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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Tera Bunton, Personal Representative of the Estate of Helen A. Lingley v. Alaska Airlines, Inc. and Dan Kane (2/19/2021) sp-7506
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
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
TERA BUNTON, Personal )
Representative of the Estate of HELEN ) Supreme Court No. S-17110
A. LINGLEY, )
) Superior Court No. 1PE-12-00047 CI
Appellant, )
) O P I N I O N
v. )
) No. 7506 - February 19, 2021
ALASKA AIRLINES, INC. and DAN )
KANE, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Petersburg, William B. Carey, Judge.
Appearances: Michael P. Nash, Law Offices of Michael P.
Nash, P.C., Wrangell; Deborah A. Holbrook, Law Office of
Deborah A. Holbrook, Juneau; and Mary Alice McKeen,
Law Office of Mary Alice McKeen, Juneau, for Appellant.
Gregory S. Fisher and Elizabeth P. Hodes, Davis Wright
Tremaine LLP, Anchorage, for Appellees.
Before: Bolger, Chief Justice, Winfree, Maassen, and
Carney, Justices.
BOLGER, Chief Justice.
I. INTRODUCTION
An employee sued her former employer for wrongful termination. The
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employee died, but her attorney continued to litigate, negotiate, and mediate the case for
another year before informing the court or opposing counsel of her death. The superior
court concluded that the attorney had committed serious ethical violations related to this
delay and disqualified him from the case. Post-disqualification, the attorney filed a
motion to substitute the personal representative of the employee's estate as plaintiff. The
superior court issued an order dismissing the case on several grounds. We conclude that
the court did not abuse its discretion by disqualifying the attorney and denying the
motion for substitution he submitted. The superior court was correct to dismiss the case,
as only one party remained, but we conclude that granting summary judgment in favor
of the former employer and supervisor was error. The estate is not entitled to appeal the
court's refusal to enforce a draft settlement agreement signed by the employee before her
death and does not have standing to appeal the sanctions imposed against the attorney.
But because the estate was not allowed to participate as a party, we conclude that
awarding affirmative relief against it was error.
II. FACTS AND PROCEDURAL HISTORY
Helen Lingley worked for Alaska Airlines in Juneau as an airport customer
service representative beginning in 1997. In February 2012 Alaska Airlines terminated
Lingley's employment, citing violations of company rules and policies. Lingley filed a
complaint against Alaska Airlines and her supervisor, Dan Kane, alleging wrongful
termination and breach of the implied covenant of good faith and fair dealing. The
superior court dismissed the complaint, but we reversed on appeal, holding that Lingley
should have been allowed to amend her wrongful termination and potential age
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1 2
discrimination allegations. We remanded the case to the superior court in May 2016.
In June 2016 Alaska Airlines offered Lingley $20,000 in exchange for a
"standard settlement agreement and release." Lingley's attorney, Fred Triem, prepared
a settlement agreement without consulting Alaska Airlines, and Lingley signed it on
June 22. After Triem tendered the agreement, Alaska Airlines countered that his
submission was not "Alaska Airlines' standard settlement agreement" and drafted a
"Confidential Settlement and Release Agreement," which it sent to Triem on June 27.
But Lingley never had a chance to review the proposed settlement. She
died on June 24, having suffered from terminal metastatic lung cancer for more than a
year. Triem did not inform the court or Alaska Airlines of her death. Unaware that
Lingley had died, Alaska Airlines continued settlement negotiations and discovery
preparation. At one point Alaska Airlines offered to use Triem's settlement agreement,
with the addition of federally mandated terms and a more thorough waiver of claims.
Triem rejected the proposal.
