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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kinnan v. Sitka Counseling (4/17/2015) sp-6998

Kinnan v. Sitka Counseling (4/17/2015) sp-6998

         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, email  



ARTHUR J. KINNAN,                                          )  

                                                            )    Supreme Court No. S-15437  

                            Appellant,                      )  

                                                           )     Superior Court No. 1SI-12-00216 CI  

         v.                                                )  

                                                           )     O P I N I O N  

SITKA COUNSELING, MICHAEL                                  )  

McGUIRE, & ERIC SKOUSEN,                                    )    No. 6998 - April 17, 2015  


                            Appellees.                     )  


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


                   Judicial District, Sitka, David V. George, Judge.  

                  Appearances:  Arthur  J.  Kinnan,  pro  se,  Sitka,  Appellant.  

                  Brian   E.   Hanson,   Brian   E.   Hanson,   LLC,   Sitka,   for  



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


                  Bolger, Justices.  

                  BOLGER, Justice.  


                  Arthur J. Kinnan lived in a three-bedroom residence as part of a substance  

abuse treatment program operated by Sitka Counseling.  Funding for that program ended,  

and Sitka Counseling informed Kinnan that he would be required to vacate the residence.  


Kinnan filed suit against Sitka Counseling and two of its staff members, alleging several  


torts based on the defendants' conduct when removing him from the premises, violations  


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

of  Alaska's  Landlord  Tenant  Act,  and  deprivation  of  constitutional  rights  under  


42  U.S.C.    1983.    After  a  bench  trial,  the  superior  court  ruled  in  favor  of  Sitka  

Counseling on all claims.   


                    Kinnan argues that the superior court wrongfully denied a continuance to  


allow him to seek counsel, wrongfully excluded the testimony of a late-disclosed witness  

and two affidavits, and improperly facilitated questioning regarding Kinnan's mental  


disability.  We conclude that any error resulting from the exclusion of Kinnan's witness  


was harmless and we see no abuse of discretion in the superior court's denial of Kinnan's  


continuance, its exclusion of the affidavits as hearsay, or its consideration of Kinnan's  


mental  disability.          And  we  also  reject  Kinnan's  argument  that  the  superior  court's  

adverse rulings created an appearance of judicial bias.  



                    Sitka Counseling operated a substance abuse treatment program in a three- 


bedroom residence.  Arthur J. Kinnan lived in the residence as part of this program, but  

Sitka Counseling terminated the program in September 2011, after program funding  

ended.  On August 31, 2012, Sitka Counseling provided Kinnan written notice that he  


had ten days to vacate the residence.  Kinnan vacated the residence on September 14,  

after  visits  to  the  residence  from  Michael  McGuire,  Sitka  Counseling's  executive  

director, and Eric Skousen, another staff member.  


                    Kinnan then filed suit against Sitka Counseling, McGuire, and Skousen  


(collectively Sitka Counseling), alleging that McGuire and Skousen committed assault  

and battery in attempting to remove him from the residence.  In particular Kinnan alleged  

that on September 10, 2012, McGuire entered the residence uninvited and stated "in an  


angry voice" while standing "very close" to Kinnan that because he had resigned from  


Sitka  Counseling,  "he  was  not  bound  by  the  ususal  constraints  of  his  professional  

relationship with . . . Kinnan and . . . intended to engage in physical combat."  Kinnan  

                                                             -2-                                                        6998

----------------------- Page 3-----------------------

further alleged that on September 14, Skousen "barged into" the residence and "took  


hold of the front of [Kinnan's] shirt, lifted [Kinnan] off the ground, shook [Kinnan] and  

told [Kinnan] that if [Kinnan] didn't leave the house immediately he would throw him  

to the floor, handcuff [Kinnan] and drag [Kinnan] out into the street and hurt him."   

