Opinion
Supreme Court No. S-11062.
October 20, 2004.
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge. Superior Court No. 4FA-00-634 CI.
William Hunt, pro se, North Pole.
William B. Schendel, Winfree Law Office, APC, Fairbanks.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
William Hunt, a university student pursuing a bachelor's degree in education, appeals a superior court's denial of his motion for a new trial under Alaska Civil Rule 59, his motion for relief from judgment under Alaska Civil Rule 60(b), his motion for additional discovery, and the superior court's award of attorney's fees. Because Hunt's motions are improper attempts to reopen the merits of his already fully litigated administrative appeal, we affirm in all respects.
II. FACTS AND PROCEEDINGS
This is the second appeal William Hunt has brought to review an administrative ruling regarding his admission to the School of Education (School) at University of Alaska, Fairbanks (UAF). We decided issues presented in his first appeal in Hunt v. University of Alaska, Fairbanks. Some history, however, is necessary to explain the issues presented by the present appeal.
52 P.3d 739 (Alaska 2002).
William Hunt, an elementary education major, applied for admission to the School; admission was a prerequisite for taking the methods block and student teaching classes (also called "professional year") necessary for obtaining his bachelor's degree in education. Having rated Hunt's writing skills as marginal at best, the faculty committee reviewing his application recommended that Hunt be allowed to take the Praxis exam, a test of basic reading, writing, and math skills, before the School would decide whether to admit him. When Hunt failed the reading and writing portions of the Praxis exam in spring 1999, the School informed him that passing the exam was a necessary precondition to proceeding into his professional year. Hunt requested and was granted a partial waiver allowing him to take the fall 1999 methods classes on the condition that he pass the Praxis exam before beginning student teaching. After he failed the Praxis exam again in the Fall of 1999, the School informed him he would have to stop student teaching.
The methods block is a hands-on class in which students learn to teach particular subjects to students. Id. at 741 n. 1.
Id. at 741.
Id.
Id.
Id.
Id.
Hunt appealed this decision to UAF's academic appeals committee, which ultimately held that Hunt needed to pass the Praxis exam before being approved for student teaching. Hunt then appealed UAF's decision to the superior court, which held that UAF's discretionary decision was not arbitrary or unreasonable and awarded attorney's fees to UAF as the prevailing party. After Hunt appealed the superior court's decision to this court, we affirmed in all aspects and also denied Hunt's request for rehearing.
Id. at 741-42.
Id. at 742.
Id. at 741, 746.
After we affirmed, Hunt filed in the superior court a motion for a new trial under Rule 59 or for relief from judgment under Rule 60(b), alleging that UAF committed fraud upon the court and that there was new evidence. He also asked the court to compel UAF to produce documents, answer interrogatories, and deem matters admitted so that he could "present all the appropriate evidence to show that the University has treated Mr. Hunt in an arbitrary and capricious manner." Superior Court Judge Mark I. Wood denied all of these motions.
Hunt appeals the denial of his motions for a new trial, relief from judgment, and additional discovery, as well as the superior court's award of attorney's fees to UAF. He also alleges that Judge Wood was biased against him, and should have recused himself, but has recently filed a notice informing us that Judge Wood has recused himself and that his case was assigned to a different judge.
III. DISCUSSION
A. Standard of Review
We review for abuse of discretion a judge's decision not to recuse himself or herself. We also review for abuse of discretion a superior court's decision whether to grant relief from judgment under Rules 59 and 60, to deny further discovery under Alaska Civil Rule 56(f), and to award attorney's fees. An abuse of discretion exists if we are "`left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling.'" B. Hunt Did Not Preserve the Recusal Issue.
Noey v. Bledsoe, 978 P.2d 1264, 1274 n. 38 (Alaska 1999) (citing Wasserman v. Bartholomew, 923 P.2d 806, 815 n. 25 (Alaska 1996)).
City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska 2004) (attorney's fees); Fleegel v. Estate of Boyles, 61 P.3d 1267, 1278 n. 51 (Alaska 2002) (relief from judgment); R.M. v. S.G., 13 P.3d 747, 749 (Alaska 2000) (discovery orders); Babinec v. Yabuki, 799 P.2d 1325, 1327 (Alaska 1990) (motion for new trial).
Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1248 (Alaska 2001) (quoting Buster v. Sale, 866 P.2d 837, 841, n. 9 (Alaska 1994)).
Hunt's claim of bias fails because he did not preserve his objection by properly raising it before Judge Wood. A party who fails to move to disqualify the judge or fails to state on the record that the court exhibited bias waives any claim that the judge should have recused himself. A prompt objection would have provided some means of remedy — either through the court's voluntary recusal, the disqualification of the judge, or the assignment to another judge. Hunt, like any party who waits to observe the outcome and subsequently loses, cannot gain a new trial based on his silence.
AS 22.20.020(b) (stating that party waives objection if not raised); Integrated Res. Equity Corp. v. Fairbanks N. Star Borough, 799 P.2d 295, 298-99 (Alaska 1990) (noting where party has knowledge of facts indicating bias on part of arbitrator, party's silence constitutes waiver); Fendler v. Phoenix Newspapers Inc., 636 P.2d 1257, 1263-64 (Ariz.App. 1981) (stating where record contained no support for claim that judge was asked to recuse herself, party had not preserved for appeal refusal to recuse).
Integrated Res., 799 P.2d at 298-99.
