Opinion
Supreme Court No. S-13631.
March 9, 2011.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Suddock, Judge. Superior Court No. 3AN-05-6006 CI.
Marilyn A. Coppe, pro se, Anchorage, Appellant. Linda J. Johnson, Clapp, Peterson, Van Flein, Tiemessen Thorsness, LLC, Anchorage, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, and Winfree, Justices. [Christen, Justice, and Stowers, Justice, not participating.]
NOTICE
Memorandum decisions of this court do not create legal precedent. A party wishing to cite a memorandum decision in a brief or at oral argument should review Appellate Rule 214(d).
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Marilyn Coppe sued her former employer, Dr. Michael Bleicher, for wrongful termination. After Coppe lost at trial, she failed to file an appeal or a motion for a new trial. Instead, Coppe filed a motion for relief from judgment under Alaska Civil Rule 60(b). Coppe's motion was denied, and she now appeals the denial of the Civil Rule 60(b) motion. Because Coppe's claims do not provide a basis for relief from judgment under Civil Rule 60(b), we affirm the superior court's denial of Coppe's motion.
II. FACTS AND PROCEEDINGS
A. Coppe's Illness And Dismissal
Appellee Dr. Michael Bleicher, along with his wife, Dr. Laurie Bleicher, employed appellant Marilyn Coppe as a secretary from November 28, 1994 to October 10, 2003. Dr. Michael Bleicher considered Coppe to be an excellent employee. In early 2003 Coppe began experiencing symptoms of "dizziness, fatigue, chest pain, headaches, . . . nausea . . . and blurred vision" during office hours and believed those symptoms were caused by the office building.
Coppe informed her employers about her symptoms and concerns regarding the building. Another member of the condo association, Dr. Douglas Boyce, hired an external company to conduct tests on the air quality in the building. The tests were conducted in June 2003, and although they revealed no indoor air contaminants, some recommendations were made for preventing air quality problems. Those recommendations were followed.
Based on the suggestion of her doctor, Coppe took leave from work while the tests were being conducted, and she reported that her symptoms improved while she was out of the office. But once she returned to work, Coppe's symptoms worsened. By late September Coppe's symptoms still had not improved, and she filed a complaint with the Alaska Department of Labor and Workforce Development, Occupational Safety and Health Section (AKOSH), hoping that AKOSH would conduct its own investigation of the building. Coppe informed the Bleichers about the AKOSH complaint on October 1 or 2.
On October 3 Coppe's illness suddenly worsened, and she visited an urgent care clinic where she was diagnosed with "allergic rhinitis." The doctor wrote that she believed Coppe's symptoms were "consistent with allergies that have developed as a consequence of an environmental exposure." That afternoon, Coppe met with the Bleichers to discuss her illness and its effect on her work. The Bleichers suggested that Coppe switch to employment on an hourly basis, working part time from home or spending only a few hours each day in the office. Coppe was not interested in those options. At the end of the meeting, the Bleichers granted Coppe unpaid leave while they waited for a response from AKOSH.
AKOSH sent a letter to Coppe on October 7, stating that it could not investigate her complaint regarding poor air quality because "the standards do not address [that] complaint item at this time." Coppe received the letter October 9 and called Dr. Michael Bleicher to let him know. Coppe stated that she was feeling better and wanted to return to work, but the Bleichers decided that Coppe should not return unless she had a doctor's note confirming that it was safe for her to work in the office building.
The following day, October 10, Coppe spoke to Dr. Michael Bleicher on the phone again and told him that she still believed her illness was caused by environmental exposure but that she could not get the doctor's note that he had requested. Coppe believed that she could return to the office if the Bleichers "cleaned their office completely and thoroughly." Coppe testified that Dr. Michael Bleicher then told her it was time to "move on" and that she believed she was being fired. The Bleichers both testified that it was Coppe who said it was time for her to move on and that it was Coppe who had resigned. The parties agree that Coppe's employment ended on October 10.
