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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Shooshanian v. Dire (8/13/2010) sp-6499
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
| AZURON SHOOSHANIAN, | ) |
| ) Supreme Court No. S- 13205 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-07- 11512 CI | |
| v. | ) |
| ) O P I N I O N | |
| ) | |
| COLLEEN DIRE, | ) No. 6499 - August 13, 2010 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: David R. Edgren, Edgren Law
Offices, LLC, Anchorage, for Appellant.
Kevin G. Brady, Anchorage, for Appellee.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, Christen, and Stowers, Justices.
WINFREE, Justice.
I. INTRODUCTION
A landlord sought re-possession of her condominium from
a tenant. The tenant asserted he had an enforceable right to
purchase the residence based on an option in his lease (the
option right). After a superior court bench trial at which the
tenant appeared pro se, the court ruled in favor of the landlord.
The tenant appeals, arguing that the trial court erred by: (1)
refusing to postpone trial to allow him to retain counsel;
(2) failing to assist him with evidentiary objections at trial;
(3) failing to disqualify the landlords attorney as trial counsel
because the attorney was a necessary witness; and (4) concluding
that there was neither an enforceable purchase agreement nor an
unexpired option right. We affirm the trial courts decision
because: (1) the trial court did not abuse its discretion or
commit plain error with respect to the procedural issues the
tenant raises; (2) the trial courts factual findings are not
clearly erroneous; and (3) the trial court did not err in its
legal conclusions.
II. FACTS AND PROCEEDINGS
A. Facts
In May 2004 Azuron Shooshanian and Suewanna Ekstrom
began leasing a condominium from Colleen Dire for $800 per month.
Dire handwrote the one-page lease agreement, leaving blanks for
the lessees names. Shooshanian wrote his own name into some of
the blanks and wrote his and Ekstroms first names together in
others. The lease included an option to purchase the residence
and required that [i]ntent . . . be informed to [Dire] within the
year before the end of the lease. (first year). The lease also
provided that all payments for repairs and upgrades would factor
into the final cost of the residence. Neither Shooshanian nor
Ekstrom signed the lease. The parties agree that the lease had a
one-year term.
The parties agree that when Dire signed the handwritten
lease she said the residence was worth approximately $140,000.
At some point Shooshanian handwrote at the bottom of the lease,
squeezed above Dires signature, Sale price of house is 140,000
with - % of going rate. Shooshanian explained at trial that -
% of going rate meant that after he told Dire he wanted to buy
the residence he would owe her interest on the remaining debt at
a rate of one-half percent less than the average going rate in
the mortgage industry. Dire testified at trial that Shooshanian
must have added the sentence after she had signed the handwritten
lease and handed it to him.
According to Shooshanian the parties also agreed to
important terms not reflected in the handwritten lease.
Shooshanian testified that when Dire signed the handwritten lease
she told him his monthly rental payments would count toward the
purchase price and she would finance the purchase. Dire disputed
both contentions at trial.
The parties agree that Shooshanian and Ekstrom verbally
informed Dire within the lease period that they wanted to buy the
residence. Shooshanian contended at trial that when he told Dire
he wanted to buy the residence (1) she again said she would
finance the purchase and (2) his $800 monthly payments started to
function as mortgage payments. Dire disputed both contentions at
trial. Shooshanian and Ekstrom never applied for alternative
financing or sought an appraisal of the residence. Shooshanian
made no payment to Dire beyond the monthly $800, and when he made
repairs to the residence he deducted the cost of materials from
his monthly payments. Title to the residence remained in Dires
name, and Shooshanian never assumed any responsibility for paying
property taxes, insurance premiums, or condominium association
dues. Shooshanian testified he understood a portion of his rent
money had always gone toward paying the condominium dues and
property taxes.
Shooshanian testified that Dire told him not to worry
about the lease expiring because he would not be evicted and
Kevin Brady, her friend and later her trial attorney, would
prepare a new lease. At trial Dire confirmed that she had told
Shooshanian she would attempt to get him a better lease.