On August 1 Triem filed a motion to enforce the settlement agreement that
3 On August 11 Triem filed a third amended complaint,
Lingley had signed on June 22.
alleging breach ofthesettlement agreement as a new claimagainst Alaska Airlines, again
without informing the court or Alaska Airlines of Lingley's death. After oral argument
1 Lingley v. Alaska Airlines, Inc ., 373 P.3d 506, 515-17 (Alaska 2016).
2 Id . at 506.
3 From Lingley's death in June 2016 through May 2017, Triem continued to
file motions and appear in court purporting to represent her, so conventionally we would
refer to his legal actions as being taken by Lingley. Because Lingley was deceased and
her Estate had not been substituted as a party, we will instead refer to "Triem's" actions.
However, the superior court and Alaska Airlines would have perceived them as
Lingley's actions.
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the superior court denied the motion to enforce the signed settlement agreement and
granted Alaska Airlines' cross-motion for attorney's fees. The superior court noted the
parties' inability to reconcile their competing versions of a standard settlement
agreement, concluding that this meant that they had not reached the "meeting of the
4 Thesuperior court awarded Alaska
minds"required to generateanenforceablecontract.
Airlines $5,000 in fees for Triem's "unreasonable and vexatious" behavior, imposed
jointly and severally on both Lingley and Triem. 5
In February 2017 Alaska Airlines moved for a settlement conference, and
the attorneys participated in mediation throughout April 2017. According to Alaska
Airlines' counsel the parties appeared close to an accord, but Triem requested that the
attorneys sign an agreement instead of the clients and that the settlement funds be
deposited in his trust account as a lump sum without withholding taxes. When Alaska
Airlines refused, the mediation concluded without a settlement being reached. On May 1
Triem informed Alaska Airlines of Lingley's death and filed a Notice of Death stating
that Triem had been unaware of Lingley's death until that day.
Alaska Airlines immediately filed a Notice of Suggestion of Death. Alaska
Airlines then moved to disqualify Triem from representing any interested person in the
case, which the superior court granted. Alaska Airlines also moved for sanctions,
dismissal, and summary judgment.
4 Triemappealed the denial of his motion to enforce, bringing Lingley's case
before us for the second time. We relinquished jurisdiction and remanded this appeal on
July 14, 2017, after being notified of Lingley's death.
5 Alaska Civil Rules 77(j) and 95 allow the court to impose costs and
attorney's fees against a party for filing frivolous or unnecessary motions.
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One month after the disqualification order, Triem moved to substitute the
6
personal representative for Lingley's estate (the Estate) as plaintiff in Lingley's stead.
Alaska Airlines opposed the motion on the grounds that "Fred Triem cannot represent
the Estate or any interested person because he has already been disqualified." It renewed
its motions for dismissal and summary judgment, arguing that Triem's "egregious
litigation misconduct" warranted dismissal and that no issues of material fact remained.7
The superior court held oral argument on August 22 to address the pending
motions. The Estate's lawyer, Deborah Holbrook, entered a limited appearance to
address the "matters currently scheduled for oral argument." She asked that the case be
allowed to go forward and that Triem not be disqualified because the Estate could not
afford or identify a different lawyer.8 Holbrook stated:
Mr. Triem had and has the Estate's authorization to
seek substitution of the Estate for the Plaintiff Helen Lingley
6 Alaska Civil Rule 25(a) states:
If a party dies and the claim is not thereby extinguished, the
court may order substitution of the proper parties. The
motion for substitution may be made by the successors or
representatives of the deceased party or by any party . . . .
Unless the motion for substitution is made not later than 90
days after the death is suggested upon the record by service
of a statement of the fact of the death as provided herein for
the service of the motion, the action shall be dismissed as to
the deceased party.
7 See Alaska R. Civ. P. 56(c) (providing that a party is entitled to summary
judgment where "there is no genuine issue as to any material fact and . . . the moving
party is entitled to judgment as a matter of law").
8 Holbrook opened a probate case for the Estate on July 31, 2017. She stated
in court that she was "not willing to substitute into Helen Lingley's wrongful termination
case against Alaska Airlines."
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in the wrongful termination case. Both Helen Lingley and
the personal representative were very pleased with
Mr. Triem's professional representation in the case . . . .
