snyders citations to discovery violation
cases are not on point. His right to due
process was not violated when the court
granted judgment against him as a defaulting
litigant. His right to relief from the
consequences of his default is via a showing
of excusable neglect, which he has utterly
failed to do.
Mr. Snyders Motion For Relief From
Judgment pursuant to ARCP 60(b)(1,4) is
denied.
III. STANDARD OF REVIEW
A grant of summary judgment is reviewed de novo.1 We
review a courts refusal to set aside a judgment pursuant to
Alaska Civil Rule 60(b) for abuse of discretion.2 We also review
for abuse of discretion a courts decision on guidance to a pro se
litigant.3
IV. DISCUSSION
A. The Direct Appeal Entry of Default Against Snyder
Snyder argues that the superior court abused its
discretion in granting discovery sanctions that resulted in
summary judgment against him. Post 28 contends that the
discovery sanctions were dismissed as moot and that the court
entered summary judgment because Snyder failed to oppose the
motion and to appear at trial.
We may affirm a judgment on any grounds that the record
supports, even if not relied on by the superior court.4 In
Snyders case, the grant of judgment against him could have been
based on his non-appearance at trial. Alaska Civil Rule 55(c)(1)
provides that if [a] party fails to appear for trial . . . the
court may proceed ex parte upon any motion for default or default
judgment.5 When Snyder failed to appear at trial on September
23, 2002, the superior court could have, in its discretion,
entered a default against Snyder based on this provision. The
rule that an appellate court may affirm a judgment on any ground
supported by the record regardless of whether the ground was
relied on by the trial court should not ordinarily extend to
discretionary rulings that the court might properly have declined
to make. But where it is clear that the court would have
exercised its discretion in a manner that upholds the judgment,
we believe that an appellate court can properly apply the rule.
That is the case here. When Snyder did not appear for
trial, Superior Court Judge Eric T. Sanders granted Post 28s
motion for summary judgment, employing the reasons stated in the
proposed order lodged by Post 28 (Snyders answers and affirmative
defenses were stricken and Snyder breached his fiduciary
responsibility to Post 28) and added as another reason Snyders
non-opposition to the summary judgment motion. Judge Sanders
obviously believed at this point that Snyder had forfeited his
right to defend the case. If Post 28s counsel had requested the
additional remedy of entry of a default under Rule 55(c)(1) it
seems clear that such a request would have been granted. Entry
of default would unquestionably have been proper, for the fails
to appear for trial language of the rule was specifically
designed to end the previously existing uncertainty as to a trial
courts power in cases like this. We could in theory order a
limited remand requesting the trial judge to decide whether he
would have exercised his discretion to enter a default, but we
consider that such a remedy under the circumstances of this case
would be a pointless judicial exercise. In addition, Judge
Sanders has retired from the bench and is actively practicing
law, so the availability of this option is unclear. We conclude
therefore that judgment against Snyder should be affirmed based
on his failure to appear for trial.
The superior courts issuance of a final judgment
awarding $111,522.51 in damages was also justified. The superior
court was authorized to proceed ex parte and without notice to
determine damages under subparagraph (c)(1). Under that
subsection a party who fails to appear for trial has the same
status as a party who has not appeared at all in the case. In
such cases ex parte proceedings to determine damages are
permissible even when the damages cannot by computation be
reduced to a sum certain:
When the damages cannot be reduced to a sum
certain, as in the case at hand, the superior
court may conduct such hearings or order such
references as it deems necessary and proper
to determine the amount of damages. 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.[6]
Moreover, the damages claim in this case was for a sum
certain or for a sum which can by computation be made certain and
thus no hearing on damages was required.7 Post 28 alleged that
Snyder fraudulently wrote 144 checks to himself, totaling
$111,522.51, and attached a list of the checks to its complaint.
With its summary judgment motion, Post 28 submitted an affidavit
from a member of its audit committee verifying that 144 checks
were written by Snyder, that they totaled $111,522.51, and that
when the committee asked Snyder for receipts to back up the
checks he did not respond, and has refused to answer our requests
for information other than to say he gave receipts to the Posts
accountant. Post 28 also submitted excerpts from the deposition
of the accountant who testified that he did not receive receipts
from Snyder and that if he received vendor invoices from Snyder,
that information would be returned each month: But with respect
to expense documentation, that went back to the Post every month
what small amount of information we ever had. The accountant
also testified that it was a usual and customary practice for
Post financial officers to reimburse themselves for purchases
made from personal funds for Post purposes.
