*1 practicalities in- policies ing state. The proceedings, which support
volved child original in the ongoing and continuous
are obligee as the child or
jurisdiction long so jurisdiction, suggest also
still resides jurisdiction as between the allocation of be in favor of the should
the two states scope, “limited
issuing state. Based jurisdiction” exception of the Restate-
limited (Second) Judgments, we therefore
ment determina- that the Arizona court’s
conclude served Ralph properly preclusive effect so given not be issue
should the 1993Alaska order.
as to invalidate
IV. CONCLUSION juris- limited scope, “limited
Because the estoppel exception to the collateral
diction” applies, we REVERSE order
doctrine
vacating the order modification with proceedings consistent
REMAND opinion. CIKAN, Appellant, L.
Christine ALASKA, INC., Appellee.
No. S-10915.
Supreme Court of Alaska.
Dec. *2 Jr., Gruenberg, Gruenberg,
Max F. Clover Holland, Anchorage, Appellant. & Guidi, Delaney, Wiles, Hayes, Andrew Ger- Inc., ety, Young, Anchorage, Ap- Ellis & pellee. BRYNER, Justice,
Before: Chief MATTHEWS, FABE, CARPENETI, Justices.
OPINION BRYNER, Chief Justice.
I. INTRODUCTION Eight injuring and a half after her- slip-and-fall self in a accident outside the building in Anchorage, Christine Ci- damages, claiming kan sued ARCO for delayed timely her action was because her incompetent. had made supe- The rior court dismissed Cikan’s on case sum- mary judgment, rejecting her claim of incom- petency concluding that her suit was barred the statute of limitations. We remand, reverse and holding that Cikan raised issue of material fact as to competency dispute pre- and that summarily dismissing cluded But disputes involving time-barred. because compliance with the statute of limitations present preliminary issues of fact that must ordinarily be decided the court before trial, that, remand, we further hold superior court must resolve the factual dis- summary judgment. superi- by conducting motion for over Cikan’s pute in 1996. or court dismissed Cikan’s evidentiary hearing. pretrial eight after April more than and a half her accident three FACTS AND PROCEEDINGS II. *3 dismissed, was against her Kalamarides suit slipped Cikan In December 1991 Christine injuries she sus- ARCO for the Cikan sued in building the on ice outside ARCO and fell complaint Her ac- tained in her fall. suffering a hitting her and Anchorage, head knowledged that she had not filed the action the accident time after concussion. Some limit, two-year but specified within the time attorney Joseph Kalamar- contacted Cikan inju- alleged delay was “due to her that this by spoke to Kalamarides office and ides’s ries.” in a representing her work- telephone about summary judgment, for as- moved ARCO her compensation claim related to acci- ers’ serting was barred the that Cikan’s claim case the but Kalamarides declined dent. two-year personal for statute attorneys names of two other gave Cikan the injury motion noted that actions. ARCO’s compensation cases. handled workers’ who the apparently to claim that Cikan intended might told Cikan that Kalamarides also .she had tolled mental statutory limit been against separate personal have a had incapacity, insisted that she but ARCO years from and had two ARCO that she “a that she failed to offer shred of evidence claim. In to file that date of accident incompetent by reason of mental was Cikan a Kalamarides sent November 1993 disability.” as- illness or mental And even and re- confirming their conversation letter suming the 1991 accident resulted that this information. peating disabling injuries, contend- ARCO four after her In December ed, against Kalamarides conclu- Cikan’s suit accident, pro complaint se Cikan filed sively had demonstrated that she recovered Kalamarides, accusing him mal- against when that her against allowing her claim ARCO practice was filed: alleged expire. Specifically, Cikan that to pro se complaint allegations Her in her Kalamarides’s office about she had contacted against Joseph Kalamarides demonstrate had months her and exten- six after accident (1) plaintiff1 all the understood that him and his sively the case with discussed injury cause of personal of her elements staff; agreed represent to that Kalamarides (2) action, statute that she understood the ARCO; against pursuing a claim but her (3) limitations, capable she and that was minute, changed mind last he his at the that “prompt diligent making efforts” then, By busy. too claiming that he was this matter. claimed, too her to find it was late for Cikan motion,1 filed Cikan opposing ARCO’s counsel. substitute Wolf, psychia- from Dr. Aron affidavit recently allegations trist who had examined Cikan these Kalamarides