Channel Flying, Inc. v. Bernhardt

• Decision Date: 10 March 1969
• Docket Number: No. 1082,1082
• Citation: 451 P.2d 570
• Parties: CHANNEL FLYING, INC. and Lon's Flying Service, Petitioners, v. William P. BERNHARDT, Paul E. Lutts and Dean K. Williams, d/b/a Southeast Skyways, and the Alaska Transportation Commission, Respondents.
• Court: Alaska Supreme Court

Page 570

451 P.2d 570

CHANNEL FLYING, INC. and Lon's Flying Service, Petitioners, v. William P. BERNHARDT, Paul E. Lutts and Dean K. Williams d/b/a Southeast Skyways, and the Alaska Transportation Commission, Respondents.

No. 1082.

Supreme Court of Alaska.

March 10, 1969.

R. J. Annis, of Robertson, Monagle, Eastaugh & Annis, Juneau, for petitioners.

Allan A. Engstrom, Juneau, for respondent Southeast Skyways.

G. Kent Edwards, Atty. Gen., Juneau, and Roger A. McShea, III, Asst. Atty. Gen., Anchorage, for respondent Alaska Transp. Commission.

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

DIMOND, Justice.

This is an action by petitioners to permanently enjoin respondents from engaging in air commerce as an air-taxi operator with a base of operations at Juneau. Temporary authority to engage in such commerce had been granted by the Alaska Transportation Commission. On November 18, 1968, the superior court issued a temporary restraining order which restrained respondents from engaging in air commerce and prohibited the Alaska Transportation Commission from issuing any further authority to respondents. By stipulation of the parties the temporary restraining order was extended until December 9, 1968, or until the court ruled on petitioners' motion for a preliminary injunction, whichever occurred first.

A hearing was held on December 3, 1968. The court dissolved the temporary restraining order, but did not rule on petitioners' motion for a preliminary injunction. Petitioners seek review of the action of the court in dissolving the temporary restraining order. They make two points: (1) that the hearing judge erred in not striking certain papers tardily filed by respondents in violation of Civil Rule 77(e)(2), and in not considering the respondents as having consented to the motion for a preliminary injunction under Civil Rule 77(f)(2); and (2) that the judge erred in not disqualifying himself from further consideration of this case when an affidavit of disqualification was filed pursuant to AS 22.20.022.

We have granted review because the question of the judge's continuing authority to act in this case after an affidavit for disqualification had been filed is of sufficient substance and importance as to justify deviation from the normal appellate procedure by way of appeal from a final judgment and to require the immediate attention of this court. ¹

Before deciding that question, we shall pass briefly upon petitioners' contention regarding the late filing of papers by respondents. Under Civil Rule 77(e)(2) respondents, as the parties opposing petitioners' motion for a preliminary injunction, were required to serve their papers in opposition to the motion 'not less than 2 days prior to the hearing' of the motion. That was not done. The hearing was set for 9:00 a.m. on December 3, 1968, and respondents' papers in opposition to the motion for a preliminary injunction were not filed until the afternoon of December 2, less than two days prior to the hearing.

The sanction for failure to comply with the rule is provided by subdivision (f)(2) which states:

When a party opposing a motion fails to comply with the provisions of subdivision (e)(2) of this rule, the court may consider this as a consent to the granting of the motion.

The word 'may' makes the imposition of the sanction discretionary with the court. As in other cases where discretionary authority is involved, we shall interfere only where there has been an abuse of discretion. And we shall not find an abuse of discretion unless we are left with the definite and firm conviction on the whole record that the judge made a mistake in failing to impose a sanction for respondents' noncompliance with Civil Rule 77(e)(2). ²

Proper objection was made to respondents' late filing of papers in opposition to petitioners' motion. When such objection has been made, the judge is faced with making a decision as to whether or not he will enforce the rule according to its sanction or grant the moving party additional time to meet new matter contained in the late filed papers. The point that must be recognized is that there can be subtleties to late filings which the judge cannot detect unless he is intimately familiar with all facets of the case as it has developed to that stage of the proceedings, which he ordinarily is not. For example, it is easy to inject a point or two in late filed matter which can subsequently become crucial and which, if not properly met, can result in a serious disadvantage to the other side.