. . . .
. . . In fact, the Estate wants to state very clearly on the
record that if the court . . . maintains its ruling that the Estate
doesn't have the right to choose its own attorney and must
hire someone other than Mr. Triem, that that's basically
going to be handing down a death sentence to the Estate's
pursuit of the wrongful termination case . . . .
She noted that Triem had taken Lingley's case pro bono, that it was unlikely any other
attorney would take the case, and that she was not "willing to work the hundreds of
unpaid hours that have been . . . required in this case." And she concluded that "the
Estate is knowingly and voluntarily willing to waive whatever conflict of interest the
court believes exists between the Estate and Mr. Triem."
In January 2018 the superior court issued an omnibus order denying the
motion for substitution and dismissing the case. It concluded that Triem's
disqualification clearly denied him the authority to move for substitution. The court
concluded:
Because Triem had no authority to file the motion to
substitute, its filing was ineffective as to its purported
purpose. No valid motion for substitution of a party was filed
within the 90 days contemplated by Rule 25. The Motion for
Substitution is denied on that basis and pursuant to Rule 25,
this matter may be and is dismissed. (Emphasis omitted.)
As an independent basis for dismissal, the court also noted that Lingley's
"demise . . . without preserving her testimony in any way . . . left [Lingley] and her estate
unable to prove her various claims."
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Finally, the superior court also granted summary judgment to Alaska
Airlines and its supervisor. The court found that, "as a matter of law," Lingley had not
been wrongly terminated because it was undisputed that she violated a company policy.
The court stated that Lingley had proffered only a "generalized pleading" in support of
her claims for wrongful discharge, age discrimination, and economic discrimination,
which "lack[ed] any foundational basis." The court noted that the motion for summary
judgment had been filed before Triem had been disqualified but, as Triem had not filed
any response, Lingley had effectively not opposed the motion. Finding "no genuine
issue of fact regarding the unopposed motion for summary judgment," the superior court
concluded that Alaska Airlines was entitled to judgment as a matter of law.
Alaska Airlines filed a proposed judgment naming the Estate as plaintiff;
Triem filed an opposition, arguing that the court could not enter a judgment against the
Estate after ruling that it was not a party. But the superior court rejected Triem's
oppositionbecause"Triemnolonger represents [Lingley], having beendisqualifiedfrom
doing so."
On March 27, 2018, the superior court issued a final judgment in favor of
Alaska Airlines. Although Alaska Airlines was declared the prevailing party, the court
ruled that it could recover "$0" from the Estate and instead assessed costs and attorney's
fees "against counsel." Alaska Airlines sought an award of $225,607.60, representing
fees and costs from June 2016 through August 2017 and a $50,000.00 penalty under
Alaska Civil Rule 95(b). It argued that the Estate should be jointly liable based on
Triem's contention that Lingley had authorized him to "act on her behalf as he saw fit,
without having to communicate or give notice to her regarding his actions and
decisions."
Thesuperior court rejected AlaskaAirlines' argument,concluding that "the
claims regarding Triem's purported blanket authority to act as he did were and are false,"
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and that the lengthy and vexatious nature of the case was "attributable to the conduct of
the attorney alone." Therefore the court refused to "require the heirs of Helen Lingley
to bear the burden of attorney's fees incurred as a result of Lingley's own attorney's
misconduct." Sanctioning Triem under Rule 95 and awarding attorney's fees and costs
under Alaska Civil Rule 82, the court entered a judgment of $99,159.02 against Triem
and in favor of Alaska Airlines.
On April 5 Alaska Airlines filed an additional motion for attorney's fees
under Rule 82, arguing that the Estate was liable for 20% of the $209,902.71 in fees
incurred while Lingley was still alive - a total of $42,002.09. Alaska Airlines mailed
this motion, along with a notice of filing the proposed amended final judgment, to the
attorney representing the personal representative in the probate case. She did not
respond.
