Smith v. Smith, 011321 AKSC, S-17451

Docket NºS-17451
Party NameMORGAN SMITH, Appellant, v. SCOTT L. SMITH JR., Appellee.
AttorneyMorgan Smith, pro se, Anchorage, Appellant. David W. Baranow, Law Offices of David Baranow, Anchorage, for Appellee.
Judge PanelBefore: Bolger, Chief Justice, Winfree, Maassen, and Carney, Justices.
Case DateJanuary 13, 2021
CourtSupreme Court of Alaska

MORGAN SMITH, Appellant,


SCOTT L. SMITH JR., Appellee.

No. S-17451

Supreme Court of Alaska

January 13, 2021

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court of the State of Alaska No. 3AN-18-05070 CI, Third Judicial District, Anchorage, Andrew Guidi, Judge.

Morgan Smith, pro se, Anchorage, Appellant.

David W. Baranow, Law Offices of David Baranow, Anchorage, for Appellee.

Before: Bolger, Chief Justice, Winfree, Maassen, and Carney, Justices.



A young woman sued her father, alleging that he had violated a court order by improperly retaining portions of the Permanent Fund Dividend (PFD) checks she had received while a minor. The father filed a third-party complaint against his ex-wife, the young woman's mother, alleging that she had misappropriated some of the funds herself and was driving her daughter's lawsuit. The litigation was contentious; the daughter, who was representing herself, was sanctioned twice for filing frivolous motions and for failing to cooperate in discovery. Ultimately the superior court dismissed her suit with prejudice as a sanction and ordered her to pay enhanced attorney's fees. She appeals.

We reverse one monetary sanction because the record does not show that the daughter, as a self-represented litigant, was adequately informed of her discovery obligations before the sanction was imposed. We otherwise conclude that the court did not abuse its discretion in sanctioning the daughter, dismissing her suit, and awarding enhanced attorney's fees.


A. Facts

Morgan Smith is the adult daughter of Scott and Deanna Smith. Scott and Deanna were divorced in 2009 and since then have continued to litigate issues of custody. In a 2009 order the superior court authorized Deanna to "serve as application sponsor for the children's [PFDs]," ordering that seventy percent of each dividend "be saved for the children" with the remaining thirty percent "divided equally between the parents to be used for the direct benefit of the children." An order later in 2009 transferred this authority to Scott.

In 2017 Morgan filed this lawsuit against Scott in small claims court. She alleged that once she turned 18 she asked him to turn over to her the money he had been saving fromherPFDs "from 2008-2015"; that he gave her $3, 781.20; and that he refused to give her the "remaining [PFD] money." She alleged that Scott still owed her $7, 019.75 plus fees, interest, and court costs. In Scott's answer he denied any indebtedness and asserted that Morgan was "acting as an unwitting surrogate or agent for and at the behest of her mother." He filed a third-party claim against Deanna, alleging that she had converted some of the children's PFD money to her own use.

After some preliminary proceedings, the district court judge recognized that Morgan's suit involved "issues that may have been litigated in" the continuing custody case between her parents and referred the matter to the presiding judge, who ordered that Morgan's case be removed to superior court. There it was assigned to the superior court judge overseeing the custody case so that the two cases could "travel" together. Subsequent proceedings in the two cases sometimes overlapped.

B. Proceedings

While still in district court, the parties prepared a report of their planning meeting (later approved by the court), which represented that the case would be ready for trial in September 2018 and that discovery would "be completed at least 20 days prior to trial." Scott's lawyer sent Morgan a notice scheduling her deposition for August 15. Morgan responded by email, asserting that she would not be available until September 3 "[a]t the earliest." Scott's lawyer replied that this was too close to the trial date, but if they stipulated to continue the trial "for a month or two" they would have "time to complete discovery efforts" and prepare transcripts; "[a] deposition on September 3, 2018 could then be accommodated." But Morgan did not respond to this suggestion. Scott's lawyer appeared for Morgan's deposition on August 15, but Morgan did not.

