| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Joshua M. Martinez & Robert Martinez v Government Employees Insurance Company, et al., Charles E. Burnett v Government Employees Insurance Company (9/4/2020) sp-7479
Notice: This opinion is subject to correction before publication in the P ACIFIC 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
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JOSHUA M. MARTINEZ and )
ROBERT MARTINEZ, ) Supreme Court Nos. S-17041/17132
) (Consolidated)
Appellants, )
) Superior Court No. 4FA-12-02365 CI
v. )
) O P I N I O N
GOVERNMENT EMPLOYEES
)
INSURANCE COMPANY and
) No. 7479 - September 4, 2020
CHARLES E. BURNETT,
)
)
Appellee. )
)
)
CHARLES E. BURNETT, )
)
Appellant, )
)
v. )
)
GOVERNMENT EMPLOYEES )
INSURANCE COMPANY, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Michael P. McConahy,
Judge.
Appearances: PaulW.Waggoner,Anchorage, for Appellants
Joshua M. Martinez and Robert Martinez. Kenneth P.
----------------------- Page 2-----------------------
Jacobus, Kenneth P. Jacobus, P.C., Anchorage, for
Appellant/Appellee Charles E. Burnett. Michael J. Hanson,
Call & Hanson, P.C., Anchorage, and Barry J. Kell, Kell &
Associates, P.C., Anchorage, for Appellee Government
Employees Insurance Company.
Before: Bolger, Chief Justice, Winfree, Stowers, and
Maassen, Justices. [Carney, Justice, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
A man was driving a pickup truck when he lost control and crashed into a
cabin, injuring the cabin owner and causing damage, including a spill of heating fuel.
The cabin owner asked the driver's insurance company to pay him to do the cleanup
himself, but the insurance company refused because the cabin owner did not have the
qualifications required by the Alaska Department of Environmental Conservation.
Cleanup stalled for over a year while the effects of the spill on the property and the
owner's health allegedly worsened.
The insured driver and his father, the truck's owner, settled with the cabin
owner for the maximum limits of the insurance policy, but the cabin owner sought
additional damages from the insurance company for its failure to promptly clean up the
property. Following summary judgment for the insurance company and a reversal and
remand by this court, the superior court held an evidentiary hearing to decide whether
the insurance company had assumed a duty to the cabin owner independent of the duty
it owed its insureds. The superior court found there was no such duty.
The cabin owner and the insureds appeal. The cabin owner contends that
the superior court erred by finding no actionable duty and that it deprived him of due
process by failing to consider his arguments before entering proposed findings of fact
-2- 7479
----------------------- Page 3-----------------------
and conclusions of law and awarding attorney's fees. The insureds argue that the
superior court erred by deciding that they were precluded from further participation in
the litigation once they entered into a settlement and were voluntarily dismissed from the
case.
We conclude that the superior court did not clearly err in its findings of fact
about the existence of an independent duty and that it did not violate the cabin owner's
due process rights. We also conclude that the insureds were no longer parties to the case
at the time they sought to renew their participation in it, and their arguments that they
were entitled to either joinder or intervention are waived for lack of briefing. We
therefore affirm the superior court's judgment.
II. FACTS AND PROCEEDINGS
A. Facts
In November 2011 Joshua Martinez lost control of the pickup truck he was
driving and crashed into Charles Burnett's cabin. The accident damaged the cabin's
heating fuel tank, causing the fuel to drain onto the property and under the cabin.
Burnett alleged that he also suffered bodily injuries, including respiratory issues from
breathing fumes from the spill.
Joshua Martinez was insured by Government Employees Insurance
Company (GEICO) under an auto policy issued to his father, Robert Martinez. Two days
aftertheaccident, theAlaskaDepartment ofEnvironmental Conservation (DEC) advised
GEICO to hire a qualified environmental consultant and crew to clean up the fuel spill.