Two weeks later, on October 24, Coppe sent the Bleichers a letter stating that she would like to return to work and enclosed a letter signed by her doctor. The letter was from Coppe's October 3 urgent care visit and stated only that she had allergic rhinitis that had likely developed as a consequence of environmental exposure. The doctor's letter did not indicate that it was safe for Coppe to return to the office, and the Bleichers again decided that Coppe could not return to work. Coppe's illness has continued since her employment with the Bleichers ended.
B. Pre-Trial Proceedings
Coppe filed her original complaint against Dr. Michael Bleicher on March 15, 2005. At that time Coppe was represented by her first lawyer, whom she had retained in December 2003. The original complaint alleged that Dr. Bleicher's conduct constituted harassment of Coppe based on age, race, and disability; that Coppe was wrongfully terminated based on her complaints about the office environment and air quality; and that Dr. Bleicher's treatment of Coppe was a breach of the covenant of good faith and fair dealing. On July 1, 2005, Dr. Bleicher made a $2,500 offer of judgment to Coppe pursuant to Alaska Civil Rule 68. Coppe did not accept this offer.
In February 2006 Coppe's original counsel withdrew from the case. Coppe represented herself from February 2006 until March 2008. In January 2007 Coppe filed a first amended complaint that contained four counts: (1) "Toxic Poisoning and Environmental Pollution"; (2) "Work Injury"; (3) "Wrongful Discharge"; and (4) "Breach of Contract." Coppe alleged that her illness had been caused by exposure to medical waste and airborne contaminants, that she had been fired in retaliation for her complaints about the building, and that her dismissal was a breach of the covenant of good faith and fair dealing. The first amended complaint also added Dr. Laurie Bleicher and Dr. Douglas Boyce as co-defendants. The superior court dismissed the cases against Dr. Boyce and Dr. Laurie Bleicher in June and December 2007, respectively, based on the statute of limitations.
On December 27, 2007, Dr. Michael Bleicher moved for summary judgment on Coppe's personal injury claims, arguing that workers' compensation was the exclusive remedy. Coppe opposed the motion on January 7, 2008. On January 28 the superior court denied Dr. Bleicher's motion. The superior court found that there was a genuine issue of material fact as to whether Coppe's claimed injuries fell under workers' compensation or under Dr. Bleicher's duties as a landlord due to his ownership of the office.
In March 2008 Coppe retained a new attorney, who represented her through the end of trial. In April 2008 Coppe filed her second amended complaint, which contained four counts: (1) negligent exposure to toxins, bio-hazardous materials, and airborne contaminants; (2) wrongful discharge; (3) breach of the implied covenant of good faith and fair dealing; and (4) punitive damages. Coppe filed a third amended complaint in June 2008 that contained the same four counts.
On July 14, 2008, Dr. Michael Bleicher moved for summary judgment on all counts. On August 29 the superior court granted summary judgment to Dr. Bleicher on Count One. The superior court determined that Coppe's claims of exposure to toxins and bio-hazardous materials arose from her employment and were barred by workers' compensation exclusivity. Regarding Coppe's claim of exposure to airborne contaminants, the superior court concluded that Coppe had not provided any evidence that the building was actually the cause of her illness. The superior court dismissed Count One in its entirety.
Coppe had presented reports from two proffered experts in order to show that the building was the cause of her illness, but the superior court precluded their testimony, finding that neither met the requirements to be qualified as an expert witness.
On October 3, 2008, the superior court denied Dr. Bleicher's motion for summary judgment on Counts Two, Three, and Four. The superior court concluded that because Coppe was terminated shortly after filing a complaint with AKOSH she had made out a prima facie case for retaliation. The superior court went on to determine that Dr. Bleicher had offered a plausible explanation for Coppe's termination and that Coppe's evidence of pretext was weak. But the superior court concluded that because it was required to draw all factual inferences in favor of the non-moving party, the facts alleged by Coppe precluded summary judgment.