                      In  addition  to  the  assault  and  battery  claims,  Kinnan  alleged  negligent  


hiring and supervision; trespass to real estate; trespass to personal property; violations  



of the Landlord Tenant Act ; intentional infliction of emotional distress; violation of 


constitutional rights under 42 U.S.C.  1983; and conspiracy to violate constitutional  

rights under 42 U.S.C.  1983.  

                      According  to  Sitka  Counseling,  Kinnan  subsequently  returned  to  the  


residence.  Sitka Counseling allowed him to remain there but filed a forcible entry and  

detainer (FED) counterclaim,2 seeking to regain possession of the residence.  


                      A scheduling conference was held on February 5, 2013.  Both Kinnan and  


his attorney, James McGowan, were present.  The superior court then entered a pretrial  


order setting the trial for the week of October 28, 2013, and establishing various pretrial  

deadlines, including due dates for Alaska Civil Rule 26 disclosures and witness lists.   


                      A hearing on the FED action was held on February 22, 2013.  At the outset  


of the hearing, McGowan informed the superior court that Kinnan wished to "fire" him,  

and the court allowed McGowan to withdraw as counsel.  Kinnan proceeded without  


counsel  from  this  point  forward.                        Following  the  FED  hearing,  the  court  ruled  that  

Kinnan's occupancy of the residence was not covered by the Landlord Tenant Act and  

ordered Kinnan to peacefully vacate the residence by February 28, 2013.  

           1          AS 34.03.010-.380.  

           2          See AS 09.45.070(a) ("When a forcible entry is made upon a premises, or                                

when an entry is made in a peaceable manner and the possession is held by force, the                                             

person entitled to the premises may maintain an action to recover the possession.").  

                                                                      -3-                                                               6998

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

                    As   for   Kinnan's   suit,   Sitka   Counseling   never   received   any   initial  

disclosures from Kinnan nor any responses to its discovery requests in the months that  

              3  Nor does it appear that Kinnan took any action or submitted any filings in his  


case until October 10, 2013, when he filed a witness list that was eight days late and  


included only his witnesses' names and addresses.  On October 15 Kinnan filed a request  


for a continuance, citing his difficulty in retaining another attorney.  He requested that  

the trial date be postponed until November 18, 2013.  

                    A pretrial conference was held on October 17, 2013.  The judge denied  


Kinnan's request for continuance and explained that the trial would be held as scheduled  

on October 28, 2013.  The court also partially granted Sitka Counseling's request to  


exclude  the  witnesses  on  Kinnan's  untimely  witness  list.    The  judge  explained  that  


Kinnan would be allowed to call himself, the other parties, and impeachment witnesses.  


                    A bench trial on Kinnan's complaint was held on October 28, 2013.  The  

superior  court  granted  a  directed  verdict  in  Sitka  Counseling's  favor  on  Kinnan's  

Landlord Tenant Act claim, his trespass to personal property claim, and his  1983  


claims.  At the conclusion of the trial, the court ruled that Kinnan failed to carry his  

burden of proof on his remaining claims:  assault, battery, trespass to real property,  


negligent supervision and hiring, and intentional infliction of emotional distress.  The  


court then dismissed Kinnan's complaint with prejudice.  Kinnan appeals pro se, based  


on 1) the denial of his requested continuance, 2) the exclusion of his eyewitness,  3) the  


exclusion of two affidavits as hearsay, 4) inquiries into the nature of his mental disability,  

and 5) the judge's alleged appearance of bias.  



                    Under the pretrial order, initial Civil Rule 26 disclosures were due March  

15, 2013, and discovery was to be closed by September 27, 2013.  

                                                              -4-                                                           6998  

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



                    "We will not disturb a trial court's refusal to grant a continuance unless an  

abuse of discretion is demonstrated.  An abuse of discretion exists when a party has been  



deprived of a substantial right or seriously prejudiced by the [trial] court's ruling." 

consider the particular facts and circumstances of each individual case to determine  

whether the denial was so unreasonable or so prejudicial as to amount to an abuse of  



discretion."   "[D]ecisions about the admissibility of evidence" are reviewed for abuse  


of discretion.    "We review de novo the question of whether a judge appears biased,  

which is assessed under an objective standard."7  


          A.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Denying  

                    Kinnan's Request For Continuance.  