GEICO's adjuster, Katie Johns, spoke with Burnett. According to Johns, Burnett agreed
to call contractors for estimates; according to Burnett, he expressed an interest in doing
the cleanup himself but was told he was not allowed to. Burnett did contact a qualified
environmental engineer, Suzan Amundsen, who provided what Johns believed to be a
reasonable estimate of cleanup costs. But Burnett continued to insist on doing the
-3- 7479
----------------------- Page 4-----------------------
cleanup himself; he offered to do it for $25,000, approximately the amount of
Amundsen's bid. DEC did not consider Burnett qualified to handle the cleanup because
of his lack of the required certifications, and Johns told Burnett that GEICO could not
authorize him to do it.
The parties were at an impasse through 2012, with Burnett insisting on
doing the cleanup himself and GEICO insisting that it had to be done by a
DEC-approved contractor. The fuel spread farther across Burnett's property but was
finally cleaned up in October 2013 by a contractor under Amundsen's supervision. DEC
provided a pollution site closure letter in April 2014, which noted that remaining
pollution on the property did "not pose an unacceptable risk to human health or the
environment and [that] no further remedial action [would] be required." The letter did,
however, reserve DEC's right to require "additional assessment and/or cleanup action"
if further pollution was discovered.
B. Proceedings
Burnett sued the Martinezes and GEICO in September 2012, while his
property was still awaiting cleanup. In March 2014, after the cleanup was completed,
GEICO paid Burnett the limits of the Martinezes' insurance policy to settle and release
all his claims against them, though he reserved his claims against GEICO. The parties
agreed to dismiss with prejudice "all claims that were or could have been asserted" by
Burnett against the Martinezes. The court further ordered that the Martinezes' names be
removed from the case caption.
The superior court then granted summary judgment to GEICO on Burnett's
remaining claims, finding that GEICO owed him "no actionable duty."1 The court also
1
See Burnett v. Gov't Emps. Ins. Co. (Burnett I), 389 P.3d 27, 29 (Alaska
2017).
-4- 7479
----------------------- Page 5-----------------------
awarded GEICO attorney's fees under Alaska Civil Rule 82 and costs under Civil
Rule 79. On Burnett's appeal we reversed the grant of summary judgment, holding that
"GEICO may owe Burnett an independent duty" as defined by the Restatement (Second)
2 We
of Torts § 323 ("Negligent Performance of Undertaking to Render Services").
remanded for "an evidentiary hearing or trial" at which Burnett was to "have an
opportunity to try to establish that independent duty" as a factual matter.3
1. The Martinezes' actions following remand
The Martinezes were not parties to the appeal in Burnett I, having settled
and been dismissed from the case three years before. After remand, however, in early
2018, the Martinezes' attorney again entered an appearance, though he acknowledged
that "[n]o claims are being pursued against the Martinez[es] at this time and it is the
Martinez[es'] contention that no claims can be brought against them." The Martinezes
filed a memorandum arguing that without "a proper cleanup" they were exposed to
potential future liability; they also filed a motion to compel Burnett to disclose the
remaining pollution prior to any sale of the property. The court granted the unopposed
motion, and the Martinezes filed a lis pendens against the property.
GEICOthenfiled amotion to precludetheMartinezes' further participation
in the case, noting that all claims against them had been dismissed with prejudice and
that the case on remand from Burnett I was limited to the issue whether GEICO owed
Burnett an independent duty, an issue in which the Martinezes had no interest. The
Martinezes filed a motion to intervene. But the court granted GEICO's motion to
preclude their further participation, concluding that the earlier voluntary dismissal with
2 Id. at 32-33.
3 Id.
-5- 7479
----------------------- Page 6-----------------------
prejudice was "a final judgment on the merits" and the Martinezes' further participation
in the case was barred by res judicata.
2. The Burnett-GEICO dispute following remand
The superior court held an evidentiary hearing in April 2018 on a single
issue: whether GEICO owed Burnett an independent duty in its conduct of the fuel oil
cleanup. The court heard the testimony of seven witnesses: two DEC employees; the
environmental engineer, Amundsen; the GEICO adjuster, Johns; Burnett; Burnett's
attorney, Ken Jacobus; and the Martinezes' former insurer-appointed attorney. At the
close of the hearing the court asked both parties to submit "written closing arguments
and proposed findings of fact and conclusions of law"; the parties agreed to provide them
by June 1.