denied suffering “post-con- insisting diagnosed her as summary judgment, moved once, from a concus- primarily syndrome originating cussion spoken to him had Cikan claim; a fall on as a result of compensation sion that she sustained her workers’ about her; Dr. 1991.” Wolf stated to and December agreed represent had never he “confusion, itself attorney her manifested had her to another condition that he referred se- changes, disorganization, and expired. personality to file the claim before time ability.” in mathematical oppose vere decrements evidently did not Kalamarides’s Cikan order, opposition, response judgment accepted timely initially to file to failed motion; granted judgment superior summary court sum- motion ARCO's ruled anew on ARCO, noting opposi- mary judgment reply that no opportunity allowing ARCO an submitted an had filed. Cikan then been opposition. appeal does not On Cikan’s summary opposition aside the and moved set vacating superior its court’s decision contest order, asking accept judgment the court to accepting summary judgment order and initial granted untimely opposition. opposition. Cikan’s late motion, summary set aside the initial Cikan's explained: further “On review of Kalamarides received Wolf records, picture affidavit, it is clear to me that the default. As he stated his I symptoms post-concussion syn- totally had been confused about the num- did not become evident to either Ms. drome times I ber of had contacted him. Not physicians or her until a number of factually, I I wrong but never filing and thus not after the accident have should sued him. symp- until was aware of her the lawsuit affidavit, then, explained As complex tom would consistent with her suit Kalamarides could be viewed as affidavit, injuries.” In to Dr. addition sign ongoing incapacity; of her asor Cikan opposition included voluminous rec- it, put very filing “The of that lawsuit shows post-accident ords intended to document her *4 my mental confusion four after the treatment, employment history and medical accident.” many family as as well affidavits mem- acquaintances, generally bers and who de- rejected The changes in Cikan’s behavior and scribed incompetency of granted motion ARCO’s symptoms mental state with the consistent summary judgment, concluding that the detected Dr. Wolf. action Pointing was time-barred. to the pleadings and surrounding circumstances Ci- addition, In Cikan filed verified memo- Kalamarides, against kan’s replying randum ARCO’s contention that court found: against suit Kalamarides amounted proof to conclusive of her when The ... evidence that demonstrates she that, that action was filed. Cikan insisted legal rights knew what her were and that injury because of the she sustained in head taking steps she was that ensure she accident, fully “was able to not filed a claim before the of limita- statute comprehend at the circumstances” the time tions ran. In Cikan’s December suit, of that not able to “was file complaint against Kalamarides, it clear actually this lawsuit until did so.” [she] that rights she understood her she stat- “diligent ed that she made efforts” to re- acknowledging pleadings While attorney tain another as she knew the the Kalamarides case could be viewed as statute of would run in limitations Decem- understanding evidence of her circumstantial ber of competency, an Cikan advanced alterna- explanation; disavowing tive her claims to view, clearly the court’s because Cikan complaint against in her Kala- of understood statute marides, Cikan maintained: problems the various documented in the rec- I never met I Mr. Kalamarides. ords and affidavits that she had did filed not once, spoke by phone. with him He could suffice to raise an concerning issue of fact not see me and could not tell whether I the timeliness of her claim. The court simi- implications understood the of what he was larly found did Wolfs affidavit not saying, specifically whether I understood suffice to raise a issue of material concept of a statute of limitations. I fact, emphasizing that “Dr. Wolf does not not; did nor concept did I understand the specifically state or raise issue of fact that tolling until I had filed lawsuit mentally incompetent during Cikan was against ARCO. The fact that he even wrote years 1991,1992,1993, through or even (1) me a letter be reflective of the fact Nor does he state that she did not under- talked, very that I was we confused when legal rights.” stand Finding no basis for (2) my injury. head tolling the statute of limitations under these Cikan pointed facts, further out that when she the court dismissed Cikan’s claim. Kalamarides, sued appeals. [t]he I document filed that case was complaint, which was drafted III. DISCUSSION