                    "A continuance for the purpose of finding and obtaining counsel requires  



a showing of diligence."               "There is no general right to counsel in civil cases under the  

          4	        Greenway v. Heathcott, 294 P.3d 1056, 1062 (Alaska 2013) (quoting                                  Azimi  

v. Johns , 254 P.3d 1054, 1059 (Alaska 2011)) (internal quotation marks omitted).  

          5        Id. (quoting Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 183 (Alaska  


2009)) (internal quotation marks omitted).  

          6	        Shooshanian v. Dire, 237 P.3d 618, 622 (Alaska 2010).  



                    Sagers v. Sackinger, 318 P.3d 860, 863 (Alaska 2014); see also Phillips v.  


State, 271 P.3d 457, 459 (Alaska App. 2012) ("On the separate issue of whether, given  

the circumstances, reasonable people would question the judge's ability to be fair, the  

proper  standard  of  review  is  de  novo  -  because  reasonable  appearance  of  bias  is  

assessed under an objective standard."  (emphasis and internal quotation marks omitted)).  

          8         Greenway, 294 P.3d at 1067.  

                                                             -5-	                                                       6998

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

United States or Alaska Constitutions.  Further, many litigants successfully represent  

themselves in civil litigation."9  

                     Kinnan filed his motion for continuance on October 15, 2013, less than two                              

weeks before his case was set for trial.  In this motion   Kinnan   claimed his original  

attorney had charged him $5,000 for each telephonic appearance, "effectively wiping out               

 [his] savings."  Kinnan contended that his "first choice" attorney was unavailable and  


that  "there  are  fewer  and  fewer  lawyers  of  experience  and  integrity,"  but  did  not  

otherwise detail any of his efforts to retain new counsel.  

                     At  the  pretrial  conference,  Kinnan  was  unable  to  further  articulate  a  

justification  for  his  requested  continuance.    The  judge  noted  that  Kinnan  had  


"presumably" been seeking counsel since his original attorney had withdrawn and had  


not shown how his efforts would be successful given more time.  Accordingly, the judge  


denied Kinnan's request for continuance.  At trial Kinnan sought reconsideration of that  


decision, but the judge reiterated the reasoning behind his original ruling and concluded  

there was no rationale for reconsideration.  


                     On appeal Kinnan claims he "lives on meager funds," his prior attorney  

exhausted his savings, and "[t]o retain an experienced, interested, available law firm,  

willing to work on a contingency basis without  retainer is a time consuming endeavor."  

But even assuming these claims are true, difficulties in retaining counsel cannot alone  


                                                                                            Although Kinnan claimed at  

justify a continuance, absent a "showing of diligence." 

trial that he had obtained the name of a law firm to which he could try to "sell [his] case,"  


he offered no other evidence of his efforts to retain counsel.  

           9         Azimi , 254 P.3d at 1061.  

           10         Greenway, 294 P.3d at 1067.  

                                                                  -6-                                                                6998  

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


                    Kinnan also cites his "severe mental disability" and appears to argue that  


this favored granting a continuance.   But even considering the "particular facts  and  


circumstances" of Kinnan's situation, denying a continuance where Kinnan's attorney  



had withdrawn nearly eight months prior was not "unreasonable" or "prejudicial." 


superior  court  therefore  did  not  abuse  it  discretion  in  denying  Kinnan's  requested  



          B.	       Any Error Resulting From The Exclusion Of Daniel Klannot, Jr.'s  

                    Testimony Was Harmless.  


