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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Patterson v. Cox (5/9/2014) sp-6905

Patterson v. Cox (5/9/2014) sp-6905

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TOMMIE PATTERSON,                                      )  

                                                       )        Supreme Court No. S-14853  

                           Appellant,                  )  

                                                       )        Superior Court No. 3AN-08-11817 CI  

         v.                                            )  

                                                       )        O P I N I O N  

SHEILA COX and FORD MOTOR                              )  

COMPANY,                                               )        No. 6905 - May 9, 2014  


                           Appellees.                  )  


                  Appeal from the Superior Court of the State of Alaska, Third  


                  Judicial District, Anchorage, William F. Morse, Judge.  

                  Appearances:      Tommie   Patterson,   pro   se,   Anchorage,  

                  Appellant.    John  R.  Dean,  Law  Office  of  John  R.  Dean,  


                  Anchorage, for Appellee Sheila Cox, and John B. Thorsness,  


                  Clapp,  Peterson,  Tiemessen,  Thorsness  &  Johnson  LLC,  

                  Anchorage, for Appellee Ford Motor Company.  

                  Before:  Fabe, Chief Justice, Winfree, Maassen, and Bolger,  

                  Justices. [Stowers, Justice, not participating.]  

                  BOLGER, Justice.  


                  Tommie Patterson's 1997 Ford Explorer was struck from behind when he  


braked to avoid a car stalled in his lane of travel on Gambell Street in Anchorage.  He  

sued the owner of the stalled vehicle and subpoenaed her for trial, but she refused to  


appear.  We conclude that the superior court should have issued a warrant or an order to  


show  cause  to  compel  the  appearance  of  this  party.    In  addition,  the  superior  court  

----------------------- Page 2-----------------------

instructed the jury on Patterson's products liability claim against Ford Motor Company,           

but this claim was erroneously omitted from the special verdict form.  We reverse the  

superior court's judgment and remand for a new trial.  


           A.         Facts  

                      Early in the morning of December 11, 2006, Sheila Cox was traveling south   

on Gambell Street in Anchorage when her Dodge Neon ran out of gas.   Cox left her car  

in the road while she went to a nearby gas station.                              It is disputed whether Cox pulled over  

to the right or turned on her warning lights after she stopped.  

                      At about the same time, Tommie Patterson was also traveling south on  

Gambell Street, returning home from work.  He was driving his 1997 Ford Explorer  

behind a truck in the right southbound lane.  When he passed Fifteenth Street, the truck  


signaled and merged into the left lane.  Immediately afterwards, Patterson saw Cox's car  


stopped in the right lane ahead of him, but he had no time  to  merge left to avoid it.  


Patterson stopped his vehicle as quickly as he could.  It is unclear from the record whether  


he struck the back of the Neon, but Katie Rutledge, who was driving behind Patterson,  

rear-ended Patterson's SUV after Patterson braked.  Patterson testified that, although his  


seatbelt was on before the accident, it came unlatched during the collision.  

                      When  Cox  returned  with  gas,  she  noticed  that  two  SUVs  had  collided  


immediately behind her car.  She left the scene of the accident after she observed that her  


own car had not been damaged.  

           B.         Proceedings  

                      Patterson filed suit against Cox and Ford Motor Company in the Anchorage  


superior  court.1  

                              In  his  complaint  against  Cox,  Patterson  alleged  that  Cox  acted  

           1          Patterson  also  sued  Rutledge,  the  driver  of  the  vehicle  that  rear-ended  


                                                                    -2-                                                                  6905  

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negligently when she left her car in a traffic lane.  As to Ford, Patterson alleged that,  

when Rutledge's vehicle struck his, Patterson's "seatbelt failed causing plaintiff severe  


bodily injury, including but not limited to his neck[,] left shoulder[,] and back."  

                    After receiving several adverse rulings during pre-trial motion practice,  

Patterson filed multiple motions asking Superior Court Judge William F. Morse to recuse  


himself.  Judge Morse denied all of these  motions.  His decision not to recuse himself  


was reviewed and upheld by two other superior court judges.  

                    Patterson's claims against Cox and Ford were tried in front of a jury from  

August  7  to  August  17,  2012.    Although  Patterson  sought  to  have  Cox  testify,  Cox  

disobeyed a subpoena and never appeared. Several times during trial, Patterson asked the  


superior court to address Cox's failure to appear.  When the court mentioned that it could  


"sen[d] a trooper out and have her arrested," Patterson seemed to approve, and he became  


frustrated when the court decided not to issue a bench warrant.  He insisted that "if Ms.  


Cox is under subpoena, she should appear."  