attorney I had pur- hired for that limited pose. represent He would me. Mr. questions summary We review summary grant entry judgment eludes the dis- novo.2 will affirm judgment de “We no pute ordinarily if there are must be resolved the court evidentiary and if the movant is preliminary hearing of material fact at a ad- issues matter law. judgment as a entitled to vance of trial.8 determination, we all making this draw When Here, injured in 1991 and of the non- in favor reasonable inferences nearly suit ARCO nine filed the initial moving party has movant.” later, ordinarily Her claim would offering evidence show- admissible burden two-year filing per limit for barred any genuine dispute the absence of both set in AS sonal claims out judgment.4 legal to a right of fact and 09.10.070(a).9 in But Cikan claimed mental prima made a moving party has Once the 09.10.140(a),mental competency. to the Under AS showing, the shifts non- facie burden two-year incompetency filing limit.10 produce “admissible evi- tolls the moving party reasonably tending dispute con- dence summary judgment, In its motion “To defeat the movant’s evidence.”5 tradict suit was time- ARCO asserted judgment an adverse summary motion barred, no arguing presented that she had allegations, party may upon not rest mere incompetency. also of- evidence of specific showing *5 forth facts but must set indicating that Cikan fered medical evidence material fact. To is a issue of there appeared competent in 1993. to be fact of material there create a issue addition, pointed lawsuit to Cikan’s contrary than of must be more a scintilla Kalamarides, plead- insisting that her evidence.”6 ings provided conclusive evi- that case apply rules ground These same mentally competent was dence that she involving summary judgment statute- cases the accident. But such of-limitations defenses.7 cases evidentiary thresh “the Because present procedural a the task of wrinkle: preclude entry of sum necessary old to the applying of limita interpreting and a statute low,”11 mary could defeat traditionally province judgment is within the of tions falls by pre- courts; dispute summary judgment motion pre- when ARCO’s the so a factual seduction, Alaska, assault, imprison- battery, v. or false 2. Inc. Mechanical Contractors of 240, (Alaska ment, death, (2) injury Safety, personal 244 or Dep't P.3d or Pub. 91 for 2004). arising rights not on contract to the of another otherwise; (3) specifically provided for and not Packers, Ltd., Aldkayak 3. British 48 proper- v. Columbia taking, detaining, injuring personal or 432, (Alaska 2002). 447 recovery'; P.3d ty, specific including action for its (4) penalty upon to for a forfeiture or a statute Borough, 4. 991 Matanuska-Susitna See Philbin v. state; (5) upon liability a created the or 1263, (Alaska 1999). 1265 P.2d forfeiture; statute, penalty un- than a or other two less action is commenced within omitted). (citations 5. Id. at 1265-66 the cause of action. accrual of Servs., Inc., Ogden Co. Envtl. Martech Const. v. 09.10.140(a) provides: 10. AS 1146, 1993) (citation (Alaska 1149 7 n. section, (c) Except provided if under of this as omitted). bring person to action mentioned entitled Lamb, 1024, chapter at the the cause in this is time Heating 46 v. P.3d See John’s Serv. (1) age of ma- (Alaska 2002). action either under the accrues 1033-34 (2) jority, incompetent by of mental reason or Zielski, disability, of a dis- (citing v. the time at 1034 n. 28 Pedersen 822 illness or mental Id. 1991); 903, (1) (2) ability n. 4 & Decker or of this subsection P.2d 907 908 identified in 389, Fink, Md.App. part 422 A.2d 394 the com- v. the time limit for is not a (1980); Hosp., Shillady Cmty. Except provided v. 114 N.H. Elliot the action. as mencement of (1974); Lopez Swyer, section, (b) 320 A.2d which within of this (1973)). 300 A.2d brought N.J. may extended be is not any longer two after the dis- than case 09.10.070(a) provides; 9. AS ability ceases. law, Except provided person as otherwise Serv., libel, slander, (1) Heating at 1032. bring P.3d 11. John’s not an action Here, face, incompeteney senting complaint evidence on its in the than a amounted to more “scintilla of con- Kalamarides lawsuit evinced a clear under- special standing trary higher operation No or of the evidence.”12 bur- the statute of undeniably limitations. incompeten- qualifies of mental This den attaches to claims strong, contrary, compelling, even cy. pointed as we evidence that Cikan To the out Inc., competency; yet met the Adkins Drilling, Alaska test it v. Nabors is Adkins necessarily liberally conclusive evidence. If interpreted type we “[c]ourts have credit Cikan’s account sworn of the circum- that will toll a mental condition