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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kirk v. Demientieff (10/06/2006) sp-6059
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
| KENNETH KIRK, | ) |
| ) Supreme Court No. S- 11760 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 4BE-02-00281 CI |
| ) | |
| LAVERNA DEMIENTIEFF and | ) O P I N I O N |
| UNITED COMPANIES, | ) |
| ) No. 6059 - October 6, 2006 | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District, Bethel,
Leonard R. Devaney, Judge.
Appearances: Michael C. Geraghty, Delisio
Moran Geraghty & Zobel, P.C., Anchorage, for
Appellant. Laura L. Farley and Michelle M.
Meshke, Farley & Graves, P.C., Anchorage, for
Appellee United Companies.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
Attorney Kenneth Kirk appeals the superior courts
denial of his motion to intervene in a tort suit brought by his
former client, Laverna Demientieff. Kirk sought to intervene in
that suit to appeal the superior courts order denying relief
from its earlier judgment dismissing Demientieffs complaint for
violating the statute of limitations. Demientieff had no
interest in appealing that judgment or the subsequent order
denying relief from the judgment because she had fired Kirk and
was suing him for malpractice. In moving for intervention, Kirk
claimed that Demientieffs refusal to appeal the order denying
relief from the judgment gave him an adequate justification to
intervene. The superior court rejected his motion, finding that
it was untimely because Kirk could have intervened on the same
ground more than a year earlier, when Demientieff had refused to
directly appeal the original judgment of dismissal. Because the
record supports the superior courts finding that Kirk reasonably
should have moved to intervene sooner, we hold that the court did
not abuse its discretion in denying Kirks motion to intervene.
II. FACTS
A driver employed by United Companies injured Laverna
Demientieff in an auto accident in Bethel on October 31, 2000.
Demientieff hired the Anchorage law firm of Kenneth Kirk and
Associates (Kirk) to represent her in her tort action against
United Companies. Kirk sent Demientieffs complaint by express
mail to the superior court in Bethel on October 30, 2002, the day
before the statute of limitations on the claim expired. Although
the complaint arrived at the Bethel Post Office and was
apparently placed in the courts post office box that day, the
court did not acknowledge receiving it for filing until November
4, 2002.
United moved to dismiss the complaint for violating the
statute of limitations. Kirk opposed the motion on behalf of
Demientieff, offering evidence to show that the complaint had
arrived in Bethel on October 31, that the post office had
attempted delivery that day, but that the court simply missed the
delivery. On March 26, 2003, despite Demientieffs opposition,
Superior Court Judge Leonard R. Devaney granted Uniteds motion to
dismiss, expressly confining his ruling to the pleadings.
Demientieff moved for reconsideration on April 3, 2003.
Pointing to the evidence presented in support of her opposition,
Demientieff argued that the superior court erred by basing its
dismissal entirely on the pleadings. The superior court never
ruled on Demientieffs motion for reconsideration; thus, under
Alaska Civil Rule 77, the motion was deemed denied thirty days
after being filed.1 On July 22, 2003, the superior court issued
a final judgment dismissing Demientieffs case.
Meanwhile, on April 4, 2003, the day after Kirk filed
Demientieffs motion for reconsideration, Demientieff hired a new
lawyer, who sent Kirk a letter advising him that Demientieff did
not want Kirk to take any further action in her case. After
noting that he had reviewed the order from Judge Devaney granting
the motion to dismiss for failure to file the suit within the
statute of limitations, Demientieffs new attorney advised Kirk to
contact your malpractice carrier and put them on notice that Ms.
Demientieff has hired my firm to represent her in an action
against your office. On April 8 Demientieffs attorney filed a
formal notice of substitution of counsel with the superior court
in Bethel. And on April 15, 2003, he sent Kirk another letter,
expressly refusing to supplement Kirks April 3 motion for
reconsideration and unequivocally advising Kirk that Demientieff
would not appeal the superior courts order of dismissal, because
I believe that such an appeal would be without merit.