C. Trial
The jury trial lasted six days. It was the first jury trial for Coppe's attorney, and on several occasions the judge corrected him or instructed him on proper trial practice. At the close of the case, Dr. Bleicher moved for a directed verdict. The superior court denied the motion, but decided to dismiss Count Four, the claim for punitive damages, noting that punitive damages were inappropriate because the case was very thin on liability and had "barely survived" motions for summary judgment and a directed verdict. The jury returned a verdict for Dr. Bleicher on the remaining counts of wrongful discharge and breach of the implied covenant of good faith and fair dealing.
The superior court entered final judgment on November 13, 2008, and awarded $129,466.50 in enhanced attorney's fees to Dr. Bleicher plus $10,646 in costs for a total of $140,112.50. This award was enhanced because Coppe had rejected the Civil Rule 68 offer of judgment made in July 2005. The superior court also awarded $662.30 in attorney's fees to Dr. Laurie Bleicher and $1,651 in attorney's fees to Dr. Boyce.
D. Post-Trial Proceedings
On October 31, 2008, Coppe's trial attorney moved to withdraw from the case. Dr. Bleicher opposed this motion, and the superior court held a hearing on the matter on November 26. Coppe's trial attorney stated at the hearing that he needed to withdraw for financial reasons and that his contract did not include an appeal. Dr. Bleicher cited Coppe's earlier difficulties when acting pro se and expressed concern that the case would never conclude if Coppe represented herself again. The superior court granted the motion to withdraw. Coppe stated at the hearing that she wanted to ask for a new trial, and the court instructed her that such a motion would not be timely.
Despite that instruction, on December 12, 2008, Coppe filed a motion for a new trial. The court denied that motion on January 7, 2009. Coppe did not appeal the judgment or the denial of her motion for a new trial, but on June 22, 2009, she filed a motion for relief from judgment under Alaska Civil Rule 60(b). The motion stated:
This request should be granted because [of] Civil Rule 60(b), (1), (2), and (3) . . . and for the following reasons:
1. Malfeasances on the part of the court, and prosecuting attorney who was impaired during trial and failed to represent in a competent manner;
2. The court Judge Suddock should have stopped the proceedings, removed the attorney because of his inability to perform his duties in a manner expected of a professional;
3. That the fees are representative of a discriminatory lynching of the victim for complaining about the malfeasance of the Defendants; and
4. The court Judge Suddock denied Plaintiff a new trial, knowing that she had not been represented in his Court of Law by a competent lawyer.
The superior court denied Coppe's motion on July 14, stating: "Ms. Coppe presents no cognizable basis for relief from judgment pursuant to ARCP 60(b)." Coppe filed another motion on July 29 entitled "Plaintiff's Standing Motion for Clarity of This Court's Order for Relief From Final Judgments," reiterating her request for relief under Civil Rule 60(b)(1), (2), and (3). The superior court denied that motion on August 22.
On September 30, 2009, Coppe filed a motion in this court requesting permission to file a late appeal. We issued an order on December 2 denying Coppe's request for a late appeal of the November 2008 final judgment but allowing a late appeal of the July 14, 2009 denial of her Civil Rule 60(b) motion. We specifically noted that "[t]he only issue that appellant Coppe may raise on appeal to this court is the question whether the Superior Court erred in denying Coppe's Civil Rule 60(b) motion." Coppe then filed this appeal.
III. STANDARD OF REVIEW
Coppe moved for relief from judgment under Alaska Civil Rule 60(b)(1), (2), and (3). We therefore review the denial of Coppe's Rule 60(b) motion for abuse of discretion. "[R]elief from a judgment is addressed to the sound discretion of the trial court and [the] court's ruling will not be disturbed except upon a showing of abuse of discretion." We will find an abuse of discretion where we are "left with the definite and firm conviction on the whole record that the judge had made a mistake."