                    Kinnan appears to argue that he should have been allowed to call Daniel  


Klannot, Jr. as an "eye witness" at trial, despite his failure to include Klannot on a timely  

submitted witness list.  We conclude that although the judge should have considered  

alternative  sanctions  for  Kinnan's  noncompliance  with  the  pretrial  order,  any  error  

resulting from the exclusion of Klannot's testimony was harmless.13  

                    Under the pretrial order entered in February 2013, the parties were required  


to submit preliminary witness lists in May and final witness lists by October 2.  Neither  

Kinnan nor Sitka Counseling timely submitted a preliminary list.  Sitka Counseling  

          11	       See id. at 1062 (citation and internal quotation marks omitted).  

          12        Kinnan  also  appears  to  argue  that  it  was  unfair  not  to  grant  him  a  

continuance because Sitka Counseling received a routine extension of time to file its  

appellee's brief.  But different standards apply to a continuance as opposed to a routine  


extension of time under Alaska Appellate Rule 503.5.  Compare Wagner v. Wagner, 299  


P.3d 170, 175 (Alaska 2013) ("[A] motion for continuance should be denied absent a  


weighty reason to the contrary." (citation and internal quotation marks omitted)), with  


Alaska R. App. P. 503.5(b), (c) (requiring "a showing of diligence and substantial need"  


only for a non-routine motion).  



                    See Hill v. Giani, 296 P.3d 14, 22 n.23 (Alaska 2013) ("We must disregard  


harmless errors that have no substantial effect on the rights of the parties or on the  

outcome of the case.").  

                                                             -7-	                                                       6998

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

timely submitted a final witness list, noting that because no preliminary witness list had     

been submitted, Sitka Counseling would rely on the defendants' testimony alone. On   

October 10, 2013, Kinnan filed his first witness list, which included Klannot's name and   


                     At the pretrial conference, Sitka Counseling sought to exclude all witnesses  


besides the parties.  The judge asked Kinnan if he could offer any excuse for his failure  


to timely submit a witness list.  In response Kinnan stated only that his prior attorney had  


been "ineffective" and that he was merely a lay person. The judge then ruled that Kinnan  


would  be allowed  to  call only  himself, the defendants, and  impeachment  witnesses.  


                     "If  a  party  or  party's  attorney  fails  to  obey  a  scheduling  or  pretrial  


order, . . . the judge, upon motion or the judge's own initiative, may make such orders  


with regard thereto as are just, and among others any of the orders provided in Rule  


37(b)(2)(B),  (C),  (D)."                   As  this  court  has  noted,  the  exclusion  of  a  witness  "falls  

                                                   15    "The trial court has broad discretion to choose an  

squarely within this language."     

appropriate sanction,"16 but in fashioning such a sanction, the court must consider:  

                      (A) the nature of the violation, including the willfulness of  


                     the conduct and the materiality of the information that the  

                     party failed to disclose;  

                      (B) the prejudice to the opposing party;  

                      (C) the relationship between the information the party failed  

                     to disclose and the proposed sanction;  

           14        Alaska R. Civ. P. 16(f).  

           15        Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1169 (Alaska 1998); see  

also  Alaska  R.  Civ.  P.  37(b)(2)(B)  (providing  for  "[a]n  order  .  .  .  prohibiting  [the  

disobedient] party from introducing designated matters in evidence").   

           16         Cartee v. Cartee, 239 P.3d 707, 720 (Alaska 2010) (citation and internal  

quotation marks omitted).  

                                                                   -8-                                                             6998

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

                    (D) whether a lesser sanction would adequately protect the  

                    opposing party and deter other discovery violations; and  


                    (E) other factors deemed appropriate by the court or required  


                    by law.  

                    Kinnan  indisputably  violated  the  pretrial  order  by  failing  to  disclose  

Klannot as a witness until October 10, 2013 -  more than four months after preliminary  



witness lists were due.  But in fashioning an appropriate remedy, the superior court was  



required to consider the above factors.                      And in light of Kinnan's pro se status and his  

alleged  mental  disability,  consideration  of  a  "lesser  sanction"  would  have  been  

particularly appropriate under the circumstances of this case.19  Accordingly, the superior  


court should have considered alternative options, such as ordering a deposition to clarify  


the content of Klannot's testimony prior to trial.                          

