Denardo v. Cutler

• Decision Date: 21 September 2007
• Docket Number: No. S-11976.,S-11976.
• Citation: 167 P.3d 674
• Parties: Daniel DeNARDO, Appellant, v. Louisiana CUTLER, Preston Gates & Ellis LLP, Mark Rindner, Alaska Cleaners, Inc., Appellees.
• Court: Alaska Supreme Court

167 P.3d 674

Daniel DeNARDO, Appellant, v. Louisiana CUTLER, Preston Gates & Ellis LLP, Mark Rindner, Alaska Cleaners, Inc., Appellees.

No. S-11976.

Supreme Court of Alaska.

September 21, 2007.

Daniel DeNardo, Anchorage, pro se.

Jennifer M. Coughlin, Preston Gates & Ellis LLP, Anchorage, for Appellees Louisiana Cutler, Preston Gates & Ellis LLP and Alaska Cleaners, Inc.

James Cantor, Assistant Attorney General, Anchorage, and David W. Márquez, Attorney General, Juneau, for Appellee Mark Rindner.

Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

OPINION

CARPENETI, Justice.

I. INTRODUCTION

In this case Daniel DeNardo, for the third time, seeks a determination that Superior Court Judge Mark Rindner incorrectly dismissed his lawsuit in DeNardo v. Alaska Cleaners, Inc.¹ ("first lawsuit"). When that dismissal was on direct appeal before this court, DeNardo failed to post a cost bond, and we dismissed the appeal sua sponte in July 2004. Two years later, in July 2006, we affirmed the dismissal of DeNardo's Alaska Civil Rule 60(b) motion to set aside the judgment in the first lawsuit.² DeNardo's 2006 claim was that the actions of Alaska Cleaners constituted a fraud upon the court. We rejected DeNardo's claim as "both untimely and inadequate on the merits." In the present lawsuit, the third iteration of this case, DeNardo argues that the rulings in the first lawsuit constituted an abuse of process, and DeNardo has named as parties Alaska Cleaners, Inc., the lawyer and law firm that represented Alaska Cleaners in the first lawsuit, as well as Judge Rindner, the presiding judge in the first lawsuit. DeNardo also argues that he has a valid 42 U.S.C. § 1983 claim against everyone but Judge Rindner, whose dismissal from the case is not at issue in this appeal. DeNardo also argues that the superior court erred in awarding attorney's fees to Judge Rindner. We conclude that DeNardo failed to establish the elements of an abuse of process or a § 1983 claim, and that the superior court properly awarded attorney's fees. Accordingly, we affirm the superior court's decision in all respects.

II. FACTS AND PROCEEDINGS

A. Facts

Daniel DeNardo filed a previous lawsuit in federal court against his employer, Alaska Cleaners, Inc. alleging unlawful termination due to age discrimination. In that lawsuit, Alaska Cleaners retained Preston Gates & Ellis LP ("Preston") for its defense, and Louisiana Cutler, a Preston partner, was primarily responsible for the case. Because DeNardo did not wish to divulge his address to opposing counsel (or provide a fax number), Cutler and DeNardo stipulated in a signed order that Preston could notify DeNardo by phone of a document to be served. DeNardo would then come to the Preston offices in Anchorage to receive hand delivery. Under the agreement, service was deemed completed as of 5 p.m. on the day the phone call was made. Preston alleges that in July 2003 the phone number provided by DeNardo was no longer in service and DeNardo refused to provide a new phone number or a physical address. DeNardo sought a voluntary dismissal of his federal case against Alaska Cleaners and refiled the case in state court under Case No. 3AN-03-13497.

DeNardo's state age discrimination claim was heard by Judge Rindner. Alaska Cleaners filed a motion to enforce a provision similar to the service stipulation that had been in effect in the federal case, requiring DeNardo to provide either a telephone number or physical address. DeNardo opposed this request, citing his right to privacy. In January 2004 Judge Rindner issued an order requiring DeNardo to provide Alaska Cleaners with his physical address and a working telephone number within five days. Judge Rindner noted that Civil Rule 76(d)(1)³ requires parties to provide both a telephone number and an address and that, because it contemplates personal service, the requirement of a physical address is reasonable. In February 2004 Judge Rindner denied DeNardo's motion for reconsideration of the Order Regarding Telephone Contact and Address. Judge Rindner advised DeNardo to dismiss the case or file a petition to review the court's order with the supreme court if he did not wish to obey the court order. The judge warned that barring a reversal, DeNardo's failure to comply with the court order would result in sanctions including, potentially, dismissal of the case.

