Brown v. Lange

21 P.3d 822, 2001 Alas. LEXIS 48, 2001 WL 429137

• Court: Alaska Supreme Court
• Decided: April 27, 2001
• Docket: S-8745
• Status: Published

Opinions

OPINION

CARPENETI, Justice.

I. INTRODUCTION

Wesley Brown, a formerly pro se defendant, appeals the superior court's denial of his motion to set aside a default judgment against him in a personal injury case. Brown asserts that he was entitled to notice before the entry of the default, that he was entitled to notice before the entry of the default judgment, and that plaintiff Robert Lange's attorney was obliged both to inquire about Brown's intentions and to notify the court of Brown's attempt to contact him before seeking the default. In these matters of first impression, we disagree with Brown: The default was validly entered and Lange's attorney owed Brown no independent professional duty to give him notice. But because the default judgment was entered without apportioning fault between two defendants, we must vacate the default judgment and remand to the superior court for further proceedings.

II FACTS AND PROCEEDINGS

John Willis's boat struck Wesley Brown's boat near Kake on May 7, 1995, injuring Brown and Willis's passenger, Robert Lange. All three men had been drinking alcohol the day of the accident when they decided to go boating. - The collision occurred while Brown's boat was stopped to retrieve a hat belonging to Lange. Both Brown and Willis were convicted of operating watercraft while intoxicated.

On February 22, 1996, Lange (the passenger) filed suit against both Brown and Willis (the drivers) seeking damages in excess of $50,000. Brown was served with a copy of the summons and complaint at his home in Kake on March 4. The summons contained the following language in boldface type: "IF YOU FAIL TO [ANSWER THE COMPLAINT] JUDGMENT BY DEFAULT MAY BE TAKEN AGAINST YOU FOR THE RELIEF DEMAND[ED] IN THE COMPLAINT."

On March 22, 1996, Brown telephoned Lange's attorney and left a recorded message asking when he (Brown) was "going to court." His call was returned by Lange's attorney's receptionist, who reached Brown's mother and informed her that no court date had been scheduled and that Brown needed to answer the complaint and mail copies to the court and Lange's attorney.

Brown did not answer the complaint. On April 19, 1996, a default was entered against him. Brown was not notified of this entry of default. Willis also failed to answer, and default was entered against him on April 29, 1997.¹ A hearing to determine Lange's damages was held before a special master on July 3, 1997; Brown was not notified of this hearing. The special master recommended a damages award of $272,424.80. The superior court accepted this recommendation and, on July 21, entered judgment against Brown and Willis for that amount, plus interest, attorney's fees, and costs. The judgment against Brown and Willis totaled $821,490.15. The court did not apportion fault between Brown and Willis Again, Brown was not notified that the judgment had been entered against him.

On November 3, 1997, the superior court issued an order commanding Brown to appear and restraining him from disposing of his property. Brown was served with this notice, which was the first formal communication Brown received from either the court or Lange since the complaint.

Brown then contacted Alaska Legal Services, who referred him to its pro bono program. On January 9, 1998, an attorney made an appearance on Brown's behalf and on April 8 Brown moved through counsel to set aside the default judgment on two grounds: (1) that Brown's failure to answer the complaint was "excusable neglect" and therefore the default and default judgment should be set aside pursuant to Alaska Rule of Civil Procedure 60(b)(1); and (2) that Lange's attorney had engaged in "fraud" by not notifying Brown either of the default or of the default judgment hearing, and that therefore the judgment should be set aside pursuant to Civil Rule 60(b)(8).

The superior court declined to set aside the default judgment against Brown on either of these grounds. This appeal followed.

III,. STANDARD OF REVIEW

- Normally, we will reverse the trial court's refusal to set aside a default judgment pursuant to Civil Rule 60(b) only for abuse of discretion.² However, this appeal turns on the proper interpretation of the term "appear" in Civil Rule 55. When interpreting a civil rule, we exercise our independent judgment ³ and "adopt the rule of law that is most persuasive in light of precedent, reason, and policy." ⁴

Determining whether the superior court committed reversible error by not apportioning fault in the default judgment is an issue of statutory interpretation, which we review under the substitution of judgment standard.⁵

IV, DISCUSSION

A. Brown Was Not Entitled To Have Either the Emtry of Default or the Default Judgment Set Aside for Lange's Failure To Provide Notice.

As noted above, Brown telephoned Lange's attorney and asked when he (Brown) was "going to court." Brown now claims that this constituted an "appearance" under Civil Rule 55. Because the application of Civil Rule 55's default procedures varies depending on whether the defendant "appears," the threshold issue is whether this call, which was Brown's only response to Lange's complaint, constituted an "appearance" for Civil Rule 55 purposes.⁶ We hold that it did not.

1. - Brown did not "appear" by leaving an ambiguous telephone message with Lange's attorney.

