*1 SCHANDELMEIER, Appellant, John D. WESTERN,
WINCHESTER a division of Mathieson, Olin a Connecticut cor- poration, Appellee.
No. 1789.
Supreme Court of Alaska. DeNault, III, Rice, Hoppner, H. Hedland,
Blair & Thomas E. Curran of Donohue, Anchorage, appel- Curran & lant. *2 re-noticed, deposition Hughes, C.’s was this Thors- Kenneth P. John Jacobus and, Clark, 1972,
ness,
January 26,
again,
time for
once
Lowe,
Anchorage, for
&
Gantz
deposition
The
appear.
C.
appellee.
failed
John
February
subsequently
was
re-noticed
RABINOWITZ,
J.,
C.
and
Before
23,
1972,
10,
February
19722 and
then for
BOOCHEVER,
and
CONNOR
JJ.
2,
finally for March
1972.
By
25, 1972,
January
had been
OPINION
assigned
and
Judge Singleton,
the trial
certain,
8,May
had been
a date
set for
RABINOWITZ, Chief Justice.
barely
away,
months
1972. With trial
two
This
an
is an
from order of
deposition,
having
eluded
C. still
John
superior
3,
court
Schandel
on
Winchester
to dismiss March
moved
meier
of dismissal. 1972,
relief from
conspiracy
be-’
alleging in substance
tween
C.
Schandelmeier
John
1968,
hunting
In
out
August,
while
on
no-
discovery. That motion was
thwart
trip,
injured
was
he
Schandelmeier
when
20,
Monday,
hearing on
March
ticed for
attempted
his
fire Winchester Model 70
1972.
eye-wit-
exploded.
only
The
Rifle and it
1972,
16,
opposi-
By Thursday, March
accident was Schandelmeier’s
ness
had been re-
tion to the motion to dismiss
son,
(hereafter
C. Schandelmeier
John
prac-
ceived.
court
Pursuant
C”).
“John
tice,
timely opposition
having
not
been
On
Schandelmeier
October
filed,3 the
treated Winchester’s mo-
court
against the
complaint
filed a
Winchester
stipulation.
subject
Court
tion as the
Cor-
Western Division of Olin Mathieson
Clark,
Murphy
personnel
contacted
then
poration,
gun.
the manufacturer
attorney,
requested him
Winchester’s
The
The
come to trial.
case has never
order.
March
appropriate
submit an
On
this
germane
concern
29, 1972,
signed
superior court
depose
unsuccessful efforts to
Winchester’s
prejudice.
ment
dismissal with
subsequent successful ef-
and its
C.
John
17, 1972,
April
Appellant Schandel-
On
the case dismissed.
fort
have
for relief from the
meier filed a motion
initially gave
notice for tak
to Alaska
of dismissal
April
court
ing
deposition
60(b)(6).4
on
found
C.’s
Civil Rule
John
request
explaining
of Thomas E. Cur
nothing
Pursuant to the
Schan
this
ran,
counsel,
depo
timely opposed
Jr.,
delmeier’s
to have
failure
3,May
Accord
to dismiss.
sition was re-noticed
1971.
3 motion
reasons,
unspecified
deposition
ingly,
was
July
was
Schandelmeier
supplemen
July
taken
denied
but was re-noticed
relief. Schandelmeier’s
Schandelmeier,
reconsider, filed
tal motion
vacate and
at which time neither
John
more,
similarly
denied.
C.,
appeared.
nor
Once
counsel
event,
employed
holiday.
trapper.
it is a
when
Jolm C. is
self
days (here
the time
is less than 7
allowed
deposi-
claims that
O.’s
Schandelmeier
intervening
specified),
two
Saturdays
all
this date
de-
tion was not taken on
because
disregarded.
Sundays are
unavailable.
fense counsel was
Judge
computed
Singleton
4.Civ.R.
due date
just,
opposition
as
On motion
terms
such
thus:
legal
due,
determining
relieve
order,
representative
judgment,
requires
begin
77(e)
final
from a
day
hearing
reasons:
for the
the
days.
and count back two
justifying
time,
computing
other
reason
Rule 6 indicates
operation
judgment.
computed
relief
date from
disregarded
if
as
the final date
well
propounded by ap-
ap-
presented
interrogatories
answer
question
The initial
strikingly
pellees.
sequence
In a
events
has failed
peal is whether Schandelmeier
bar, appellant filed a
case at
appellate pro-
similar to the
proper and
to follow
equivalent
to a
from seek-
thereby precluded
cedure and
law,
mistake
did
raise
this Court. which
appellate relief before
ing-
*3
days
the order of dismissal.
within 30
of
stated,
chal-
Simply
appellee Winchester
denied
being
late.