Shooshanian contended that at some point he gave Dire an option
to buy lease and that she later told him she had filled it out
and then lost it, but Dire testified that she did not remember
telling him that.
In April 2006, nearly one year after the initial
handwritten lease agreement expired and approximately one and one-
half years after Shooshanian gave notice of his desire to
purchase the residence, Shooshanian, Ekstrom, and Dire met to
fill out a form entitled Residential Lease with Option to
Purchase. Together they wrote the date, the parties names, and
the security deposit amount into the blanks provided. Dire even
signed at the bottom, but the form was never completed because
they were confused about how to fill it out. Among terms left
blank were the purchase price, closing date, and financing
arrangements.
Shooshanian testified that at Dires direction in late
2006 approximately one and one-half years after the initial
handwritten lease expired and over two years after Shooshanian
gave notice he wanted to exercise the option he went to Bradys
office to complete a lease agreement. Shooshanian alleged that
Brady then informed him the sale price had increased above
$140,000 and insisted that before they addressed the lease,
Shooshanian pay all accrued back rent.
B. Proceedings
Brady holding a limited power of attorney relating to
the residence gave Shooshanian notice of the termination of his
tenancy in October 2007, nearly two and one-half years after the
lease term had expired and over three years after Shooshanian
gave notice of his intent to purchase the residence. Brady filed
a Forcible Entry and Detainer (FED) action in district court the
next month. In his answer to the FED complaint, Shooshanian
asserted that eviction was improper, claiming he held two option
to buy leases. This caused the case to be transferred from
district to superior court.1
At a conference in mid-April 2008 the trial court
informed Shooshanian and Brady that trial would be held the week
of June 30. On June 11 Shooshanian moved for a continuance,
contending he had other court appearances set for June. In this
motion, he also requested Dires physical presence, alleging she
had deliberately missed trial in the past we infer Shooshanian
viewed Dires prior attendance record as an additional reason to
postpone trial. Shooshanian moved to expedite his continuance
request on June 12. The trial court granted expedited
consideration but denied the continuance request on June 13.
At the June 20 pretrial conference Shooshanian told the
trial court he was not ready to proceed because he was hiring an
attorney. Shooshanian explained that he had talked to a few
different lawyers in the seven months after the case was filed,
but that a particular (unidentified) attorney he spoke to would
not be available until August. The trial court did not postpone
trial, but told Shooshanian that if he hired an attorney the
attorney could move for a continuance. The trial court also
noted that if Dire, who had been hit by a car earlier that year,
was physically unable to attend trial a continuance would be
granted. Trial took place as scheduled, with Dire in attendance
and Shooshanian representing himself.
The trial court found that Shooshanian held an option
right to purchase the residence, but concluded that a further
contract was needed to accomplish the purchase. The trial court
also found that Shooshanian told Dire he wanted to buy the
residence and that the parties expected a contract would be
drafted and signed to memorialize the terms of the sale, but that
no further contract was negotiated. The trial court granted Dire
judgment for possession. Shooshanian appeals.
III. STANDARD OF REVIEW
We review for abuse of discretion a refusal to grant a
continuance,2 decisions about guidance to a pro se litigant,3 and
decisions about the admissibility of evidence.4 We review the
question of whether opposing counsel should have been
disqualified for plain error because Shooshanian waived the
issue.5
Whether Shooshanians option right to purchase the
residence expired unconsummated is a mixed question of fact and
law. We review the factual findings for clear error, reversing
only when after a thorough review of the record we are left
with a definite and firm conviction that a mistake has been made.6
We review the legal issues de novo and will adopt the rule of law
that is most persuasive in light of precedent, reason, and
policy.7
IV. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion By
Refusing To Continue The Trial.