statute of surrounding prior stances lawsuit —as we noted in limitations.”13 Adkins that the We in reviewing superior must ruling court’s “general incompeteney] is test whether a [for summary judgment explana- offers an person legal could know understand his —it tion consistent her claim with of mental dis- rights sufficiently manage person- well his ability. comparative weakness of this emphasized al affairs.”14 We then that this competing is not an evidence issue to be particularly test becomes lenient the sum- weighed summary judgment. at mary judgment context: engaged in surprising Plaintiffs have Nor does Dr. failure specifically activity still amount of have successful say that incompetent Cikan was during the ly incompetent claimed to under a toll immediately after her pre- accident especially statute. This true where clude his qualifying affidavit from as “more required a court would be hold as a than a scintilla of evidence” re- plaintiff compe matter of law that the sponding to evidence of competency. ARCO’s tent, such inas mo In distinguishing declining Adkins and pleadings. or motion on In at controlling here, find that case cases, plaintiffs least three have retained court emphasized *6 experts’ that the medical attorneys, prior commenced actions to the in affidavits were unequivocal. Adkins Yet protec limitations and claimed the Adkins its did not rest conclusion on the tolling of a statute to add an additional strength of that medical evidence. To the party period. after the A Mich contrary, above, already as noted Adkins igan plaintiffs that a noted mental expressly emphasized that the test of mental that, “might condition such be while some incompeteney especially is lenient at sum- aware, only partially what he is aware Here, of mary judgment. accepted true, if as entitling him circumstances to maintain expert Dr. opinion certainly qualifies Wolfs action; person a may such as substantial pointing possi- evidence to the partially imperfectly able to assist bility his incapacity; accident-induced mental action.”[15] lawyer prosecuting unequivocal time-specific diagnosis ruling out required was not In granting ARCO’s genuine raise a disputed issue fact on the motion, superior court viewed Cikan’s issue. expressly recognizes Because Adkins 1995 lawsuit Kalamarides as conclu- incompeteney Alaska’s statute “does not competency. sive evidence of Yet as we require finding a incompeteney formal Adkins, passage stressed in prior this court,”16 a fairly Adkins cannot be read as litigation representation are not neces- suggesting that finding a formal of incompe- sarily capacity, indicative of mental since tency by expert a necessary medical existing awareness of an claim does not nec- raise a of fact. issue essarily person’s ability reflect a to assess pursue it in a rational and light effective When considered in the most favor- Cikan, manner. then, totality able to of the evi- Revenue, Meyer (internal Dep't omitted) 12. 15. Id. Support (quoting Child footnote David Div., P.2d Co., 994 368 son v. Veen Baker-Vander Constr. Enforcement Mich. 1999). App. (1971)). 192 N.W.2d (Alaska 1980). 13. 609 P.2d Adkins, 16. 23. P.2d at Id. provide substan- records and affidavits including Dr. these Wolfs in the dence record — affidavit, supporting and documenta- the other affidavits evidence tial circumstantial Cikan, own and Cikan’s tion submitted expert assessment. readily meets the “more
verified statement — stan- evidence”17 than a scintilla separately argues that Ci- ARCO issue necessary to create dard against Kalamarides should allegations kan’s became fact as to whether Cikan material judicial binding admissions be treated years two immediate- incompetent during the posi dispute.20 But ARCO’s cannot now ly following her fall. judicial binding effect of a tion overstates the argues that the affida- ARCO nevertheless admission, to the case which extends oppo- attached to her records Cikan vits and was made: “Judicial which the admission claim of support for her provided no sition not evidence at all but rather admissions are in- they “consisted of incompetency, because withdrawing a fact from have the effect of lay tes- hearsay on witness based admissible category within this contention. Included on her condition or did not reflect timonials” pleadings in the are admissions immediately acci- after the 1991 in the admissions, evidentiary Ordinary case.... as to be correct But while dent.18 hand, may or ex be controverted the other exhibits, affidavits can not all the some of the category plained party. Within this together and easily Taken be so dismissed.19 Cikan, pleadings ease[.]”21 fall the another light most favorable viewed Co., keep together. longer