                    But "[w]hen the trial court has erroneously excluded evidence, a party must  



show that the error was harmful or prejudicial before we will reverse the trial court." 


"The test for determining whether an error was harmless is whether on the whole record  

          17        Alaska  R.  Civ.  P.  37(b)(3);  see  also   Cartee,  239  P.3d  at  721  (quoting  

Alaska R. Civ. P. 37(b)(3)); Sowinski  v. Walker,  198 P.3d 11                         34,  1158  (Alaska 2008) ("In  

fashioning . . .  remedies   [for discovery order violations], Rule 37 commands courts to  

consider the nature a   nd severity of  the violation, the prejudice to the opposing party, and  

any other factors it deems appropriate.").  


                     Cartee, 239 P.3d at 721 (quoting Alaska R. Civ. P. 37(b)(3)).  

          19        Alaska R. Civ. P. 37(b)(3)(D).  

          20        Cf.  Lewis  v.  Lewis,  785  P.2d  550,  557  (Alaska  1990)  (upholding  the  


exclusion of testimony as a sanction for an untimely filed witness list where the trial court  

first provided an opportunity to depose the witness); Bertram v. Harris , 423 P.2d 909,  

915-17 (Alaska 1967) (same).   



                    Barton v. N. Slope Borough Sch. Dist. , 268 P.3d 346, 353 (Alaska 2012).  

                                                              -9-                                                        6998

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


the error would have had a substantial influence on the [trier of fact]."       Here it is  

somewhat difficult to discern the likely content of Klannot's testimony, as Kinnan did  

not describe the subject of Klannot's testimony in his late-filed witness list or at the  


pretrial conference, and merely characterizes Klannot as an "eye witness" in his briefing  


to  this  court.    At  trial  Kinnan  claimed  that  Klannot  would  "affirm  that  [they]  were  

threatened," though he did not specify by whom or on what occasion.  

                     McGuire's testimony, however, suggests Klannot was initially present for  


the incident on September 10, 2012, which formed part of the basis for Kinnan's assault  


claim.  Specifically McGuire testified that Klannot was sitting on the couch with Kinnan  


when McGuire arrived at the residence to verify that Kinnan had vacated the premises.  


But according to McGuire, Klannot "got up and left because he knew that [McGuire and  


another individual] were there to ask [Kinnan] to leave."  Kinnan did not refute this  

testimony, and it is therefore unclear how much of the September 10 incident Klannot  


actually witnessed.  Nor is there is anything in the record to suggest Klannot was present  


for Kinnan's interaction with Skousen on September 14, 2012, which formed the basis  

for Kinnan's battery claim.  


                     Moreover, Kinnan offered no information as to how Klannot's testimony  


would have differed from McGuire's own recounting of events.   In particular McGuire  

admitted  to  making  a  variant  of  the  comment  that  Kinnan  described  as  threatening.  


According to Kinnan's testimony at trial, McGuire told Kinnan "that he was quitting his  


job [with Sitka Counseling] but if he ever saw [Kinnan] on the street, it would be mano  


a mano."  According to McGuire, he said to Kinnan, "You know . . . , there was a time  


when we could settle this man to man."  But McGuire also testified that he was 69 years  



                    Id. (quoting Noffke v. Perez , 178 P.3d 1141, 1147 (Alaska 2008)) (internal  

quotation marks omitted).  

                                                               -10-                                                             6998  

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

old, not "in fighting shape," and recovering from a heart bypass.  In the absence of any  


explanation  on  appeal  of  how  Klannot's  testimony  would  have  differed  from  this  


account, we cannot conclude that Klannot's testimony would have had a "substantial  


influence" on the court's decision.23  

          C.	      The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Excluding  

                   Affidavits From Myron Fribush And Michael Boyd As Hearsay.  

