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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dickerson v. Goodman (06/22/2007) sp-6135
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
| JIN HEE LEE DICKERSON, | )Supreme Court Nos. S-11497/12257 |
| ) | |
| Appellant, | ) Superior Court No. |
| ) 4FA-02-2556 CI | |
| v. | ) 4FA-04-2335 CI |
| ) | |
| LISA GOODMAN, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6135 June 22, 2007 |
| ) | |
Appeals from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard D. Savell and Robert B.
Downes, Judges.
Appearances: Randall J. Weddle, Jeffrey D.
Holloway, Selena R. Hopkins-Kendall, Matthew
D. Regan, Holmes Weddle & Barcott, PC,
Anchorage, and Joseph L. Paskvan, Paskvan &
Ringstad, P.C., Fairbanks, for Appellant.
Paul W. Waggoner, Law Offices of Paul
Waggoner, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
Lisa Goodman sued Jin Hee Lee Dickerson. Dickerson
answered but did not file a counterclaim. Dickersons motion for
summary judgment was granted and the case was dismissed with
prejudice. Dickerson then moved to vacate the judgment so that
she could file a counterclaim. This motion was denied. Next,
Dickerson asserted the same claim in a new suit. This case was
dismissed on the ground that the claim should have been asserted
as a compulsory counterclaim in the first suit. Dickerson
appeals the denial of her motion to vacate the judgment in the
first suit and the dismissal of the second suit. We affirm both
rulings.
II. FACTS AND PROCEEDINGS
On October 5, 2002, motor vehicles operated by Goodman
and Dickerson collided. On October 30, 2002, Goodman sued
Dickerson for her injuries arising out of the collision. On
November 29, 2002, Dickerson, who was represented by counsel,
answered Goodmans complaint but did not file a counterclaim. The
superior court entered a pretrial order requiring that motions
seeking to amend pleadings be filed before May 28, 2003. Trial
was set for April 19, 2004. The May 28, 2003 deadline passed
with neither party seeking a pleading amendment. Dickerson moved
for summary judgment. The motion was unopposed, and on March 12,
2004, the superior court granted the motion and dismissed the
case with prejudice.
On March 31, 2004, Dickerson, acting through new
counsel, sought to intervene in the case. Dickerson sought
intervention to support an anticipated Alaska Civil Rule 60(b)
motion to be filed by Dickersons original counsel so that a
counterclaim against Goodman could be filed and prosecuted. On
April 15, 2004, Dickerson, through her original counsel, filed
the Civil Rule 60(b) motion that had been forecast in the motion
to intervene. As the reason for relief, she explained that
English is not her first language and that as a result of [her]
misunderstanding of her legal rights and obligations, she has not
previously exercised her right to file a counterclaim against
plaintiff. She also argued that Goodman would not be prejudiced
if the motion was granted, noting that the two-year statute of
limitations had not yet run.
On May 5, 2004, Superior Court Judge Richard D. Savell
denied the motion to intervene, noting that intervention is
unavailable and unnecessary. Defendant has always been a party.
Judge Savell also denied the Rule 60(b) motion, noting that the
deadline for filing a counterclaim expired in May 2003.
Dickerson filed a timely appeal from this denial.
Dickerson then filed a separate case against Goodman
for damages resulting from the same accident. Goodman moved to
dismiss, arguing that Dickersons claim could only have been
brought as a compulsory counterclaim in the earlier action and
therefore was barred by Civil Rule 13(a) and the principles of
res judicata. Superior Court Judge Robert B. Downes agreed with
respect to the argument concerning Rule 13(a) and granted
Goodmans motion to dismiss.1 Dickerson appeals from this
dismissal. The appeals have been consolidated.