This showing does not establish that Snyder necessarily
embezzled the proceeds from each of the checks. The accounting
requested by Post 28 was designed to determine that question.
But having failed to appear for trial, Snyder was no longer
entitled to an accounting.
The effect of a default is to establish as true the
allegations of the complainant, unless they are clearly untrue:
[A] default establishes the well pleaded
allegations of the complaint unless they are
incapable of proof or are contrary to facts
judicially noticed or to uncontroverted
evidence presented by the parties.
Uncontroverted evidence disproving the
allegations of plaintiffs complaint refers to
evidence that could not possibly be rebutted
if the non-defaulting party were permitted a
trial. If the evidence offered by the
defaulted party merely tends to show that an
allegation is not true, then the allegation
must be taken as true.[8]
In this case there is a well pleaded allegation that Snyder
fraudulently took the money belonging to plaintiff American
Legion in the amounts and by the checks set forth on Exhibit A,
attached hereto, referring to the list of 144 checks. There is
also some evidence that not all the checks represented fraudulent
transactions. But this evidence is not uncontroverted evidence
in the sense required by the applicable standard because it is
not evidence that could not possibly be rebutted. We conclude
therefore that given his failure to appear, Snyder is precluded
from defending on the grounds that the proceeds from the checks
in question were not appropriated by him.
B. Appeal from the Denial of Rule 60(b) Relief
Snyder argues that the superior court erred when it
denied his motion to set aside the judgment under Civil Rule
60(b)(1) and (b)(4). The arguments he makes do not go beyond
those that he presented to the superior court. We believe that
they were properly rejected for the reasons expressed by the
superior court in its opinion, which we have set out above.
V. CONCLUSION
The judgment of the superior court of October 10, 2002,
is AFFIRMED. The order of the superior court of August 21, 2003,
denying Snyders motion for Civil Rule 60(b) relief is also
AFFIRMED.
BRYNER, Chief Justice, dissenting.
I disagree with the courts decision to affirm the
judgment against Snyder. In my view, the judgment cannot be
upheld for several interrelated reasons.
Because the superior court dismissed Snyders case
without independently reviewing the record, its dismissal cannot
properly be affirmed on the theory that it was a summary judgment
warranted by Snyders failure to respond to Post 28s motion for
summary judgment. For despite Snyders failure to respond, [i]t
remain[ed] the duty of the trial court to determine whether the
record present[ed] any factual issues which would preclude the
entry of summary judgment as a matter of law.1
Nor can the judgment against Snyder be sustained as a
sanction for his discovery violations. Civil Rule 37(b)(3)
prohibits a trial court from ordering dispositive discovery
sanctions unless it first finds that the violation was willful
and that no lesser sanction would be effective.2 Our case law
separately commands similar findings.3 Here, the trial court
failed to comply even minimally with these requirements.
The opinion attempts to avoid these deficiencies by
affirming on an alternative theory. Even though the superior
court actually dismissed the case on summary judgment and
cancelled the trial, the opinion reasons that Snyders failure to
appear for trial could have justified the entry of a default
against him; concluding that the trial court plainly would have
taken that course if the case had not been dismissed on summary
judgment, the opinion treats Snyders judgment as one entered upon
his default.
But even if this assumption were true, that is, even if
it were clear that the trial court would have held Snyder in
default for missing his trial, it would not necessarily follow
that the court would have proceeded to enter an ex parte default
judgment against him especially a judgment in the full amount
claimed by the Post.