                   At trial Kinnan sought to introduce two affidavits into evidence, both of  

which the superior court excluded as inadmissible hearsay.  The first affidavit was from  


Dr. Myron A. Fribush, who claimed to be Kinnan's primary physician.  In relevant part,  


Dr. Fribush attested that forcing Kinnan to vacate the residence had "rendered [Kinnan]  


homeless and deprived [Kinnan] of services under the Community Support Program."  


Dr. Fribush also observed that "Kinnan has a well established mental health history."  

                   The second affidavit was from Michael J. Boyd, "past director" of Sitka  


Counseling.  Boyd claimed that Sitka Counseling obtained the residence through a grant  

from the Alaska Mental Health Trust Authority requiring that the property "be used  

solely for supportive housing for the chronically mentally [ill]" and not for "general  

agency purposes."  


                   Based on Sitka Counseling's objections, the superior court excluded both  


affidavits as inadmissible hearsay.  As Sitka Counseling correctly argues, affidavits are  


"quintessentially hearsay and suspect evidence."                           Neither witness was available for  

          23       See Barton, 268 P.3d at 353 (citation and internal quotation marks omitted).  

          24       See  Greenway  v.  Heathcott,   294  P.3d  1056,  1064-65  (Alaska  2013)  

(upholding  a  superior  court's  exclusion  of  affidavits  as  hearsay  "even  absent  an  

objection" by the opposing party).  

                                                           -11-	                                                     6998

----------------------- Page 12-----------------------


cross-examination.             Kinnan presents no legal theory as to why the affidavits would  

have  fallen  under  an  exception  to  the  hearsay  rule,  arguing  only  that  the  judge's  

characterization of the affidavits as hearsay was "false."  Accordingly, it was not an  

abuse of discretion to exclude the Fribush and Boyd affidavits as hearsay.  

         D.	       It Was Not Plain Error To Allow And Facilitate Cross-Examination  

                   Regarding Kinnan's Mental Disability.  

                   Kinnan appears to argue that the superior court should have prohibited  

Sitka Counseling's attorney from cross-examining him about the details of his mental  

disability.  Kinnan similarly takes issue with questions the judge asked during cross- 



                   In his complaint Kinnan stated that he had "been diagnosed with a mental  



disability."  At trial Kinnan also described himself as "100 percent mentally disabled  

[due to a] . . . traumatic [brain] injury."  During cross-examination Sitka Counseling's  

attorney, Brian Hanson, asked Kinnan to state his specific diagnosis, but after sharing  


information  about  who  made  the  diagnosis,  Kinnan  responded,  "It's  100  percent  


disability.  Other than that, it's none of your businesses."  At Hanson's request the judge  

intervened  and  asked  Kinnan  to  explain  his  diagnosis,  which  Kinnan  did  without  


                   Hanson  then  resumed  questioning,  asking  Kinnan  whether  his  mental  


disability created delusions or impaired his memory, which Kinnan denied.  Hanson  

asked what effect the mental disability had, and Kinnan responded that he "refuse[d] to  

answer."  The judge again intervened, inquiring about the potential impacts of Kinnan's  

mental disability, without objection.  



                   Dr. Fribush appeared later in the trial, but only as an impeachment witness.  

                                                          -12-                                                       6998  

----------------------- Page 13-----------------------

                    "We review a superior court's evidentiary rulings for abuse of discretion."26  


But "[w]e will not consider issues on appeal that were not raised below absent plain  

error,  which  exists  'where  an  obvious  mistake  has  been  made  which  creates  a  high  



likelihood  that  injustice  has  resulted.'  "                      Aside  from  his  initial  refusal  to  answer  


Hanson's questions, Kinnan raised no objection to the inquiries regarding his mental  


disability, nor did Kinnan argue that the effects of his mental disability were irrelevant.  

