Frank v. Golden Valley Elec. Ass'n, Inc.

superior The order of the court is Supreme VA- believe that the Court of Kansas and the case REMANDED CATED with would conclude that the “occasional visits” petition dismiss the instructions to modi- of the children to Kansas the instant decree. fy the Kansas case “significant constitute a connection” 38-1303(a). for purposes of § WITZ, Justice, RABINO Chief with If the children do not significant have a MATTHEWS, Justice, joins, whom Kansas, connection to longer Kansas “no dissenting. jurisdiction.” has 1738A(f)(2); 28 U.S.C. § law, Under Kansas a court of Kansas 38-1303(a)(2). Kan.Stat.Ann. The Paren- § continuing jurisdiction modify has Act, Kidnapping tal Prevention 28 U.S.C. § custody long orders as as “the child and (PKPA), requires 1738A pass that a state § parents significant the child’s ... have a two-pronged test before it can exercise connection state.” Kan.Stat.Ann. continuing jurisdiction. The PKPA sets a 38-1303(a)(2). majority relies on the federal and a state for continuing standard Larsen, v. Kan.App.2d Larsen custody jurisdiction. First, exclusive as a 806, (1980), for its hold- law, matter federal the state must ing continuing jurisdiction that Kansas had proper custody jurisdiction, initial 38-1303(a)(2). under § it must remain the residence of the child or Since intermediate court handed any contestant when it modifies that order. Larsen, Supreme down Second, law, Court of Kan- custody its own distinguished sas the case twice. custody state must still have jurisdiction. Hart, Hart v. 236 Kan. 695 P.2d 1285 Meade, Meade v. 812 F.2d (1985), the court concluded that there was (4th Cir.1987). significant connection where neither Because I believe that the children in this parent lived in Kansas and there were no a “significant case lack connection” Kan- summer visits to the state. In Bills v. sas, I conclude that the Kansas court Murdock, 232 Kan. 654 P.2d 406 continuing jurisdiction. lacked custody I (1982), the supreme court concluded that therefore dissent. significant there was not a connection parent Kansas, one lived in the child occasionally visited, child was in parent

Kansas when the filed for modifica-

tion. Supreme

The Kansas Court in Bills stat-

ed: try precise shall not to devise a

[W]e FRANK, Appellant, Michael D. “significant definition [of connection”]. only We hold that a child who resides with his her parent custodial in a GOLDEN VALLEY ELECTRIC sister state occasionally and who visits a ASSOCIATION, INC., Appellee.

parent Kansas, who lives in does not No. S-1803. “significant have a connection” with this jurisdiction state sufficient to establish Supreme Court of Alaska. 38-1303(a)(2). under K.S.A. Jan. Id. P.2d at 411.

Although the children the case at bar

appear greater to have a somewhat connec-

tion Bills, did child in I do not invalid, hearings notice of proceedings leaving held in 1983 and 1984. Even those would in- notice, proper if Woerner did not receive Kan- tact the 1982 order Alaska is now asked permanently sas would not lose modification modify. most,

jurisdiction. resulting At orders OPINION BURKE, Justice. appeal are asked to deter

In this mine failure to file instruc whether by pre time mandated tions within the trial order amounts to a waiver of the guaranteed as under article I, section 16 of the Alaska Constitution. that it does and remand We conclude the case for retrial of all issues before jury. BACKGROUND