this motion was
too
When
lenges
appeal as
this
appeal
the
of
from
order
60(b)(6)
filed its notice
initial
days
14
noticing
denying the
within
30-day period for
motion
filed within the
day in
any
Appellant’s loss of its
mistake denial.8
mention of
appeal,5 made no
superi-
declined
notwithstanding, this court
unresponsive to the
court
of law and was
dismissal:
the merits of the
entering judgment— to review
court’s reason for
failure to
namely, Schandelmeier’s
from a
A Rule
motion
relief
60(b)
by Alaska
required
oppose
the motion
finality
the
of
judgment “does not affect
August
until
Not
77(e)(2).
suspend
operation.”
judgment
a
its
and reconsid-
to vacate
in his motion
filing
a mo-
This means that the
of such
challenge the
er,
court’s
did Schandelmeier
running of
tion
not terminate the
does
ruling of law.
appeal
judg-
a final
the time for
meier’s attack on the merits
period
sentially
Appellate Rule
motion is not
that mistakes of law
Rule 60
ing 7 Moore’s Federal
at
the
352-53
August
allowed for
motion
this
his
10
motion, Judge Singleton, cit
memorandum
analysis,
77 as.
substitute
ruled that
appeal.6
within
can be
Practise
barring
of the dismis
order
Adopting es
raised
appeal,
¶
thirty day
Schandel-
reads
by
[2]
rule
ment.
could
igation.
review.
does not
from a denial
peals may be taken and would frustrate
sound
time
limiting the time
appeal
It
and this would circumvent
had
bring
If
must also mean
policy
the
from a
expired
up
of Rule
rule
of
the
a
having
final
were
by
final
within
utilizing
judgment
otherwise,
that an
finality in
60(b)
judgment
motion
appeal
60(b)
after
ap-
lit-
sal at this late date.
could,
course,
the order of
We
review
Anchorage,
City
despite
appeal
Inc. v.
the failure to
1970),
time,
authority
dismissal was.
(Alaska
under our
to relax or dis-
471 P.2d
fail-
appellant’s
pense
as a sanction
with
rule when the
ordered
directing it to
require
comply
justice
an order
ure
demands
it. Circum-
App.R.
provides
having
pertinent part:
judgment
been en-
of dismissal
App.R.
(a),
appeal may
The time within which an
tered on March
under
April 28, 1972,
supreme
taken to the
had until
.
.
.
shall
Schandelmeier
days
entry
appeal.
judgment
be 30
from the
his
See note 6
notice
infra.
appealed
pro-
from unless a shorter
by Judge
passage in
on
6. The
Moore relied
vided
.
law
.
Singleton
made
refers
to motions
recapitulate
case,
60(b)(1), mistake,
8. To
Since the
to Rule
etc.
appeal charges
60(b)
Schandelmeier
filed his initial
motion
substance of this
April 17, 1972,
days
case,
dismising
on
within
and since
court erred
29, 1972, judgment
prevailing
He
use of
of dismissal.
view allows the
court,
supplemental
then filed his
motion to vacate
to raise mistakes of law
August 10, 1972,
appeal period
Judge
Singleton
on
reconsider
within
Judge Singleton’s
60(b) (1)
denial
on
motion to
limitation
April
motion. That
denied
We find
motion was
this ease.
submitted
having
on
filed
this. See Alaska
Schandelmeier
no error in his
done
Packing
points
Septem-
Transport,
his statement of
Berman
Truck
Inc. v.
1970).
Co.,
ber
managing
stances
such relaxation or
If a
or an officer or
calling for
here,
(foot
wilfully
dispensation
agent
fails to
omitted)
dep-
before the officer
is to take his
*4
provisions
imposed
under the
ment
only
of former Civil
to be
for the wilful
37(b)
Rule
party,
the lower
failure of a
court was au
or the officer/managing
[c]
agent
thorized to dismiss the
party,
appear
cause of action.10
of a
taking
to
for the
contrast,
deposition.
present
we find that
in the
of his
Schandelmeier’s son is
son,
witness,
case the
of
only
failure of
course
party,
in
C.,
appear
deposition
to
for a
action. The
totally
record is
John
clearly
appropriate
not an
devoid of
indicating
basis for the
evidence
that
motion to dismiss submitted to the trial
Schandelmeier had such control over his
by
son that
Winchester.11
C. should be treated as hav-
John
ing
managing agent
officer or
status.12
argues
that the motion
simply
legal theory
There
which can
to
justified pursuant
dismiss can be
to ei
justify a characterization of
C. as the
ther
former
37(d)
Civil Rule
or Rule
conceptual equivalent of an officer or
41(b).
argument
We find this
be de
to
managing agent
pur-
of his father for the
void of merit. Our former
Rule
Civil
poses of
provided
37(d).13
former Civil Rule
(d)
in
part:
relevant
agent’s
party.
instance,
9.