Accordingly, we review this issue only for plain error, and none is apparent from this  


                    Notably,  Kinnan  himself  referenced  his  mental  disability  both  in  his  


complaint and again at trial.  In particular Kinnan raised the issue of his mental disability  

in seeking a continuance, contending that he does not "think as fast as other people."  


Given  Kinnan's  own  invocation  of  the  issue,  there  is  not  a  "a  high  likelihood  that  



injustice . . . resulted"           when the superior court required Kinnan to clarify his diagnosis  

and answer questions regarding the effects of his disability.  


                    Nor  was  the  probative  value  of  testimony  regarding  Kinnan's  mental  

disability "outweighed by the danger of unfair prejudice."29  As the superior court noted,  


inquiries into Kinnan's mental disability were aimed at assessing his "ability to perceive,  


recall,  recollect,  and  relate."    Both  McGuire  and  Skousen  contradicted  Kinnan's  

testimony regarding his claims of assault, battery, and intentional infliction of emotional  

          26        Janes v. Alaska Railbelt Marine, LLC , 309 P.3d 867, 875 (Alaska 2013).  

          27        David S. v. State, Dep't of Health &                  Soc. Servs., Office of Children's Servs.                 ,  

270 P.3d 767, 774 (Alaska 2012) (quoting D.J. v. P.C. , 36 P.3d 663, 667-68 (Alaska  


          28        See id.  

          29        See Alaska R. Evid. 403.  

                                                               -13-                                                         6998

----------------------- Page 14-----------------------

distress.  Accordingly, evidence regarding Kinnan's memory and perception was highly   

probative, and it was not plain error to allow and even facilitate cross-examination on the                  

topic of Kinnan's mental disability.  

            E. 	       Neither The Superior Court Judge's Rulings Nor His Conduct Created   

                       An Appearance Of Bias.  

                       As we noted in              Greenway v. Heathcott, "[a] judge must recuse himself or   

herself if there is bias.   If the appearance of bias is involved, we have held that the judge     


should give weight to preserving the appearance of impartiality."                                                       But we have also  



held "that even incorrect rulings against a party do not show bias in and of themselves." 

                       Kinnan appears to argue that the superior court judge's rulings created an  

appearance of impropriety or bias.  In particular he asserts that the judge's bias was  


"exposed" through the denial of Kinnan's request for a continuance and the exclusion  

of  the  Fribush  and  Boyd  affidavits  as  inadmissible  hearsay.    We  rejected  a  similar  


argument in Greenway, holding that neither the denial of a continuance nor the exclusion  



of affidavits as hearsay demonstrated an appearance of bias.                                                  As we have previously  

reminded pro se litigants, "judicial bias should not be inferred merely from adverse  


rulings."           And as in Greenway, nothing in the judge's demeanor or tone in denying the  

            30         294 P.3d 1056, 1063 (Alaska 2013) (footnote omitted).  

            31         Id.  

            32         Id. at 1064-68.  

            33         Khalsa v. Chose , 261 P.3d 367, 376 (Alaska 2011) (citation and internal  

quotation marks omitted).  

                                                                        -14-	                                                                 6998

----------------------- Page 15-----------------------


continuance or excluding the affidavits "objectively permit[s] a conclusion that the court  


was biased, or appeared to be biased."                         


                    Kinnan similarly contends that the judge viewed the defendants as "above  

reproach" and appears to argue that the judge exhibited bias by crediting the defendants'  

testimony regarding Kinnan's assault and battery claim.35  But the judge's determinations  


regarding witness credibility similarly fail to support a claim of bias.                                    


                    Kinnan also argues that the denial of his requested continuance forced him  

to  appear  pro  se  and  that  the  judge's  attempts  to  explain  the  trial  process  were  

insufficient.  But Kinnan had no right to counsel,37 and the record shows that the judge  


met his obligation to "inform a pro se litigant of the proper procedure for the action he  

          34        294 P.3d at 1064.  