Shooshanian argues that the trial court abused its
discretion by refusing to continue trial to allow him time to
retain an attorney. Refusal to grant a continuance is an abuse
of discretion when a party has been deprived of a substantial
right or seriously prejudiced.8 The reasonableness of the denial
and any prejudice arising from the denial are evaluated on a
case-by-case basis.9 [B]ecause of the necessity for orderly,
prompt and effective disposition of litigation and the loss and
hardship to the parties [and] witnesses, trial courts should deny
motions for continuances unless there is some weighty reason to
the contrary.10 One such weighty reason is prejudice [to] the
substantial rights of parties by forcing them to go to trial
without being able to fairly present their case.11
Shooshanian argues that proceeding to trial deprived
him of his right to be assisted by counsel. He points out that
the right to select and retain ones own counsel is valuable.12 He
also cites case law regarding the appointment of counsel for
indigent litigants in civil cases, although he has not claimed
indigency or otherwise explained the relevance of these cases.
We are instructed by Siggelkow v. Siggelkow,13 where
Walter Siggelkow argued that his ability to prepare for trial had
been hampered because he was hospitalized days after retaining
his third attorney and the trial court denied his motion for a
continuance.14 Walter did not explain why he delayed more than
four months between consenting to the withdrawal of his second
attorney and hiring his third.15 We concluded that [t]he
prejudice Walter claims to have suffered stems not from his
illness, but from his late retention of counsel.16 We then quoted
with approval the following language from the Supreme Court of
Nevada: [W]hen new counsel is engaged just prior to the trial
date, the alleged lack of preparation on the part of such counsel
is not necessarily a ground for continuance; particularly where
the party has been guilty of negligence, such as inexcusable
delay in employing the new counsel . . . .17 If late retention of
counsel necessarily warranted a continuance, litigants could
indefinitely avoid trial of the issue by making late
substitutions.18
Shooshanian points out that he had never sought any
extension of time from the court or otherwise done anything to
delay the progress of the case, perhaps in an effort to
distinguish his circumstances from those of Walter in Siggelkow.19
Regardless of whether Walter delayed trial before his
unsuccessful motion for a continuance,20 our specific holding did
not depend on that fact: [p]rejudice resulting from a partys
lack of diligence in securing an attorney does not afford a basis
to obtain a continuance.21
As with Walter in Siggelkow, any impairment of
Shooshanians right to present his case was caused by his lack of
diligence in securing an attorney. Shooshanian offered no excuse
for his failure to retain counsel during the seven months before
the trial date. In short, the trial court did not force
Shooshanian to go to trial without being able to fairly present
his case rather, Shooshanian caused the situation by wait[ing]
until the last minute to [consider] hir[ing] an attorney.22
Shooshanian argues that the only hardship Dire would
have suffered had the court granted a continuance was not having
the [p]roperty in her possession, as Shooshanians monthly
payments to her were current as of the date of the pretrial
conference on June 20, 2008. But a continuance would have cost
Dire the opportunity to re-rent the residence for $1,200 or
$1,500 per month the rental value Shooshanian and Ekstrom
estimated at trial for properties with the same number of
bedrooms in the same area of town. Although the trial court
could have guarded against this opportunity cost by requiring a
bond, it did not need to reach the issue because Shooshanian
failed to demonstrate a weighty reason to postpone trial.
The trial court did not abuse its discretion by denying
Shooshanians request for a continuance.
B. The Trial Court Did Not Abuse Its Discretion By Not
Explaining How To Make Hearsay And Relevance Objections
Or By Not Excluding Hearsay Evidence To Which No
Objection Had Been Raised.
Shooshanian raises two issues relating to the
assistance a trial court must provide a pro se litigant. First,
Shooshanian argues that the trial court failed to provide him
with reasonable assistance, advisement and allowance in
connection with procedural, versus strategic, aspects of the
litigation. Specifically, Shooshanian asserts the trial court
f[ell] short by fail[ing] to inform [him] of his basic right to
object to testimony on certain grounds and to the introduction of
other evidence. Second, he argues that the trial court
wrongfully allow[ed] substantial hearsay testimony provided by
[Dire] and her witness without any admonishment of the witness or
notice to [Shooshanian] that he had the right to object to such
testimony. Shooshanian takes exception to testimony by Dires
daughter, Stephanie Shanklin, about the residences condition
under Shooshanians care and the condominium associations
complaints about how he maintained the yard.