Despite the substituted appearance by Demientieffs new
counsel and the April 15 letter advising Kirk to take no further
action in the case, on May 1, 2003, Kirk filed a Sworn Supplement
to Motion to Reconsider, in which, acting as former attorney for
the Plaintiff, he informed the court that the Bethel Postmaster
had told him that the post office in Bethel received an express
mail delivery for the court on October 31, 2002, and had placed a
notice to that effect in the courts post office box that morning.
It is possible, Kirks supplement observed, that the person who
picked up the mail for the courthouse that day, simply took the
slip with him or her, without picking up that mail itself. Kirk
went on to argue that, [i]n those circumstances, the case should
not be dismissed under the statute of limitations. Beyond
submitting this supplemental information, Kirk did not file
anything seeking further relief; nor did he seek to intervene in
the case at that time.
In late August 2003, thirty days after the superior
court entered its July 22 judgment dismissing Demientieffs case,
the allowable time for appealing that judgment expired without
any appeal having been filed.2
On September 24, 2003, Demientieff filed a malpractice
action against Kirks law firm. About nine months later, in May
2004, Kirk, through his malpractice attorney, stipulated with
Demientieffs attorney to let Kirks attorney file on Demientieffs
behalf a motion for relief from judgment seeking to set aside the
order dismissing her personal injury claim as time-barred. Under
the terms of the stipulation, however, the malpractice action
would go forward regardless of the motion; and Demientieff
expressly d[id] not agree . . . or in any way bind herself to the
prosecution of an appeal if the motion is unsuccessful.
In keeping with the stipulation, Kirks counsel filed a
motion for relief from judgment on June 15, 2004, nearly eleven
months after Judge Devaney entered the final judgment dismissing
Demientieffs case. The motion asked the court to grant
Demientieff relief from judgment under Alaska Civil Rule 60(b)(1)
on account of mistakes of law allegedly made by the court.3 The
argument advanced in the new motion was essentially similar to
the one set out in the earlier motion for reconsideration but
offered additional evidence. The new evidence suggested that the
complaint was placed in the courts Bethel post office box on
October 31, 2002, but that the court failed to pick up its mail
from its box until November 4. Citing analogous cases from other
jurisdictions, the motion asserted that, under these
circumstances, the complaint should have been deemed filed when
it was placed in the courts post office box.
United opposed Demientieffs motion for relief from
judgment, characterizing it as nothing more than an untimely
appeal. On October 12, 2004, after considering Demientieffs
motion and Uniteds opposition, Judge Devaney entered an order
denying relief from judgment, primarily because the motion was
untimely. In ruling that Demientieff had taken too long to seek
relief, the court emphasized that under Rule 60(b)(1), a motion
for relief from judgment based on a mistake of law ordinarily
must be filed within the time frame allowed for a direct appeal
thirty days. Here, the court pointed out, Kirk waited nearly
eleven months after entry of judgment before filing Demientieffs
motion. Although the court recognized that the thirty-day
deadline could be relaxed in a truly exceptional case, it noted
that such exceptions would be appropriate only upon proof of
compelling circumstances justifying the extraordinary delay.
Here, the court found, Demientieff had failed to show any
arguably compelling justification for exceeding the thirty-day
deadline.
Soon after the superior court announced its decision,
Demientieff notified Kirk that she would not consent to an appeal
a choice that the stipulation expressly allowed her to make. On
October 25, 2004, Kirk moved to intervene as a matter of right
under Civil Rule 24(a) for the purpose of appealing the order
denying the Rule 60(b) motion. Asserting that his interest in
the case sufficed to require intervention, he argued that his
attempt to intervene in the case was timely because he sought to
intervene as soon as Demientieff informed him that she would
decline to appeal. According to Kirk, Demientieffs decision left
him no option but to seek intervention to pursue the appeal.
Judge Devaney denied intervention, finding Kirks motion
untimely because his interest in intervening first arose long
before Demientieff filed her motion for relief from judgment.
Specifically, the superior court found, Kirk knew that his
interest in the case diverged from Demientieffs as soon as he
learned that Demientieff had hired a new lawyer and intended to
sue him for malpractice; in the courts view, then, Kirk should
have moved to intervene before the deadline for directly
appealing the original judgment.