On May 3 thesuperior court issued an amended final judgment and an order
granting Alaska Airlines' motion for attorney's fees and costs, noting that there had been
"no opposition filed." The superior court granted Alaska Airlines an award of
$43,416.82 in fees and costs against the Estate in addition to the award of $99,159.02
against Triem.
The Estate appeals, challenging the superior court's grant of summary
judgment, Triem's disqualification and subsequent inability to participate, the court's
personal jurisdiction over the Estate, and the attorney's fees awarded against both Triem
and the Estate. 9
9 Both Triem and the Estate's current attorney timely filed statements of
points on appeal with this court. Triem also separately appealed the judgment against
him, but the action was dismissed for want of prosecution. Triem v. Alaska Airlines, Inc. ,
No. S-17679 (Alaska Supreme Court Order, Sept. 2, 2020).
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III. STANDARD OF REVIEW
We review a superior court's decision to disqualify counsel for abuse of
discretion.10 "We will find an abuse of discretion when the decision on review is
manifestly unreasonable."11
The superior court's jurisdiction to enter judgment against the Estate is a
matter of law that we review de novo, "adopt[ing] the rule of law that is most persuasive
in light of precedent, reason, and policy."12 "Whether a party has standing to sue is a
question of law that we review de novo."13
IV. DISCUSSION
A. The Superior Court Did Not Violate The Estate's Right To Be
Represented By Counsel Of Its Choice.
1. The Estate has standing to challenge the disqualification and
properly preserved the issue for appeal.
Alaska Airlines argues that the Estate lacks standing to challenge Triem's
disqualification. We reject that argument. The Estate has an adequate interest to
properly challenge Triem's disqualification. A party has interest-injury standing if it has
"a 'sufficient personal stake' in the outcome of the controversy and 'an interest which
10 Richard B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 71 P.3d 811, 817 (Alaska 2003) (quoting In re Estate of McCoy , 844 P.2d 1131,
1135-36 (Alaska 1993) (applying the abuse of discretion standard to a disqualification
in an estate case)).
11 Sykes v. Lawless, 474 P.3d 636, 646 (Alaska 2020) (quoting Erica G. v.
Taylor Taxi, Inc., 357 P.3d 783, 786-87 (Alaska 2015)).
12 SeeHarperv.BioLifeEnergySys., Inc., 426 P.3d 1067,1071(Alaska2018)
(quoting Polar Supply Co. v. Steelmaster Indus., Inc., 127 P.3d 52, 54 (Alaska 2005)).
13 Keller v. French, 205 P.3d 299, 302 (Alaska 2009).
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14
is adversely affected by the complained-of conduct.' " The Estate's interest is in its
15
choice of counsel, an interest we have recognized as important but not absolute. We
have reviewed appeals concerning disqualification without questioning a litigant's
16
standing to raise the issue. This case is complicated by the convoluted nature of the
proceedings and the disputed issue of whether and for what purposes the Estate is a
party. But the nature of the Estate's participation in the case is necessarily bound up with
the superior court's disqualification decision. The Estate's motion to substituteas a party
under Rule 25 was rejected because it had been filed by Triem after his disqualification.
Thus, the Estate's entire interest in the case hinged on the superior court's decision to
disqualify Triem. We therefore conclude that the Estate has standing to challenge that
decision.
Alaska Airlines also argues that the Estate waived its right to challenge
Triem's disqualification because it failed to object when Triem was first disqualified in
2017. Appellants must show they have raised an issue in the superior court to preserve
17
the issue for appeal. The superior court disqualified Triem on June 26, 2017. The
motion for substitution was filed on July 31, and the Estate appeared at oral argument
14 Id. at 304 (footnote omitted) (first quoting Ruckle v. Anchorage Sch. Dist. ,
85 P.3d 1030, 1040 (Alaska 2004); then quoting Alaskans for a Common Language, Inc.
v. Kritz, 3 P.3d 906, 915 (Alaska 2000)).