Id. at 298.
C. The Superior Court Did Not Err in Denying Hunt's Rule 60(b) and Rule 59(b) Motions.
Hunt also argues that the superior court erred in denying his motion for relief from judgment under Rule 60(b) or for a new trial under Rule 59. Hunt moved primarily on the ground that new evidence showed that because the School allowed other students who had failed the Praxis exam to proceed on to student teaching, its actions as to Hunt were arbitrary and capricious, denying him equal protection under the law .
The superior court found that under the law of the case doctrine it, as a lower court, had no authority to reconsider issues already adjudicated by this court. We decided in Hunt's first appeal that UAF did not violate Hunt's equal protection rights and did not abuse its discretion in conditioning Hunt's admission on passing the Praxis exam. We agree with the superior court's finding that the doctrine of law of the case precludes Hunt from raising these arguments. We also observe that Hunt's motions were grossly untimely.
Dewey v. Dewey, 969 P.2d 1154, 1159 (Alaska 1999).
Hunt, 52 P.3d at 744.
Rule 59(b) states that a motion for a new trial must be served within ten days of the distribution of the decision. A Rule 60(b) motion must be made within a reasonable time, and motions under Rule 60(b)(2) or (3) must be made no more than one year after the date of notice of judgment. Hunt filed his motions December 9, 2002, over twenty-one months after entry of Judge Wood's February 28, 2001 decision.
The superior court evaluated Hunt's purported new evidence under Rule 60(b)(2) despite finding him to be precluded from proceeding. We choose to do likewise here in light of Hunt's status as a pro se litigant.
Under Rule 60(b)(2), "the newly discovered evidence `must (1) be likely to change the result on a new trial; (2) have been discovered after trial; (3) not have been discoverable, with due diligence, before trial; (4) be material; and (5) not be cumulative or impeaching.'" Because we held in Hunt's first appeal that he failed to prove that UAF treated him differently from similarly situated students, any new evidence would have to show that the School permitted students with similar applications to engage in student teaching without requiring them to pass the Praxis exam. The evidence Hunt proffers, however, even when viewed in the most favorable light, reveals only that the School allowed other students like Hunt to proceed to the methods courses before passing the exam. It does not suggest that the students were allowed to proceed to student teaching. Completion of both methods courses and student teaching, however, is necessary for admission to the School.
Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1261 (Alaska 2001) (quoting Dickerson v. Williams, 956 P.2d 458, 467 (Alaska 1998)). The same standard applies for motions for new trial under Rule 59. Id.
Hunt, 52 P.3d at 744.
Hunt relies on a January 10, 2000 document entitled "Elementary Student Teacher Placement Requests Spring 2000" to support his claim that UAF permitted other non-passing students to proceed to student teaching. This document, however, shows only requests for placements, not actual student teaching placements.
Invoking Rule 60(b)(3) Hunt also asserts fraud, but alleges only that there was conflicting evidence before the superior court, such as inconsistent statements by various UAF officials regarding student admissions. Such differences, disclosed in the record, are routinely present in litigated disputes and do not entitle Hunt to relief under Rule 60(b)(3).
D. The Superior Court Did Not Err in Denying Hunt's Discovery Request.
The superior court properly denied Hunt's request that it compel UAF to provide additional discovery. Hunt requested the discovery to obtain evidence to support his motion for relief from judgment and to prove that UAF treated him in an arbitrary and capricious manner. First, Hunt's request is akin to an attempt to conduct discovery before filing a complaint and does not reflect exceptional circumstances that would justify such discovery. Second, his request, filed over two years after Judge Wood's 2001 decision affirming the university's decision, is untimely per Rules 59(b), 60(b)(2), and 60(b)(3). Hunt had previously represented in his first appeal that he was "affirmatively looking" at the issue of discrimination and that he intended to carry out an investigation. There is no basis for allowing him to reopen discovery already pursued in connection with his first appeal.
Williams v. Engen, 80 P.3d 745, 745 (Alaska 2003) (concluding that no exceptional circumstances justified expansion of Alaska Rule of Civil Procedure 27 to allow discovery of facts needed to frame complaint).
E. The Superior Court Did Not Err in Awarding Attorney's Fees to UAF.
Hunt disputes the superior court's award of attorney's fees to UAF, but fails to present a valid legal challenge to the award. He does not dispute that UAF was the prevailing party below, nor does he argue that the amount of the award was unreasonable. Rather he contends that UAF "caused the litigation" because, as a governmental entity, UAF purportedly had a duty to investigate and disprove Hunt's claim. Alaska Rule of Appellate Procedure 508(e) governs fee awards if the superior court acts as an appellate court reviewing administrative decisions. Awards under Rule 508(e) "`should only partially compensate the prevailing party for attorney's fees.'" The superior court awarded UAF $2,509.50, thirty percent of the actual fees UAF incurred in responding to the motions Hunt filed after we ruled on his first appeal. Because the superior court ultimately resolved Hunt's motions in favor of UAF, we conclude that it did not abuse its discretion in awarding partial compensation to UAF.
State, Pub. Employees Ret. Bd. v. Cacioppo, 813 P.2d 679, 685 (Alaska 1991) (quoting Kenai Peninsula Borough v. Cook Inlet Region, Inc., 807 P.2d 487, 501 (Alaska 1997)).
IV. CONCLUSION
We AFFIRM the superior court's rulings.