When a pro se litigant is obviously attempting to
accomplish an action, the trial court should inform the litigant
of the proper procedure for that action.23 But a trial court is
not required to instruct a pro se litigant as to each step in
litigating a claim because such involved assistance would
compromise the courts impartiality in deciding the case by
forcing the judge to act as an advocate for one side.24
The record reflects that Shooshanian appeared to
understand trial procedure. He obtained affidavits from his
witnesses but also subpoenaed them because he understood he would
need to present his witnesses in court for cross-examination.
When the trial court explained to Shooshanian what his trial
brief should contain and accomplish, Shooshanian responded:
Okay. Okay. I know how it works. Shooshanian never asked the
trial court about grounds for objecting to testimony nor
attempted to object when Shanklin testified about the residences
condition and the condominium associations complaints. Because
Shooshanian did not make an obvious attempt to prevent Shanklin
from testifying on these subjects, the trial court did not have
an obligation to instruct him in the proper procedure for raising
objections.
Shooshanian cites Morkal v. State,25 an unpublished
court of appeals opinion, to support his argument that trial
courts are required to inform pro se litigants of their ability
to object to hearsay testimony. The question in Morkal was
whether the trial court should have sua sponte excluded hearsay
statements.26 The court of appeals noted that the trial court had
specifically explained the hearsay rule to Morkal before trial,27
and from this Shooshanian infers that the trial court in his case
had an obligation to make this same explanation to him. But
whether a trial court is obligated to explain the hearsay rule to
a pro se litigant was not at issue in Morkal, and there the court
of appeals concluded that [h]earsay evidence is admissible if the
opposing party does not object to it.28 This same conclusion
holds for Shooshanians argument regarding testimony to which he
did not object at trial.
Finally, we note the trial court did filter hearsay and
irrelevant testimony on Shooshanians behalf. The trial court sua
sponte prevented Brady from eliciting hearsay testimony from the
condominium associations president regarding her discussions with
Shanklin about Shooshanian. And in its decision, the trial court
expressly stated it disregarded as irrelevant the presidents
testimony that the association was considering evicting
Shooshanian for violating its covenants.
The trial court did not abuse it discretion by not
explaining how to make hearsay and relevance objections or by not
excluding hearsay evidence to which no objection had been raised.
C. The Trial Court Did Not Commit Plain Error By Not Sua
Sponte Disqualifying Brady As Trial Counsel.
Shooshanian argues that it was an abuse of discretion
to allow Brady to act as Dires attorney at trial when it was
plain that [Brady] was a necessary fact witness in the
proceedings. Shooshanian waived this issue because neither he
nor Dire attempted to call Brady as a witness and Shooshanian
never asked the trial court to disqualify Brady for any reason.29
Accordingly, we review Bradys continued role as trial counsel for
plain error.30 From the record before us it appears Bradys only
pretrial involvement was that Dire may have asked him to draft a
new lease and Brady may have used the prospect of a new lease as
leverage to get Shooshanian to pay back rent owed Dire. These
disputed facts are not material to whether Dire and Shooshanian
formed an enforceable contract for the sale of the residence or
an extension of the option. Brady was therefore not a necessary
witness at trial.
The trial court did not commit plain error by not sua
sponte disqualifying Brady as Dires trial counsel.
D. The Trial Court Did Not Err By Concluding Dire Was
Entitled To Possession Of The Residence.
Shooshanian challenges the trial courts grant to Dire
of possession of the residence, arguing that the trial court
fail[ed] to properly take into account or otherwise disregard[ed]
evidence tending to prove that [Shooshanian] had both a
contractual and equitable interest in the [premises]. This
argument challenges the trial courts determination that
Shooshanians option right expired unconsummated.