When the trial judge is presented with the dilemma of either denying effect to late filed matter or continuing the hearing, he may be inclined toward going ahead with the hearing in order to preserve his calendar, and at the same time considering the late filed matter so as not to work an injustice on the party who made the late filing. In these circumstances the 'injustice' which may be uppermost in the judge's mind would be that which might result to the party who made the late filing. The injustice to the other side may not be so apparent because of the sequence of events. But as we have pointed out, there may be injustice to the moving party and that should also be given consideration.

We believe this is the situation here. Among the late filed papers were the affidavit of respondent Bernhardt, and a supplemental order issued by respondent Alaska Transportation Commission. Both of these documents raised factual matters which petitioners would find it important to meet if they were to succeed in their efforts to obtain a preliminary injunction. Petitioners did not have the opportunity before the hearing to meet those matters because of the lateness of the filings by respondents. They should have been afforded that opportunity.

We shall not hold that the trial judge abused his discretion in refusing to enforce the sanction of Civil Rule 77(f)(2) by treating the late filings as a consent by respondents to the granting of petitioners' motion. But we do hold that in lieu of enforcing such sanction or refusing to consider the late filed papers, the judge ought to have at least continued the hearing and allowed petitioners reasonable opportunity to meet the points raised in the late filed papers. His failure to do so was a mistake, and thererfore an abuse of discretion. The case will be remanded for appropriate action by the trial judge in this regard prior to a hearing and decision of petitioners' motion for a preliminary injunction.

On the day of the hearing, December 3, 1968, petitioners filed an affidavit of the president of petitioner, Channel Flying, Inc., which stated that petitioners could not obtain a fair and impartial trial before the judge presiding at the hearing, Judge Gilbert. This affidavit was made and filed pursuant to AS 22.20.022 which in relevant part provides:

(a) If a party or his attorney in a superior court action, civil or criminal, files an affidavit alleging under oath that he believes that he cannot obtain a fair and impartial trial, the presiding judge shall at once, and without requiring proof, assign the action to another judge of that district, or if there is none, the chief justice of the supreme court shall assign a judge for the hearing or trial of the action. The affidavit shall contain a statement that it is made in good faith and not for the purpose of delay.

(c) The affidavit shall be filed within five days after the case is at issue upon a question of fact, or within five days after the issue is assigned to a judge, whichever event occurs later, unless good cause is shown for the failure to file it within that time.

Judge Gilbert refused to disqualify himself under this statute. More than five days had elapsed since the matter had been assigned to him, and the judge was also of the opinion that more than five days had elapsed since the case was at issue upon a question of fact. It was the judge's view that the case was 'at issue upon a question of fact,' within the meaning of AS 22.20.022(c), at the time he signed a temporary restraining order on November 18, 1968, which was more than five days prior to the filing of the affidavit on December 3.

A case is at issue upon a question of fact when the parties to an action, through their pleadings, have raised some disputed question of fact, alleged to be a fact on one side and denied on the other, upon which the parties seek to obtain the decision of the court or jury. ³ The pleadings must be looked to in order to determine whether a case is at issue. In this case petitioners as plaintiffs filed a complaint seeking a permanent injunction. They alleged as a fact that respondent (defendant) Southeast Skyways was not fit nor able to engage in air commerce properly, that the service proposed by Southeast Skyways was not required by the public convenience and necessity, and that if Southeast Skyways were not enjoined from its allegedly unlawful operation in air commerce petitioners would suffer permanent, irreparable damage to their businesses by reason of diversion by Southeast Skyways of revenue, traffic and customers from respondents. At the time the temporary restraining order was signed on November 18, 1968, the factual matters alleged in petitioners' complaint had not been denied by any form of pleading from respondents. That was not done until December 2, 1968, when respondent, Southeast Skyways, filed its answer to petitioners' complaint, denying the truth of the allegation of the factual matters contained in the complaint. It was not until then that a question or issue of fact came into existence-that the case then was 'at issue upon a question of fact,' within the meaning of the judicial disqualification statute. And since the affidavit of disqualification was filed one day after the filing of the answer to the complaint, it was filed within five days after the case was at issue upon a question of fact and was therefore timely.

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