III. STANDARD OF REVIEW
We review a refusal to set aside a judgment pursuant to
Civil Rule 60(b) for abuse of discretion.2 Review of a dismissal
based on Civil Rule 13(a) presents a question of law, which we
review de novo.3 A refusal to apply Civil Rule 94 is reviewed
for abuse of discretion,4 and questions of constitutional law are
reviewed de novo.5
IV. DISCUSSION
A. The Civil Rule 60(b) Motion
Dickerson argues that the denial of her Rule 60(b)
motion was error since her failure to assert her counterclaim in
the first suit was justified. She claims that she misunderstood
her rights, noting that English is not her first language.
Dickerson also argues that she attempted to assert a counterclaim
before the order dismissing the action was entered.
We conclude that the superior court did not abuse its
discretion in denying Dickersons motion. Under Rule 60(b)(1), a
court may relieve a party . . . from a final judgment, order, or
proceeding for reasons including mistake, inadvertence, surprise
or excusable neglect.6 In exercising this discretion, courts
should consider whether the moving party had good reason for
failing to litigate effectively before dismissal.7
It appears to us that Dickersons claim that she
misunderstood her rights because English is not her first
language lacks merit. No factual material was submitted
indicating that Dickerson lacked an understanding of English to
the extent that she could not understand that she would lose her
right to assert a claim against Goodman unless she asserted it in
a timely fashion in the original action. Dickerson was at all
times represented by counsel. Her attorneys do not claim that
they attempted to advise Dickerson of her rights in this respect
and were unable to make their point. Dickersons claim that she
actually attempted to assert a counterclaim before the judgment
was entered is not supported by the record. She cites as support
for this proposition the motion to intervene that she made on
March 31, 2004. But this was more than two weeks after the order
of dismissal with prejudice was entered.
Under the civil rules Dickersons counterclaim should
have been asserted with her answer that she filed on November
29, 2002.8 Once Dickerson omitted the counterclaim she could
have sought leave of court to plead it by amendment.9 The
deadline for seeking such an amendment as established by the
pretrial order was May 28, 2003. Even after this deadline passed
Dickerson could have sought leave to assert a counterclaim. If
she had, a close question might have been presented as to whether
leave should have been granted, especially if there was no
prejudice to Goodman. But Dickerson did not seek leave to assert
a counterclaim until after final judgment dismissing the case was
entered. In our view, based on the absence of any justification
for the delay in moving to amend, it was not an abuse of
discretion to refuse to reopen the case at that point. We reach
this conclusion even though no convincing showing of prejudice
has been made by Goodman. Once a judgment is entered, the
interests associated with maintaining the integrity of final
judgments weigh heavily, and, as Rule 60(b) itself illustrates,
more than a mere lack of prejudice on the part of the opponent is
needed.
B. Dismissal Under Civil Rule 13(a)
Dickersons second suit was dismissed as barred by Rule
13(a). Dickerson states dismissal under this rule was error
because her claim was not mature when she filed an answer to
Goodmans claim and thus the rule does not apply. The gist of her
argument is that the eight-week period between the accident and
the time that she filed her answer was not long enough for her to
evaluate and present her claim.
We conclude that the superior court properly dismissed
Dickersons second suit. Under Rule 13(a) a pleading must state
as a counterclaim any claim which at the time of serving the
pleading the pleader has against any opposing party, if it arises
out of the transaction or occurrence that is the subject matter
of the opposing partys claim. Failure to assert a compulsory
counterclaim bars a party from asserting it in subsequent suits.10
Rule 13(a) only bars claims the pleader has at the time
of serving the answer. For purposes of Rule 13(a) a pleader has
a claim and it therefore is mature when all of the elements of
the claim are known or reasonably should be known.11 When
Dickerson filed her answer in the first suit, Dickerson knew of
Goodmans allegedly negligent driving and also knew that she had
suffered property damage and a significant personal injury.12 A
plaintiff need not know the full extent of her damages before her
claim is mature.13 As Judge Downes correctly observed,
maturity as used in Civil Rule 13(e) refers
to claims which do not yet exist rather than
those whose value or extent is not yet
determined . . . . Here, although the Court
agrees that Dickerson would not have been
able to fully assess her claims at the time
she filed a responsive pleading, she would
certainly have been able to comply with the
notice pleading requirements of Rule 8(a) and
the verification requirements of Rule 11.