The trial court concluded the handwritten lease was
insufficient to support a sale because it did not contain an
agreed-upon sale price or financing terms. In finding that
Shooshanian and Dire did not agree on a sale price when Dire
signed the handwritten lease, the trial court reasoned that if
they had done so the last sentence setting out the purchase price
would have been in Dires handwriting like the rest of the
document. As to Shooshanians claim that the parties agreed on
owner-financing, the trial court noted that the handwritten lease
did not provide for it. The court further found it unlikely Dire
would have agreed to finance the purchase because there was no
evidence she had the resources to do so and because it would take
an extremely long period of time to pay off a $140,000 loan in
$800 installments at one-half a percentage point below the rate
commercial banks offered. Finally, the trial court noted that
Dires continued payment of insurance and property taxes and
Shooshanians continued deduction of repair costs from his monthly
payments were inconsistent with a mortgage arrangement.
Shooshanian argues that testimony supports his
contention that Dire agreed on a $140,000 purchase price and
owner-financing when she signed the handwritten lease. But his
argument challenges the weight the trial court afforded the
testimony and evidence at trial. We give great deference to the
trial courts credibility findings.31 It was not clearly erroneous
for the trial court to find that the parties had not agreed on a
sale price and that it was unlikely Dire had agreed to finance
the sale.
Shooshanian also argues that the trial court should
have found that he and Dire made an enforceable oral agreement .
. . that the option would be extended until such time as Dire
provided Shooshanian with a purchase agreement containing the
remaining needed terms. But at trial Shooshanian testified that
he did not give Dire anything of value to extend the option
beyond the handwritten leases expiration. It was not clear error
for the trial court not to find Shooshanian and Dire agreed he
would continue to pay $800 per month in exchange for an extension
of the option right. Those payments are consistent with a month-
to-month tenancy established when a landlord accepts rent after
the expiration of a fixed-term lease.32 Nor was the trial courts
finding clear error even if Dire told Shooshanian that Brady
would draft a new lease or if the purchase price increased after
the handwritten lease expired. Willing parties can draft a new
lease or negotiate a real estate sale in the absence of an option
agreement.
It was not clearly erroneous to find that the parties
never agreed on a price or financing terms to consummate the
transaction contemplated by the option language in the
handwritten lease. Because a real estate sale agreement without
these terms is not enforceable33 and because the parties never
entered into an enforceable agreement during the three-year
period after Shooshanian gave notice of his desire to purchase
the residence under his option right,34 we determine that the
trial court did not err in concluding that Shooshanian had no
cognizable interest in the property other than as a month-to-
month tenant. The trial court therefore did not err in
concluding that Dire was entitled to take possession of the
residence.
V. CONCLUSION
We AFFIRM the trial courts decision in all respects.
_______________________________
1 See AS 22.15.050 (providing district courts do not have
jurisdiction over action[s] in which the title to real property
is in question or action[s] of an equitable nature, except as
otherwise provided by law).
2 Siggelkow v. Siggelkow, 643 P.2d 985, 986 (Alaska 1982)
(citing Gregoire v. Natl Bank of Alaska, 413 P.2d 27, 33 (Alaska
1966), cert. denied, 385 U.S. 923 (1966)).
3 Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996,
1001 (Alaska 2005) (citing Genaro v. Municipality of Anchorage,
76 P.3d 844, 845 (Alaska 2003)).
4 Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980)
(citing Poulin v. Zartman, 542 P.2d 251, 260 (Alaska 1975), on
rehearing, 548 P.2d 1299 (Alaska 1976), overruled on other
grounds by State v. Alex, 646 P.2d 203, 208 n.4 (Alaska 1982)).
5 Tybus v. Holland, 989 P.2d 1281, 1285 (Alaska 1999) (We
will not consider arguments that parties fail to raise in the
lower court, let alone arguments they have conceded below, unless
the trial court committed plain error.).
6 Soules v. Ramstack, 95 P.3d 933, 936 (Alaska 2004)
(citing Rausch v. Devine, 80 P.3d 733, 737 (Alaska 2003)).