We have never explicitly defined the term "appear" in the context of the Alaska Rules of Civil Procedure. But in interpreting our civil rules we have often looked to identical federal counterparts for guidance.⁷ Other courts interpreting the federal analog to our Civil Rule 55 have taken an expansive concept of what an "appearance" is⁸ And some federal courts have found an "appearance" even where the defendant's action did not "involve some presentation or submission to the court.⁹ Still, the rule in the federal system "normally" is that "an appearance in an action 'involves some presentation or submission to the court.¹⁰

While we never have explicitly defined the term '"appear" in the context of the Alaska Rules of Civil Procedure, in Case v. Winters¹¹ we rejected the idea that an appearance could take place without a presentation or submission of some sort to the court. Case involved two superior court proceedings. In one, a wife filed a motion to change custody and to obtain a judgment for past child support. Attorney Hellenthal entered an appearance for the husband. In the second case, filed a year later, the wife filed a new complaint seeking "damages" for unpaid support. Although Hellenthal did not appear in the second case, he contacted the wife's attorney and requested an extension of time to answer the complaint. His request was granted but after the time for extension expired, the wife's attorney notified him in writing that she intended to apply for default. - Hellenthal did nothing. The wife's attorney requested a default under Civil Rule 55(a) without serving Hellenthal or the husband since no appearance had been filed, and a default was entered. Shortly thereafter the two cases were consolidated. After that a default hearing on damages was held, again without notice. This court held that up until the time of the consolidation neither the husband "nor attorney Hellenthal was entitled to service of the prior entry of default because 'no service need be made on parties in default for failure to appear.¹² We went on to hold that onee the cases were consolidated - (after the default was entered in the second case) Hellenthal was entitled to written notice of the application for default judgment under Civil Rule 55(c)(1). We set aside the default judgment, but we affirmed the entry of the default on liability in the second case.¹³

A concurrence was filed in Case. The concurring justices would have held that the contacts between Hellenthal and opposing counsel amounted to an appearance by Hel-lenthal for purposes of Civil Rule 55. The concurrence cited a number of federal cases that had found an appearance even without a presentation or submission to the court.¹⁴ But the concurrence's view that an appearance can arise merely by contacts between the parties was rejected by the majority in Case.

Even if we were to adopt a more expansive notion of "appearance," Brown's minimal conduct here would not meet the new, more relaxed standard. Brown's only action came eighteen days after receiving the complaint when he made a single telephone call to Lange's attorney and left a message asking "when he was going to court." While under a sympathetic view this action may have evinced Brown's intention at that moment to defend the lawsuit, it nevertheless fails to rise to the level of an "appearance" as that word is used in Civil Rule 55. To read more into Brown's action would strain the meaning of "appearance" so fundamentally as to rewrite Civil Rule 55 from the bench-an action we decline to take.¹⁵

2. Since Brown did not appear, he was not entitled to notice of Lange's applications for entry of default or for default judgment.

The application of Civil Rule 55 explicitly depends upon whether the defendant has "appeared" in the action.¹⁶ If the defendant does not appear, upon the plaintiffs application the clerk of court may enter a default without requiring service of the application upon the defendant.¹⁷ Then, upon application, and again without notice to the defendant, the clerk of court may enter a default judgment if the damages are "for a sum certain or for a sum which can by computation be made certain.¹⁸ When the damages cannot be reduced to a sum certain, as in the case at hand,¹⁹ the superior court "may conduct such hearings or order such references as it deems necessary and proper" to "determine the amount of damages.²⁰ The superior court may conduct its damages proceedings ex parte, without requiring notice to a defendant who has failed to previously appear in the action.²¹

The superior court in this case did not err by conducting ex parte hearings to determine the plaintiff's damages, without requiring that Brown be notified of the hearings. The superior court's actions comported with the requirements of the civil rules. Moreover, Brown's interests must be balanced against the interests of Lange, who has a right to a timely determination of his damages so that he may begin his efforts toward the recovery of his losses. Accordingly, we hold that the superior court did not err when it did not require further notification when Brown failed to appear in the action.

B. Lange's Attorney Was Under No Professional Obligation To Notify Brown Before Seeking the Entry of Default or the Default Judgment.

Brown further argues that our decisions in City of Valdes v. Salomon²² and Herts v. Berzanske²³ command reversal here. Brown argues that Lange's attorney's failure to inquire as to Brown's intention to defend the action constituted a breach of the duties of professional conduct. While we have held that lawyers are obliged by professional courtesy to make such inquiries when they know the identity of and have been in contact with an opposing party's counsel,²⁴ we have done so in a limited context, and we have never extended the same principle to pro se parties.

