Opinion
Supreme Court No. S-11418.
February 14, 2007.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Sen K. Tan, Judge.
Superior Court No. 3AN-00-5564 CI.
Bonita Mahan, pro se, Soldotna. Russell D. Gray and Marc G. Wilhelm, Richmond Quinn, Anchorage, for Appellees.
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
After Bonita Mahan was struck by cargo suspended from a helicopter, she sued the pilot and his employer for personal injury. She appeals pro se from a judgment entered against her after a week-long jury trial during which she acted pro se. She appears to argue that (1) she was denied adequate legal counsel, (2) the superior court improperly excluded evidence, (3) she was erroneously denied a continuance, and (4) the jury was erroneously instructed on her negligence claim. Because Mahan has not shown that the superior court erred as to any of these issues, we affirm the judgment entered on the jury verdict.
II. FACTS AND PROCEEDINGS
Bonita Mahan was struck in March 1998 by cargo suspended from a helicopter piloted by Paul Miles and owned by Era Aviation, while she was working in the landing zone. Mahan was then employed by Northern Geophysical, which had hired Era to deliver supplies. Mahan sued Miles and Era for physical injury in 2000, alleging that they negligently maintained and operated the helicopter.
Mahan was represented by attorney Michael Patterson when she filed her complaint. Attorney Ted Stepovich later replaced Patterson as Mahan's counsel. Trial was to begin on September 15, 2003. But after a disagreement with Mahan, Stepovich moved for permission to withdraw as counsel. At a September 3, 2003 hearing Superior Court Judge Sen K. Tan granted Stepovich's motion to withdraw.
The court offered Mahan a continuance to give her time to find new counsel, but Mahan said she would represent herself. The court then granted a continuance to allow opposing counsel time to depose Mahan's additional witnesses. The trial was continued until December 1 on a trailing basis.
At a pretrial conference on November 24, 2003 Mahan agreed to a trial date in the week of January 5, 2004. At the final pretrial conference on December 29, Mahan told the court that she had just had cataract surgery on one eye and could not see very well. She also told the court that she had scheduled cataract surgery on the other eye for January 8. The court asked Mahan if she could see well enough to participate in the trial and Mahan said she could try. Mahan stated that she was ready to go to trial. She then asked if the trial could be suspended for one day so that she could have cataract surgery on January 8. The court said that it did not wish to stop a jury trial for a day, and was concerned that the surgery might further interfere with Mahan's ability to represent herself for the rest of the trial.
Trial began on January 5 as scheduled. On the third day of trial Mahan informed the court that she would like to have legal advice. The court stated that it would not suspend the trial, but it recessed trial for ten minutes to give Mahan an opportunity to contact two lawyers about helping her. Mahan returned from the recess and said that she had received some advice but that neither lawyer could represent her.
On the fourth day of trial Mahan told the court that she was having trouble seeing. The court offered to provide someone to help her read documents. She did not accept this offer.
Mahan's only claim against Era at trial was that its employee, Miles, was negligent. After five days of trial the jury returned a verdict for Miles and Era.
Mahan appeals.
III. DISCUSSION
A. Standard of Review
The issues Mahan appears to raise concerning her legal representation, discovery, and trial management are reviewed for abuse of discretion. We review a ruling that grants an attorney permission to withdraw from representation for abuse of discretion. We will not disturb a trial court's refusal to grant a continuance unless there was an abuse of discretion. The superior court has broad discretion to control the discovery process. We review de novo whether the trial court, in exercising its discretion, applied the correct legal rule. We also review de novo questions of law, such as whether Mahan was denied due process. B. Mahan Has Failed To Show Any Reversible Error.
Willoya v. State, Dep't of Corr., 53 P.3d 1115, 1119 (Alaska 2002).
Barrett v. Gagnon, 516 P.2d 1202, 1203 (Alaska 1973) (citing Gregoire v. Nat'l Bank of Alaska, 413 P.2d 27, 33 (Alaska 1966)).
Agen v. State, Dep't of Revenue, Child Support Enforcement Div., 945 P.2d 1215, 1220 (Alaska 1997).
Schmitz v. Schmitz, 88 P.3d 1116, 1122 (Alaska 2004).
Id.
As far as we can tell from her brief, Mahan's appellate contentions fall into four categories. First, she seems to argue that she was denied a fair trial because she was poorly represented before trial and was unrepresented at trial. She may think that the superior court erred in permitting Stepovich to withdraw in the months before trial. Second, Mahan seems to argue that she was unfairly denied opportunities to present evidence and call witnesses, and that the superior court refused to require production of evidence. Third, she seems to argue that the superior court erred in denying a trial continuance so that she could retain counsel and have cataract surgery. Fourth, she seems to suggest that the superior court either misstated the legal duty that pilots owe to people on the ground or somehow ruled against her negligence claim. None of these propositions is addressed in more than a cursory fashion, but we will briefly address each. 1. There was no error with respect to Mahan's representation.
Arguments given only cursory treatment on appeal are normally treated as waived. See Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001) (holding argument waived when given cursory treatment in party's brief).
