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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pomeroy v. Rizzo (05/16/2008) sp-6264
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 D. POMEROY, | ) |
| ) Supreme Court No. S- 12520 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-02-13346 CI |
| ) | |
| KRISTINE RIZZO, as next friend | ) |
| of C.R., a minor, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6264 - May 16, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: Richard D. Pomeroy, pro se,
Anchorage. No appearance by Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
The mother of a child sued a person charged with sexual
abuse of the child. The defendant counterclaimed on the ground
that the mothers suit was frivolous and fraudulent. Following
the defendants conviction for third degree assault of the child,
the mother failed to prosecute her civil action against him. The
superior court dismissed the mothers complaint because of this
failure to prosecute. It also dismissed the defendants
counterclaim with prejudice because his conviction for assault
precluded his counterclaim. Because we agree with the superior
court that the conviction for assault precludes the person
convicted from arguing that the mothers suit against him lacked
merit, we affirm the decision of the superior court.
II. FACTS AND PROCEEDINGS
A. Facts
Richard Pomeroy met Kristine Rizzo in the summer of
2001. Between January 2002 and November 2002 Rizzo and her
daughter, C.R.,1 spent several nights at Pomeroys house while
Rizzos boyfriend was incarcerated. During these visits, Pomeroy
allegedly sexually assaulted C.R. repeatedly by committing acts
of sexual penetration upon her person.
The state investigated and charged Pomeroy with four
counts of sexual assault of a minor. On November 12, 2002, the
police arrested Pomeroy and he was incarcerated. Pomeroy
remained in prison until September 2005. On September 13, 2005,
Pomeroy pled no contest to assault in the third degree, a felony,
for his involvement with C.R., and was sentenced to five years in
prison with two suspended. Pomeroy was subsequently released and
currently resides in Anchorage.
B. Proceedings
In December 2002 Rizzo filed a civil suit as next best
friend of C.R. seeking damages for [p]ast, present and future
physical and emotional pain and suffering due to Pomeroys
negligence and intentional sexual assault of C.R. Rizzo amended
her complaint in May 2003 to include a cause of action for
negligent infliction of emotional distress. Rizzo sought
$100,000 in punitive and compensatory damages.
Pomeroy counterclaimed. He asserted three causes of
action against Rizzo and her attorney, J. Mitchell Joyner.
Pomeroy claimed that he suffered damages due to thefrivolous and
fraudulent lawsuit; wanton actions [that] constituted a fraud
against [Pomeroy]; and wanton and reckless [conduct], which in
turn constituted a [sic] infliction of past, present, and future
emotional distress and financial hardship. Pomeroy sought
$700,000 in punitive and compensatory damages.
From December 2002 to September 2005 Pomeroy actively
litigated the civil suit while awaiting his criminal trial for
the sexual assaults. The superior court granted Rizzo a
continuance to stay the civil trial until the conclusion of
Pomeroys criminal case. Soon after pleading no contest to third-
degree assault, Pomeroy petitioned the court to proceed to trial
in the civil case alleging that he resolved his criminal case and
all sexual assault charges have been dismiss[ed]. Superior Court
Judge Sharon L. Gleason granted Pomeroys motion and issued a pre-
trial order requiring the parties to discuss potential trial
dates. In December 2005 Joyner, Rizzos attorney, filed a motion
to withdraw citing lack of contact with the plaintiff and her
refusal to participate in the prosecution of this case. Joyner
later amended the certificate of counsel accompanying his motion
to withdraw asserting that difference of opinion would prevent
him from adequately representing Rizzo. Joyner withheld Rizzos
address from his certificate of counsel so that Pomeroy could not
contact her directly. The superior court granted Joyners motion
to dismiss upon the condition that Pomeroy would serve all
pleadings on Joyner until Rizzo obtained a post office box.
Following that ruling, Rizzo never registered a mailing
address with the court and failed to respond to Pomeroys motions.
In September 2006 the superior court issued a notice of intent to
dismiss. This notice required Rizzo to file an intent to proceed
within thirty days. Less than a week later, Pomeroy filed a
request for a default judgment. In November 2006 the superior
court issued an order dismissing Rizzos action and Pomeroys
counterclaim. The superior court held that Pomeroys assault
conviction precluded him from maintaining a counterclaim that
Rizzos action was a frivolous lawsuit.