15 Gabianelli v. Azar, 777 P.2d 1167, 1168 (Alaska 1989) (noting that the
"interest of a litigant in securing representation by counsel of his choice" must be
weighed "against the policy of ensuring public confidence in the judicial system").
16 See, e.g., Munn v. Bristol Bay Hous. Auth., 777 P.2d 188, 196-97 (Alaska
1989) (concerning thedenial ofadisqualification motion); Aleut Corp. v.McGarvey ,573
P.2d 473, 474-75 (Alaska 1978) (same).
17 Stephanie W. v. Maxwell V., 319 P.3d 219, 225 (Alaska 2014).
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----------------------- Page 11-----------------------
three weeks later to argue that the disqualification should be set aside. We conclude that
the Estate adequately objected to the disqualification order at its first opportunity,
preserving its right to challenge that order here.
2. The superior court did not abuse its discretion by disqualifying
Triem.
The Estate argues that the superior court improperly denied the Estate its
right to have the attorney of its choice when it disqualified Triem. Although the Estate
has an interest in choosing its representation, this interest is not absolute: it must be
balanced against competing considerations. The superior court has the discretion to
18
disqualify counsel for violation of ethical rules or other serious misconduct. The
superior court did not abuse that discretion in this case.
Most of our precedent concerning lawyer disqualification arises from
19
conflict of interest cases. Accordingly the Estate argues that its waiver of "any and all
potential conflicts" should have precluded Triem's disqualification. But disqualification
is also a proper remedy for cases of gross attorney misconduct.
The represented party's interest is not the only interest a court must
20
consider when faced with a disqualification motion. The court must also balance the
18 Richard B. v. State, Dep't. of Health &Soc. Servs., Div. of Family &Youth
Servs., 71 P.3d 811, 817-21 (Alaska 2003); Aleut Corp. , 573 P.2d at 476.
19 See Richard B., 71 P.3d at 817-18; Aleut Corp. , 573 P.2d at 474.
20 See, e.g., Roosevelt Irrigation Dist. v. Salt River Project Agric.
Improvement & Power Dist., 810 F. Supp. 2d 929, 984 (D. Ariz. 2011) ("Courts have
considered the following factors in such an analysis: (1) the nature of the ethical
violation; (2) the prejudice to the parties, including the extent of actual or potential delay
in the proceedings; (3) the effectiveness of counsel in light of the violations; (4) the
public's perception of the profession; and (5) whether a motion to disqualify has been
(continued...)
-11- 7506
----------------------- Page 12-----------------------
competing interests of the opposing party, the court, and the public. All parties have an
interest in a fair trial, the court has an interest in managing its docket efficiently, and the
public has an interest in a justice system deserving of its trust. When faced with gross
misconduct that calls the integrity of the justice systeminto question, a court must protect
its own integrity, the integrity of the bar, and the integrity of the justice system as a
whole. One way to do so is by disqualifying the offending attorney.
The superior court found in its disqualification order that "Triem breached
multiple professional and ethical standards." Among other violations, the court found
that Triem made "material misstatements and factual misrepresentations," filed court
documents without authority, "engag[ed] in vexatious litigation that resulted in
sanctions," negotiated settlement without authority, and concealed the death of his client
for close to a year. The superior court concluded that "Triem's misconduct . . .
detrimentally prejudiced the rights and interests" of Lingley and Alaska Airlines, as well
as the "[c]ourt's interest in the administration of justice and maintaining the integrity of
judicialproceedings." Thesuperior court further concludedthatTriem'sactions "created
numerous actual or potential conflicts with Helen Lingley's Estate."