DeNardo did not comply with the court order and did not appeal the order. On February 23, 2004, Alaska Cleaners filed a motion to compel compliance with the court's order and for sanctions. In mid-March Judge Rindner dismissed the case without prejudice as a sanction for failing to comply with the court order. Judge Rindner entered a final judgment of dismissal without prejudice on March 23, 2004. On April 28, 2004 Judge Rindner granted Alaska Cleaners's motion for Rule 82 attorney's fees in the amount of $1,315. DeNardo appealed to the supreme court and moved to waive the cost bond. We denied DeNardo's motion to waive the cost bond, and when he failed to pay, dismissed the appeal sua sponte for want of prosecution. We denied DeNardo's subsequent petition for rehearing.

In July 2006 we heard a second iteration of this case when we affirmed the dismissal of DeNardo's separate Civil Rule 60(b) motion to set aside the judgment in the first lawsuit.⁴ We held that his motion was "both untimely and inadequate on the merits."⁵

DeNardo's present lawsuit alleges that the dismissal of his first lawsuit was a result of abuse of process and violated his rights to due process.

B. Proceedings

DeNardo filed the present lawsuit on March 22, 2004, before his motion for reconsideration of dismissal of the first lawsuit had been ruled upon. DeNardo sued Alaska Cleaners, Preston, Cutler, and Judge Rindner. His central claims, as advanced in his amended complaint, alleged abuse of process, stating that the defendants "conspired ... to delay and dismiss plaintiff's age discrimination action." DeNardo also argued that he had a valid 42 U.S.C. § 1983 claim against Alaska Cleaners, Preston, and Cutler, and that Civil Rule 5 did not require him to give his telephone number and thus his first lawsuit was unfairly dismissed. DeNardo's case was assigned to Superior Court Judge John E. Suddock.

On April 6, 2004, Judge Rindner filed a motion to dismiss the action with respect to himself because of judicial immunity. On April 26, 2004, DeNardo's answer to the motion apparently conceded that Judge Rindner did indeed have immunity. Judge Suddock issued a court order granting Judge Rindner's motion to dismiss on May 5, 2004, and issued a final judgment on all claims against Judge Rindner on July 6, 2004. The superior court awarded Judge Rindner $1,275 in attorney's fees on August 5, 2004, and denied reconsideration.

In February 2005 the remaining defendants moved for summary judgment. In April 2005 Judge Suddock granted the motion for summary judgment on the basis of (1) res judicata and collateral estoppel, (2) a finding that DeNardo's complaint did not satisfy the elements of an abuse of process claim, and (3) a finding that the 42 U.S.C. § 1983 claim failed as a matter of law because the defendants were not acting under color of law. The order noted that any one of the above reasons would have been sufficient to require dismissal of DeNardo's claims. Judge Suddock denied reconsideration of summary judgment on May 23, 2005. DeNardo appealed to this court on June 22, 2005, stating that he was appealing the summary judgment of April 2005 and the denial of reconsideration of May 2005. He also appealed the denial of his recusal motion and motion to compel discovery. On August 1, 2005, DeNardo amended his points on appeal to include the grant of attorney's fees to Judge Rindner. Judge Rindner included in his brief to this court a proposition that we should take some preventative action to control DeNardo's repeated filings.

At issue on appeal is: (1) whether the superior court properly dismissed DeNardo's abuse of process claim; (2) whether the superior court properly held that attorneys using the courts are not acting "under color of law" for the purpose of a 42 U.S.C. § 1983 suit; (3) whether Judge Suddock (and Judge Dan A. Hensley, the Third Judicial Presiding Judge who reviewed Judge Suddock's decision) erred in denying DeNardo's motions to disqualify Judge Suddock; (4) whether the superior court erred in denying DeNardo's motion to compel discovery; (5) whether the superior court abused its discretion in awarding attorney's fees to Judge Rindner; and (6) whether this court should take action to control DeNardo's repeated filings.

III. STANDARD OF REVIEW

We independently review the decision to dismiss DeNardo's 42 U.S.C. § 1983 and abuse of process claims on summary judgment, drawing all reasonable inferences in favor of the nonmoving party.⁶ We will uphold summary judgment "only if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law."⁷ Additionally, we review de novo the question of whether collateral estoppel or res judicata applies.⁸

"The independent standard of review ... applies to considering whether the trial court properly applied the law when awarding attorney's fees,"⁹ while we review for "abuse of discretion a trial court's fact-based decisions as to whether attorney's fees are reasonable and should be awarded."¹⁰ We will overturn an award only when the award is "manifestly unreasonable."¹¹

IV. DISCUSSION

A. The Superior Court Properly Dismissed DeNardo's Abuse of Process Claim.

The abuse of process tort comprises two elements: (1) "an ulterior purpose" and (2) "a willful act in the use of the process not proper in the regular conduct of the proceeding."¹² The ulterior purpose "usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or...