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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. DeNardo v. Maassen (01/30/2009) sp-6335
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
| DANIEL DENARDO, | ) |
| ) Supreme Court No. S- 12694 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-05- 14472 CI | |
| v. | ) |
| ) O P I N I O N | |
| PETER MAASSEN, INGALDSON | ) |
| MAASSEN & FITZGERALD, P.C., | ) No. 6335 - January 30, 2009 |
| FOREMANS PROPERTIES PARTNER- | ) |
| SHIP, HELEN FOREMAN, OLIVER | ) |
| FOREMAN, PENNY FOREMAN, | ) |
| DAVID FOREMAN, REED FOREMAN, | ) |
| THOMAS MELANEY, MARK | ) |
| RINDNER, and MARIUZ SAWICKI, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Daniel DeNardo, pro se,
Anchorage, Appellant. Peter J. Maassen,
Ingaldson Maassen & Fitzgerald, Anchorage,
for Appellees Foreman Properties Partnership
and Foremans. Susan D. Cox, Assistant
Attorney General, Anchorage, and Talis J.
Colberg, Attorney General, Juneau, for
Appellee Rindner.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti and Winfree, Justices.
WINFREE, Justice.
I. INTRODUCTION
Daniel DeNardo first sued his former landlord, Foreman
Properties, and several members of the Foreman family in 2002.1
The litigation has since gone through several iterations,
including a separate 2004 lawsuit, DeNardo v. Sawicki,2 which
immediately preceded the present case. In Sawicki, DeNardo sued
Mariuz Sawicki (a former neighbor), Thomas Melaney (the Foremans
attorney), and the Foremans, alleging: (1) breach of the lease
covenant of quiet enjoyment by Sawicki and the Foremans because
Sawicki played music too loudly; and (2) harassment, violations
of DeNardos civil rights under 42 U.S.C. 1983 and abuse of
process by the Foremans and Melaney in the earlier Corneloup
litigation. Superior Court Judge Mark Rindner granted
dispositive motions in favor of all the Sawicki defendants.
In 2005 DeNardo filed the present case, DeNardo v.
Maassen,3 alleging that the Sawicki defendants engaged in abuse
of process and notary fraud during the Sawicki litigation.
DeNardo added an abuse of process claim against attorney Peter
Maassen and his law firm (collectively Maassen), the Foremans
counsel in Sawicki, as well as 1983 claims against Maassen and
Judge Rindner. After denying a disqualification motion filed by
DeNardo, Superior Court Judge Sen K. Tan granted summary judgment
in the defendants favor and awarded full attorneys fees to Judge
Rindner. He also granted the defendants request for a pre-
litigation screening order prohibiting DeNardo from suing them
again, excepting claims unrelated to his previous lawsuits
against them. DeNardo appeals.4
We affirm the grant of summary judgment because there
are no genuine issues of material fact and the defendants are
entitled to judgment as a matter of law. We affirm the denial of
the disqualification motion, portions of the pre-litigation
screening order, and the attorneys fees award to Judge Rindner as
proper exercises of the superior courts discretion.
II. FACTS AND PROCEEDINGS
DeNardo rented an apartment from the Foremans from
approximately March 1991 through June 1, 2004.5 In March 2002
Pat Corneloup moved into the apartment next to DeNardo.6
Corneloup smoked cigarettes in his apartment, but his lease did
not prohibit smoking.7 DeNardo sued Corneloup on June 7, 2002,
for battery, negligence, and trespass resulting from Corneloups
cigarette smoke, which DeNardo claimed invaded his apartment.8
As of June 12, 2002, DeNardo owed $677.73 for two
months rent; he paid $185 on June 12, leaving him in arrears.9
That same day the Foremans served DeNardo with an eviction notice
for failure to pay rent.10 DeNardo claimed that the Foremans knew
of his lawsuit against Corneloup as early as June 8 and that the
eviction notice was retaliatory.11 DeNardo amended his complaint
to name the Foremans as defendants, suing them for trespass,
battery, nuisance, retaliatory eviction, and breach of the
covenant of habitability.12
The Foremans, represented by Melany, followed the
eviction notice with a Forcible Entry and Detainer (FED) action
against DeNardo.13 DeNardo lost the FED action but was granted a
stay of eviction pending appeal to the superior court on his
claim that Corneloups secondhand smoke made his apartment
uninhabitable and therefore excused his failure to pay rent.14
Corneloup and DeNardo stayed in their apartments while DeNardo
proceeded with his suit against Corneloup and the Foremans,15 and
the superior court ultimately dismissed all of DeNardos claims.16
DeNardo appealed, and we affirmed the superior courts judgment.17
In the 2004 lawsuit, DeNardo v. Sawicki, DeNardo sued
the Foremans, Melaney, and Sawicki, the neighbor who allegedly
played his music too loudly. DeNardo asserted a claim for breach
of the covenant of quiet enjoyment (due to the loud music) and
claims for harassment, abuse of process, and civil rights
violations under 42 U.S.C. 1983 by the Foremans and Melaney in
the Corneloup litigation and FED case. Judge Rindner granted
summary judgment in favor of the defendants and dismissed
DeNardos lawsuit in May 2006. DeNardo did not appeal.