                    In the end, the superior court decided to give a curative jury instruction as  


a remedy for Cox's failure to appear:  

                    [P]laintiff, Tommie Patterson, issued a subpoena to defendant,  

                    Sheila Cox, requiring her to appear and testify at trial. Cox did  


                    not  comply  with  the  subpoena  and  did   not   testify.  In  

                    evaluating the evidence you may consider the failure of Cox  


                    to appear and testify. You may, but need not determine that if  


                    Cox had testified her testimony would have been helpful to  


                    Patterson. You may, but need not consider the absence of Cox  

                    and  the  likelihood  that  her  testimony  would  have  been  

                    favorable to Patterson in deciding whether Patterson has met  

                    his burden of proof as to Cox.  


Patterson's SUV, but the parties settled that claim before trial.  


                                                             -3-                                                           6905  

----------------------- Page 4-----------------------

Patterson did not object to this instruction.  

                   At the end of trial, the superior court submitted instructions and a special  

verdict  form  to  the  jury.    The  verdict  form  asked  the  jury  to  answer  the  following  

questions regarding liability:  

                   (1)       Was defendant Sheila M. Cox negligent?  

                   . . . .  

                   (3)       Was defendant Ford Motor Company negligent?  

The jury unanimously answered both questions "No."  Based on the jury's verdict, the  

superior court entered judgment in favor of the defendants.  Patterson now appeals.  


          A.	      The   Special   Verdict   Form   Provided   To   The   Jury   Was Plainly  



                   Patterson argues on appeal that "[t]he Superior Court's instructions to the  


jury were probative, confusing, and misunderstood; and were designed in favor of the  

Appellees  to  prejudice  Appellant."    We  normally  review  jury  instructions  de  novo.2  

However, as Ford points out in its brief, Patterson did not object to the jury instructions  


during trial.  Therefore, we review the instructions for plain error only.3  


                   "[P]lain  error  exists  when  the  jury  instruction  obviously  created  a  high  

likelihood that the jury would follow an erroneous theory resulting in a miscarriage of  


justice." 4                                                                                                      5  

               But even a plain error will not be grounds for reversal if it is harmless.   


                   Cummins, Inc. v. Nelson, 115 P.3d 536, 541 (Alaska 2005).  

          3        Roderer v. Dash , 233 P.3d 1101, 1110 (Alaska 2010).  

          4        Khan v. State , 278 P.3d 893, 896 (Alaska 2012) (internal quotation marks  


and alterations omitted).  

          5        See Sowinski v. Walker, 198 P.3d 1134, 1160 (Alaska 2008) ("To overturn  


                                                           -4-	                                                    6905

----------------------- Page 5-----------------------


                     Patterson argues that the superior court "erred by never instructing the jury  


on product defect or manufacture defect of the seat and seatbelt."  Although the superior  

court did in fact instruct the jury on products liability, our review of the record reveals  


that the special verdict form mischaracterized the law applicable to this  case.   In his  

complaint,  Patterson  alleged  that,  after  Rutledge's  car  collided  with  his  vehicle,  his  

"seatbelt failed causing [him] severe bodily injury."  Because the pleadings of pro se  



litigants are held to a less stringent standard than those of lawyers,  this allegation was 



sufficient to state a claim sounding in negligence and strict products liability.   And this  

is how the parties litigated Patterson's claim against Ford at trial.  

                     Patterson requested a verdict form that included questions regarding his  


products liability claim.  But the superior court adopted a form similar to Ford's proposal.  


With respect to Ford's liability, the verdict form asked the jury only:  "Was defendant  


Ford Motor Company negligent?"  The form included no question about strict products  

liability.  Therefore, even if the jury would have found for Patterson based on a strict  


a jury instruction or special verdict form, we must conclude not only that the instruction  


or special verdict form was legally erroneous, but also that the verdict would probably  

have been different but for the error.").  



                    See Gilbert v. Nina Plaza Condo Ass'n, 64 P.3d 126, 129 (Alaska 2003) ("It  


is well settled that in cases involving a pro se litigant the superior court must relax  

procedural requirements to a reasonable extent.").  



                     Cf. Wilkerson v. State, Dep't of Health & Soc. Servs., 993 P.2d 1018, 1021- 


22 (Alaska 1999) (pro se litigant's constitutional claims were properly presented, even  


where his arguments were "conclusory" and he "failed to identify or  apply the tests  

courts use in reviewing the constitutionality of laws.").  

                                                                -5-                                                          6905

----------------------- Page 6-----------------------


products liability theory, the form provided no opportunity for it to do so.  For that reason,  

the special verdict form was plainly erroneous.8 

                       Of course, if no reasonable jury could have found for Patterson on his  

products  liability  claim,  the  superior  court's  omission  would  be  harmless.9  

                                                                                                                                     But  the  


superior court denied Ford's motion for a directed verdict on this issue.  Based on our  


review of the record, we are not convinced that the evidence was insufficient to support  


a verdict in Patterson's favor. Therefore, we are compelled to conclude that the omission  


of Patterson's strict products liability claim from the special verdict form was plain,  

prejudicial error and that his claims against Ford must be remanded for a new trial.  