In Cook v. Aurora Motors, Inc.,²⁵ we first announced the principle that when lawyers know the identity of opposing counsel, they should inform opposing counsel of their intent to seek an entry of default.²⁶ In City of Valdes v. Salomon,²⁷ we referred to this principle ²⁸ in a case in which the defendant city's attorney bad written to the plaintiff's attorney and specifically asked for the courtesy of notification if the city's carrier did not respond to the complaint:

I have referred the case to Providence Washington Insurance Company for a response, and assume that you will be hearing from them soon. In the event that no response is forthcoming, please let me know and I will enter our appearance on behalf of the City of Valdez to protect it against default.²⁹

Thus, the city's attorney explicitly asked for the professional courtesy of notice in the event of its insurance carrier's failure to respond so that the city could make an appearance to prevent a default³⁰ But when the carrier did not respond, the plaintiff's attorney instead applied for and obtained a default without notifying the city's attorney.³¹ In part because the defendant's attorney was justified in expecting that the principle that we stated in Cook would be observed, we held that the superior court's later refusal to set aside that default was an abuse of discretion.³²

In Herts v. Berganske³³ we extended the holding of City of Valdes to cover a party's agent.³⁴ In Hertz, the defendant's agent had contacted the plaintiff's attorney to obtain an extension of time to answer the complaint. The plaintiff's attorney had granted the defendant's agent a twenty-day extension,³⁵ and filed for an entry of default one day after the end of the extension without notifying the defendant's agent.³⁶ In reversing the trial court's refusal to set aside the default, we extended the City of Valdes holding to a situation in which the plaintiff's attorney had been communicating with the defendant's agent.³⁷

Brown argues, "[nlo logical explanation exists as to why a pro se litigant should receive anything but the same notice his [or her] attorney or agent would be entitled to." We disagree. The act of retaining an attorney is a significant step a defendant may take in the process of defending against an action. It unequivocally evidences an intent to defend the case. By the same token, an agent's negotiation of a time extension to answer shows the defendant's intention to resolve the matter by settlement or, if settlement efforts are unsuccessful, by litigation. A pro se defendant's single call, inquiring when to go to court, without more, is not comparable. Moreover, when plaintiff's counsel (or, as in this case, counsel's employee) correctly responds to the question and properly reminds the defendant to file an answer, no further ethical obligation should be imposed on the plaintiff, Indeed, in light of the law's historical concern about giving legal advice to an opposing party,³⁸ it would be anomalous to require plaintiff's counsel to do more. Finally, the seope of Brown's proposed rule is unlimited because every defendant without an attorney is by definition a pro se defendant. The extension of the City of Valdes holding proposed by Brown would greatly weaken Civil Rule 55 by making continued notification necessary in any case where even the most casual contact was made.

For these reasons, we decline to extend the attorney's professional obligation (to contact known opposing counsel or an agent who has requested an extension, and to inquire of their intentions before seeking a default) to a pro se defendant who has made a single telephone call inquiring about a court date.

C. Alaska Statute 09.17.080(a) Requires the Apportionment of Fault.

Brown's final argument is that the superior court was required to apportion damages in the final judgment. We agree.

Alaska Statute 09.17.080(a) requires apportionment of damages where there are multiple culpable parties:

In all actions involving fault of more than one person, ... the court, unless otherwise agreed by all parties ... [and] if there is no jury, shall make findings, indicating[:] (1) the amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and (2) the percentage of the total fault that is allocated to each claimant, defendant, ... or other person responsible for the damages....

This language requires the superior court to apportion fault in rendering its final judgment. Because the superior court here did not apportion fault in establishing damages, we must remand this case for the court to do so.

V. CONCLUSION

The superior court was correct in concluding that Brown did not "appear" for purposes of Civil Rule 55 and was therefore not entitled to notice of either the entry of default or the default judgment. In addition, counsel for Lange was under no obligation of professional courtesy to notify Brown of his intention to seek default judgment. We accordingly AFFIRM the default judgment against Brown. However, the superior court was required to apportion damages in the final judgment. Because there was no apportionment, we VACATE the final judgment and REMAND this case to the superior court for further proceedings.

1 . Willis has not appealed. The record does not show why, after obtaining an entry of default against Brown in April 1996, Lange waited over a year before obtaining entry of default against Willis.

2 . See Benedict v. Key Bank of Alaska, 916 P.2d 489, 491 (Alaska 1996) (citing Bauman v. Day, 892 P.2d 817, 828-29 (Alaska 1995)).

3 . See Ford v. Municipality of Anchorage, 813 P.2d 654, 655 (Alaska 1991) (holding that in cases that '"involve the interpretation of a civil rule, we exercise our independent judgment").

4 . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

5 . See Longwith v. State, Dep't of Natural Resources, 848 P.2d 257, 260 n. 5 (Alaska 1992) (citing Madison v. Alaska Dep't of Fish and Game, 696 P.2d 168, 173 (Alaska 1985); Kelly v. Zamarello, 486 P.2d 906, 917 (Alaska 1971)).