DeNardo filed DeNardo v. Maassen in December 2005,
ultimately including claims against the Foremans, Melaney,
Maassen (counsel for the Foremans in Sawicki), Sawicki, and Judge
Rindner. DeNardo alleged that the defendants had used false
statements, perjury, negligent misrepresentations, and fraud upon
the court to defeat the abuse of process claims he had asserted
in Sawicki, and that Judge Rindner had denied his constitutional
rights while presiding over the Sawicki litigation.
In early June 2006 Maassen and the Foremans filed
motions for summary judgment. DeNardo requested time for
discovery to aid his opposition to summary judgment. Melaney
then filed a motion to dismiss, adopting Maassens and the
Foremans arguments. DeNardo opposed Melaneys motion in July
2006. In August Judge Tan denied DeNardos request for time for
discovery and gave him fifteen days to respond to the summary
judgment motions.
In September Judge Rindner filed a motion for summary
judgment and asked the court to impose a pre-litigation screening
order that would prevent DeNardo from suing superior court
judges. The Foremans, Maassen, and Melaney joined in the request
for a pre-litigation screening order. In October DeNardo
requested additional time for discovery to oppose Judge Rindners
summary judgment motion and the defendants combined request for a
pre-litigation screening order, but did not identify any
discovery that would be helpful to his opposition.
In December Judge Tan converted Melaneys dismissal
motion into a summary judgment motion because it incorporated the
Foremans summary judgment filings, and gave DeNardo ten
additional days to respond to the dispositive motions. After
DeNardo filed another motion for time for discovery in January
2007, which Judge Tan denied because the issues on which DeNardo
sought discovery had been litigated to conclusion in earlier
cases, DeNardo moved to recuse Judge Tan for cause.
In February Judge Tan denied DeNardos motion for
recusal and granted the defendants summary judgment motions and
the motion for pre-litigation screening. Judge Rindner timely
moved for attorneys fees under 42 U.S.C. 1988, and Judge Tan
granted the motion. Judge Tan denied DeNardos motion for
reconsideration of the fee award.
DeNardo appeals.
III. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion by
Denying DeNardos Motion To Recuse.
DeNardo moved to recuse Judge Tan for cause, alleging
that Judge Tan was biased because he was a named defendant in
another suit brought by DeNardo. Judge Tan denied the recusal
motion in the same order that granted summary judgment in favor
of the defendants. Judge Tan declined to recuse himself because
[t]his court does not feel as though it must recuse itself merely
because it is being sued in another case by Mr. DeNardo.
Superior Court Judge Patrick J. McKay then reviewed
Judge Tans decision to deny the motion for recusal.18 Judge McKay
noted that DeNardo did not file a peremptory challenge or a
timely challenge for cause, but instead waited approximately nine
months before filing his motion in direct response to an adverse
decision. Judge McKay observed that DeNardo sues judges
frequently, often in response to adverse rulings, but concluded
that adverse rulings are neither a basis for a lawsuit against a
judge nor sufficient evidence of bias.19 Judge McKay concluded
Judge Tan properly refused to recuse himself and affirmed Judge
Tans decision.