Kirk filed this appeal from the superior courts ruling
on intervention.
Since filing this appeal, Kirk has entered into an
agreement to settle the malpractice claim with Demientieff; as
part of the settlement, Demientieff agreed to give Kirk an
assignment of her personal injury claim against United.
III. DISCUSSION
A. Parties Arguments
On appeal, Kirk challenges the superior courts ruling
on intervention, insisting that the court erred in finding that
his motion to intervene was untimely. Kirk argues that he could
not reasonably have been expected to seek intervention earlier
because his interest in the personal injury action aligned with
Demientieffs and was being adequately represented by her until
she informed him that she did not intend to appeal the superior
courts October 12, 2004, order denying her motion for relief from
judgment. Kirk separately argues that, if we accept his position
on the issue of timeliness, we should proceed to review the
superior courts decision denying Demientieffs Rule 60(b) motion.
On that point, Kirk urges us to reverse the superior courts
finding that the Rule 60(b) motion was untimely and to hold that
relief from judgment should have been granted based on the
evidence indicating that Demientieffs complaint was delivered to
the superior courts post office box in Bethel on October 31,
2001, the day before the statute of limitations expired.
In response, United urges us to uphold the superior
courts order denying Kirks motion to intervene. It contends that
Kirk fails to meet the requirements for intervention because: his
motion was indeed untimely; he has no valid interest in
Demientieffs action against United; and his intervention would
cause prejudice to United by forcing it to defend an untimely
appeal. Kirk could have attempted to intervene to appeal the
original decision, United insists, but he chose not to do so.
United further argues that even if Kirk were allowed to
intervene, there would be no basis for reversing the superior
courts order denying Demientieffs motion for relief from
judgment. In Uniteds view, Kirk had no compelling reason to wait
until eleven months after the final judgment was entered before
filing Demientieffs Rule 60(b) motion. And in any event, United
maintains, the motion lacks merit because the superior court
correctly ruled that Kirk filed Demientieffs complaint after the
statute of limitations expired.
B. Civil Rule 24(a) Timeliness Requirement
Kirk moved to intervene as a matter of right under
Alaska Civil Rule 24(a). The superior court denied his motion,
finding that it was untimely because Kirk waited for more than a
year after Demientieff filed her malpractice action against Kirk
before he sought to intervene in her underlying suit. Rule 24(a)
expressly requires a motion for intervention to be timely:
Upon timely application anyone shall be
permitted to intervene in an action when the
applicant claims an interest relating to the
property or transaction which is the subject
of the action and the applicant is so
situated that the disposition of the action
may as a practical matter impair or impede
the applicants ability to protect that
interest, unless the applicants interest is
adequately represented by existing
parties.[4]
We have adopted the four-part analysis widely used by
federal courts to determine whether a motion to intervene meets
Rule 24s timeliness standard; this test requires us to consider:
(1) the length of time the applicant knew or
reasonably should have known that its
interest was imperilled before it moved to
intervene; (2) the foreseeable prejudice to
existing parties if intervention is granted;
(3) the foreseeable prejudice to the
applicant if intervention is denied; and (4)
idiocratic circumstances which, fairly
viewed, militate for or against
intervention.[5]
We will address each of these timeliness factors in
turn, and then will assess their combined effect.
1. Knowledge of imperilled interest
Regarding the first factor of this analysis the length
of time [Kirk] knew or reasonably should have known that [his]
interest was imperilled before [he] moved to intervene6 the
superior court observed that it should have been apparent to Kirk
that his interest in the action might not be adequately
represented as soon as Demientieffs new counsel notified Kirk in
April 2003 that Demientieff planned to sue Kirk for malpractice
and did not intend to appeal Judge Devaneys March 2003 order
dismissing her complaint as time-barred. Relying on this
finding, the superior court determined that Kirk should have
known that he needed to intervene no later than April 2003,
eighteen months before he actually moved to intervene in October
2004. Even viewing events in a light most favorable to Kirk, the
court observed, his motion to intervene should have been filed
within the time for appealing the final judgment (July 22, 2003).