Pomeroy filed a motion for reconsideration asserting
that his no contest plea was not binding against him in
subsequent civil actions. The superior court denied the motion,
relying upon our recent decision in Lamb v. Anderson.2 Pomeroy
now appeals the dismissal of his counterclaim on the basis that
(1) his no contest plea cannot be used against him in a civil
proceeding, (2) the court improperly treated assault and sexual
assault as the same crime, (3) the court acted in a
representative capacity by supplying points and authorities on
behalf of Rizzo, (4) the dismissal denied him the right to
confront witnesses against him, and (5) his constitutional rights
to due process and trial by jury were violated.
III. STANDARD OF REVIEW
We review a dismissal with prejudice under an abuse of
discretion standard.3 Under this standard, we will overturn a
superior court decision only when left with a definite and firm
conviction, after reviewing the whole record, that the trial
court erred in its ruling.4
Pomeroys assertions that the court erred in denying an
unopposed motion and applying law outside the briefing of the
parties are questions of law. We review these claims de novo.5
We review Pomeroys constitutional claims that a
dismissal of his counterclaim violates his rights under due
process, the confrontation clause, and his right to a trial by
jury using our independent judgment.6
IV. DISCUSSION
Pomeroy represented himself throughout these
proceedings (refusing the assistance of counsel from his
insurance agency). In Alaska, pro se litigants are afforded
greater leniency.7 We hold Pomeroys pleadings to less stringent
standards than those of lawyers.8 Accordingly, we must interpret
Pomeroys claims to discern the legal nature of his appeal.9
Pomeroys five issues on appeal substantively form the basis of
three legal claims: (1) the superior court abused its discretion
in dismissing his counterclaim on the merits, (2) the superior
court improperly ruled on behalf of Rizzo by supplying her with
points and authorities, and (3) the dismissal resulted in a
violation of Pomeroys constitutional rights.
A. The Superior Court Did Not Abuse Its Discretion in
Dismissing Pomeroys Counterclaim with Prejudice.
Pomeroy first challenges the courts dismissal of his
counterclaim. Pomeroys counterclaim effectively raised a claim
of abuse of process. Abuse of process is comprised of two
elements: (1) an ulterior purpose; and (2) a willful act in the
use of the process not proper in the regular conduct of the
proceeding.10
Although Pomeroys generalized allegations may satisfy
the ulterior purpose element of an abuse of process claim, he
fails to present any evidence to satisfy the willful act element.
We have held that the willful act contemplates some overt act
done in addition to the initiating of the suit. The mere filing
or maintenance of a lawsuit even for an improper purpose is not
a proper basis for an abuse of process action.11 As we have noted
in earlier cases, there is no liability where the defendant has
done nothing more than carry out the process to its authorized
conclusion, even though with bad intentions.12 Pomeroy only
alleges that Rizzo is a fugitive and a criminal; he does not
allege any act beyond the filing of this suit and therefore fails
to plead an actionable claim of abuse of process. The superior
court therefore did not abuse its discretion in dismissing the
counterclaim.
Further, the superior court dismissed Pomeroys
counterclaim because his no contest plea foreclosed him from
seeking legal recovery. Pomeroy contends that the superior court
improperly relied on the holding in Lamb v. Anderson,13 which the
superior court interpreted as providing that his no contest plea
to assault on the minor is legally binding in subsequent civil
actions.14 Pomeroy argues that the holding in Lamb should not
apply to him because he was never informed of the legal
implications of his plea.
Although the superior court correctly interpreted Lamb
in dismissing Pomeroys claims, Burcina v. City of Ketchikan15 also
governs Pomeroys case. In Lamb, we held that a no contest plea
is binding against a civil defendant;16 in Burcina, we held that a
no contest plea is binding against a civil plaintiff.17 Although
Pomeroy was the defendant in Rizzos action against him, Pomeroy
appealed to maintain his counterclaims against Rizzo. Thus, with
respect to his abuse of process claims, Rizzo is in the position
of a civil plaintiff and Burcina controls.
In that case, a mentally ill patient, Burcina, pled no
contest to arson charges after setting the clinic at which he
received psychiatric services on fire.18 After pleading no
contest, Burcina brought suit against the psychiatric clinic and
his doctor for injuries he suffered in the blaze.19 He alleged
that negligent treatment caused him to set fire to the clinic.20
In order to maintain that claim, Burcina had to show that he did
not have the requisite criminal intent when he set fire to the
clinic.21 We held that the superior court properly granted
summary judgment to the clinic and the doctor because Burcina
could not relitigate the issue of his intent as he had already
pled no contest to the crime.22 We found that a civil plaintiff
is collaterally estopped from relitigating any element of a
criminal charge to which he has pled nolo contendere.23 Under
Burcina, Pomeroy is estopped from denying the elements of the
assault charge to which he pled no contest. As Pomeroy cannot
contest the elements of the assault charge, it follows that the
mother of his victim had probable cause to believe that Pomeroy
committed the acts alleged in her complaint.