DeNardo now argues that Judge Tan should have recused
himself because DeNardo had an existing claim against him in
another case. Recusal is governed by AS 22.20.020(a) and Alaska
Code of Judicial Conduct Canons 2 and 3. Subsection .020(a)
requires a judges recusal if he or she feels that, for any
reason, a fair and impartial decision cannot be given.20 Canon 2
provides that judges must avoid impropriety and the appearance of
impropriety, and act in a manner that promotes public confidence
in the integrity and impartiality of the judiciary.21 Canon 3
requires judges to perform their duties without bias or
prejudice.22
We review decisions on disqualification motions for
abuse of discretion.23 [We] will not overturn a judges [recusal]
decision unless it is plain that a fair-minded person could not
rationally come to that conclusion on the basis of the known
facts.24 And we have noted that a judge has as great an
obligation not to disqualify himself [or herself], when there is
no occasion to do so, as he [or she] has to do so in the presence
of valid reasons.25
The record does not contain, nor does DeNardo point to,
any specific evidence of actual bias or an appearance of bias by
Judge Tan. Our past holdings demonstrate that neither
interpretations of the law26 nor adverse rulings27 alone are
sufficient to require recusal. We now hold that disqualification
is not required simply because a party is separately suing the
judge in the judges official capacity or based on the judges
performance of official duties, as long as the judge reasonably
believes he or she can be fair and impartial.28 Accordingly, we
conclude that it was not an abuse of discretion for Judge Tan to
deny DeNardos motion for recusal.
B. The Superior Court Did Not Err by Granting the Foremans
and Judge Rindners Motions for Summary Judgment.
We review a grant of summary judgment de novo, drawing
all reasonable factual inferences in favor of the non-prevailing
party.29 Once the moving party has made a prima facie showing
that it is entitled to judgment on the established facts as a
matter of law, the non-moving party must demonstrate that a
genuine issue of fact exists to be litigated by showing that it
can produce admissible evidence reasonably tending to dispute the
movants evidence.30 We will affirm a grant of summary judgment
only when no genuine issues of material fact exist and the moving
party is entitled to judgment as a matter of law.31
1. Summary judgment in favor of the Foremans was
appropriate because no genuine issue of material
fact exists as to DeNardos abuse of process and
1983 claims against them.
a. DeNardos abuse of process claim against the
Foremans is without merit.
DeNardos abuse of process claim in the Sawicki
litigation consists of three parts. First, he alleges generally
that the Foremans engaged in fraudulent and underhanded tactics
in defending against his claims. Second, he complains that the
Foremans refused to respond to his discovery requests. Finally,
he asserts that the Foremans engaged in notary fraud. Each
argument is without merit because it either lacks a factual basis
in the record or has been litigated in prior cases between the
parties.
(i) Generalized abuse of process allegations
Abuse of process is a tort comprised of two elements:
(1) an ulterior purpose and (2) a willful act in the use of
process not proper in the regular conduct of the proceeding.32
The first element, ulterior purpose, usually consists of coercion
to obtain a collateral advantage, not properly involved in the
proceeding itself, such as the surrender of property or the
payment of money [with] use of the process as a threat or a club.33
The second element involves an overt act, but actions taken in
the regular course of litigation, such as threatening suit or
requesting discovery, are not a proper basis for an abuse of
process claim even if done with an ulterior motive.34
DeNardo argues that the defendants committed abuse of
process in the Sawicki litigation by: (1) filing motions based
on misrepresentations of landlord-tenant laws and fraudulent
affidavits with the ulterior purpose of convincing the court to
dismiss his causes of action and deny his motions for discovery;
(2) using motion practice to burden [him] with a multiplicity of
actions at law, appeals, costly motion practice, and attorneys
fees accruing to [the] defendants benefit; and (3) filing the FED
action to retaliate against him for complaining about the
habitability of his apartment. To support these allegations on
appeal, he cites only to his own motions, which have no factual
basis. DeNardo seems to argue that the ulterior motive element
is fulfilled by the Foremans efforts to defeat his claims through
litigation. DeNardo does not allege any specific improper
willful acts in satisfaction of the second element of the abuse
of process tort,35 but it may be inferred he argues the improper
willful act element was fulfilled when the Foremans used judicial
process to evict him and file an FED action against him.
DeNardo has not demonstrated a genuine issue of
material fact for either the ulterior purpose or willful act
element of an abuse of process claim. DeNardos argument is
essentially the same as his underlying argument in DeNardo v.
Cutler, in which DeNardo asserted an abuse of process claim
against his former employer, its lawyer, its lawyers law firm,
and Judge Rindner.36 DeNardo argued that the defendants ulterior
motive was retribution for suing his employer and that the
defendants sought to coerce him into abandoning his cause of
action.37 We concluded that his claim was insufficient to support
an inference that the defendants were attempting anything other
than the successful dismissal of a lawsuit, which is not an
ulterior motive and that [f]or this reason alone, the superior
courts dismissal of the claim was proper.38 We also concluded
that DeNardo did not assert a clear willful act other than the
filing of motions which were ruled upon favorably.39
Because (1) actions taken in the regular course of
litigation are not a proper basis for an abuse of process claim,40
(2) DeNardo did not plead his generalized abuse of process claims
with any particularity,41 and (3) DeNardo pointed to no facts
supporting his claim, summary judgment against him was
appropriate on his generalized abuse of process claim.