The superior courts analysis of this factor finds ample
support in the record. Demientieffs new counsel sent two letters
to Kirk in April 2003, soon after Kirk filed Demientieffs motion
for reconsideration of the order dismissing Demientieffs
complaint as time-barred. The first letter to Kirk told him that
Demientieff had hired a new attorney and planned to sue Kirk for
malpractice. The second informed him that Demientieff would
refuse to appeal the superior courts statute-of-limitations
ruling. These communications gave Kirk clear notice that
Demientieff had terminated their attorney-client relationship and
that their interests had sharply diverged.
Demientieff, having opted to sue Kirk for malpractice
instead of pursuing her claim against United, now had a keen
interest in establishing that Kirks failure to file a timely
complaint had caused her to lose a meritorious claim. From her
perspective, then, it would have been counterproductive to
overturn the order dismissing her claim. Thus, Demientieff
immediately let Kirk know that she would refuse to appeal.
Kirk, on the other hand, having just been told that he
faced a potential malpractice claim by his former client, now
found himself with a personal stake in the superior courts order
dismissing Demientieffs case: he could fend off the malpractice
claim, or at least minimize his potential liability, if the
superior courts order were overturned either on the pending
motion for reconsideration or by appealing the order. The record
makes it clear that Kirk understood this situation: soon after
receiving the letters from Demientieffs new attorney telling him
to take no further action in Demientieffs case, Kirk, acting as
Demientieffs former attorney, filed a supplement to the motion
for reconsideration that unmistakably sought to bolster the
pending motion. Thus, when the superior court denied
reconsideration and entered its final judgment against
Demientieff in July 2003, Kirks interest in directly appealing
that judgment was precisely the same as the interest he asserted
the following year when he moved to intervene for the purpose of
appealing the October 2004 order denying relief from that
judgment. Moreover, his situation in relation to Demientieff was
precisely the same at both times: Demientieff refused to appeal
the July 2003 final judgment, just as she would later refuse to
appeal the October 2004 order denying relief from the judgment.
In short, Kirk could have filed a motion to intervene
in July 2003 for the purpose of directly appealing the superior
courts freshly entered judgment of dismissal on precisely the
same ground that he asserted in October 2004, when he attempted
to intervene to collaterally appeal that judgment. The record
fails to establish any satisfactory justification for Kirks
failure to seek intervention at the earlier juncture.7
In challenging the superior courts decision to reject
his Rule 60(b) motion as untimely, Kirk argues that his delay in
filing the motion was justified because his malpractice counsel
needed time to study the case and negotiate with Demientieffs
counsel for the stipulation to file the Rule 60(b) motion. The
same argument could conceivably be offered to justify Kirks late
intervention, as well. But the decision to take this collateral
course, which required Demientieffs permission, appears to
reflect a tactical choice. Kirk fails to explain why he could
not have promptly sought leave to intervene for purposes of
directly appealing the judgment, a course that did not require
Demientieffs negotiated consent.
Kirk also insists that Demientieff adequately
represented his interests until she refused to appeal the
superior courts order denying the Rule 60(b) motion. But this
argument is unavailing. As we have already noted, Kirks and
Demientieffs interests diverged fundamentally when Demientieff
fired Kirk as her attorney, announced her intent to sue him for
malpractice, and told him that she would not appeal the superior
courts order of dismissal. Although Kirks malpractice attorney
later negotiated a stipulation allowing Kirk to move for relief
from judgment, the realignment of interests resulting from this
agreement was temporary and provisional, at best. The express
terms of the stipulation made it clear that the malpractice
action would go forward despite the Rule 60(b) motion, that the
stipulation would not bind Demientieff to pursue an appeal if the
superior court denied relief, and that no appeal could be filed
without her express, written approval. When viewed in light of
the stipulations specific disclaimers, Demientieffs later refusal
to appeal was foreseeable and merely served to reinstate the
status quo existing before the stipulation. Neither the
stipulation nor Demientieffs ensuing refusal to appeal justifies
Kirks failure to seek intervention in time to appeal the original
judgment.
On these facts, the superior court permissibly found
that Kirk knew or reasonably should have known of his grounds for
intervening before the court entered its final judgment.