On June 1 the court reviewed, adopted, and signed GEICO's proposed
findings and conclusions. The court found that Burnett had failed to establish that
GEICO owed him a duty independent of the duty GEICO owed to its insureds. The
court further found that even if there were such a duty, Burnett had failed to prove that
GEICO breached it or that he suffered harmas a result. Burnett's own proposed findings
of fact and conclusions of law reached the courthouse on June 4, three days after the
court had issued its decision. The court entered final judgment for GEICO and, pursuant
to Civil Rules 79 and 82, awarded the insurer its attorney's fees and costs, including
those incurred before the Burnett I appeal.
Burnett appeals the superior court's finding that GEICO did not owe him
an independent duty, its adoption of GEICO's proposed findings and conclusions, and
its award of pre-remand attorney's fees and costs to GEICO. The Martinezes appeal the
superior court's order precluding them from participating in the case on remand.
-6- 7479
----------------------- Page 7-----------------------
III. STANDARD OF REVIEW
"We review de novo whether the superior court correctly applied our
4
mandate on remand." "We review a trial court's factual findings for clear error, which
is found when we are left with a definite and firm conviction based on the entire record
5
that a mistake has been made." Determining "[w]hether there was a violation of due
process is a question of law that we review de novo, adopting 'the rule of law that is most
6
persuasive in light of precedent, reason, and policy.' " Questions regarding the
7
interpretation of procedural rules are also reviewed de novo.
IV. DISCUSSION
A. The Superior Court On Remand Correctly Followed The Mandate In
Burnett I.
Burnett first argues that the superior court failed to follow our remand
instructions in Burnett I . In that opinion we observed that "GEICO may owe Burnett an
independent duty under [Restatement (Second) of Torts] § 323, and he should have an
opportunity to try to establish that independent duty at an evidentiary hearing or trial";
8
we therefore remanded the case "for further proceedings consistent with this opinion."
The superior court held an evidentiary hearing on remand, announcing at the outset that
4 Ivy v. Calais Co., 397 P.3d 267, 272 (Alaska 2017).
5 Casey v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska 2004).
6 Paula E. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
276 P.3d 422, 430 (Alaska 2012) (quoting D.M. v. State, Div. of Family & Youth Servs.,
995 P.2d 205, 207 (Alaska 2000)).
7 Ebli v. State, Dep't of Corr., 451 P.3d 382, 387 (Alaska 2019).
8 Burnett I, 389 P.3d at 32-33.
-7- 7479
----------------------- Page 8-----------------------
"the issue is whether GEICO may owe an independent duty as framed by the Supreme
Court under § 323."
Burnett contends, however, that because he "established all the facts set
forth as recognized in the [ Burnett I ] opinion . . . he should have been entitled to
judgment that there was an independent duty," and that the superior court's finding that
there was no independent duty was therefore "not in accord with [ Burnett I]." This
misstates our holding; we did not recognize any facts as "established." The case was first
9 There had not yet been
appealed from a grant of summary judgment on the duty issue.
any evidentiary proceedings that could have resulted in findings of fact.10 On appeal,
therefore, we viewed the facts "in the light most favorable to Burnett," the nonmoving
party, and applying this standard we concluded that there was "a genuine dispute
whether GEICO affirmatively undertook an independent duty to Burnett through its
interactions with him."11 The superior court's decision to hold an evidentiary hearing to
resolve this genuine factual dispute followed the instructions on remand.
B. The Superior Court Did Not Clearly Err In Finding That GEICO Did
Not Owe Burnett An Actionable Duty Under § 323.
The issue to be decided on remand - whether GEICO owed Burnett an
independent duty related to the cleanup of his property - was based on the Restatement
9 Id. at 29.
10 Id. ; see Alaska R. Civ. P. 56(c) ("Judgment shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, show that there is no genuine issue as to any material fact and that
any party is entitled to a judgment as a matter of law.").
