Brown v. Lange
Brown v. Lange
Opinion of the Court
OPINION
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
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.
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.
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.
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
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.
While we never have explicitly defined the term '"appear" in the context of the Alaska Rules of Civil Procedure, in Case v. Winters
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.
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.
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.
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
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. Salomon
In Cook v. Aurora Motors, Inc.,
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 default
In Herts v. Berganske
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,
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.
. 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.
. 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)).
. 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").
. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).
. 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)).
. - 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."
. 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."
. 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").
. 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).
. Wright et al., supra note 8, § 2686 at 41-42, and see authorities listed at 47-49.
. 689 P.2d 467 (Alaska 1984).
. Id. at 469 (quoting Alaska R. Civil P. 5(a)).
. See id. at 470 n. $8.
. See id. at 471.
. 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”).
. See Alaska R.Civ.P. 55(a)(1), (b)(1), (c)(1)-(4).
. See Alaska R.Civ.P. 55(a)(1).
. - Alaska R.Civ.P. 55(b)(1).
. 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).
. Alaska R.Civ.P. 55(c)(1).
. See id.
. 637 P.2d 298 (Alaska 1981).
. 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).
. See City of Valdez, 637 P.2d at 299 (citations omitted).
. 503 P.2d 1046 (Alaska 1972).
. See id. at 1049 n. 6 (quoting American College of Trial Lawyers Code of Trial Conduct No. 14(a), at 149 (1971-72)).
. 637 P.2d 298.
. See id. at 299.
. Id. at 298 (quoting the letter).
. See id.
. See id. at 298-99.
. See City of Valdez, 637 P.2d at 299.
. 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).
. See id. at T72-73.
. 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.
. See id. at 772 & n. 2.
. See id. at 772-73.
. - 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).
Dissenting Opinion
with whom FABE, Justice, joins, dissenting.
I agree that Brown's call to Lange's attorney did not amount to a Rule 55 "appearance" but disagree with the court's conclusion that Lange's attorney had no duty to notify Brown of his intent to apply for entry of default. In my view, this court's caselaw
Cook v. Aurora Motors, Inc. was the first of our cases to recognize an attorney's professional duty to give reasonable notice to an opposing party before applying for a default.
When [a lawyer] knows the identity of a lawyer representing an opposing party, he should not take advantage of the lawyer by causing any default or dismissal to be entered without first inquiring about the opposing lawyer's intention to proceed.3
The Trial Lawyers Code obviously regards this duty a "professional courtesy"-that is, as an obligation that one lawyer owes another by virtue of their common bond in the legal profession. Yet even though both parties in Cook were represented by counsel,
We reaffirmed Cook's notice requirement in City of Valdes v. Salomon.
While Gregg did send a letter to Dean advising him of the twenty day extension, he made no effort to notify Dean of his intent thereafter to seek a default, or to inquire about Dean's intention to proceed. We have adopted the following rule of trial conduct:
When [a lawyer] knows the identity of a lawyer representing an opposing party, he should not take advantage of the lawyer by causing any default or dismissal to be entered without first inquiring about the opposing lawyer's intention to proceed.
The same rule of inquiry should apply when a lawyer knows the identity of an agent representing an opposing party, even if he does not know the identity of opposing counsel. "[The purpose of the default procedure is to prevent a procrastinating defendant from unduly delaying a case; it should not be regarded as a tactical tool by which a plaintiff may obtain judgment without the bother and expense of litigation." While Gregg had the procedural right to seek a default entry, he was obligated to inquire into Hertz's intent to proceed and to inform Hertz of his intent to seek a default entry.12
Hertz thus recognizes that the duty of pre-default inquiry and notice can arise when a plaintiff's attorney is contacted by a non-
Thus, in concluding that Cook merely establishes a rule of "professional courtesy," today's opinion misreads our caselaw. Until now, we have always viewed Cook's notice requirement not just as a courtesy among lawyers, but as a duty owed directly to the defendant.