I. FACTUAL 16, 1984, appellant, Michael On October Frank, against Valley suit Golden filed (GVEA), alleging tres- Electric Association pass property destruction of connec- powerline tion with GVEA’s erection of a property. GVEA answered across Frank’s 14, 1985, deny- complaint Frank’s on June claim- ing wrongful entry the claims of an easement executed ing rights under predecessors-in-interest timely filed a demand for property. Frank 38(b),1 trial, required by proceeded toward trial. and the case 12, 1985, superior court On October inter pretrial providing, issued a alia, scheduled to com- trial was 26,1986, May mence the week parties were to file counsel for both 20, 1986, and, (3) by May trial memoranda sub- jury instructions were proposed Monday of the “not later than the mitted trial com- to the week ... week mences.” 23, 1986, conference pretrial On Judge Jay Hodges in Fair- was held before Coe, attorney, Charles W. banks. Patterson, Coe, Smith, Coe & Charles W. from Anchor- telephonically participated Anchorage, appellant. for Judge Hodges’ in- age. response unable Call, that he had been Cates, quiry, & Bur- Coe stated A. Barrett Constance required Fairbanks, memorandum as bank, appellee. pretrial file his the court’s He asked the order. regard, explaining indulgence in this RABINOWITZ, C.J., Before of a criminal caught in the midst BURKE, MATTHEWS, he was COMPTON and expect- running longer than MOORE, trial which JJ. after, days later than 10 38(b) and not provides: action 1. Civil Rule pleading directed to last service any Any party may demand a trial sepa- made in a shall be Such demand issue. by serving upon right by jury issue triable signed by the written document writing rate therefor in the other a demand attorney. making the demand time after the commencement issue, however, sanctioned Coe ed. not necessary for us to filing. points reach these for the Coe also additional error.3 $50 amount he at the conference that admitted II. DISCUSSION unable to file his been I, Article provided time section 16 of within the the Alaska Consti- part: tution Judge Hodges asked GYEA’s attor- Call, ney, whether GVEA desired a David In civil cases the in amount con- replied that jury troversy Call it did fifty trial. two exceeds hundred dol- lars, thereupon right Judge by ruled that the of trial jury a twelve preserved right jury to a trial was “deemed is to the Frank’s same extent as it existed at common for failure file the instruc- law. waived” to provided in tions within the time the this right guarded That is to be jealously specifically, trial order. More the court by the courts of state by this is made clear stated: 38(a), Rule charges Civil the courts insuring right with