Under Alaskas Civil Rules, a default and a default
judgment are two separate creatures and are governed by different
requirements.4 Civil Rule 55(a) allows the trial court to enter
a default sua sponte. In contrast, Rule 55(c) only allows the
court to enter a default judgment upon proper motion. Although
the rule allows trial courts to accept ex parte motions for
default judgment, it grants them discretion to require that such
motions be properly noticed. And if the trial court finds any
uncertainty on the issue of damages, the rule authorizes the
court to demand further evidence, provides for a hearing, and
grants broad discretion to deny entry of a default judgment.5
We have previously emphasized that these procedural
protections are necessary because, in the interests of justice,
there must be some degree of assurance that plaintiffs claim is
valid and not false or frivolous.6 We have likewise recognized
that a trial courts failure to exercise available discretion
amounts to an abuse of that discretion.7 Yet here, Post 28s
failure to file the requisite motion left the superior court with
no occasion to follow the proper procedures for entering a
default judgment or to exercise the discretion they would have
permitted. The absence of a motion reduced the entry of judgment
to a ministerial act: the superior court mechanically entered a
final judgment totaling over $137,000 without any independent
consideration of the record or the merits of Post 28s claim, as
would have been required under Rule 55. Given these
circumstances, it seems untenable to affirm the superior courts
summary judgment ruling which at most evidenced the courts
willingness to declare a default by treating it as a
discretionary ruling that was never formally requested or
actually considered.
Nor can this problem be cured by speculating about what
the superior court might have done had the issue been properly
raised. As the record now stands, there is good reason to
suspect that, if the trial court had actually considered the
issue, as a properly filed motion for summary judgment would have
required it to do, the court may not have entered a default
judgment without demanding additional evidence at least not a
judgment in the full amount claimed. From the verified
information in the record it appears that Post 28 based its claim
mainly on the allegation that Snyder wrote a series of checks to
himself while serving as the Posts financial officer.8 Yet
uncontradicted evidence precludes drawing any inference of
impropriety from this conduct alone: According to Post 28s own
CPA, Owen Freeman, it was a usual and customary practice for Post
28s financial officers to pay business expenses from their
personal funds and reimburse themselves for their payments.
Because verified record evidence fails to establish a prima facie
claim for damages, let alone for the full amount claimed by the
Post, I see no reasonable basis for predicting that, if the
default judgment procedures required by Civil Rule 55 had been
followed, the superior court would have automatically entered
judgment against Snyder for the full amount claimed.
The opinion nonetheless reasons that there was no need
for supporting evidence here. Citing Syndoulos Lutheran Church
v. A.R.C. Industries, Inc.,9 it maintains that, because Snyder
could properly have been held in default, the superior court was
authorized to enter a default judgment against him based solely
on the well pleaded allegations of the Posts complaint. But
Syndoulos fails to support this proposition; indeed, it cuts
against the propriety of dispensing with a trial on damages in a
situation like Snyders.10
In Syndoulos, the trial court, despite holding the
defendant to be in default, actually did conduct a post-default
trial on damages; and on appeal, over the plaintiffs objections,
we expressly recognized that, despite the default, the defendant
had the right to contest the issue of liability at his damages
trial by disproving the complaints allegations:
We interpret [Civil Rule 55(c)(1)] as
permitting the superior court to question a
defendants liability after a default has been
entered against him. If the court determines
that in order to enter the judgment it is
necessary for the plaintiff to present
evidence supporting one or more of the
plaintiffs allegations and if the plaintiff
is unable to adduce any evidence tending to
support the questioned allegations, then a
judgment should be entered dismissing the
plaintiffs complaint.[11]
Under Syndoulos, then, Snyder should at least have been
given an opportunity to defend himself at a trial on damages
before a default judgment could be entered against him.
I therefore dissent.
_______________________________
1 The Legion had filed a proposed order
granting its motion for discovery sanctions.
Judge Sanders drew a line through the text
and wrote the word moot on the proposed
order. There is no indication the stricken
order was served on either party.
1 E.g., Native Vill. of Elim v. State, 990 P.2d 1, 5
(Alaska 1999).
2 E.g., Brown v. Lange, 21 P.3d 822, 824 (Alaska 2001).
3 E.g., Genaro v. Municipality of Anchorage, 76 P.3d 844,
845 (Alaska 2003).
4 E.g., Marshall v. First Natl Bank of Alaska, 97 P.3d
830, 835 (Alaska 2004); Ransom v. Haner, 362 P.2d 282, 285
(Alaska 1961) ([I]t is a rule of law that an appellee may urge,
and the appellate court should consider in defense of a decree or
judgment any matter appearing in the record, even if rejected
below and even if appellees argument may involve an attack upon
the reasoning of the lower court or an insistence upon matter
overlooked or ignored by it.).