           B.	        The Superior Court Should Have Issued A Warrant Or An Order To  

                      Show Cause To Secure Cox's Appearance At Trial.    

                      On appeal, Patterson renews his argument that the superior court should  


have issued a bench warrant to compel Cox to appear at trial.  We review the application  

                                   10                     11 

of rules of procedure                 and statutes           de novo.  

           8          Joseph v. State          , 26 P.3d 459, 477 (Alaska 2001) (special verdict form was         

erroneous where, contrary to law, it did not permit the jury to consider whether state   

officials were negligent in preventing a prisoner's suicide if the jury found that the suicide                                   

was intentional); see also  Sowinski, 198 P.3d at 1163 (special verdict form was erroneous   

where it permitted the jury "to award [plaintiff] damages to which she was not entitled                                        

under a [negligent infliction of emotional distress] theory").  

           9          See McBride v. Sears, Roebuck & Co., 235 N.W.2d 371, 374 (Minn. 1975)  

(declining to reach claims about jury instructions and special interrogatories because "the  

evidence was, as a matter of law, insufficient to support a verdict for the plaintiff").  



                      Alyssa B. v. State, Dep't of Health & Soc. Servs. , 165 P.3d 605, 612 n.18  

(Alaska 2007).  

           11         Kinn v. Alaska Sales & Serv., Inc. , 144 P.3d 474, 483 (Alaska 2006).  

                                                                      -6-	                                                              6905

----------------------- Page 7-----------------------

                    Alaska Rule of Civil Procedure 90(b) provides  

                    For every contempt other than [contempts subject to summary  


                    punishment],  upon  a  proper  showing  on  ex  parte  motion  

                    supported  by  affidavits,  the  court  shall  either  order  the  


                    accused party to show cause at some reasonable time, to be  

                    therein  specified,  why  the  accused  party  should  not  be  


                    punished  for  the  alleged  contempt,  or  shall  issue  a  bench  

                    warrant for the arrest of such party.  

The failure of a witness to obey a subpoena is a contempt of court.12  

                                                                                                      Therefore, when a  


party makes a proper showing that a witness has disobeyed a subpoena, the trial court  

should issue an order to show cause or a bench warrant for the arrest of the witness.  

                    Patterson did not submit a formal motion requesting that the court hold Cox  


in contempt.  But when the court told him that it could have Cox arrested and brought to  


the courthouse, Patterson approved of that suggestion. And when the court indicated that  


it was not inclined to provide that remedy, Patterson expressed frustration.  He insisted  


that "if Ms. Cox is under subpoena, she should appear."  Because Alaska courts "relax  


some procedural requirements" in cases involving pro se litigants,13 

                                                                                                      the superior court  

should have treated these statements as a proper request that the court invoke its contempt  


power to enforce Cox's subpoena.  We conclude that the failure of the superior court to  

issue an order to show cause or a bench warrant was error.  


                    Cox argues that any error was harmless because the superior court permitted  


the introduction of a recorded statement made by Cox before trial and issued a curative  


jury instruction.  But the recorded statement was very favorable to Cox.  And it is at best  

          12        AS 09.50.010(10) ("[D]isobedience of a subpoena duly served, or refusing          

to be sworn or answer as a witness" is a contempt of court.); Alaska R. Civ. P. 45(f)  

("Failure by any person without adequate excuse to obey a subpoena served upon that  


person may be deemed a contempt of the court from which the subpoena issued.").  

          13        Kaiser v. Sakata , 40 P.3d 800, 803 (Alaska 2002).  

                                                              -7-                                                        6905

----------------------- Page 8-----------------------

speculative that the curative instruction - which provided that the jury "may" draw an           

adverse inference from the fact that Cox did not testify - had the same effect on Cox's   

credibility as compelling her to testify in front of the jury.  Live testimony is especially  


important  where,  as  here,  the  resolution  of  factual  issues  depends  on  the  relative  


credibility  of  the  witnesses.14  

                                                     Because  the  jury's  determination  whether  Cox  was  

negligent could very well have turned on whether it believed her statements, there is a  


significant risk that the court's curative instruction was an inadequate substitute for live  


                      Because the failure to issue a bench warrant to secure Cox's presence at trial  


was prejudicial error, we reverse and remand Patterson's claims against Cox for a new  



           C.         Patterson's Recusal Motions Were Properly Denied.  

                      Patterson also argues that the trial judge was biased against him and should  


have been disqualified from presiding over his case.15  

                                                                                         A judge's conclusion that he is  

capable of conducting a fair trial is reviewed for abuse of discretion.16  


                      Patterson alleges that the trial judge represented him in 1982, when the trial  


judge was at the public defender's office, and that this prior representation disqualified  

           14         Cf.   Bonamarte   v.   Bonamarte,   866   P.2d   1132,   1136   (Mont.   1994)  

(limitations on cross-examination are only permissible where a case does not turn on  

credibility determinations).  