Mahan asserts that Stepovich inadequately represented her, possibly by failing to conduct adequate discovery. Mahan has not referred us to anything in the record that suggests that Stepovich's representation was inadequate, but even if it had been, she would not be entitled to a new trial.
Beavers v. Alaska Constr., Inc., 787 P.2d 643, 644 (Alaska 1990); see also Rickard v. Rickard, 330 So. 2d 441, 442 (Ala.Civ.App. 1976) (explaining inadequate representation is basis for appeal in only criminal prosecutions and absent fraud or collusion, inadequate representation does not entitle civil litigant to new trial).
There is also no reason to think that the superior court erred in permitting counsel to withdraw months before trial began. The superior court offered to give Mahan enough time to retain another attorney. There is no error in permitting an attorney to withdraw from a case when there is time to find another attorney.
Nor did the court abuse its discretion in refusing to suspend a jury trial already in progress so Mahan could try to find an attorney. After she was given time to telephone two attorneys, she told the court that neither one could represent her. Further delay would have required the jury to wait while Mahan tried to locate an attorney who would represent her.
2. Mahan was not unfairly denied opportunities to present evidence or call witnesses.
Mahan also appears to argue that the court erred by not requiring production of documents. Mahan has not referred us to anything in the record that reflects she complained regarding the discovery process. Absent a demonstration that she preserved the issue below, Mahan may not raise a discovery issue for the first time on appeal.
See Meier v. Cloud, 34 P.3d 1274, 1277 (Alaska 2001) (holding that when litigant raised issue of inadequate discovery for first time on appeal, argument was not preserved for appeal).
Mahan next argues that she was denied "necessary witnesses", but she does not explain who she thinks was prevented from testifying. When Mahan rested her case she stated that she had another witness she had been unable to contact. The court explained that if Mahan had no more witnesses she would need to rest her case but if the witness became available the court would consider a motion to call the witness out of order. At the end of trial Mahan said she still had not been able to contact the witness. The court specifically offered Mahan the opportunity to offer testimony from any available witnesses. She declined.
Mahan also indicates that she was not permitted to offer certain evidence, but cites nothing in the record to support this assertion. She apparently tried to introduce evidence that Era had been sued before as evidence that Era had been negligent on other occasions. The court ruled that this was an attempt to introduce evidence of prior bad acts and that the evidence was inadmissible to prove negligence with respect to Mahan. Mahan has not offered any plausible reason why we should hold that this ruling was erroneous.
See Alaska R. Evid. 404.
Finally, Mahan argues that she was improperly denied the chance to submit medical records into evidence. But her medical records were only relevant with respect to damages. Because the jury determined that Miles and Era were not negligent, any possible error with respect to the medical records was harmless.
3. The superior court did not err in denying a continuance.
Mahan claims that the denial of a continuance was the result of "severe prejudice" against her, but instead the record indicates that the superior court was remarkably patient with Mahan and repeatedly explained legal procedures to her. For example, on at least five different occasions the court explained to Mahan how to lay a proper foundation for questioning a witness.
As we noted above, the superior court acted reasonably in denying a mid-trial continuance so that Mahan could attempt to find a lawyer. Mahan also argues that refusing to grant a continuance for her cataract operation was prejudicial because she "was unable to read." But the record does not establish that she was unable to read. When asked if she could see well enough to go to trial Mahan said she would "try" and agreed to proceed to trial. When Mahan discussed the surgery with the court she did not indicate that it was an emergency and stated that she would try to reschedule the surgery for the next month. There is no indication that Mahan's condition was so serious that she needed surgery right away or that Mahan was unable to see or read documents. Thus, when Mahan was on the witness stand at trial she was given a document to read, and after the court provided her with a magnifying glass, she was able to somewhat read the document. Finally, when the court offered during trial to provide someone to help her read documents, she did not accept the offer.
Given the crowded docket and need to finish the trial expeditiously, the court was justified in refusing a one-day surgery break that might have made it impossible to complete the trial on schedule, and certainly would have inconvenienced the jury.
4. There was no error with respect to the duty of care.
Mahan states that she "made a strong prima facie case as to negligence per se instruction at trial." This assertion suggests that Mahan thinks she was entitled to a jury instruction on negligence per se. On appeal Mahan argues that Miles violated FAA regulations. But the trial record indicates that Mahan never asked for a negligence per se instruction, and she agreed to the jury instructions the court gave. Instruction No. 12 stated: "Plaintiff's only claim is that Era's employee, Paul Miles, was negligent."
Because she failed to argue negligence per se at trial and agreed to a jury instruction on ordinary negligence, Mahan may not advance a theory of negligence per se for the first time on appeal. IV. CONCLUSION
See Alaska R. Civ. P. 51(a) ("No party may assign as error the giving or the failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection.").
We do not usually consider an appellant's arguments raised for the first time on appeal. See Crittell v. Bingo, 83 P.3d 532, 536 n. 19 (Alaska 2004).
The final judgment entered by the superior court based on the jury verdict is therefore AFFIRMED.