life The most work or P.2d at 1149 n. 7. Martech Const. beyond capability.” were basic life skills 09.10.140(a) refers to incom We note that AS by Jacqueline Similarly, submitted an affidavit of action ac petency “at the time the cause Sykes provides Cikan. view of before-and-after Here, argued has not that Cikan’s crues." Sykes when that she met Cikan in states a matter of law be was time-barred as Anchorage managing a restaurant allege incompetency that al cause it failed Sykes She describes Ci- was a waitress. where ready the accident or was existed at the time of being very efficient and effective- kan as then immediately ARCOsim caused the accident. Alaska, subsequently manager. Sykes left any introduce ply that Cikan failed to contends in 1995. At the visited her in California raising genuine issue of material fact evidence visit, observes, Sykes person "The time of incompetency during follow the two as to vanished and I had known for 12 had who Thus, question narrow we her accident. person place who could [was] a broken in her *7 produced this case is whether Cikan consider in daily events memories from not remember or genuine question a sufficient evidence to raise by tend past.” The work records submitted incompetency might tolled the dead that have to indicating descriptions, that to corroborate these two-year filing point during at lines for some problems at work encountered serious period. consider wheth We need not -including problems during with time 1992-93— 09.10.140(a) strictly should be construed er AS employees, management, with other relations incompe involving preexisting cover cases temper” explosiveness [her] "the —and occurring tency incompetency at the moment or ultimately in June 1993. was dismissed that she Compare,e.g.,Kaiser v. Umi accident occurs. an Ins., 876, (Alaska 2005) (in 882 alik Hayes Corp., P.2d v. Xerox 718 20. ARCO cites dis competence of mental illness or reason 1986); 929, v. Line R.R. Co. Soo 931-32 period” ability “during tolls the the limitation Co., Ry. 125 F.3d St. Louis Southwestern of the dis for the duration statute of limitations Cir.1997); (7th and 30B & Wright Miller, Federal Coughlan, ability) 244 F.2d with Williams v. (2004). § 7026 & Practice Procedure (9th Cir.1957) (precursor to AS 09.10.140 tolled disability which [a] “the continuance 21. 30B & Wright & Miller, Proce- arose”). Federal Practice of action at the time the cause existed Hines, (2004); Bengtson v. § see also dure ("[A] (R.I.1983) pleading in a example, Tahni 457 A.2d an affidavit submitted 19. For merely 'quasi separate admis- cause of action is has Brotherton indicates that Brotherton Warner sion,’ any It is conclusive in sense. which is not of 1992. She Cikan since the summer known inconsistency pleader’s proof, merely disintegrated during Cikan's life describes how any or like other admission apparent which be treated period, declaring was “[i]t impeach- purposes inconsistent statement basic level.” not function at most she could (citations omitted); credibility.”) Univer- explains first met Ci- that when she Brotherton kan, cf. J-Chem., Inc., Barge Corp. 946 F.2d together. v. appeared sal Am. to have her life "she (5th Cir.1991) ("judicial admissions Alyeska employed at Ski Resort She binding separate case in a are not conclusive next few I a nice car.... Over the drove were the admissions the one in which could no lose all of this because she watched her summary, ample In because we find presented evi- eludes that Cikan sufficient evi- dence to raise issue material incompetency dence of her mental to defeat legal justification treating fact and no ARCO’s motion for prior pleadings in the Kalamarides prevent dismissal of her action as time- admissions, currently binding suit as we hold barred. But a careful examination of Ci- it was error dismiss Cikan’s claim on kan’s presented evidence reveals that she summary judgment. virtually no incompeten- evidence of mental cy during period the relevant time of 1991— point ques- Our decision on this leaves one disagree 1993. I therefore with the court’s tion unanswered: how should this factual decision to grant reverse the trial court’s dispute incompetency over mental be re- summary judgment to ARCOi briefing argu- solved? In their and at oral ment, parties both seemed to assume that In Hernandez-Robaina we fo jury would have to decide the issue. But cused on capacity “[a]n individual’s mental above, already disputes as we have indicated understand rights, his or her not whether the concerning the statute of limitations raise actually individual understood or knew of preliminary questions of fact that or- should rights, those gravamen [as] the of mental dinarily be decided the court after con- 