           15         Greenway v. Heathcott, 294 P.3d 1056, 1063 (Alaska 2013) ("A judge must  

recuse himself or herself if there is bias."); see also AS 22.20.020(a) (listing grounds for  


judicial disqualification).  

           16         Hymes v. DeRamus , 222 P.3d 874, 880 (Alaska 2010); see also Phillips v.  

State, 271 P.3d 457, 459 (Alaska App. 2012).  

                                                                   -8-                                                             6905

----------------------- Page 9-----------------------


him from presiding over this case.                     In his order denying Patterson's recusal motion, the     

trial  judge  wrote,  "I  do  not  recall  having  ever  represented  Patterson,  although  it  is  


possible that, as an assistant public defender, I filled in for another attorney on a matter  

involving Patterson."  


                     But even if it is true that the trial judge represented Patterson in the 1980s,  

Alaska law does not require recusal.  Alaska Statute 22.20.020(a)(5) provides that "[a]  

judicial  officer  may  not  act  in  a  matter  in  which  .  .  .  a  party,  except  the  state  or  a  

municipality of the state, has retained or been professionally counseled by the judicial  

officer as its attorney within two years preceding the assignment of the judicial officer  


to the matter."  Patterson alleges that the trial judge represented him in 1982, which was  

26 years before Patterson filed the complaint in this case.  

                     Patterson  also  claims  that  the  trial  judge  displayed  "racial  hate"  for  

Patterson, both when the trial judge allegedly represented Patterson as a public defender  


and during this trial.  And he alleges that the trial judge was involved in a "conspiracy"  


with counsel for Ford and was taking bribes from the defendants.  But Patterson offered  

no evidence to substantiate these allegations, and the record reveals none.  


                     Patterson  also  alleges  that  the  trial  judge's  bias  was  evident  from  his  


"relentless favoritism in granting motions and pleadings for" Ford and Cox.  "But a  



ruling  against  a  party,  even  an  incorrect  ruling,  is  not  evidence  of  judicial  bias." 

           17        To support this allegation, Patterson relies on an affidavit submitted by  

Yvette  M.  Richards,  Patterson's  former  girlfriend.    However,  the  Richards  affidavit  

demonstrates only that Richards was represented by William Morse in 1982.  

           18       Peterson v. Swarthout , 214 P.3d 332, 339 (Alaska 2009).  

                                                                -9-                                                             6905  

----------------------- Page 10-----------------------


Therefore, the fact that the trial judge frequently ruled against Patterson does not, by  

itself, demonstrate that recusal was required.19  

                     Finally, Patterson argues that the trial judge should have recused himself  


because his participation in the trial created the appearance of bias.                                           We review "a  



request for disqualification of a judge based on the appearance of impropriety" de novo. 

Importantly,  where  "a  party  alleges  the  appearance  of  bias,  a  'greater  showing'  is  


required for recusal."                Patterson does not make that showing.  


                     The trial judge acknowledged that his continued participation in the case  

"may raise concerns about the appearance of impropriety in that reasonable persons  


could question whether I could remain impartial in light of such serious allegations by  


Patterson."  But requiring a judge to recuse himself merely because one party has made  


extreme and baseless accusations against that judge would make it easy for a persistent  


litigant to secure a recusal that would not otherwise be required. And, as the trial judge  


noted, to require recusal under these circumstances would be to reward "intemperate and  

           19        Id. ("[W]hen a party seeks a judge's recusal for bias, he or she must show                   

that the judge's actions were the result of personal bias developed from a nonjudicial   

source." (internal quotation marks omitted)).  

           20        See Greenway, 294 P.3d at 1063.  

           21        Griswold v. Homer City Council, 310 P.3d 938, 941 (Alaska 2013).  



                     Greenway, 294 P.3d at 1063 (quoting Lacher v. Lacher , 993 P.2d 415, 420- 


21  (Alaska  1999));  see  also  Alaska  Code  Jud.  Conduct  3(E)(1)  ("[A]  judge  shall  


disqualify himself or herself in a proceeding in which the judge's impartiality might  

reasonably be questioned . . . .").  

                                                                 -10-                                                           6905

----------------------- Page 11-----------------------

unfounded behavior." Therefore, the trial judge's recusal was not necessary to avoid the  


appearance of impropriety.23  


                  We REVERSE the superior court's judgment and REMAND for a new  




                  Patterson's appellate brief makes several other allegations of prejudicial  

error.  Because we reverse the superior court's judgment on the grounds discussed above,  

we do not reach these other arguments.   

                                                         -11-                                                      6905  

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