5 Civil Rule 55(c)(1) provides:
In all other cases the party entitled to
a default judgment shall apply to the court
therefor; but no default judgment shall be
entered against an infant or incompetent
person unless represented in the action by a
general guardian, committee, conservator, or
other such representative who has appeared
therein. If the party against whom default
judgment is sought has appeared in the
action, that party (or, if appearing by
representative, the partys representative)
shall be served with written notice of the
application for judgment at least 3 days
prior to a decision on the application. This
written notice requirement and the memorandum
requirement of (c)(2) do not apply if the
party fails to appear for trial in which case
the court may proceed ex parte upon any
motion for default or default judgment. If,
in order to enable the court to enter
judgment or to carry it into effect, it is
necessary to take an account or to determine
the amount of damages or to establish the
truth of any averment by evidence or to make
an investigation of any other matter, the
court may conduct such hearings or order such
references as it deems necessary and proper.
(Emphasis added.)
6 Brown, 21 P.3d at 826 (footnotes omitted).
7 See Alaska R. Civ. P. 55(b)(1), (c)(1).
8 Syndoulos Lutheran Church v. A.R.C. Indus., Inc., 662
P.2d 109, 112 (Alaska 1983) (citations omitted). In Syndoulos
these principles were applied to a liability rather than a
damages question. But we believe that they should apply to this
case because this is in part an accounting action in which
liability and damages are inextricably intertwined.
1 Am. Rest. Group v. Clark, 889 P.2d 595, 598 (Alaska
1995).
2 Alaska R. Civ. P. 37(b)(3) states:
Prior to making an order [for sanctions]
under sections (A), (B), or (C) of
subparagraph (b)(2) the court shall consider
(A) the nature of the violation,
including the willfulness of the conduct and
the materiality of the information that the
party failed to disclose;
(B) the prejudice to the opposing
party;
(C) the relationship between the
information the party failed to disclose and
the proposed sanction;
(D) whether a lesser sanction would
adequately protect the opposing party and
deter other discovery violations; and
(E) other factors
deemed
appropriate by
the court or
required by
law.
The court shall not make an order that
has the effect of establishing or dismissing
a claim or defense or determining a central
issue in the litigation unless the court
finds that the party acted willfully.
3 See, e.g., Underwriters at Lloyds London v. The
Narrows, 846 P.2d 118, 119 (Alaska 1993); Schandelmeier v.
Winchester Western, 520 P.2d 70, 74-75 (Alaska 1974).
4 See Alaska R. Civ. P. 55(a)-(c).
5 See Alaska R. Civ. P. 55(c)(1); Brown v. Lange, 21 P.3d
822, 825 n.7 (Alaska 2001) (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.); 10A Charles A. Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure 2685 (3d
ed. 2005) (When an application is made to the court . . . for the
entry of a judgment by default, the district judge is required to
exercise sound judicial discretion in determining whether the
judgment should be entered.).
6 Guard v. Benson, 438 P.2d 219, 221 (Alaska 1968).
7 Cf. Alaska Cent. for the Envt v. Rue, 95 P.3d 924, 932
(Alaska 2004) (We have recognized that outright refusal to
consider the various alternatives available as a matter of
discretion . . . is a failure to exercise any discretion at all.
The commissioners refusal here to consider any scientific
information except taxonomic classification in the technical
sense amounted to an abuse of discretion.).
8 The only other verified information in the record
suggesting misconduct was an allegation that, at some unspecified
later time, Snyder was asked to produce receipts to back up these
checks but said that he had given them to the Posts accountant
an assertion that Freeman denied in his deposition.
9 662 P.2d 109 (Alaska 1983).
10 In any event, given Civil Rule 9s provision requiring
claims of fraud to be pleaded with particularity, it seems
questionable to assume that the conclusory charges in the Posts
complaint would qualify as well pleaded allegations of fraud
establishing a liquidated damages claim for the full amount.
11 Syndoulos Lutheran Church, 662 P.2d at 112 (internal
citations omitted).