When the Estate sought to waive those conflicts and have Triem continue
as counsel,thesuperior court considered the Estate's request butdetermined that Triem's
behavior "was an affront to the court, opposing counsel and the fair administration of
justice." Accordingly, the court declined to "revisit or reconsider its disqualification of
Triem on those grounds." The court properly weighed the various interests at stake in
20 (...continued)
ICHARD E. F LAMM,
used as a tactical device or a means of harassment."); see also R
AWYER DISQUALIFICATION: DISQUALIFICATION OF ATTORNEYS AND LAW FIRMS, 581-
L
604 (2d ed. 2014) (discussing at length the factors that courts balance when considering
disqualification).
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----------------------- Page 13-----------------------
Triem's disqualification. It did not abuse its discretion in maintaining that
disqualification in the face of the Estate's request.
The Estate argues that a higher standard of disqualification should apply to
Triem as he had taken the case pro bono. Other courts have explored this issue and
21
found the interest of a party in pro bono representation to be especially compelling. We
recognize the merits of this reasoning, as the disqualification of pro bono counsel could
present a litigant with the choice of continuing pro se or abandoning the case altogether.
However, given the Estate's ability to procure the services of an attorney for a limited
appearance at the superior court, as well as its competent representation before this court,
it is clear that the Estate did not face such a choice. And we are unwilling to grant
pro bono attorneys blanket protection from disqualification. The misconduct at issue
here would be sufficient to overcome any heightened disqualification standard for
pro bono attorneys.
3. The Estate's argument that it deserved a hearing prior to
Triem's disqualification is waived.
The Estate also argues that it was entitled to an evidentiary hearing before
the disqualification order against Triem was entered. But this argument first appears in
the Estate's reply brief. We consider arguments not raised in an appellant's opening
22
brief to be waived.
By failing to raise this issue in its opening brief, the Estate has
waived the argument.
21 See, e.g. , S.E.C. v. King Chuen Tang , 831 F. Supp. 2d 1130, 1144 (N.D.
Cal. 2011) (finding severe prejudice would arise from the disqualification of pro bono
counsel).
22 The reply brief "may raise no contentions not previously raised in either the
appellant's or appellee's briefs." Alaska R. App. P. 212(c)(3).
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B. The Superior Court Was Not Required To Consider Triem's Motion
For Substitution.
Having established that the superior court did not abuse its discretion by
disqualifying Triem, we find no reason that would have compelled the court to consider
Triem's later motion for substitution. The inability to continue participating in a matter
is the primary consequence of lawyer disqualification. If it was not error to disqualify
Triem, it could not have been error to enforce the primary consequence of his
disqualification.
The Estate knew of Triem's disqualification and even appeared, through
counsel, to argue that he be allowed to continue the case. Knowing of Lingley's death
and Triem's disqualification, the Estate should have been aware that it needed to file a
motion to substitute through different counsel. It failed to do so. Absent a proper motion
23 The superior court did not abuse its discretion
to substitute, Rule 25 compels dismissal.
in dismissing the case.
The Estate argues in the alternative that the superior court should have
treated the motion for substitution as a request to appear pro se. But the Estate was
represented by counsel when it argued that it would be unable to litigate further without
Triem as its attorney. Counsel did not argue at that time that the Estate wished to pursue
its claim pro se. And in other contexts we have concluded that a non-lawyer may not
23
"Unless the motion for substitution is made . . . the action shall be dismissed
as to the deceased party." Alaska R. Civ. P. 25(a).
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24
represent another entity in court litigation. Therefore, the superior court was not
required to recognize the motion for substitution as a request to appear pro se.
C. Entering Judgment Against The Estate Was Error.
Although the superior court acted properly when it dismissed the action, it
erred when it entered a judgment of attorney's fees against the Estate. Under Rule 25,
when a party has not been properly substituted for a decedent, the superior court lacks
25
jurisdiction to enter judgment against it.
Entering judgment against a party that has no
chance to fully contest it violates the principles of due process undergirding our legal
26
system. But the superior court did just that when it entered judgment against the Estate
24 See Parlier v. CAN-ADA Crushing & Gravel Co., 441 P.3d 422, 423
(Alaska 2019) (holding that the sole owner and member of an LLC "must hire counsel
for court litigation"); Christiansen v. Melinda , 857 P.2d 345, 349 (Alaska 1993) ("A
statutory power of attorney does not entitle an agent to appear pro se in his principal's
place.").