The court offers two reasons for limiting Cook to attorneys and agents. Neither is persuasive.
First, the court asserts, "(tlhe act of retaining an attorney ... unequivocally evidences an intent to defend the case.
So too, a defendant's early discussion of settlement through a lawyer or a non-attorney agent signals neither a commitment to settle nor an unequivocal decision to defend. Hertz provides a useful example. Hertz's adjuster, Dean, discussed the possibility of settlement with plaintiff's counsel, Gregg, before Gregg had even filed a complaint.
These cireamstances hardly constitute "unequivocal evidence" of Hertz's commitment to defend his claim. To the contrary, when viewed in conjunction with Hertz's failure to meet the deadline for filing his answer, they raise serious questions about his intent. Yet despite these uncertainties-indeed, because of these uncertainties-this court concluded that, Gregg was "obligated to inquire into Hertz's intent to proceed and to inform Hertz of his intent to seek a default entry.
In the case at hand, the cireumstances surrounding Brown's failure to file a timely answer raised substantial questions about his intent to defend. Brown called Lange's attorney's office within the allowable time for
As we emphasized in Herts and Salomon, "[the purpose of the default procedure is to prevent a procrastinating defendant from unduly delaying a case.
Nor do the cireumstances of this case suggest that compliance with the duty of inquiry and notice would have been burdensome or impractical. Lange's attorney knew Brown's telephone number and knew that Brown lived with his parents in the small community of Kake. Nothing in the record indicates that Brown could not have been reached with a minimal expenditure of time and effort.
As its second reason for declining to apply Cook, Salomon, and Herts to cases involving pro se litigants, the court expresses the fear of ethical problems grounded on "the law's historical concern about giving legal advice to an opposing party.
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer*832 shall make reasonable efforts to correct the misunderstanding.27
Alaska's commentary to this rule explains:
An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client.28
As can be seen, the Alaska Rule and its commentary have nothing to do with the present situation. Rule 4.8 and its Alaska commentary address the issue of communicating with unrepresented litigants in a way that might cause them to misunderstand the opposing lawyer's true intentions and interests. But compliance with Cook, Salomon, and Heriz creates no such danger. These cases require a plaintiff's attorney, before applying for default, "to inquire into [the defendant's] intent to proceed and to inform [the defendant] of [plaintiffs] intent to seek a default.
The court nonetheless suggests possible problems arising from a sentence of commentary that appears in Model Rule 4.3; this Model Rule commentary warns: "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.
The court thus fails to offer any sound reason why Cook should not extend the present situation. In Cook we emphasized that the chief purpose of requiring a pre-default warning is to "help avoid unnecessary, time-consuming motions before the court.
. 503 P.2d 1046, 1049 n. 6 (Alaska 1972).
. See Op. at 827 n. 26.
. American College of Trial Lawyers Code of Conduct No. 14(a), at 149 (1971-72), incompletely quoted in Cook, 503 P.2d at 1049 n. 6; accurately quoted in City of Valdez v. Salomon, 637 P.2d 298, 299 (Alaska 1981).
. Cook, 503 P.2d at 1049 n. 6.
. - Id. (emphasis added).
. See id.
. 704 P.2d 767 (Alaska 1985).
. See id. at 772-73.
. See id. at 768-69.
. See id. at 769.
. Id. at 772-73 (citations omitted) (emphasis added).
. Although Hertz's adjuster, Dean, was hired to investigate by Providence Washington, our decision specifically described Dean as Hertz's ageni, not Providence Washington's. See id.
. Id. at 773.
. Indeed, it is noteworthy that, although the court's opinion today calls the duty of notice that we adopted in Cook a "professional courtesy," see Op. at 827, our relevant cases-Cook, Salo-mon, and Hertz-never used this term.
. Op. at 828. The court similarly reasons that, [bly 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 ... by litigation." Id.