11 Burnett I, 389 P.3d at 32.
-8- 7479
----------------------- Page 9-----------------------
12
(Second) of Torts. Section 323 states:
One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of the other's person or things, is
subject to liability to the other for physical harm resulting
from his failure to exercise reasonable care to perform his
undertaking, if
(a) his failure to exercise such care increases the risk of such
harm, or
(b) the harm is suffered because of the other's reliance upon
the undertaking. [13]
As we noted in Burnett I, the basis of Burnett's potential § 323 claim was "not some kind
of failure or wrongful conduct during GEICO's normal adjusting activities" on behalf
of its insured, but rather whether there was an "independent and separate agreement"
between GEICO and Burnett.14 "[E]vidence that the undertaking is for the plaintiff's
benefit is a prerequisite to liability" under § 323.15
Burnett does not cite to any evidence adduced on remand showing an
independent agreement of the sort we said must be proven. Nor does he identify any
specific findings of fact made by the superior court that he contends are clearly
erroneous. Indeed, Burnett concedes that "GEICO undertook to clean[]up the property
on behalf of its insureds, the Martinez defendants," contending that he reasonably "relied
on GEICO's undertaking to clean up the property to his detriment." Essentially,
12 See RESTATEMENT (SECOND) OF TORTS § 323 (AM. LAW INST . 1965).
13 Id.
14 389 P.3d at 31-32.
15 Alaskan Vill., Inc. v. Smalley ex rel. Smalley, 720 P.2d 945, 947 (Alaska
1986).
-9- 7479
----------------------- Page 10-----------------------
Burnett's argument appears to be that he reasonably relied on GEICO's performance of
the duty it already owed by contract to its insureds , when what he was required to prove
on remand was that "GEICO affirmatively undertook an independent duty to Burnett
16
through its interactions with him."
The superior court found there was no such undertaking; it concluded that
Burnett "failed to establish . . . the first prong of the duty analysis under § 323: that
GEICO undertook a duty to him to clean up the fuel spill on his property through an
agreement with him, separate from and independent of its duties to the Martinezes, to do
so." The court found that Johns, GEICO's insurance adjuster, was in direct contact with
Burnett from the end of November 2011 until the beginning of May 2012, at which time
further communication took place through Burnett's and the Martinezes' attorneys.
Burnett himself testified that Johns told him "[m]ore than once" that GEICO's
responsibility was to "the [S]tate and the Martinezes." When asked whether he was
aware from the outset that GEICO was there "to protect the Martinezes' interest,"
Burnett answered, "[That] would be my understanding."
The superior court also found that GEICO never represented "to Burnett
that it was proposing to clean up the spill as a[n independent] service or benefit to him,"
and that Burnett never "believe[d] that GEICO was proposing to clean up the spill as a[n
independent] service or benefit to him." Johns testified that she told Burnett that GEICO
"couldn't leave Josh Martinez open to a claim against the State by allowing [Burnett] . . .
or [another] non-qualified individual to clean it up." For his part, Burnett testified that
he was aware that GEICO was the Martinezes' insurer and that GEICO "had to represent
their client." In his brief Burnett admits that Johns told him in their discussions about
16
Burnett I, 389 P.3d at 32 (emphasis added).
-10- 7479
----------------------- Page 11-----------------------
the cleanup "that GEICO needed to protect [Martinez] frompotential liability to the State
of Alaska."
There is sufficient record support for the superior court's finding that
GEICO was acting as part of its "normal adjusting activities" to protect its insured by
17 The superior court did
cleaning the spill, not acting to independently benefit Burnett.
not clearly err when it found that Burnett and GEICO never reached an independent
agreement regarding spill cleanup.