25 See In re Estate of Einstoss, 257 N.E.2d 637, 641 (N.Y. 1970) ("Under
Federal law, as well as that of all other common-law jurisdictions, if a party dies before
a verdict or decision is rendered in an action, it abates as to him and must be dismissed
unless it is revived by substituting his personal representative."); cf. Pendleton v. Russell,
144 U.S. 640, 644-45 (1892) ("The judgment was therefore no more valid against a
nonexisting corporation than it would have been if rendered for a like amount against a
dead man.").
26 A litigant's ability to meaningfully respond to adverse claims and orders
is a bedrock principle of the rule of law. This notion sounds in modern constitutional
law. See DeNardo v. Maassen, 200 P.3d 305, 315 (Alaska 2009) ("[P]rocedural due
process under the Alaska Constitution requires notice and opportunity for hearing
appropriate to the nature of the case." (alteration in original) (quoting Price v. Eastham,
75 P.3d 1051, 1056 (Alaska 2003))). But it also has deep roots in the common law
tradition. See Hollingsworth v. Barbour, 29 U.S. 466, 475 (1830) ("It is an
acknowledged general principle, that judgments and decrees are binding only upon
parties and privies. The reason of the rule is founded in the immutable principle of
(continued...)
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----------------------- Page 16-----------------------
after ruling that it was not a party and allowing it no opportunity to contest Alaska
27
Airlines' motions for summary judgment and attorney's fees.
For the same reasons, it was also error to grant Alaska Airlines' motion for
summary judgment. The superior court, faced with a quagmire of conflicting motions
that could terminate the case, issued an "omnibus order" to resolve them all at once. The
court properly dismissed the case under Rule 25, as the Estate had not been properly
substituted as a party. However, the superior court also disposed of the case on the
merits by granting summary judgment. Such an order is inconsistent with the text of
Rule 25, which compels dismissal - not judgment on the merits - if the deceased party
is not replaced via substitution. It is also inconsistent with due process and the
adversarial nature of our justice system, as there was no party to argue against summary
judgment. Given the implications of a case that continues with only one party present,
dismissal under Rule 25 is the only reasonable outcome.
Due process requires "notice and opportunity for hearing appropriate to the
28 Here the Estate had no notice that it could be subject to a judgment
nature of the case."
of the court. Triem had an opportunity to respond to Alaska Airlines' summary
26 (...continued)
natural justice, that no man's right should be prejudiced by the judgment or decree of a
court, without an opportunity of defending the right.").
27 It is true that court decisions can have binding effect on nonparties that are
in privity with a party subject to an earlier judgment. See Donnelly v. Eklutna, Inc., 973
P.2d 87, 92-93 (Alaska 1999) (holding that family members in privity with a deceased
homesteader were barred from re-litigating claims previously resolved against the
homesteader in another court). But even if the Estate is in privity with Lingley by
succession, neither Lingley nor the Estate can be bound by a judgment that they had no
ability to contest.
28 DeNardo, 200 P.3d at 315 (quoting Price, 75 P.3d at 1056).
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----------------------- Page 17-----------------------
judgment motion and failed to do so. But by then Triem represented neither Lingley,
who was dead, nor the Estate, which was not a party to the case. The Estate may have
had notice, in a general way, of some of the motions filed. But because it had never been
made a party to the case, it lacked the incentive to respond in the way that a litigant
usually would: it was not on notice that failure to respond could jeopardize its interests.
Absent that notice, the superior court could not fairly enter judgment against the Estate.
After being granted a substantial judgment for attorney's fees against
Triem, Alaska Airlines sought additional fees from the Estate. Alaska Airlines stated it
had given notice to the Estate's attorney, but that does not change the fact that the Estate
29 Alaska Airlines could have moved to substitute the
was never a party to the case.