(ii) Failure to reply to requests for
admission
Judge Rindner issued orders during the Sawicki
litigation denying DeNardos discovery requests on issues already
litigated in Corneloup. DeNardo now argues that the Foremans
engaged in abuse of process in the Sawicki litigation by refusing
to answer his repeated requests for admissions.
Given Judge Rindners discovery orders in Sawicki,
DeNardo has not specified any requests for admissions the
Foremans wrongfully failed to answer. DeNardo has further failed
to demonstrate that he objected to this alleged discovery
violation during the Sawicki litigation and to explain why his
claim can be raised in this case when he did not appeal the final
judgment in Sawicki. Nor has he specifically alleged either an
ulterior purpose or a willful act related to the Foremans failure
to respond to his discovery requests. Because DeNardo has not
demonstrated a genuine issue of material fact, we affirm summary
judgment against him on this issue.
(iii) Notary fraud allegations
DeNardos notary fraud claim consists of two parts. He
first claims that the Foremans failed to swear the oath required
by law before signing the affidavit for documents submitted in
this case and other cases between these same parties. He also
claims that the Foremans improperly approve[d] the use of Penny
Foreman as a notary knowing that she is a party to the multiple
actions between the parties and a named defendant in the
notarized documents. He argues that the Foremans perpetrated
notary fraud in an effort to deceive the court.
A notarys certification that the affiant knowingly
signed the document in her presence is sufficient to make the
document a sworn statement even without proof that the oral oath
was administered.42 Alaska Statute 44.50.062(5) permits a notary
to notarize a document as long as the person who is to sign the
document (A) appears and signs the document before the notary
public . . . ; (B) gives an oath or affirmation if required under
law or if the notarial certificate states that the document was
signed under oath or affirmation; and (C) is personally known to
the notary public . . . . Alaska Statute 44.50.062(6)(a)
provides that a notary may not perform a notarial act if the
notary public . . . is a signer of or named in the document that
is to be notarized.
Even assuming Penny Foreman notarized an affidavit in a
case in which she was a named party, DeNardos claim fails as a
matter of law because he did not allege any specific facts in
support of his fraud claim. Rather, he alleged in conclusory
fashion that the Foremans perpetrated notary fraud to deceive the
court and DeNardo, to present perjury, [and to] procure an undo
[sic] advantage by the use of fraud, deceit and entrapment.
DeNardo points to no actual deception or false statement in the
notarized documents, nor has he demonstrated that he suffered any
specific harm as a result of Penny Foremans alleged misconduct.
Because DeNardo has not demonstrated a genuine issue of
material fact regarding the alleged notary fraud, the superior
court properly granted summary judgment against him on this
issue.
b. DeNardos 1983 claim against the Foremans is
without merit.
DeNardo also asserted a 42 U.S.C. 198343 claim against
the Foremans for seeking to deprive him of the property right in
his tenancy. According to DeNardo, by bringing an FED action and
relying on the assistance of a state actor (the judge), the
Foremans acted under color of state law. DeNardos claim hinges
on the idea that an FED action is a construct of state law with
no significance outside the state court; thus, he argues, private
landlords who use the FED system are state actors for the
purposes of 1983. Even aside from the fact that the FED action
was part of the long-since-completed Corneloup litigation,44
DeNardos claim has no merit.
In DeNardo v. Cutler we held that acting under color of
state law requires a 1983 defendant to have exercised power
possessed by virtue of state law and made possible only because
the wrongdoer is clothed with the authority of state law.45 A
private party conspiring with a state actor may fall within
1983s reach, but when association with a state actor forms the
basis for necessary state action, conclusory allegations
unsupported by factual assertions are insufficient: the
pleadings must specifically present facts tending to show
agreement and concerted action.46
DeNardo alleged in Cutler that his former employer and
its counsel acted under color of state law because they could not
have had his first suit dismissed if not for the intervention of
the state judge following state court procedures.47 We held that
this was insufficient to support a finding of a conspiracy with a
state actor and that use of the court system by private parties
for the purpose of litigation is not sufficient to bring them
under color of state law. 48 We concluded that the superior court
correctly dismissed DeNardos 1983 claims on those grounds.49
DeNardo here reprises his 1983 claim from Cutler,
arguing that FED actions are a construct of the state court
system and that instituting an FED action is thus sufficient to
show requisite conspiracy with state actors. This is the same
argument we rejected in Cutler. DeNardo has not shown that the
Foremans acted under color of state law, nor has he specifically
presented any facts tending to show agreement and concerted
action between the Foremans, Sawicki, and any individuals who
would qualify as state actors.50 We therefore affirm summary
judgment on this issue in the Foremans favor because no genuine
issue of material fact exists and the Foremans are entitled to
judgment as a matter of law.