C. The Superior Court Did Not Deny Burnett Due Process.
Burnett argues that the superior court violated his rights to procedural due
process in two ways: first by adopting GEICO's proposed findings of fact and
conclusions of law before having received Burnett's own proposed findings and
conclusions, and second by awarding attorney's fees for GEICO's work prior to the
Burnett I remand without allowing Burnett the opportunity to present his position on the
issue. Neither claim has merit.
17 Burnett alternatively argues that an actionable duty existed under the
multi-factor test outlined in D.S.W. v. FairbanksNorthStarBorough SchoolDistrict ,628
P.2d 554, 555 (Alaska 1981). But we have found "no need to rely on the D.S.W. factors
in deciding whether an actionable duty exists if the duty issue is governed by recognized
principles of tort law." State v. Sandsness , 72 P.3d 299, 305 (Alaska 2003); see also
Kallstrom v. United States , 43 P.3d 162, 167 (Alaska 2002) ("We apply the [ D.S.W.]
factors . . . when the facts under consideration are not covered by statute, regulation,
contract, or case law."). Restatement § 323 is one such "recognized principle of tort
law." Even if that were not the case, we would consider the issue waived, as Burnett
failed to argue the D.S.W. factors in the superior court. See Windel v. Carnahan , 379
P.3d 971, 980 (Alaska 2016) (holding that "[i]ssues not properly raised or briefed at trial
are not properly before this court on appeal" (alteration in original) (quoting Burts v.
Burts, 266 P.3d 337, 344 (Alaska 2011))).
-11- 7479
----------------------- Page 12-----------------------
1. The superior court did not violate Burnett's due process rights
by adopting GEICO's proposed findings of fact and conclusions
of law before receiving Burnett's late-filed submissions.
At the close of the evidentiary hearing, the superior court asked the parties
to propose a reasonable deadline for their submissions of written closing arguments and
proposed findings of fact and conclusions of law. Burnett's counsel suggested mid-May,
GEICO's counsel agreed, and the court responded, "Mid-May. How about [I] make it
June 1." Both parties agreed. The court added, "I don't mind extensions, it's
just - let's make them realistic, right?"
GEICO's counsel submitted proposed findings and conclusions on June 1,
the day they were due. The superior court "reviewed [the proposed findings and
conclusions] in detail" before adopting them "in their entirety as the court's findings,"
signing them that day. Although Burnett put his submissions in the mail on June 1, the
court received them three days later, on June 4.
Burnett argues that the court violated his due process rights by issuing its
findings and conclusions - in the form of GEICO's proposals - without waiting to
review his competing submissions. He argues that his submissions were in fact timely.
Asserting that the Alaska Rules of Civil Procedure and the Alaska Administrative Rules
give no specific guidance on the timeliness of pleadings filed by mail, Burnett relies on
Alaska Appellate Rule 502.1, which provides that when documents are sent to the
courthouse by mail with an official United States Postal Service postmark, "the date of
filing will be deemed to be the date of mailing."
But Appellate Rule 502.1 does not govern procedure in the trial courts; 18
18 See Alaska R. App. P. 501 ("Part Five of these rules (Rules 501 through
523) applies to all proceedings in the supreme court and the court of appeals.").
-12- 7479
----------------------- Page 13-----------------------
19
the Civil Rules do. Alaska Civil Rule 5(e) provides that "[t]he filing of pleadings and
other papers with the court . . . shall be made by filing them with the clerk of the court
20
at the court location where the case is filed unless otherwise directed by the court."
Interpreting this rule, the court of appeals has observed that "pleadings in the superior
court . . . are still governed by the common-law rule that a document is 'filed' when it
21 As support the court of appeals
is received by the court, not when it is mailed."
discussed an election law case, Silides v. Thomas, in which we addressed when a
disclosure was deemed "filed" with the Alaska Public Offices Commission for purposes
of compliance with a statutory filing requirement.22 We noted in Silides that "[t]he
definition of 'file' is well established in the law. It has been consistently held that a
document is filed only when the proper office has received it, and that it is not considered
filed when it is deposited in the mails."23
19 See Alaska R. Civ. P. 1 ("The procedure in the superior court and, so far as
applicable, in the district court shall be governed by these rules in all actions or
proceedings of a civil nature - legal, equitable, or otherwise.").