Richard v. Boggs, 162 P.3d 629, 632 (Alaska 2007) (quoting Alaska Truck Transp., Inc. v. Inter-Alaska Credit Serv., Inc., 397 P.2d 618, 619-20 (Alaska 1964)); cf. In re Estate of Fields, 219 P.3d 995, 1003 (Alaska 2009) (noting that denial of relief under Rule 60(b)(4) is reviewed de novo because the validity of a judgment is a question of law).
Richard, 162 P.3d at 632.
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion By Denying Coppe's Civil Rule 60(b) Motion.
Alaska Civil Rule 60(b) states:
(b) Mistakes-Inadvertence-Excusable Neglect-Newly Discovered Evidence-Fraud-Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment.
Civil Rule 60(b) allows a court to relieve a party from an unjust final judgment. A motion under Civil Rule 60(b) is not, however, a substitute for filing a timely appeal, "nor does it allow relitigation of issues that have been resolved by the judgment."
Richard, 162 P.3d at 633.
Morris v. Morris, 908 P.2d 425, 429 (Alaska 1995) (quoting Burrell v. Burrell, 696 P.2d 157, 163 (Alaska 1984)).
The superior court concluded that Coppe's motion under Civil Rule 60(b)(1), (2), and (3) presented "no cognizable basis for relief from judgment pursuant to ARCP 60(b)." Because this ruling was not an abuse of discretion, and because Coppe's claims under Civil Rule 60(b)(4), (5), and (6) were not presented below, we affirm the superior court's order denying relief.
1. The superior court did not abuse its discretion by denying Coppe relief under Civil Rule 60(b)(1).
Alaska Civil Rule 60(b)(1) permits relief on the basis of "mistake, inadvertence, surprise or excusable neglect." Two of Coppe's claims can be read as falling under this prong: first, that her lawyer's performance at trial was so bad that it constitutes excusable neglect, and second, that Coppe's illness prevented her from litigating her case effectively, also constituting excusable neglect. Coppe has made no claims that could be interpreted as alleging mistake, inadvertence, or surprise.
Although Coppe's Rule 60(b) motion requests relief under Rule 60(b)(1), (2), and (3), it does not state specifically which subsection each one of her claims falls under. Because Coppe is a pro se litigant, however, her performance is judged by a less demanding standard. See Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).
With respect to the first claim, Coppe's Civil Rule 60(b) motion alleged that her lawyer "was impaired during trial and failed to represent in a competent manner." Coppe argues in her reply brief that her attorney's poor performance was caused by a "physical impairment." Coppe does not specify what that impairment was or how it affected his representation, but instead argues generally that her attorney was not competent to represent her at a jury trial.
For relief to be granted under Civil Rule 60(b)(1) a party must show both neglect and a valid excuse for that neglect. We have determined that deliberate conduct cannot be excusable neglect and that Civil Rule 60(b)(1) cannot be invoked by a party who regrets the result of her deliberate choice.
Dickerson v. Williams, 956 P.2d 458, 465 (Alaska 1998).
See id. at 465-66.
Coppe has not alleged any specific instances of neglect by her trial attorney; instead, she is dissatisfied with his inexperience and performance as a whole. But Coppe chose to hire this attorney, and even if his performance did qualify as neglect, Coppe has not provided a sufficient reason for why that neglect is excusable. In her reply brief, Coppe states that her attorney's behavior was caused by a "physical impairment" but does not elaborate on what the impairment was or why it amounts to an excuse. In Rill v. State, Department of Highways, we held that "[a]n attorney's failure to act responsibly toward his or her clients when the attorney reasonably could be expected to do so constitutes inexcusable neglect." In that case, the attorney failed to appear at trial because he was seeking medical treatment outside the country for back pain. We held that the attorney's neglect was not excusable because he had plenty of time prior to trial to make other arrangements for his clients. Similarly, even if Coppe's attorney was inexperienced, he could reasonably be expected to prepare himself for trial, and there is no evidence of any physical impairment. Even assuming there were instances of actual neglect by her trial attorney, Coppe has not indicated what they are or shown that they are excusable under Civil Rule 60(b)(1).