Pomeroy argues that his plea should not estop him from
pursuing his counterclaims because the judge did not inform him
that his plea would have preclusive effect in later civil
litigation, relying on language in Lamb But, as we recently
noted in Wilson v. MacDonald:24
[T]he question of whether a defendant is
aware of all the relevant consequences of his
or her plea is a question as to whether the
plea itself is knowing or voluntary. Since
this is a question as to the validity of the
plea itself, it should be resolved through a
motion for post-conviction relief or appeal
in the criminal case.[25]
And in Moore v. Peak Oilfield Service Co.,26 we noted that Wilson
dismissed the application of Lamb in a case where the criminal
defendant pled no contest before Lamb clarified the civil
implications of this plea.27 We reiterated that the party seeking
to avoid the civil consequences of a no contest plea must do so
through a motion for post-conviction relief or appeal in the
criminal case 28 In short, Pomeroys plea estops him from pursuing
his counterclaims because his plea has not been vacated on appeal
or on a motion for post-conviction relief.
Finally, Pomeroys argument that the superior court
erred in holding his no contest plea to third degree assault
against him in a civil action for sexual assault is unavailing.
In order to substantiate her claim, Rizzo only needed to prove
that she had probable cause that Pomeroy sexual assaulted her
daughter in bringing her suit. When Rizzo initially brought her
action in December 2002, Pomeroy was already incarcerated facing
charges for the sexual assault of C.R. Just because Pomeroy
later pled no contest in September 2003 to a lesser felony
assault does not mean that Rizzo did not have probable cause for
bringing a civil suit based on the greater charges when she
brought suit in 2002. Moreover, Pomeroys conviction for felony
assault against Rizzos daughter further supports a finding that
Rizzo had probable cause to bring a civil suit against him.
B. The Superior Court Did Not Err in Relying on Case Law
Not Cited in Rizzos Pleadings.
In addition to alleging that the court improperly
dismissed his counterclaim, Pomeroy claims the superior court
erred because Judge Gleason acted in a representative capacity on
behalf of Rizzo by deciding the case pursuant to case law she
found from her own research after Rizzo had failed to respond to
the courts notice of intent to dismiss or to Pomeroys motion for
a default judgment. Pomeroys claim lacks merit.
Pomeroy relies on State v. Johnson29 for the proposition
that it is . . . not the duty of the trial court to supply points
and authorities for either side.30 Pomeroy fails to include the
sentence immediately following: neither may a court accept one
partys assertions as to the present state of the law simply
because the opposing party fails to adequately respond to those
assertions.31 In Johnson, we reversed a dismissal of an
indictment.32 We held that a dismissal for want of information
and ineffective briefing were overly harsh remedies.33 A sanction
or a request for further briefing would have been a more
appropriate remedy.34 Pomeroy misreads Johnson as restricting a
trial court from using case law outside the pleadings of the
parties. Johnsons narrow holding is that a trial court may not
dismiss an indictment for insufficient legal pleadings when less
harsh remedies are available to the court.35 Furthermore, Johnson
referenced Alaska Civil Rule 77, which holds only that the moving
party, here Pomeroy, is responsible for providing points and
authorities.36 Under Rule 77, Rizzo had no obligation to provide
points and authorities, and the court did not err in refusing to
accept Pomeroys analysis of case law. Finally, there is no
language in Johnson that implies that the court is prohibited
from relying upon case law outside the pleadings.37
Putting aside Pomeroys misinterpretation of Johnson,
his argument in essence raises two claims: (1) the court may not
deny an unopposed motion, and (2) the court may not independently
research the law in deciding pending motions.
Pomeroy contends that the court erred in failing to
grant his motion for default judgment because Rizzo did not file
any pleadings in opposition to Pomeroys motion nor file an
intent to proceed. Pomeroys argument hinges on the idea that
judges are forbidden from denying an unopposed motion. But we
have consistently found that [t]he fact that a motion is
uncontested does not mean that it must be granted as a matter of
right.38 Accordingly, the superior court did not err in denying
Pomeroys unopposed motion simply because Rizzo did not file
pleadings with the court. Rather, the court properly researched
the issue and correctly decided it.