20 Alaska R. Civ. P. 5(e).
21 Black v. State, 76 P.3d 417, 419 (Alaska App. 2003).
22 Id. at 418-19 (discussing 559 P.2d 80 (Alaska 1977)).
23 559 P.2d at 88; see also United States ex rel. Tenn. Valley Auth. v.
Easement & Right-of-Way, 386 F.2d 769, 771 (6th Cir. 1967) (holding that filing in
takings case was valid only after clerk received it); Wirtz v. Local Union 169, Int'l Hod
Carriers', Bldg. & Common Laborers' Union of Am., AFL CIO, 246 F. Supp. 741, 750
(D. Nev. 1965) (" 'The use of the word "file" or "filing" in a legal sense is almost
universally held to mean the delivery of the paper or document in question to the proper
officer . . . .' A document is not filed when it is deposited in the mails . . . ." (citation
omitted) (quoting Creasy v. United States, 4 F. Supp. 175, 177 (W.D. Va. 1933))).
-13- 7479
----------------------- Page 14-----------------------
Having provided a due date that the parties stipulated was more than
reasonable, the superior court was not obliged to wait another few days to see whether
Burnett would tardily submit something as well. We have never held that a court's
24 and we see no reason to do
enforcement of reasonable deadlines violates due process,
so in this case. "The crux of due process is an opportunity to be heard and the right to
adequately represent one's interests."25 Burnett's counsel asked for five or six weeks to
prepare post-trial submissions and the court gave the parties two weeks more, indicating
at the same time that "realistic" extensions would be granted if requested. There was
nothing unreasonably short about the court-imposed deadline or unreasonably
burdensome in the means for complying with it. Burnett's opportunity to be heard and
to represent his interests - both at the evidentiary hearing and in post-
trial submissions - was more than sufficient to satisfy due process.
2. The superior court did not violate Burnett's due process rights
in its award of pre-remand attorney's fees to GEICO.
In a separate order signed the same day as the findings of fact and
conclusions of law, the court advised GEICO that it did not need to move again for fees
and costs that had been awarded in 2014, before the Burnett I appeal; those would be
included in the final judgment, and GEICO's renewed motion for fees and costs had to
address only what had been incurred since the remand. Burnett's second due process
24 See, e.g., Markhamv.KodiakIslandBorough Bd. of Equalization, 441 P.3d
943, 953-54 (Alaska 2019) (holding that Board did not violate party's due process rights
in declining to consider late-filed documents where party had opportunity to provide
documents in timely manner, including with an extended deadline); Wilson v. State,
Commercial Fisheries Entry Comm'n , 770 P.2d 1126, 1130 (Alaska 1989) ("This court
has in the past upheld reasonable filing deadlines against due process challenges.").
25 Church v. State, Dep't of Revenue, 973 P.2d 1125, 1130 (Alaska 1999)
(quoting Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353 (Alaska 1988)).
-14- 7479
----------------------- Page 15-----------------------
argument is that the superior court violated his rights by "automatically" awarding the
pre-Burnett I fees and costs to GEICO without first considering his argument that, as a
26
result of the Burnett I decision, he was the prevailing party up to that point.
But Burnett did present his position on the issue, albeit briefly. In his
June 16, 2018 opposition to GEICO's motion for attorney's fees, Burnett argued, as he
does on appeal, that "attorney fees should not be awarded against . . . Burnett for work
performed prior to the first appellate decision" because "Burnett was the prevailing party
on the first part of the case." Although this was after the court had indicated that it
would award those fees to GEICO, Burnett clearly had the opportunity - which he
took - to advise the court that this position should be reconsidered. The court
ultimately did not make the attorney's fees award until July 30, over a month after
Burnett had filed his opposition. We assume that the court read the parties' filings and
27
considered all their arguments before making its award.