2. Summary judgment in favor of Judge Rindner was
appropriate because no genuine issue of material
fact exists as to DeNardos 42 U.S.C. 1983 claims
against him.
Again invoking 1983, DeNardo sought unspecified
injunctive and declaratory relief against Judge Rindner for
allegedly violating DeNardos constitutional rights in Sawicki.
Judge Tan granted summary judgment for Judge Rindner based on
judicial immunity and collateral estoppel. DeNardo now argues
that 1983 authorizes declaratory and injunctive relief against
state actors in their official capacity.
DeNardos claim that he is entitled to declaratory and
injunctive relief fails as a matter of law. The doctrine of
judicial immunity bars DeNardo from suing Judge Rindner except
for non-judicial acts or acts clearly outside Judge Rindners
subject matter jurisdiction.51 DeNardo has failed to establish
either element here. Accordingly, we affirm summary judgment in
favor of Judge Rindner.
C. The Superior Court Did Not Abuse Its Discretion by
Ordering Pre-Litigation Screening.
Judge Rindner asked the superior court to enter a pre-
litigation screening order requiring DeNardo to submit future
complaints against Alaska judges to the court for pre-filing
screening. The Foremans and Maassen joined Judge Rindners
motion, asking the court to impose a pre-litigation screening
order for their benefit as well. Rather than filing a
substantive response, DeNardo moved for a continuance to conduct
discovery he believed necessary to respond to the pre-litigation
screening motion, even though the motion was based solely on his
litigation history. Judge Tan granted a protective order against
further discovery, holding no response to DeNardos discovery
requests was needed because they address issues that were either
actually litigated in previous cases on these same facts, or
should have been.
Judge Tan then granted the screening motion in part and
issued an order requiring DeNardo to seek court permission before
filing any new complaints against the named defendants in this
case. He ordered that the court would grant permission only if:
a.) The complaint does not restate a cause
of action that has already been asserted or could
have been asserted in a prior case against the
same parties;
b.) The complaint is definitive, detailed,
and legally sufficient to survive a motion to
dismiss; and
c.) Unless a stay of execution is in place,
DeNardo has submitted proof that he has paid any
court-ordered sanctions and awards of attorneys
fees and costs that he owes defendants named in
the new complaint under existing judgments and
orders.
DeNardo asserts that the pre-litigation screening order is not
factually supported and denies his constitutional rights to court
access, redress of grievances, and trial by jury.
In DeNardo v. Cutler we considered a similar request by
Judge Rindner for a pre-litigation screening order limiting
DeNardos ability to sue superior court judges.52 We declined to
consider Judge Rindners request because it was raised for the
first time on appeal, but nevertheless stated that screening
orders may be permissible if they meet certain requirements: A
request for an injunction . . . should be raised initially in the
superior court in order to allow all parties the proper due
process which must include a hearing, adequate justification in
the record, and a narrowly tailored order.53
We have not yet determined the appropriate standard for
reviewing a pre-litigation screening order. The Foremans and
Judge Rindner urge us to look to the Ninth Circuit Court of
Appeals, which has held that pre-litigation screening orders are
reviewed for abuse of discretion.54 We agree and now hold that a
pre-litigation screening order will be reviewed for abuse of
discretion, but we will affirm an order only if it is narrowly
tailored and based on adequate justification in the record.
As a preliminary step, the question of whether the
subject of a pre-litigation screening order received adequate
procedural due process is a constitutional question that we
review de novo.55 [P]rocedural due process under the Alaska
Constitution requires notice and opportunity for hearing
appropriate to the nature of the case.56 Notice of the matter at
issue in the proceedings provides parties with a reasonable
opportunity to be heard.57 A hearing gives the parties an
opportunity to present the quantum of evidence that the court
needs to make an informed and principled determination.58 A party
may waive the right to an evidentiary hearing on disputed
material questions of fact by failing to request one before the
court rules on the matter.59
DeNardo received adequate procedural due process with
respect to the pre-litigation screening order, including notice
and the opportunity to be heard. The defendants requested the
order in the superior court, thus giving DeNardo an opportunity
to be heard on the matter. Although DeNardo unsuccessfully moved
for discovery to respond to the motion, he failed to file a
substantive response. He thus had but did not utilize the
opportunity to respond, and he waived any right to a hearing on
the motion by not requesting one. Finally, there are no genuine
issues of fact about the number of times DeNardo has previously
sued the Foremans or Judge Rindner or about the basis for his
prior claims against them.