Pomeroy further alleges impropriety in the courts
citation to Lamb v. Anderson39 and Wyatt v. Wyatt.40 Because Rizzo
did not file an intent to proceed or an opposition to Pomeroys
motion for default judgment, these cases were independently
located by the trial court. The court relied on Wyatt in
dismissing Pomeroys claim, although Rizzo never cited Wyatt in
pleadings, motions, memoranda, or briefs. Pomeroy argues
generally that the superior courts decision violated the common
law. But the Alaska legislature has vested the superior court
with all power and authority necessary to carry into complete
execution all its judgments, decrees, and determinations in all
matters within its jurisdiction according to the constitution,
the laws of the state, and the common law.41 The superior court
is statutorily bound to consider common law, in addition to
constitutional and statutory law, in formulating its decisions.42
Restricting a court to considering only those cases mentioned in
the parties briefs would violate this requirement. Furthermore,
there is no common law or statute that prohibits courts from
applying case law outside the parties briefs. The court,
therefore, did not err in relying on the Alaska case law it
located through its own research.43
V. CONCLUSION
Because Pomery failed to make out a prima facie claim
for abuse of process, because Pomeroys no contest plea to assault
precluded his counterclaim against Rizzo, and because a trial
court is not bound to grant an unopposed motion but may
independently consult the sources of Alaska law, we AFFIRM the
dismissal of Pomeroys counterclaim with prejudice.
_______________________________
1 The initials C.R. were used by the superior court to
protect the identity of the eight-year-old victim.
2 147 P.3d 736 (Alaska 2006).
3 De Salvo v. Bryant, 42 P.3d 525, 527 (Alaska 2002).
4 Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375,
378-79 (Alaska 1982).
5 Forshee v. Forshee, 145 P.3d 492, 497 (Alaska 2006).
6 State, Dept of Fish & Game v. Manning, 161 P.3d 1215,
1219 (Alaska 2007).
7 Casciola v. F.S. Air Serv., Inc., 120 P.3d 1059, 1062-
63 (Alaska 2005).
8 Id.
9 See id. (To avoid waiver, a pro se litigant's briefing
must allow his or her opponent and this court to discern the pro
ses legal argument.).
10 Meidinger v. Koniag, Inc., 31 P.3d 77, 86 (Alaska 2001)
11 Id. (quoting DeNardo v. Michalski, 811 P.2d 315, 317
(Alaska 1991)).
12 Kollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988).
13 147 P.3d 736 (Alaska 2006).
14 Id. at 741.
15 902 P.2d 817 (Alaska 1995).
16 147 P.3d at 742.
17 902 P.2d at 821.
18 Id. at 819.
19 Id.
20 Id.
21 Id. at 821.
22 Id. at 822.
23 Id.
24 168 P.3d 887 (Alaska 2007).
25 Id.
26 175 P.3d 1278 (Alaska 2008).
27 Id. at 1279.
28 Id. (quoting Wilson, 168 P.3d at 889).
29 525 P.2d 532 (Alaska 1974).
30 Id. at 535 n.4.
31 Id.
32 Id. at 536.
33 Id.
34 Id.
35 Id.
36 Id. at 535 n.4; Alaska R. Civ. P. 77(b)(2) (requiring
the moving party to provide a brief, complete written statement
of the reasons in support of the motion, which shall include a
memorandum of the points and authorities).
37 See generally Johnson, 525 P.2d 532.
38 Gallagher v. Gallagher, 866 P.2d 123, 124 (Alaska 1994)
(citing Willie v. State, 829 P.2d 310, 312 (Alaska 1992); Bauman
v. State, Div. of Family & Youth Servs., 768 P.2d 1097, 1099
(Alaska 1989); Weaver Bros., Inc. v. Chappel, 684 P.2d 123, 126
(Alaska 1984); Greater Anchorage Area Borough v. Real Prop.
Taxpayer's Ass'n, 513 P.2d 1103, 1104 (Alaska 1973)).
39 147 P.3d 736 (Alaska 2006).
40 65 P.3d 825 (Alaska 2003).
41 AS 22.10.050.
42 Id.
43 We have reviewed Pomeroys claims that his
constitutional rights were violated. Most are inadequately
briefed; all of them lack merit.
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