Estate for Helen Lingley.30 It did not do so; it instead argued against substitution in the
superior court and continues to do so now. But Alaska Airlines cannot have it both
ways. Either the Estate is a party amenable to the judgment of the court, or it is not. The
Estate is not a party, so it is not amenable to judgment. The superior court therefore
erred in entering judgment against the Estate.
D. The Estate Is Not Entitled To Appeal Other Aspects Of The Judgment.
1. As a non-party, the Estate is not entitled to appeal the court's
refusal to enforce the settlement agreement.
For the same reasons the superior court was barred fromentering judgment
against the Estate, the Estate is barred from appealing elements of the case that have no
29 Further, Holbrook represented the Estate only in its probate action; she
expressly refused to participate in the wrongful termination case beyond her limited
appearance contesting Triem's disqualification.
30 Alaska R. Civ. P. 25(a) ("The motion for substitution may be made by the
successors or representatives of the deceased party or by any party . . . ."); see also
Hester v. Landau, 420 P.3d 1285, 1286-87 (Alaska 2018) (describing plaintiff's
successful motion to substitute defendant's estate for deceased defendant).
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legal effect on it. It challenges the court's refusal to enforce the signed settlement
agreement, but absent a valid substitution motion the Estate is not a party to the case and
31
cannot appeal this issue.
Without a plaintiff, the superior court was compelled to dismiss the case.
Any pending motions on the merits of the case were rendered moot, as the adversarial
process required for the court to dispose of them had been terminated. The Estate could
have filed a proper motion for substitution and continued the litigation, but it did not do
so. Thus the matter was properly dismissed under Rule 25. The Estate cannot insert
itself at the appellate level to continue litigating a matter that it declined to pursue in the
superior court.
2. The Estate does not have standing to appeal the sanctions
imposed against Triem.
The Estate does not have "a 'sufficient personal stake' in the outcome of"
the sanctions against Triem or "an interest which is adversely affected by the
32 The Estate will lose no money if judgment is enforced against
complained-ofconduct."
Triem, nor will any of its legal interests be compromised. The Estate therefore lacks
31 We do not question our precedent which has allowed the superior court
some flexibility in dealing with Rule 25 substitutions. See, e.g. , Estate of Lampert
Through Thurston v. Estate of Lampert Through Stauffer , 896 P.2d 214, 216-18 (Alaska
1995) (affirming the superior court's decision to allow a tardy Rule 25 motion). But it
is clear in this case that no valid substitution motion was filed.
32 Keller v. French, 205 P.3d 299, 304 (Alaska 2009) (first quoting Ruckle v.
Anchorage Sch. Dist ., 85 P.3d 1030, 1040 (Alaska 2004), then quoting Alaskans for a
Common Language, Inc. v. Kritz, 3 P.3d 906, 915 (Alaska 2000)).
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standing to challenge the judgment against Triem, and we decline to consider the
propriety of that judgment. 33
V. CONCLUSION
We AFFIRM the superior court's order disqualifying Triem and its order
dismissing the lawsuit for failure to substitute a party. We REVERSE the court's orders
awarding summary judgment and attorney's fees against the Estate. We DISMISS the
Estate's appeal of the order denying enforcement of the draft settlement agreement and
the orders imposing sanctions against Triem.
33 Triemappealed the judgment against him, but the appeal was dismissed for
failure to prosecute. Triem v. Alaska Airlines, Inc. , No. S-17679 (Alaska Supreme Court
Order, Sept. 2, 2020). Our holding that summary judgment was improper also calls into
question the propriety of granting attorney's fees under Rule 82. However, the superior
court also justified its judgment against Triem under Rules 11 and 95. Triem's conduct
in this case was egregious. The superior court determined that conduct to be worthy of
sanction. We decline to reconsider the superior court's reasoning on this issue when
there is no party before us with standing to contest the matter.
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