We also conclude that it was not an abuse of discretion
to determine that the circumstances of this case justify a pre-
litigation screening order. By their very nature, requests for
pre-litigation screening orders require a court to consider the
sum of a litigants actions. DeNardo has named the Foremans as
defendants in at least eleven suits, all of which have involved
claims about the habitability of the apartment at issue in
Corneloup and some of which have involved the same abuse of
process claims. As the Foremans argue, [a] case for pre-
litigation screening with more adequate justification than this
one is hard to imagine.60 Although the facts of this case alone
warrant a pre-litigation order, the sum and character of DeNardos
long history with the court system also support the superior
courts determination.61
The pre-litigation screening order, limited to suits
against the named defendants in this case, is for the most part
appropriately tailored to the particular circumstances of this
case and therefore does not constitute an abuse of discretion.
The first condition, found in section (a), prohibits DeNardo from
filing a complaint that restates an existing cause of action or a
cause of action that could have been litigated in a prior case
against the same parties. This does not restrict DeNardos access
to the courts on new claims against these defendants or other
parties. It limits only his ability to file complaints that
would already be barred by res judicata or collateral estoppel.
It is therefore reasonable to require DeNardo to present each of
the prior complaints involving the defendants and to show, by
reference to those prior cases, that any new complaint contains a
distinct and viable new issue. The second condition, found in
section (b), requires DeNardos future complaints to be
definitive, detailed, and legally sufficient to survive a motion
to dismiss. This is also reasonable because all complaints must
state a claim for which relief may be granted.62 We therefore
conclude that sections (a) and (b) of the pre-litigation
screening order fall squarely within the courts discretion.
The third condition, found in section (c), requires
DeNardo to submit proof that he has paid outstanding court-
ordered sanctions and attorneys fees. In short, this requires
DeNardo to settle up with the defendants before he may pursue a
new case against them. Judge Tan explained that this merely
ensures that DeNardo is able to pay debts previously ordered
before he may [impose] further expenses on the defendants and the
court. Requiring a litigant to satisfy his debts to named
defendants before he may sue them again is not unprecedented.63
But we conclude that sections (a) and (b) of the pre-litigation
screening order provide the defendants adequate protection and
that it is inappropriate to limit DeNardos access to the court
system based on his failure to satisfy debts resulting from
previous unrelated lawsuits. We therefore affirm the pre-
litigation screening order as to sections (a) and (b), but strike
section (c).
D. The Attorneys Fees Issue is Waived.
In April 2007 Judge Rindner moved for an award of full
attorneys fees under 42 U.S.C. 1988,64 contending that DeNardos
claims against him were frivolous, vexatious, and in bad faith.
DeNardo opposed the motion, but presented only one contention
relevant to the attorneys fees issue: he claimed that the award
of attorneys fees was not based on any findings of fact. Judge
Tan granted Judge Rindners motion.
DeNardo did not raise the attorneys fees issue in his
Points on Appeal and his briefing on the issue is inadequate.
Because an issue is waived when a party fails to raise it in the
points on appeal and then inadequately briefs the argument,65
DeNardos challenge to the attorneys fee award is waived.
IV. CONCLUSION
We AFFIRM Judge Tans denial of DeNardos motion for
recusal. We AFFIRM summary judgment in favor of the Foremans and
Judge Rindner, as well as the award of attorneys fees in favor of
Judge Rindner. Finally, we AFFIRM the pre-litigation screening
order as to sections (a) and (b), but we strike section (c).
_______________________________
1 See DeNardo v. Corneloup, 163 P.3d 956, 958 (Alaska
2007). We refer to Foreman Properties and the individual
Foremans collectively as the Foremans.
2 3AN-04-5236 CI (Alaska Super., May 19, 2004).
3 3AN-05-14472 CI (Alaska Super., December 30, 2005).