Well, practice I don’t the is in know what in civil cases preserved “shall be to the Anchorage, you tell but I can the [t]hat parties Nevertheless, inviolate.” we have practice in the Fourth Dis- ... Judicial recognized by court rule and law that trict is orders mean what [that] right jury, to by trial like other consti say. they And have done that in rights, may ap tutional be under waived They other cases. don’t—if the Plaintiff propriate See, e.g., circumstances. Alaska file the or side doesn’t either 38(d); R.Civ.P. Hollembaek v. Alaska Ru jury’s doesn’t them deemed [the] Corp., ral Rehabilitation ifAnd one files them and the waive[d]. (Alaska 1968); Sedwick, Patrick v. other doesn’t file it and the one files who (Alaska 1964). it doesn’t want it a court it's trial. 38(d) Rule specifically provides Civil that requests response In to recon- Coe’s right (1) to by by trial a waived sideration, Judge Hodges agreed refer to party’s timely failure to make a demand for Greene, the matter to who ulti- required trial as Rule Civil assigned mately try to case. On 38(b), (2) and may impliedly by waived 28, 1986, following argument considerable party’s failure appear to at trial.4 Notwith- question, Judge upheld on the Greene standing specified these exceptions, how- Judge Hodges’ prior ruling on the waiver ever, 39(a) provides proceed issue and ordered the case to trial, once demanded and not waived under Following jury. trial without a on a trial provided shall be merits, findings the court its issued attorneys unless or their law, ruling fact and conclusions of in favor record, by stipulation written filed virtually counts,2 of GVEA on by stipulation with court or an oral awarding attorney's GVEA costs and fees. court, in open by made consent trial On appeal, Frank claims numerous er- sitting court without a findings rors in the the court In upon upon below. court motion light disposition of our right trial motion own finds of trial contends, per- judgment 2. The court found that some work was "entitled to as a mat- property law,” formed to an proper amounted ter of then its was to recourse "unreasonable” use of easement and award- cross-appeal any prejudgment rulings relevant $1,500 compensatory damages. ed Frank all other in Appellate in Rules 202 and 204. accordance with respects, found con- GVEA's cross-appeal. We are alerted to no justified. duct reasonable and specifically, this section 4.More Similarly, we decline to re- GVEA’sinvitation "consent demand” to withdraw trial in put consider the first all of instance the factual implied appear. court, may be failure Alaska evidence before the trial in an effort here, 38(d). purposes our how- R.Civ.P. ever, For determine whether the denial of If, amounted to error." GVEA is the same. "harmless effect notice, party’s that a con issues does we do not think or all of those jury of some failing comply the state constitution in the letter of exist under duct not is, itself, the state. given statutes of in “so incon rule or right intent to enforce the sistent with [an] in this case that dispute is no There question” as to lead to a reasonable timely jury trial was demand for inference that the has been waived. Moreover, contend does not GVEA made. Escamilla, Cal.Rptr. An exam at 466. that Frank waived Hall v. Morozew holdings in ination of our nor does it as stipulation, oral or written (Alaska 1984) and Hill ych, 686 P.2d 708 one which this case was sert that Rather, Vetter, (Alaska 1974) is in 525 P.2d 529 apply. right does not that, regard. to those structive argues addition GVEA provided in the Civil expressly methods Hill, to, de Hall we were asked Rules, by jury may be right to trial appear cide whether a failure party takes “by conduct” where a waived party’s of that trial amounted to a waiver which, “according natural im to its action 38(d) right by jury, Civil Rule to trial the intent to inconsistent with port, is so time, expressly provide. so did at question to induce a right in enforce the 711-12; Hill, Hall, at P.2d at 525 P.2d 686 right has been that such reasonable belief that, held In of these cases we both Escamilla v. relinquished.” California in the a clear mandate contained absent Ass’n, Cal.App.3d 197 150 Ins. Guar. themselves, such could be rules no waiver Medico- (1983) (quoting 466 Cal.Rptr. 711-12; Hill, Hall, P.2d at implied. Converse, Horton & Bldg. Dental Co. v. Under the rule as it reads 525 P.2d at 529. (1942)). 411, 132 In 21 Cal.2d however, may quite the trial court today, view, violating Frank’s conduct GVEA’s properly party’s that a failure conclude in the filing requirements contained of the appear at trial constitutes waiver pretrial order constitutes such court’s 38(d) right. Alaska R.Civ.P. jury trial agree. do not waiver. We (withdrawal “may of trial demand provides instruc Civil Rule 51 trial”). appear at It implied by a failure to parties may tions be submitted “[a]t action party’s of the is not that the nature or at such earlier the close of the evidence party’s pri- Rather, changed. it is the as the court reason time the trial action notice consequences of his 51(a). Civ ably directs.”5 Alaska R.Civ.P. finding the court in a waiv justifies 16(e) pretrial order il that the Harris, 423 P.2d See, e.g., Bertram er. subsequent of the course “shall control 1967) (Alaska (superior pri- court’s by the court. unless modified action” comply warning party that failure to however, 38(d), sharp contrast to Civil exchange requirement list with witness specifies that foregoing rules neither of the ... of witness result in the exclusion “may comply will result waiver failure to judge reserved to from the trial” es right by jury.6 The difference to trial witnesses). exclude such right to later significant When a takes is a one. bar, pretrial court’s In the case action, such action given with notice that language suggesting contained order jury trial amount to waiver will would be filing of instructions right, we do not think it unreasonable right, and to waive construed party’s conduct from the the court to infer or rule which to no statute directed we are right has been waived. On Moreover, although Judge provides. hand, prior so in the absence of such other (party’s failure to Alaska R.Civ.P. argued, 6. But see and we need not have not 5. The decide, may discovery result in “establish- words the rule’s use of the follow whether judge disputed "during precludes from a trial or dismissal of the trial” facts ment” of certain filing ordering at some issues, removing effectively or all of some thus litigation. consideration). in the course of the earlier date Cf. from the issues 16(e) (pretrial con- R.Civ.P. order “shall Alaska subsequent unless course of the action" trol the court). modified acting noted that he in accord- we do not believe that fairly waiver can be practice “the ... in the Fourth ance with implied under the circumstances. he Judicial District” when ruled Nor do we holding intend our sug- issue, there is no indication waiver gest either that we condone the behavior of attorney knew record that in violating Frank’s counsel the court’s or- “practice.” should have known of such der, or that the court is power without instructions, although late, sanction violation in accordance with were in fact filed start trial7 authority granted applicable it under reasonably expected, and he could statutes and civil simply rules. We hold to enforce consistent with intent that in this case it was error for the court right, they would be submitted to a to “deem constitutionally guar- waived” the notwithstanding the initial tardiness. right anteed to trial as a matter of short, we think unreasonable course, solely upon based Frank’s failure to filing sume from the mere fact of the late provid- instructions within the time that Frank waived his constitutional ed by the court’s by jury. Today’s holding does not mean that it is judgment superior never for a to imply reasonable trial court is REVERSED and the case is REMAND waiver ED for a trial on all issues.9 post-demand Indeed, conduct. in the re RABINOWITZ, Justice, Chief cent case of Howard Lease S. Construc concurring. (Alaska Holly, tion v. I, Article section 16 of the Alaska Consti- 1986), we party’s post-demand held that a in part: tution “In civil cases representation to the court that a trial controversy where the amount in exceeds desired, subsequent was not and his seven- dollars, two fifty hundred the of trial acquiescence month to a by a jury preserved of twelve is to the court, specifying trial the was sufficient same extent as it existed at common law.” justify the court’s conclusion that the By partial of way implementation of this jury trial had been waived. See also Gre constitutionally guaranteed right this court goire Alaska, v. National Bank 413 of promulgated 27, aspects (Alaska 1966), Civil 51. Two of denied, 41-42 cert. significance First, 923, 238, Rule 51 are of here. 385 U.S. 17 87 S.Ct. L.Ed.2d 147 (refusal important is to note that under Alaska’s participate in selec trial). system of jury party tion may, constitutes waiver of No trials a but is to, misrepresentation acquiesence requested such not required is submit instruc- present bar,8 however, in the case at Second, and tions.1 whether or not the here, proposed jury liability damages instructions were actu- the and issues are 1986, 27, ally days prior court, submitted on two appropriate prejudgment tried the the start the of trial. motion is one for dismissal under Civil Rule 41(b), rather for a directed verdict under Holly distinguishable 8. The is also from the 50(a). applicable legal Civil Rule The standards explicit- case at bar in ly the in court that case identical, under these are and rules not granting found of trial at such certainty cannot determine on this record prejudicial a late date would be to defendant. applied which standard court the in the case at Here, however, Holly, 725 P.2d at 720. GVEA bar. had, expected along and trial indeed, already proposed submitted own in- Moreover, 51(a) regard structions. 1. In in Greene indicated Civil Rule reads rele- danger delay part: there was no of or inconven- vant the "At the close of evidence at Judge Hodges’ ience should she have overruled trial as earlier time the court fact, hearing directs, she noted at the reasonably any party may written file go prepared that "we’d be with a tried requests court instruct granted tomorrow if I trial.” requests." (Emphasis law forth fur- set in the nished.) disposition 9. This includes retrial on the issue of punitive damages, notwithstanding the fact that purported dispose the trial court of that issue Where, granting of a “directed verdict.”