09.10.140(a)(2).”1 incompetency under AS ducting evidentiary hearing. pres- Thus, it capabilities— is the individual’s case, then, ent superior court should whether Cikan could know or understand her pretrial evidentiary conduct a hearing on re- legal rights sufficiently manage well to mand to resolve ARCO’s statute-of-limita- personal affairs and not whether she did tions defense.22 know or understand them —that forms the tolling test for the statute of limitations due IV. CONCLUSION incompetency. to mental ques “The central granting We REVERSE the order sum- tion is whether the individual would be able mary judgment and REMAND for an evi- comprehend concepts and ideas of dentiary hearing to if determine rights which his or her consist if those mat claim is time-barred. adequately ters were communicated.”2 produce Cikan has failed to evidence dem- EASTAUGH, Justice, participating. onstrating that she lacked the capaci- mental FABE, Justice, dissenting. ty to rights understand during the rele- vant slip-and-fall time Christine Cikan’s oc- December accident 1991-1993. curred on December As the recognized, 1991. When attor- Dr. Wolfs ney Joseph affidavit Kalamarides declined Cikan’s did not state that Cikan was mental- request ly incompetent that he handle incapable her workers’ com- understanding *8 pensation accident, legal rights case related to the in- he her the date of in writing formed Cikan she had 1991 until running of the statute in 1993. two from the date of the accident to I agree And while with the court that “a personal injury against file a finding ARCO. formal incompetency by a medical Thus, Cikan was expert” aware she was re- necessary is not to raise a quired against fact,3 file suit Decem- issue material diagnosis 17, ber 1993. Yet Cikan did not file her post-concussion Cikan 2000 with symptoms April lawsuit until 2000. The court con- does not raise issue of material made”); ARCO, State Farm Mut. attorney’s Auto. Ins. Co. v. making separate Wor fees to 683, (8th thington, (same); Cir.1968) 405 F.2d challenge to the fee award moot. Hughes Hughes, v. (Olda.1961) ("The pleadings prior in a action of (Alaska 1993). 1. 849 P.2d character, general though the same sive subsequent not conclu upon party, evidentiary are of force in a proceeding.”). Id. summary judgment 22. Our reversal of the order Maj. Op. at 340-341. necessarily vacates the court’s award of incompeten- of mental utter lack of evidence understand Cikan could as to whether fact period of cy during the relevant December rights from 1991-1993. 1991-1993, I am unable to concur that the lay Moreover, testimony of Cikan’s pretrial conduct a evi- superior court should court focuses on witnesses relied dentiary hearing regarding compe- year inability to function superior court’s tency. I would affirm the malpractice lawsuit that she filed the summary judgment and therefore I grant of Jacqueline example, For Kalamarides. respectfully dissent. saw testimony is that when she Sykes’s not the same she was Christine years: had in earlier
person that she been to see me 1995 Califor-
“Christine came Tahni hardly recognized her.” And
nia and I did not even meet Cikan Brotherton
Warner 1992, months after six
until the summer accident, “ap- at that time Cikan Thus, together.” have her life peared to JONES, Appellant, Raymond V. Brotherton, after her accident according to Alyeska employed at Ski Resort “was Cikan v. jewelry and furni- a nice ear. The and drove Alaska, DEPARTMENT STATE very tasteful and well ture she owned was CORRECTIONS, Appellee. OF Brotherton, According “[o]ver kept.” lose all of this next few I watched her No. S-10743. keep longer could no work or because she together.” her life Supreme Court of Alaska. nothing in the record that Finally, there is Dec. law-
explains how could have filed her against Kalamarides if she was suit to misun-
incompetent in 1995. She seems test when
derstand the Hemandez-Robaina strategy choice to argues that her foolish sign viewed as a Kalamarides should be
sue incapacity and maintains that ongoing
of her my very filing of that lawsuit shows
“[t]he four after the acci-
mental confusion
dent.” necessary showing
Although the threshold entry preclude low, by this court’s
extremely as evidenced State,4 agree I cannot
holding Meyer more than a “scin- presented has regarding her
tilla of evidence” 1991-1993 time
competency for the relevant of Cikan’s mental
period. The evidence *9 during is the assessment
state Pervier,
examining neurologist Dr. Kenneth May 1993 Cikan’s
who concluded
“[mjental entirely status examination “[tjhere no evi- limits” and
within normal thought of a disorder.” Given Cikan’s
dence Revenue, 1999). Support Meyer Dep't Child Div., Enforcement