4 After filing his appeal, DeNardo stipulated to dismiss
the attorneys from the case. Nothing in the record shows that
Sawicki ever was served or appeared in the superior court
litigation. Nor does anything in the record show that DeNardos
putative claim against Sawicki was resolved in any way; the final
judgments entered to close the case do not mention Sawicki.
Thus, the appellees here are the Foremans and Judge Rindner.
5 Corneloup, 163 P.3d at 958.
6 Id.
7 Id.
8 Id.
9 Id.
10 Id.
11 Id.
12 Id. at 958-59.
13 Id. at 958.
14 Id.
15 Id.
16 Id. at 959.
17 Id. at 957-58.
18 See AS 22.20.020(c) (If a judicial officer denies
disqualification the question shall be heard and determined by
another judge assigned for the purpose by the presiding judge of
the next higher level of courts or, if none, by the other members
of the supreme court.).
19 Judge McKay disclosed that DeNardo had in fact sued
Judge McKay in an unrelated matter, but determined that he could
be fair to Mr. DeNardo and maintain the required judicial
detachment to make decisions in this case.
20 AS 22.20.020(a)(9).
21 Alaska Code of Judicial Conduct Canon 2(A).
22 Alaska Code of Judicial Conduct Canon 3(B)(5).
23 Corneloup, 163 P.3d at 959.
24 Amidon v. State, 604 P.2d 575, 577 (Alaska 1979).
25 Id. at 577.
26 Corneloup, 163 P.3d at 967.
27 Wasserman v. Bartholomew, 38 P.3d, 1162, 1171 (Alaska
2002).
28 See, e.g., Corneloup, 163 P.3d at 967 (The record
reveals no basis for claiming an appearance of bias or conflict
of interest despite DeNardos two civil suits against the trial
judge. Cf. DeNardo v. Muni. of Anchorage, 974 F.2d 1200, 1200-01
(9th Cir. 1992) (affirming trial judges decision not to recuse
himself when judge was a member of state bar association, a named
defendant in the case, and when plaintiff had sent letter to
senate judiciary committee opposing judges nomination, which
court noted was probative of DeNardos dislike for [the judge],
not the other way around.).
29 Perkins v. Doyon Universal Servs., 151 P.3d 413, 415-16
(Alaska 2006).
30 Harrold v. Artwohl, 132 P.3d 276, 279 (Alaska 2006)
(quoting French v. Jadon, Inc., 911 P.2d 20, 23 (Alaska 1996)).
31 Id.
32 DeNardo v. Cutler, 167 P.3d 674, 678 (Alaska 2007)
(quoting Kollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988))
(internal quotation marks omitted).
33 Id. (quoting W. Page Keeton et al., Prosser and Keeton
on the Law of Torts 121, at 897 (5th ed. 1984)) (internal
quotation marks omitted).
34 Id. (quoting Meidinger v. Koniag Inc., 31 P.3d 77, 86
(Alaska 2001)).
35 DeNardo alleged in conclusory fashion that the Foremans
used perjury and deceit, fraudulent affidavits, negligent
misrepresentations to misstate the law, and fraudulent arguments
unsubstantiated by case decisions. He also alleged that they
acted to curtail and deny [his] access to the evidence and acted
to hide the facts and evidence by refusing to produce relevant,
material, and probative evidence.
36 Cutler, 167 P.3d at 676, 678.
37 Id. at 678.
38 Id.
39 Id.
40 Id. (internal quotation marks omitted).
41 See Alaska R. Civ. P. 9(b) (In all averments of fraud
or mistake, the circumstances constituting fraud or mistake shall
be stated with particularity.).
42 Gargan v. State, 805 P.2d 998, 1004-05 (Alaska App.
1991) (citing Anchorage Sand & Gravel Co., Inc. v. Wooldridge,
619 P.2d 1014, 1016 (Alaska 1980)).
43 42 U.S.C. 1983 provides a cause of action against
persons acting under color of any statute, ordinance, regulation,
custom or usage, of any State who violate federal rights.
44 Corneloup, 163 P.3d at 957-58.
45 Cutler, 167 P.3d at 678-79 (quoting West v. Atkins, 487
U.S. 42, 50 (1988) (internal quotation marks omitted)).
46 Id. at 679 (quoting Sooner Prods. Co. v. McBride, 708
F.2d 510, 512 (10th Cir. 1983) (internal quotation marks
omitted).
47 Id.
48 Id.
49 Id.
50 See id. at 679 (quoting Sooner Prods. Corp. v. McBride,
708 F.2d 510, 512 (10th Cir. 1983)) (internal quotation marks
omitted).