. See Hertz, 704 P.2d at 768.
. See id. at 768-69.
. See id. Our opinion in Hertz suggests that, at the time of the default, Providence Washington had not yet decided whether it would provide Heriz with counsel. Id. at 769.
. Id. at 773 (citations omitted).
. 1d.
. The law firm's records summarized the contact as follows:
Lange, Robert Ernest, 18350-for DLF-3/22/96-On 3/22/96, 10:38 DLF wrote:
Wesley Brown Jr. called this am and wanted to know when he was going to be going to court. I returned his call to let him know there wasn't a court date yet but that he needed to answer the complaint-mail it to the courts w/a copy to CHP.
I left the message w/his mother as he had left to go fishing shortly before I called. The mother did tell me that John Willis the other person you are wanting to serve is in Juneau attending a ... program. She did say that Mr. Brown has not attended his ... program yet. Mr. Brown's phone # is ....
Brown would later indicate that he never received the message. The trial court did not question his explanation.
. Hertz, 704 P.2d at 772 (quoting Salomon, 637 P.2d at 299 n. 1).
. The court suggests that the failure to comply with Cook might be excused on equitable grounds because "Brown's interests must be balanced against the interests of Lange, who has a right to a timely determination of his damages." Op. at 826. But the record demonstrates that this equitable concern is unfounded: Lange's attorney applied for entry of default less than two months after filing Lange's complaint. Having secured the default, he waited more than fourteen months before moving for entry of judgment. Obviously, then, Lange's attorney was in no hurry to obtain "a timely determination of [Lange's] damages." I4.
. Op. at $28.
. Op. at 828 & n. 38 (quoting Model Rule 4.3 cmt. (1998)).
. Alaska R. Prof. C. 4.3.
. Alaska R. Prof. C. 4.3 cint.
. Hertz, 704 P.2d at 773.
. See Op. at 828 n. 38 (quoting Model Rule of Prof. Conduct 4.3 cmt (1998)).
. The omitted commentary's overbreadth can be readily illustrated by applying the commentary to the present case. Here, Lange's attorney instructed his legal assistant to tell Brown that "he needed to answer the complaint-mail it to the courts [with al copy to [Lange's attorneys]." This advice seems sensible and proper. Yet under the literal terms of the omitted Model Code commentary, we would have to conclude that the advice violated Rule 4.3 by (1) improperly advising Brown (an unrepresented litigant) how to handle his case ("he needed to answer the complaint" and "mail it to the court"); and (2) failing to give him the only advice that the comment actually permiis-the advice "to obtain counsel."
. 503 P.2d at 1049 n. 6.
. In comparable circumstances, courts in other jurisdictions have recognized an ethical duty to inquire or give notice before seeking a default. See, e.g., Bellm v. Bellia, 150 Cal.App.3d 1036, 198 Cal.Rptr. 389, 390 (1984) (suggesting that "as a matier of professional courtesy counsel should have given notice of the impending default"); Smith v. Johnston, 711 N.E.2d 1259, 1264 (Ind. 1999) (specifying that "courtesy, common sense and the constraints of [the] judicial system" required an attorney to attempt to make contact with his opponent before seeking a default judgment and suggesting that failure to do so was an ethical violation); Lalumera v. Nazareth Hosp., 310 Pa.Super. 401, 456 A.2d 996, 999 (1983) (discussing the court's frequent suggestion that courtesy required counsel to give notice before seeking a default); Hartwell v. Marquez, 201 W.Va. 433, 498 S.E.2d 1, 4 n. 5 (1997) (requiring a lawyer seeking a default or dismissal to first notify opposing counsel and observing that the ethical duties of "courtesy, candor, honesty, diligence, fairness and cooperation" are owed not
Reference
- Full Case Name
- Wesley A. BROWN, Jr., Appellant, v. Robert LANGE, and John Willis, Jr., Appellees
- Cited By
- 7 cases
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- Published