2. Foreseeable prejudice to existing parties
The next factor to consider in determining the
timeliness of Kirks motion to intervene is the foreseeable
prejudice that granting the motion would cause to the existing
parties. This factor requires us to focus specifically on the
prejudice flowing from Kirks delay rather than potential
prejudice that might generally result from granting intervention.8
In assessing this factor, the superior court focused primarily on
the prejudice that Kirks late intervention would cause to
Demientieff. The court noted that Demientieff and her counsel
had chosen the malpractice suit as the best means of achieving
Demientieffs interests. If Kirk intervened in the personal
injury case, the court feared, his appeal of the Rule 60(b) issue
might sidetrack Demientieffs chosen claim and drag out an action
based on events that occurred over four years ago.
These concerns for Demientieffs procedural rights seem
to be greatly diminished now that Kirk and Demientieff have
settled the malpractice action and Demientieff has assigned her
personal injury claim to Kirk. But a similar concern extends to
United and remains unabated. United vigorously argues that in
the absence of compelling circumstances it will be unfairly
prejudiced if it is forced to defend a judgment that has now been
final and no longer appealable since August 2003. Although
United fails to pinpoint any case-specific disadvantage it might
face as a result of Kirks delay, Uniteds procedural right to rely
on settled rules of finality nonetheless merits considerable
weight. On prior occasions we have observed that, of the four
factors included in the timeliness analysis, courts usually
regard potential prejudice to existing parties as the most
important consideration.9 Courts have been especially reluctant
to allow intervention after the trial court enters a final
judgment, adhering to the cardinal principle that intervention
will not be permitted to breathe life into a nonexistent lawsuit.10
Here, Kirks efforts would strain this principle not once, but
twice, for he effectively seeks to breathe life into a Rule 60(b)
motion that his stipulation gave him no right to appeal; and his
underlying purpose is to resurrect Demientieffs lawsuit, which
has been nonexistent since the deadline for appealing the
original judgment expired in August 2003.
3. Potential prejudice to Kirk
The third factor in the timeliness analysis focuses on
the offsetting question whether denying intervention would
prejudice Kirk. Kirk argues that denying his motion to intervene
seriously prejudiced him because [a]llowing the order denying
relief from judgment to stand unchallenged through appeal
significantly impairs Kirks right to vindicate himself of the
ruling and impairs his right to pursue subrogation against United
Companies. But this argument jumps too quickly to the prejudice
Kirk might suffer if he were unfairly denied the relief from
judgment he claimed in the Rule 60(b) motion. As a failed
intervenor, Kirk has standing to appeal only the denial of
intervention.11 Thus, Kirks claim of potential prejudice must
focus on the specific harm he suffered by being denied the
opportunity to appeal the superior courts order denying Rule
60(b) relief. To establish a substantial risk of prejudice,
then, he would need to show a likelihood of prevailing in the
event he were allowed to appeal the order denying his motion for
relief from judgment.
Although this likelihood might prove hard to predict in
many situations, it seems fairly straightforward here because the
question that drives Kirks right to intervene timeliness is
functionally identical to the threshold timeliness requirement
that governed Kirks motion for relief under Rule 60(b). Indeed,
the timeliness requirement under Rule 60(b) would seem more
stringent than the corresponding requirement for intervention,
since, as we have seen, in the Rule 60(b) context, Kirk had the
burden of establishing a compelling need to justify any delay
exceeding the thirty days allowed to appeal the original
judgment.
It follows that the third factor of the timeliness
analysis potential prejudice to Kirk is essentially neutral:
standing alone, it neither favors nor disfavors Kirk. If the
other timeliness factors establish a strong case for
intervention, the potential prejudice from having the right to
appeal the Rule 60(b) decision would also tip in favor of
intervention; conversely, if the other factors weigh against
intervention, there would be no apparent basis for finding a
likelihood of reversible error on appeal, so the prejudice factor
would weigh against Kirk.