757 instructions, simply opt will to decline requested tion submitted 51(b) result, court shall requested mandates instructions. As a “[t]he of law jury on all matters deprived particu- instruct court will be of trial necessary infor- for their it considers larly valuable and experience assistance verdict.” giving their mation analysis complex trial counsel’s often legal novel doctrines. and 51(b)is in aspect latter of Civil Rule This with, of, firmly reflective accord short, there are available to inescap it is doctrine that established array an entire short of courts sanctions in duty judges law “to common able litigant of a to a who the denial correctly, on the jurors, fully struct untimely requested files instructions.2 case, guide, law and to applicable suggestion my majority’s deni- view direct, an intelli and assist them toward important grates constitutional understanding of the and factual gent probability deprive in all will involved_” Wright A. Mil 9 C. & issues courts of the valuable assistance of attor- 2556, ler, and Procedure Federal Practice § fashioning legally neys correct instruc- Wright & at 654 Miller]. [hereinafter tions.3 Co., 753 Ramsey Pierce Winch also v. Cir.1985); 416, (5th v. Watland F.2d (8th Cir.1969);

Walton, Tyler 410 F.2d 5 (10th Dowell, Inc., 274 F.2d

v. denied,

Cir.), U.S. 80 S.Ct. cert. (1960). particular Of L.Ed.2d is of Professors

relevance the conclusion must

Wright and Miller that “[t]he properly on control instruct KIRBY, Appellant, A. James though there case even ling issues for an request instruction has been requested instruction defective.” Alaska, Appellee. STATE of Miller, 654-55. Wright supra, & A-2091. No. Bottling Superior Pepsi Co. v. Cola (Alas Co., Burner Serv. Appeals of Alaska. Court 1967). ka Dec. 1987. foregoing urge I our trial Given reject court’s judges to invitation provide pretrial orders which

author filing requested

the late a constitu-

constitutes waiver guaranteed right trial.

tionally potential notice of this

The insertion of view, will, my orders

sanction As counterproductive consequences. earlier, duty is the trial court’s

indicated on all facets instruct not the has sub- trial whether or requested Rather instructions.

mitted filing requested instruction trial, forfeiting

thus facing sanc-

litigant pretrial order waiver Miller, supra, Wright cautiously & exercised." 9 Wright and Miller state: "The 2. Professors 2552, at 624-25. untimely request, may refuse to consider request although its discretion to decline the aspects court’s other I concur untimely sparingly it is should because opinion.

Case Details

Case Name: Frank v. Golden Valley Elec. Ass'n, Inc.

Court Name: Alaska Supreme Court

Date Published: Jan 22, 1988

Citation: 748 P.2d 752

Docket Number: S-1803

Court Abbreviation: Alaska