51 See DeNardo v. Michalski, 811 P.2d 315, 316 (Alaska
1991) (citing Stump v. Sparkman, 435 U.S. 349 (1978)). This
court has specifically explained to DeNardo that judicial
immunity applies to 1983 claims against judges. Cutler, 167
P.3d at 679 ([T]he absolute immunity traditionally accorded
judges [is] preserved under 1983. (quoting Owen v. City of
Independence, 445 U.S. 622, 637 (1980))) (internal quotation
marks omitted).
52 Cutler, 167 P.3d at 680-81.
53 Id. at 681.
54 E.g., Molski v. Evergreen Dynasty Corp., 500 F.3d 1047,
1056 (9th Cir. 2007) (We review a pre-filing order entered
against a vexatious litigant for abuse of discretion.); DeLong v.
Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) ([W]e recognize
that [there] is strong precedent establishing the inherent power
of federal courts to regulate the activities of abusive litigants
by imposing carefully tailored restrictions under the appropriate
circumstances.) (internal quotation marks omitted).
55 Skinner v. Hagberg, 183 P.3d 486, 489 (Alaska 2008) (We
review constitutional questions de novo, adopting the rule of law
that is most persuasive in light of precedent, reason, and
policy.).
56 Price v. Eastham, 75 P.3d 1051, 1056 (Alaska 2003)
(quoting Walker v. Walker, 960 P.2d 620, 622 (Alaska 1998))
(internal quotation marks omitted).
57 Id. (quoting Potter v. Potter, 55 P.3d 726, 728 (Alaska
2002)).
58 Id. (quoting Walker, 960 P.3d at 622) (internal
quotation marks omitted).
59 Corbin v. Corbin, 68 P.3d 1269, 1274 (Alaska 2003); see
also In re C.L.T., 597 P.2d 518, 522 (Alaska 1979) (By consenting
to certain procedures or by failing to object to others, a party
may waive those rights which are arguably encompassed within due
process.).
60 DeNardo already has been subject to at least one
injunction preventing him from filing additional federal suits
against certain defendants. See DeNardo v. Murphy, 781 F.2d
1345, 1348 (9th Cir. 1986). In Murphy, the Ninth Circuit Court
of Appeals affirmed the district courts injunction, noting:
[a]lthough litigiousness alone is no reason to
enjoin future litigation, frivolous claims by a
litigious plaintiff may be extremely costly to
defendants and can waste valuable court time.
In view of the number of times DeNardo has
forced these defendants to defend themselves on
the same claim, the age of the underlying claim,
and the resolution of the issue in both federal
and state courts, the district court did not abuse
its discretion by enjoining litigation over
DeNardos 1978 discharge. Id. (internal citations
omitted).
61 DeNardo has filed at least sixty-two cases in state
trial court since 1990. A supplement to the record on appeal
indicates that DeNardo has named superior court judges as
defendants on at least thirty occasions. This supplement also
indicates that DeNardo has sued Judge Rindner at least three
times other than in this case.
62 See, e.g., Perry v. Gold & Laine, P.C., 371 F. Supp. 2d
622, 631-32 (D.N.J. 2005) (enjoining vexatious litigants ability
to file suit unless litigant shows her claim can survive, among
other things, a motion for judgment on the pleadings).
63 The Seventh Circuit Court of Appeals recently imposed a
similar requirement on a vexatious litigant, noting: [t]he due
process clause entitles every litigant to a full and fair
opportunity to be heard; it does not entitle anyone to be heard
on the same question over and over. The law of preclusion (res
judicata and collateral estoppel) rests on the proposition that
once is enough. In re City of Chicago, 500 F.3d 582, 585 (7th
Cir. 2007).
64 1988(b) provides as follows:
(b) Attorney's fees. In any action or proceeding
to enforce a provision of sections 1981, 1981a,
1982, 1983, 1985, and 1986 of this title, . . .
the court, in its discretion, may allow the
prevailing party, other than the United States, a
reasonable attorney's fee as part of the costs,
except that in any action brought against a
judicial officer for an act or omission taken in
such officer's judicial capacity such officer
shall not be held liable for any costs, including
attorney's fees, unless such action was clearly in
excess of such officer's jurisdiction.
65 See Brady v. State, 965 P.2d 1, 7 n.5 (Alaska 1998)
(concluding that [d]espite our solicitude for pro se appellants,
pro se appellant waived attorneys fee issue by failing to include
it in points on appeal and to brief it adequately).
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