4. Idiocratic circumstances for or against
intervention
The fourth timeliness factor requires us to consider
any unique circumstances in this case that militate for or
against intervention. In our view, the only unique circumstance
that warrants discussion arises from Kirks recent settlement of
Demientieffs malpractice claim a settlement that left Kirk with
an assignment of Demientieffs personal injury claim against
United. Although neither party discusses how this circumstance
might affect the issue of intervention, we believe that the point
warrants at least a brief mention.
In moving to intervene below and pursuing the point on
appeal, Kirk has relied heavily on the theory that his interests
conflict sharply with Demientieffs and were imperilled by her
tactical choices. Yet as the current owner of Demientieffs
claim, Kirk appears to have no further conflict with Demientieff:
his sole remaining interest would seem to lie in attempting to
win Demientieffs assigned claim against United. On what basis,
then, and for what purpose, can Kirk now claim that he should be
allowed to intervene for the purpose of appealing the denial of
Demientieffs motion for relief from judgment? And if Kirks
ultimate goal is to pursue Demientieffs assigned claim, why
should he be entitled to reassert her interest in the claim
against United, or to breathe fresh life into her cause of
action? After all, Kirk presumably acquired the claim from
Demientieff as it stood at the time of assignment; the assignment
could not have restored or rekindled any right Demientieff had
already lost. And it seems undisputed that by the time of the
assignment, Demientieff had deliberately abandoned her personal
injury claim for tactical reasons by failing to appeal the
superior courts final order dismissing the claim as time-barred;
she had similarly abandoned her later motion for relief from the
original judgment by expressly refusing to appeal the October
2004 order denying that motion.
Thus, as the case currently stands, if we allowed Kirk
to intervene in his own right with the ultimate goal of asserting
Demientieffs assigned cause of action, we would seemingly be
condoning his right to assert, in Demientieffs name, a cause of
action that she herself had abandoned and could never hope to
pursue. Because this idiocratic circumstance leads to anomalous
consequences it militates strongly against intervention.
5. Combined effect of four-factor timeliness analysis
On balance, when considered as a whole, our analysis of
the four timeliness factors decidedly favors upholding the
superior courts conclusion that Kirks motion to intervene was
untimely and was properly denied on that basis.
Our recent decision in Scammon Bay v. Ulak provides a
useful comparison.12 There, Ulak was seriously injured by
exposure to propane while working for Scammon Bay. After Ulak
recovered substantial workers compensation benefits from Scammon
Bay, he sued two of Scammon Bays propane suppliers, claiming that
they were liable for his injuries. Under Alaska law, Scammon Bay
had a right to recoup benefits it paid Ulak from any funds Ulak
recovered against the defendants, provided that his recovery
exceeded Scammon Bays share of Ulaks total damages based on its
allocated fault. Despite this right of recovery, Scammon Bay did
not initially join in the action, since Ulaks interests appeared
to align with its own: even though the defendants moved to
allocate fault to Scammon Bay, Ulak had opposed their motion,
evidently hoping to maximize his own recovery from the
defendants.
As the trial date approached, however, Ulak and the
defendants struck an unusual bargain designed to allocate fault
to Scammon Bay in a way that might have enabled Ulak to receive
settlement payments from the defendants without triggering
Scammon Bays right of recoupment. The settling parties scheduled
a hearing before the superior court, seeking approval of their
plan and acceptance of the agreed-upon allocation of fault to
Scammon Bay. Scammon Bay received no notice of the hearings
purpose until six days before the hearing was held; two days
before the hearing, Scammon Bay moved to intervene so that it
could oppose the proposed allocation of fault. The superior
court denied the motion, finding, among other things, that
Scammon Bays last-minute attempt to intervene was untimely
because the case had been pending for more than two years.13
We reversed the superior courts ruling. Noting that
Scammon Bays interests initially aligned with Ulaks and that
Ulaks counsel had actively represented those interests by
opposing the defendants motion to allocate fault, we found no
reason for Scammon Bay to have intervened early, and no need to
require premature intervention. Emphasizing the sudden change in
Ulaks settlement strategy and the settling parties failure to
notify Scammon Bay of the purpose of the hearing they had
scheduled to allocate Scammon Bays fault, we held that Scammon
Bays last-minute motion to intervene was reasonably timely and
should have been granted.14
Here, in sharp contrast to Scammon Bay, Kirk received
clear and early notice that Demientieffs interests actively
conflicted with his own and that Demientieff would not adequately
represent his interests. Despite this knowledge, Kirk allowed
the superior court to enter its judgment of dismissal and, well
aware that Demientieff did not intend to appeal, let the time for
appealing that judgment expire without seeking to intervene.