6 . - Civil Rule 55(a)(1) provides:

When a party against whom a judgment for affirmative relief is sought has failed to appear and answer or otherwise defend as provided by these rules, and that fact is shown by affidavit or otherwise, the clerk shall enter a default. Service of the application is not required if the party has failed to appear.

Civil Rule 55(c)(1) governs default judgments entered by courts. It provides that "[if the party against whom default judgment is sought has appeared in the action, that party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least three days prior to a decision on the application."

7 . See generally Hertz v. Berzanske, 704 P.2d 767, 770 (Alaska 1985) ("Since Rules 55(e) and 60(b) are identical to their federal counterparts, ... we look to federal case law for guidance.") superseded by statute on other grounds as noted in McConkey v. Hart, 930 P.2d 402, 407 n. 4 (Alaska 1996). Although no Federal Rules of Civil Procedure are worded exactly the same as Alaska Civil Rules 55(a)(1) or 55(c)(1), the similarities between the federal and the Alaska schemes make it appropriate for us to look to the federal case law for guidance in interpreting "appearance."

8 . See generally Morrow County Sch. Dist. v. Oregon Land and Water Co., 78 Or.App. 296, 716 P.2d 766, 769 n. 4 (1986) ("The federal cases give a broad reading to ... appearance. Almost anything that indicates that the party is interested in the case will suffice.") (citation omitted); 10A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2686, at 47 (3d ed.1998) (noting "the general liberality in defining what conduct constitutes an appearance").

9 . Wright et al., supra note 8, § 2686, at 44; see also New York Life Ins. Co. v. Brown, 84 F.3d 137, 141-42 (5th Cir.1996) (finding appearance where claimant spoke with opposing counsel and informed him that claimant would contest suit and participated in a telephonic settlement conference before a magistrate judge); Key Bank v. Tablecloth Textile Co., 74 F.3d 349, 353 (1st Cir.1996) (finding appearance where defendant's informal contacts with plaintiff during negotiations, including an informal agreement not to seek an entry of default without notice, indicated a clear intent to defend suit).

10 . Wright et al., supra note 8, § 2686 at 41-42, and see authorities listed at 47-49.

11 . 689 P.2d 467 (Alaska 1984).

12 . Id. at 469 (quoting Alaska R. Civil P. 5(a)).

13 . See id. at 470 n. $8.

14 . See id. at 471.

15 . See Caterpillar Tractor Co. v. Beck, 624 P.2d 790, 793 (Alaska 1981) ("Rule changes are more appropriately accomplished by amendment upon recommendation of the rules committee, the bench, and the barg”).

16 . See Alaska R.Civ.P. 55(a)(1), (b)(1), (c)(1)-(4).

17 . See Alaska R.Civ.P. 55(a)(1).

18 . - Alaska R.Civ.P. 55(b)(1).

19 . In the context of Civil Rule 55, we have stated that "[dJamages for bodily injury or pain and suffering by their very nature are not a fixed or liquidated sum, nor can the sum be made certain by computation." Davis v. Criterion Ins. Co., 754 P.2d 1331, 1333 n. 3 (Alaska 1988).

20 . Alaska R.Civ.P. 55(c)(1).

21 . See id.

22 . 637 P.2d 298 (Alaska 1981).

23 . 704 P.2d 767 (Alaska 1985), superseded by statute on other grounds as noted in McConkey v. Hart, 930 P.2d 402, 407 n. 4 (Alaska 1996).

24 . See City of Valdez, 637 P.2d at 299 (citations omitted).

25 . 503 P.2d 1046 (Alaska 1972).

26 . See id. at 1049 n. 6 (quoting American College of Trial Lawyers Code of Trial Conduct No. 14(a), at 149 (1971-72)).

27 . 637 P.2d 298.

28 . See id. at 299.

29 . Id. at 298 (quoting the letter).

³⁰

31 . See id. at 298-99.

32 . See City of Valdez, 637 P.2d at 299.

33 . 704 P.2d 767 (Alaska 1985), superseded by statute on other grounds as noted in McConkey v. Hart, 930 P.2d 402, 407 n. 4 (Alaska 1996).

34 . See id. at T72-73.

35 . See id. at 768-69. At the trial court level, the parties disputed whether the extension was an "open twenty-day extension," which meant "that the plaintiffs granted an open extension of the time to answer the complaint and would not seek entry of default except upon twenty days' notice to the defendant," or was simply a twenty-day extension, which meant that the deadline for filing an answer was extended for only twenty days. Id. at 768.

36 . See id. at 772 & n. 2.

37 . See id. at 772-73.

38 . - See Model Rules of Professional Conduct Rule 4.3 cmt. (1998) ("'During the course of a lawyer's representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel."); Model Code of Professional Responsibility, DR 7-104(A)(2) (1980).