Should those averments later have proved
incomplete or inaccurate, she could have
amended her pleadings under Rule 15.
Dickerson also argues that the superior court in the
second case should have granted her leave to include her
counterclaim under Civil Rule 13(f). Rule 13(f) provides that
[w]hen a pleader fails to set up a counterclaim through
oversight, inadvertence or excusable neglect or when justice
requires, the pleader may by leave of court set up the
counterclaim by amendment. By providing for amendment, Rule
13(f) permits a pleader to seek to assert an omitted counterclaim
in the suit in which it was omitted. But Rule 13(f) does not
encompass claims omitted in a previous case.14
V. CONCLUSION
The judgments in both cases are AFFIRMED.15
_______________________________
1 Judge Downes found it unnecessary to decide whether the
case was also barred by res judicata.
2 Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996,
1001 (Alaska 2005); Parks v. Brown, 368 P.2d 220, 222 (Alaska
1962).
3 See Providence Wash. Ins. Co. of Alaska v. McGee, 764
P.2d 712, 714 (Alaska 1988); Ellingstad v. State, Dept of Natural
Res., 979 P.2d 1000, 1004 (Alaska 1999).
4 See City & Borough of Juneau v. Commercial Union Ins.
Co., 598 P.2d 957, 960 (Alaska 1979).
5 Rollins v. State, Dept of Revenue, Alcoholic Beverage
Control Bd., 991 P.2d 202, 206 (Alaska 1999); State v. Anthony,
810 P.2d 155, 156-57 (Alaska 1991).
6 Dickerson does not specify on appeal the subsection of
Rule 60(b) under which she is entitled to relief. She was
similarly noncommittal in the superior court. We assume Rule
60(b)(1) comes closest to fitting her claim.
7 Harris v. Westfall, 90 P.3d 167, 174-75 (Alaska 2004).
8 Under Civil Rule 13(a) the answer must include any
compulsory counterclaims. A counterclaim is compulsory if it
arises out of the transaction or occurrence that is the subject
matter of the opposing claim. Alaska R. Civ. P. 13(a). Since
both Goodmans claim and Dickersons counterclaim concern the same
accident, Dickersons counterclaim was compulsory.
9 Alaska R. Civ. P. 13(f).
10 Andrews v. Wade & De Young, Inc., P.C., 950 P.2d 574,
576 (Alaska 1997).
11 Andrews v. Wade & De Young, Inc., P.C., 875 P.2d 89, 91
(Alaska 1994).
12 The record indicates that shortly after the accident
Dickerson had an MRI examination that showed a herniated disk.
The MRI report was made some two weeks before Dickersons answer.
13 Cf. Wettanen v. Cowper, 749 P.2d 362, 365 (Alaska 1988)
(holding that the statute of limitations for attorney malpractice
may begin to run before the plaintiff knows the full extent of
his damages).
14 See 6 Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure 1430 (3d ed. 1998)
(reporting on Federal Rule of Civil Procedure 13(f), which is
essentially identical to Alaska Civil Rule 13(f)).
15 Dickerson raises two other points in the appeal of the
second case that we determine summarily against her. The first
is that the court erred in refusing to relax the rules under
Civil Rule 94. We find no abuse of discretion. See Jerrel v.
Kenai Peninsula Borough Sch. Dist., 567 P.2d 760, 764-65 (Alaska
1977) (holding that the trial court did not abuse its discretion
in refusing to relax the civil rules and hear a motion that was
essentially a filing long overdue). Second, Dickerson argues
that application of Rule 13(a) violates her due process rights.
Due process guarantees that each person shall have notice and an
opportunity to be heard. Dickerson was afforded both of these
important rights but failed to avail herself of the latter.
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