          35        In  this   portion   of   his   opening   brief,   Kinnan   also   makes   a   number  of  

allegations that could be interpreted   as an argument that the superior court erred in  

making certain factual findings. But Kinnan does not expressly make this argument, and      

his factual allegations are without citation to the record.  Accordingly, Kinnan waived  

any argument regarding the superior court's factual findings through inadequate briefing.  

See  A.H. v. W.P. , 896 P.2d 240, 243 (Alaska 1995) (noting in the context of a pro se  


appellant that "superficial briefing and the lack of citations to any authority constitutes  


abandonment of the point on appeal").  

          36        See Khalsa, 261 P.3d at 376; see also Wasserman v. Bartholomew , 38 P.3d  

1162, 1170-71 (Alaska 2002) ("Mere evidence that a judge has exercised his judicial  

discretion in a particular way is not sufficient to require disqualification." (alteration,  

citation, and internal quotation marks omitted)).  



                    See Azimi v. Johns, 254 P.3d 1054, 1061 & n.19 (Alaska 2011) ("There is  


no general right to counsel in civil cases" . . . , and "[t]he provision of publicly-funded  


counsel in some child custody, parental termination, and involuntary commitment cases  

is a notable exception to this rule.").  

                                                              -15-                                                         6998

----------------------- Page 16-----------------------


or she is obviously attempting to accomplish."                         For instance, the judge provided an  

overview of the relevant trial procedures and explained the basis for his evidentiary  

rulings.  The judge also assisted Kinnan with the presentation of his case by inquiring  


about each cause of action listed in Kinnan's complaint, and prompting Kinnan to offer  

any testimony he had on each claim.  


                   Kinnan also argues that the judge's conduct at trial created an appearance  


of  bias.    In  particular  Kinnan  contends  that  the  judge  "openly  mocked  plaintiff's  

ignorance  and  inability."    But  this  claim  is  without  citation  to  the  record,  and  is  

contradicted by both the judge's respectful tone and his attempts to explain the relevant  


                   Similarly  Kinnan  argues  that  the  judge  assumed  the  role  of  Sitka  


Counseling's  attorney  by  questioning  Kinnan  about  his  mental  disability.    But  the  

superior court "may examine any witness" under Alaska Evidence Rule 614(b), and there  

was nothing in the judge's tone or demeanor during this exchange that exhibited bias  

against Kinnan.  Kinnan further argues that the judge had a duty to intervene when  


Kinnan  was  "badgered,  belittled,  and  deliberately  confused"  by  Sitka  Counseling's  


attorney, but a review of the record reveals no conduct that would have necessitated the  

judge's intervention. 39  

                   Finally Kinnan argues that the judge "confessed to pre-judgment" by noting  


that "he already made a ruling on . . . the ownership of the [residence]."  But there is no  

          38       See Wagner v. Wagner             , 299 P.3d 170, 174 (Alaska 2013) (citation and  

internal quotation marks omitted).  

          39       Under the Alaska Code of Judicial Conduct, "[a] judge shall be patient,  

dignified, and courteous to litigants" and "shall take reasonable steps to maintain and  

ensure similar conduct from lawyers . . . ."  Alaska Code of Jud. Conduct 3(B)(4).  

                                                          -16-                                                    6998

----------------------- Page 17-----------------------


evidence  that  the  superior  court  "pre-judge[d]"  this  issue.      To  the  contrary,  in  

responding to one of Sitka Counseling's evidentiary objections earlier in the trial, the  


judge expressly noted that evidence regarding the ownership of the residence could be  

relevant to Kinnan's claims.  For the reasons above, neither the judge's rulings nor his  

conduct created an appearance of impropriety or bias.  


                 We therefore AFFIRM the superior court's judgment.  

         40      In  the  comments  Kinnan  cites,  the  judge  merely  noted  that  he  had  

previously issued an order upholding Sitka Counseling's "possession of the property."  

                                                     -17-                                                  6998  

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