As noted above, thefundamental tenets ofdueprocessincludeameaningful
28 The superior court's June 1 order made Burnett aware of the
opportunity to be heard.
court's position on pre-remand attorney's fees. Burnett had ample opportunity to take
issue with the court's stated intent to award those fees, and he did so. There was no
violation of due process.
26 389 P.3d 27 (Alaska 2017).
27 See, e.g., United States v. Duke, 932 F.3d 1056, 1061 (8th Cir. 2019) ("We
presume that the court considered the arguments before it."); cf. Brodigan v. State, 95
P.3d 940, 944 (Alaska App. 2004) ("[E]very act [of the court] is presumed to have been
rightly done until the contrary appears." (second alteration in original) (quoting Jerrel
v. State, 851 P.2d 1365, 1372 (Alaska App. 1993), overruled on other grounds by David
v. State, 372 P.3d 265 (Alaska App. 2016))).
28 Church, 973 P.2d at 1130.
-15- 7479
----------------------- Page 16-----------------------
D. The Superior Court Did Not Err By Precluding Further Participation
By The Martinezes Following Their Stipulated Dismissal.
In early 2014, having reached a settlement, Burnett, the Martinezes, and
GEICO stipulated to a dismissal with prejudice of all of Burnett's claims against the
Martinezes pursuant to Civil Rule 41(a). The court accordingly signed an order
dismissing the case "as to defendants Joshua M. Martinez and Robert Martinez," after
which the Martinezes' names were deleted from the case caption. They did not
participate in the case again until almost four years later, when in January 2018 their
attorney entered another appearance for them even while asserting that "[n]o claims are
being pursued against the Martinez[es] at this time and it is the Martinez[es'] contention
that no claims can be brought against them," referencing the settlement and release.
Notwithstanding the absence of any claims for them to either pursue or defend against,
the Martinezes sought to present arguments about their allegedly continuing exposure
to potential liability to the State or unknown third parties due to the property's
contamination.
GEICOmovedtoprecludetheMartinezes' continued participation,arguing
that they were no longer parties to the case and had no apparent interest in the case's one
remaining issue following the Burnett I remand: whether GEICO owed an independent
duty to Burnett. The Martinezes then filed a motion to intervene, though citing only
Alaska Civil Rules 19 and 20, governing joinder of parties, rather than Alaska Civil
Rule 24, governing intervention. The superior court granted GEICO's motion,
precluding "former defendants Joshua Martinez, Robert Martinez[,] and their counsel . . .
from further participation in the case." The court issued a second order explaining its
rationale: The 2014 stipulation to dismiss claims with prejudice had the effect of a final
judgment on the merits as to those claims, and the Martinezes' further participation in
the case was therefore barred by res judicata.
-16- 7479
----------------------- Page 17-----------------------
On appeal the Martinezes assert that notwithstanding their dismissal from
the case they remained parties, entitled to continued participation at their election,
because the court failed to enter an Alaska Civil Rule 54(b) final judgment on the settled
29 They do not develop this argument in their brief, however, nor
claims against them.
do we need to consider it. The court entered a final judgment on September 9, 2014, that
specifically referenced both the grant of summary judgment on Burnett's claims against
GEICO and the earlier dismissal with prejudice "of all of Burnett's claims against" the
Martinezes. Assuming that the Martinezes were still parties to the action when the 2014
final judgment was entered, they were bound by that judgment to the same extent as the
other parties, although - having voluntarily dismissed their claims - they had no right
to appeal from it.30 On Burnett's appeal, we reversed only "the superior court's grant of
summary judgment to GEICO" and remanded for consideration of only Burnett's claim
that GEICO owed him an independent duty.31 Nothing about our mandate resurrected
the Martinezes' dismissed claims or reinstated their party status.
As for whether the Martinezes had the right to rejoin the litigation after
remand through intervention, we conclude that the argument is waived. In support of the
29 Civil Rule 54(b) allows the court to "direct the entry of a final judgment as
to one or more but fewer than all of the claims or parties," but "only upon an express
determination that there is no just reason for delay and upon an express direction for the
entry of judgment."