Almost eleven months then passed before Kirk secured a limited
stipulation that allowed him to file a collateral attack on the
judgment but left him no right of appeal. Four months later,
when the superior court denied the request for relief, Kirk, for
the first time, sought to intervene, grounding his motion on
Demientieffs refusal to authorize an appeal a ground he could
have asserted more than a year earlier, before the time for a
direct appeal expired.15
Considering the totality of these circumstances in
light of the four-factor timeliness test and our decision in
Scammon Bay, we hold that the superior court did not abuse its
discretion in denying Kirks motion to intervene.
IV. CONCLUSION
For these reasons, we AFFIRM the superior courts order
denying Kirks motion to intervene.
_______________________________
1 See Alaska R. Civ. P. 77(k)(4).
2 See Appellate Rule 204(a).
3 Under Alaska Civil Rule 60(b)(1), [T]he court may
relieve a party . . . from a final judgment, order, or proceeding
for the following reasons: . . . mistake, inadvertence, surprise,
or excusable neglect.
4 We have previously recognized that an applicant must
meet four criteria to intervene under this rule, the first of
which is timeliness:
(1) the motion must be timely; (2) the
applicant must show an interest in the
subject matter of the action; (3) it must be
shown that this interest may be impaired as a
consequence of the action; and (4) it must be
shown that the interest is not adequately
represented by an existing party.
State v. Weidner, 684 P.2d 103, 113 (Alaska 1984).
5 Scammon Bay Assoc., Inc. v. Ulak, 126 P.3d 138, 143
(Alaska 2005) (quoting Banco Popular de Puerto Rico v.
Greenblatt, 964 F.2d 1227, 1231 (1st Cir. 1992)).
6 Scammon Bay, 126 P.3d at 143.
7 We have not previously had an occasion to consider
whether an attorney accused of malpractice would ever be entitled
to intervene as a matter of right in the claimants original case
in order to challenge the legal ruling that precipitated the
malpractice claim. We note that at least some courts considering
Rule 24(a) have expressed policy-based doubts about the
desirability of allowing attorneys to intervene in analogous
settings. See, e.g., Butler, Fitzgerald & Potter v. Sequa Corp.,
250 F.3d 171, 177 (2d Cir. 2001) (rejecting the attempt of a law
firm that held a charging lien against a former client to
intervene in that former clients suit because [t]he interest of
discharged counsel seemingly is not in the subject of the
underlying action . . . that precipitated the litigation, [as
required by Rule 24(a)], but is rather an interest in recovering
delinquent attorneys fees following an award in favor of its
former client). Our analysis assumes that any policy reasons
weighing against allowing an attorney to intervene in such cases
would not categorically preclude intervention under Rule 24(a).
8 Scammon Bay, 126 P.3d at 145 (citing Stallworth v.
Monsanto Co., 558 F.2d 257, 267 (5th Cir. 1977)).
9 Id. at 143 (citing 7C Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure 1916
(1986)).
10 Fuller v. Volk, 351 F.2d 323, 328 (3d Cir. 1965); see
also Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 840 (4th Cir.
1999) (rejecting an attempt to intervene to file Rule 60(b)
motion two months after entry of final judgment); Federal
Practice and Procedure, supra, note 9, 1916, at 444-45.
11 Scammon Bay, 126 P.3d at 142-43.
12 126 P.3d 138 (Alaska 2005).
13 Id. at 142.
14 Id. at 142, 144-45.
15 In other cases, we have allowed late intervention by
applicants who had no prior notice of their interests in the case
or sought to intervene promptly after learning of their interest.
See Mundt v. NW Explorations, Inc., 947 P.2d 827, 830 (Alaska
1997); McCormick v. Smith, 793 P.2d 1042, 1044 (Alaska 1990).
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