Coppe does allege that her trial attorney failed to inform her of the deadlines for filing an appeal before he withdrew from the case; however, this court has already rejected Coppe's request for leave to file a late appeal.
669 P.2d 573, 576 (Alaska 1983).
Id. at 574-76.
Id. at 576.
With respect to the second claim, Coppe's original Civil Rule 60(b) motion did not mention her illness, but in her briefs to this court she argues that her illness made it impossible for her to litigate her case effectively during the periods when she represented herself. Coppe does not, however, identify any specific actions that she failed to take that could constitute neglect. Furthermore, she was represented by counsel throughout her trial and for most of the significant pre-trial motions.
We have concluded that a medical condition can give rise to excusable neglect in the context of default judgments. In Gregor v. Hodges, we set aside a default judgment entered against an elderly woman who was bedridden and under the influence of prescription pain medication. In order to suffice as excusable neglect, however, a medical disability must both cause the neglect and be "genuine and severe." In Rapoport v. Tesoro Alaska Petroleum Company, we concluded that a claim of medical disability did not constitute excusable neglect where the party, during the period of claimed disability, corresponded with the opposing party and participated in complex business dealings.
612 P.2d 1008 (Alaska 1980).
Rapoport v. Tesoro Alaska Petroleum Co., 790 P.2d 1374, 1377 (Alaska 1990).
Id.
Coppe has not identified a particular ruling or action that was the result of any neglect caused by her illness. While representing herself Coppe filed and responded to numerous motions and engaged in correspondence with Dr. Bleicher's counsel. Coppe also prevailed on an important pre-trial motion — the superior court's January 2008 denial of Dr. Bleicher's first motion for summary judgment — while representing herself. Because Coppe has not identified a specific instance of neglect or shown that it was excusable, we affirm the denial of Coppe's motion under Civil Rule 60(b)(1).
2. The superior court did not abuse its discretion by denying Coppe relief under Civil Rule 60(b)(2).
Coppe's Civil Rule 60(b) motion also relied on subsection (2), which permits relief on the basis of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." In order to justify relief under Civil Rule 60(b)(2), the newly discovered evidence must: "(1) be such as would probably change the result on a new trial; (2) have been discovered since the trial; (3) be of such a nature that it could not have been discovered before trial by due diligence; (4) be material; [and] (5) not be merely cumulative or impeaching."
Babinec v. Yabuki, 799 P.2d 1325, 1333 (Alaska 1990) (citing McCall v. Oats, 777 P.2d 655, 657 (Alaska 1989)).
Despite citing Civil Rule 60(b)(2), Coppe's motion in the superior court did not identify any new evidence. And while her briefs in this court claim that the superior court should have held an evidentiary hearing to review "new evidence which was not available in time for trial," again she does not explain what the new evidence is, when it was discovered, or why it could not have been discovered prior to trial. Because Coppe has not identified any new evidence, let alone satisfied the five factors required for such evidence to justify relief, we affirm the superior court's denial of Coppe's motion under Civil Rule 60(b)(2).
3. The superior court did not abuse its discretion by denying Coppe relief under Civil Rule 60(b)(3).
Coppe also claims that she is entitled to relief under Civil Rule 60(b)(3), which permits relief on the basis of "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party." "One who asserts fraud, misrepresentation or misconduct as a ground for relief under Civil Rule 60(b)(3) has the burden of proving those assertions by clear and convincing evidence."
Babinec, 799 P.2d at 1333 (citing McCall, 777 P.2d at 658).
In her original Civil Rule 60(b) motion, Coppe stated that there had been "malfeasance" on the part of the superior court and her attorney but made no claims about the conduct of Dr. Bleicher or his counsel. In her "Standing Motion for Clarity" Coppe alleges that she was "subjected to abuse of [sic] adverse attorney's misconduct" but does not identify any specific violations. In her briefs to this court, Coppe claims that "there were contradictory and false testimonies given by the defense witnesses at trial" but again does not provide any further information. Allegations of misconduct must pertain to the adverse party and must be supported by clear and convincing evidence. Because Coppe has not provided any actual evidence of misconduct, or even made out consistent allegations, we affirm the superior court's denial of her motion under Rule 60(b)(3).