30 Deptula v. Simpson, 164 P.3d 640, 643-44 (Alaska 2007) ("Where . . . a
case is dismissed voluntarily, no appeal may be taken. This is so because voluntar[y]
dismissal, when approved by the court, is considered a consent judgment, which is
generally not subject to appellate review." (footnote omitted)); Legge v. Greig, 880 P.2d
606, 607 (Alaska 1994) ("One who acquiesces to a dismissal with prejudice waives the
right to an appeal.").
31 Burnett I, 389 P.2d 27, 32-33 (Alaska 2017).
-17- 7479
----------------------- Page 18-----------------------
Martinezes' intervention, Burnett quotes Civil Rule 19(a), "Joinder of Persons Needed
for Just Adjudication," and the Martinezes mention Rule 19 several times in their brief,
though without substantively discussing it. Neither party cites Civil Rule 24, which
32 and more importantly neither party substantively addresses the
governs intervention,
standards for intervention. Nor do Burnett or the Martinezes even mention the grounds
given by the superior court for its decision to bar the Martinezes' further participation:
that the stipulated dismissal with prejudice acted as res judicata as to "any claims
between Burnett and Martinez regarding the vehicle crash and related injuries."33 We
conclude that any argument that the Martinezes should have been allowed to participate
again in the case through either joinder or intervention is waived for lack of briefing.34
32 "Joinder and intervention are different things." Team Worldwide Corp. v.
Wal-Mart Stores, Inc. , 287 F. Supp. 3d 651, 655 (E.D. Tex. 2018). But see Liberty Mut.
Ins. Co. v. Shoemake , 111 So. 3d 1207, 1211 n.1 (Miss. 2013) (recognizing "that joinder
and intervention are distinct concepts governed by different procedural rules, although
for [some] purposes they may be used interchangeably"). For example, "only a party
may make a Rule 19 motion, although, of course, a court may sua sponte join a party for
good cause," and a court may convert a non-party's Rule 19 joinder motion into a
Rule 24 motion to intervene. Arrow v. Gambler's Supply, Inc. , 55 F.3d 407, 409 (8th
Cir. 1995).
33 See DeNardo v. Calista Corp., 111 P.3d 326, 332 (Alaska 2005) (holding
that stipulated dismissal with prejudice is "just as valid as a final judgment resulting from
a trial on the merits[] and is res judicata as to all issues that were raised or could have
been determined under the pleadings" (quoting Plumber v. Univ. of Alaska Anchorage,
936 P.2d 163, 166 (Alaska 1997))); 9 CHARLES ALAN WRIGHT & A RTHUR R. M ILLER,
EDERAL PRACTICE AND PROCEDURE § 2364 (4th ed. 2020) (explaining that dismissal
F
with prejudice is "complete adjudication of the claims and a bar to a further action on
them between the parties").
34 See Windel v. Carnahan, 379 P.3d 971, 980 (Alaska 2016) (holding that
"where a point is given only a cursory statement in the argument portion of a brief, [it]
will not be considered on appeal" (quoting Burts v. Burts, 266 P.3d 337, 344 (Alaska
-18- 7479
----------------------- Page 19-----------------------
The Martinezes raise a number of other issues in their brief, most of them
attacking GEICO's conduct of the cleanup and its defense of the resulting litigation. As
non-parties, however, the Martinezes lack standing to argue issues other than the
35 We therefore do
propriety of the court's order precluding their reentry into the case.
not consider their remaining arguments.
V. CONCLUSION
We AFFIRM the judgment of the superior court.
34 (...continued)
2011))).
35 Hopper v. Estate of Goard, 386 P.3d 1245, 1247 n.2 (Alaska 2017)
("Although we review the denial of [appellants'] motion to intervene, we do not reach
their other arguments because '[a] failed intervenor has standing to appeal only the denial
of intervention' and not the merits of the adjudication." (second alteration in original)
(quoting Scammon Bay Ass'n v. Ulak, 126 P.3d 138, 142 (Alaska 2005))).
-19- 7479
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