Transport,
See also
control over the
Alaska Truck
Inc.
corporation
only through
Packing Co.,
Berman
can act
its direc
tors,
Thus,
1970),
employees.
officers and
where this court struck the
corporate party,
of
balance
“between the
where the offi
desire to achieve final-
ity
cer/managing agent
injustice”
and the
in
need to
in
effect controls the
the
correct
party,
finality by
imposed against
ruling
favor of
sanctions could be
that motions made
party
60(b)
to
or
of
Civ.R.
based
acts
omissions
the offi
errors
cer/manager.
any case,
brought
taking
law” be
within the
the record here
time for
appeal,
equally
e.,
tending
entry
an
i. within
barren of
to
from the
judgment.”
appellant.
show John C.’s control over
Moore,
[c], prior
10.
13. See 4A
Civ.R.
February
J.
Federal Practise ¶
to amendment
1973, provided
party
at 100
wherein
ob-
that if a
Professor Moore
obey
failed to
an
serves of Rule
order of the
37:
court to answer
designated question,
provides
against
The Rule
then the
sanctions
court could
party, meaning
enter
disobedient
order:
appear
striking
pleadings
parts
An order
who has failed
or
in-
out
to answer
thereof,
terrogatories
staying
proceedings
.
.
. .
further
un-
Since
sanction
obeyed,
dismissing
(d)
party,
til the order is
under Rule 37
to the
though
appear
any part
thereof,
action or
the failure to
is the failure
rendering
party’s
managing
default
officer director or
agent,
party,
(emphasis added)
the disobedient
when it is doubtful that a witness
agent
managing
is an officer or
Apart
1
relationship
from the father-son
be
generally
im-
would not
tween Schandelmeier and John C. the record
pose
formerly pro-
the drastic sanctions
finding
existing
is .devoid of
basis for
an
37(d),
vided for in Rule
leave
but would
agency relationship between the two.
compel
opposing
attendance
the
by subpoena
Alternatively,
under Rule 45
one
read the offi-
cer/managing agent
require
(footnotes omitted)
language to
prej-
suggestion made
lower court’s decision
dismiss
interpreted
justify
relief.
udice Schandelmeier’s claim for
Rule
can
However,
interpreted as
dismiss.
Our decision should not be
Winchester’s motion to
noncompliance
discovery
condoning
mo-
general
with a
or
use
issue,
alleged
37(b),
timely appeal
der
tion in lieu
Civil Rule
of a
41(b),
looked to as the mistakes of law
must be
court.16
authority
impose
source of the court’s
Briefly reviewing the facts that
appropriate
sanctions.14 The
sanction for a
preceded entry
judgment of dismis
utilize when a witness is
lower court
sal,
appellee
mo
we find that
Winchester’s
appear
subpoenaed
taking
for the
tion to
filed March
dismiss was
deposition
and fails to
is the con
timely opposi
Schandelmeier failed
file
45(f).
tempt power
found Civil Rule
required
tion
this motion
former
light
inappropria
As a result of this
77(e)(2).17
of both the
Civil Rule
timely oppose,
severity
teness and the
of the sanction of
failure
the trial court had
(f)
the discretion
subdivision
of Schandel-
under
relief,
Civil Rule 77 to consider this failure to be
meier’s claim for
we find the case at
proper
dispense
by appellant
granting
bar to be a
which to
consent
previously
regarding
with the
rule
the motion.18
have
stated
We
appeals
in order to meet the demands
we will interfere with this exercise of
justice.15
been
Accordingly,
decided to
discretion
where there has
an
we have
*5
imposition
the
of the sanction
allow
from the merits of the
abuse
Rogers,
14. See
ment in
Societe
the trial court
motion under
Internationale v.
357
60(b).
denied,
If
U.S.
78
CONNOR, J., dissents.
later
filed no
to be
dismiss would have
16,
Appellant read
than
March
Alas-
FITZGERALD,
JJ.,
ERWIN and
him until
giving
as
(e) (2)
ka
Rule 77
participating.
date scheduled
March
opposition.
file
hearing on
CONNOR,
(dissenting).
Justice
computation
superior court’s
respectfully
I
dissent.
I would sustain
There
was correct.
filing
superior
the order of the
court on the basis
computation
appellant’s
belabor
no need to
precedent
Wellmix,
of the
established
wrong.
it
say that
it to
here. Suffice
City
Anchorage,
Inc. v.
20. See P.2d v. rules, these infraction (Alaska 1966), wherein we dis- note that may costs or assess withhold missal of an drastic action with attorney’s as the circumstances fees remedy be and one that should discouragement like conduct case and in extreme circumstances. may require; costs and such in the future upon imposed attorney’s reinstatement, upon fees 21. As a condition of re- parties. attorneys offending empowered mand tiie attorney’s assess either costs or fees The dismissal of preju- an action with
dice is a harsh sanction and should be im-
posed only in extreme circumstances. Morris,
Mely But,
1966). judicious imposition of a
harsh non-imposi- sanction does not mean Finding
tion. no error in the court’s dis-
position August motion, I would
affirm the the motion to va-
cate. P. of Stanley of the Conduct Matter
In the at Law, CORNELIUS, Attorney
Respondent.
No. 1944.
Supreme of Alaska. Court 15, 1974.
Opinion
Rehearing April 22,
See
notes