7 Id. at 936-37 (citing Carr-Gottstein Props., Ltd. Pship
v. Benedict, 72 P.3d 308, 310 n.4 (Alaska 2003)).
8 Siggelkow, 643 P.2d at 986-87 (quoting Barrett v.
Gagnon, 516 P.2d 1202, 1203 (Alaska 1973)) (internal quotation
marks omitted).
9 Id. at 987 (citing among others Wright v. State, 501
P.2d 1360, 1366 (Alaska 1972)).
10 Id. (quoting Kalmus v. Kalmus, 230 P.2d 57, 63 (Cal.
App. 1951), cert. denied, 342 U.S. 903 (1952)).
11 Id. (citing Yates v. Superior Court, 586 P.2d 997, 998
(Ariz. App. 1978) and Gonzales v. Harris, 542 P.2d 842, 844
(Colo. 1975)).
12 ONeill Investigations, Inc. v. Ill. Employers Ins. of
Wausau, 636 P.2d 1170, 1179 (Alaska 1981).
13 643 P.2d 985.
14 Id. at 986-87.
15 Id.
16 Id. at 987.
17 Id. (quoting Benson v. Benson, 204 P.2d 316, 318 (Nev.
1949)).
18 Id. (quoting Benson, 204 P.2d at 319).
19 This contention is somewhat inaccurate because
Shooshanian did, albeit unsuccessfully, seek an earlier
continuance.
20 Id. at 986.
21 Id. at 988 (citing Maynard v. Bullis, 222 P.2d 685, 686
(Cal. App. 1950) and Benson, 204 P.2d at 319).
22 Id. at 988.
23 Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).
24 Bauman v. State, Div. of Family & Youth Servs., 768
P.2d 1097, 1099 (Alaska 1989).
25 Mem. Op. & J. No. 7796 (Alaska App. March 30, 2005).
Memorandum opinions of the court of appeals do not create legal
precedent. See Alaska Appellate Rule 214(d).
26 Id. at 1.
27 Id.
28 Id. (citing Byrd v. State, 626 P.2d 1057, 1058 (Alaska
1980) and Vaska v. State, 74 P.3d 225, 230 (Alaska App. 2003)).
29 See Anchorage Chrysler Ctr., Inc. v. DaimlerChrysler
Motors Corp., 221 P.3d 977, 985 (Alaska 2009) ([I]n general, a
party may not present new issues or advance new theories to
secure a reversal of a lower court decision. (quoting Zeman v.
Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985))).
30 Tybus, 989 P.2d at 1285.
31 See Alaska R. Civ. P. 52(a) ([D]ue regard shall be
given to the opportunity of the trial court to judge the
credibility of the witnesses.); Rausch v. Devine, 80 P.3d 733,
737 (Alaska 2003) (The trial courts findings regarding the
credibility of witnesses and weighing of the evidence may be
reversed only if clearly erroneous. (citation omitted)).
32 If a landlord consents to a tenants continued occupancy
after the expiration of the rental agreements term, the resulting
periodic tenancy is month-to-month unless the tenant pays weekly
rent. AS 34.03.290(c); AS 34.03.020(d).
33 See Hollaus v. Arend, 511 P.2d 1074, 1075 (Alaska 1973)
(holding writing describing real estate sale was not enforceable
because material terms were omitted or ambiguous, including down
payment, sale date, security, and rate of interest).
34 The option in the handwritten lease can be viewed as an
agreement to negotiate a sale of the condominium. We will . . .
enforce an agreement to negotiate only if it contains a more
specific way to resolve . . . differences, such that we are able
to discern when the agreement to negotiate has been breached.
Valdez Fisheries Dev. Assn, Inc. v. Alyeska Pipeline Serv. Co.,
45 P.3d 657, 667 (Alaska 2002) (quoting Davis v. Dykman, 938 P.2d
1002, 1008-09 (Alaska 1997)). Even if enforceable negotiation
procedures were in the handwritten lease, a court could not force
Dire to reach a final agreement with Shooshanian because an
agreement to negotiate is not an agreement to agree. Id.
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