4. Coppe's claims under Civil Rule 60(b)(4), (5), and (6) are not properly before this court.
Coppe's original Civil Rule 60(b) motion and her "Standing Motion for Clarity" rely only on Civil Rule 60(b) subsections (1), (2), and (3). In her opening brief to this court, however, Coppe also claims that she is entitled to relief under subsections (4), (5), and (6). Because she did not present these claims in the superior court, Coppe has waived any claim to relief under these subsections on appeal.
See Powell v. Powell, 194 P.3d 364, 369 (Alaska 2008) (concluding that a claim to relief under Rule 60(b)(1) was waived because the party had specifically relied on Rule 60(b)(3) in the superior court).
Even assuming that they were properly presented, Coppe's claims under these subsections would fail on their merits. Civil Rule 60(b)(4) provides for relief when "the judgment is void." "A judgment is void and subject to attack under [Civil Rule 60(b)(4)] if the court that rendered it lacked personal jurisdiction over the defendant, or if it acted in a manner inconsistent with due process of law." Civil Rule 60(b)(5) allows relief when "the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application." Coppe does not make any allegations that the superior court lacked personal jurisdiction over her, that the superior court acted without due process of law, or that the judgment has been satisfied.
Aguchak v. Montgomery Ward Co., 520 P.2d 1352, 1354 (Alaska 1974).
Analyzing Coppe's claims under Civil Rule 60(b)(6) also does not justify relief. Subsection (6) allows relief for "any other reason justifying relief from the operation of the judgment." However, we held in O'Link v. O'Link that "[c]lause (6) and the first five clauses of Rule 60(b) . . . are mutually exclusive. Relief under clause (6) is not available unless the other clauses are inapplicable. Clause (6) is reserved for extraordinary circumstances not covered by the preceding clauses." Coppe's major complaint is that her trial attorney performed incompetently; this claim falls under Civil Rule 60(b)(1) and precludes relief under Civil Rule 60(b)(6). B. Coppe's Other Claims Are Not Properly Before This Court.
632 P.2d 225, 229 (Alaska 1981) (internal citations omitted).
See Hartland v. Hartland, 777 P.2d 636, 645 (Alaska 1989) (finding that a claim based on attorney misconduct was not a basis for relief under Rule 60(b)(6) but instead "inexcusable neglect not entitled to relief under 60(b)(1)").
In her briefs to this court, Coppe also raises a number of issues that are outside the scope of her Civil Rule 60(b) motion, including whether the superior court should have given a mixed-motive jury instruction, whether the superior court improperly excluded the testimony of Coppe's experts, and whether the superior court improperly awarded Dr. Bleicher enhanced attorney's fees. We noted in Wellmix, Inc. v. City of Anchorage that "an appeal from a denial of a Rule 60(b) motion does not bring up the final judgment for review." Allowing a party to relitigate the final judgment through a Civil Rule 60(b) motion "would circumvent the rule limiting the time within which appeals may be taken and would frustrate the sound policy of having finality in litigation." We permitted Coppe's request for a late-filed appeal only as to the denial of her Civil Rule 60(b) motion, clarifying that "[t]he only issue that appellant Coppe may raise on appeal to this court is the question whether the Superior Court erred in denying Coppe's Civil Rule 60(b) motion." Coppe's other claims are not within the scope of this appeal and we do not review them.
471 P.2d 408, 411 (Alaska 1970).
Id.
V. CONCLUSION
The allegations in Coppe's Civil Rule 60(b) motion are directed primarily at her trial attorney and not at Dr. Bleicher. There are avenues for pursuing a complaint about attorney performance, but apart from true instances of excusable neglect, a Civil Rule 60(b) motion is not one of them. Because it was not an abuse of discretion to deny Coppe's motion, the judgment of the superior court is AFFIRMED.