Meanwhile, on August 7, Morgan filed a motion to compel responses to her first requests for production, which had been served on June 15. She followed up ten days later with a motion for an order to show cause, essentially repeating the arguments about outstanding discovery made in her motion to compel and requesting a sanction, as well as attorney's fees and costs, for Scott's failure to comply with the pretrial schedule. Scott served his discovery responses on August 27. The court denied both of Morgan's discovery motions and, in a September 25 order, required that she pay Scott attorney's fees of $200 "as reasonable compensation for the necessity of opposing Defendant's redundant Motion to Show Cause and its predecessor Motion to Compel, per Alaska Civil Rule 11."

Trial was continued to February. Morgan attended her rescheduled deposition on October 9; Deanna was also present. Deanna interrupted the questioning frequently with objections and statements about the merits, until Scott's lawyer proposed that they "get Judge Guidi on the phone and ask him whether or not [Deanna] has been inappropriate in terms of interrupting [Morgan's] testimony." Deanna responded that it was "disturbing" and a sign of "corruption" that Scott's lawyer was considering "personal contact" with the judge over their discovery dispute. Morgan answered several more questions, then asserted that the deposition was making her "extremely uncomfortable" and that she was going to leave. Scott's lawyer warned her that there were "serious consequences" for leaving the deposition before he was finished with his questions; she responded, "I understand the consequences. I am willing to take those."

Scott then filed a motion to dismiss or for an order to show cause why Morgan should not be held in contempt for failing to comply with discovery. In a December 20 order, the court declined to dismiss the case, noting that "dismissal cannot be imposed for discovery violations if there is a lesser form of relief that will adequately protect the aggrieved party, unless the court is able to find that no other form of relief will be effective." The court observed, however, "We are close to, but not quite arrived[] at[, ] that point." The court found "that without good cause and despite prior admonition in which the court expressly and specifically cautioned [Morgan] to cooperate with defendant's discovery efforts, and warned of the potential consequences, [Morgan] failed repeatedly to answer reasonable questions at her deposition." It found that "[h]er conduct was knowing and willful" and "had the effect of stymying discovery."

Observing that trial was a few months away, the court noted that "there is still sufficient time for [Morgan] to repair her poor decisions by cooperating and completing her deposition." The court ordered that Morgan reimburse Scott for "the deposition costs (court reporter attendance fee, transcript fee, and video fee)" within 10 days of receiving documentation of those costs; that she reimburse Scott for the attorney's fees and costs "related to the taking of the aborted deposition and the cost of the motion to dismiss"; that she "make herself available and attend the conclusion of her deposition at least two weeks prior to the [February] trial date"; and that she pay Scott's ordered attorney's costs and fees "[a]t least five days prior to the rescheduled deposition." If she failed to comply with these conditions, then, on Scott's renewed motion, "this action shall be dismissed with prejudice."

Scott's lawyer sent a notice rescheduling Morgan's deposition for January 23, 2019. Morgan moved to quash the deposition, arguing, among other things, that Scott already had all the information he was entitled to, that Scott himself should be sanctioned for failing to cooperate in discovery, and that she lacked the resources to make the ordered reimbursements. On January 8 Scott's lawyer informed the court that Morgan had failed to comply with the first reimbursement deadline, i.e., payment of the deposition costs within ten days of receiving the documentation. On January 23 the court denied Morgan's motion to quash the deposition and awarded Scott $500 in "reasonable attorney's fees" for having had to file an opposition. On the same day, Scott's lawyer informed the court that Morgan had failed to appear at the rescheduled deposition and renewed his request that the case be dismissed.

The next day the court issued an order dismissing the case with prejudice. Scott moved for enhanced attorney's fees, claiming approximately $24, 000 in fees and costs. The court ordered Morgan to pay $20, 000 in attorney's fees "inclusive of discovery expenses previously addressed." The court made specific findings to support the enhancement: (1) Scott's attorney's fees "were reasonably incurred"; (2) the lawyer's hours and hourly rate were reasonable; (3) Morgan had "engaged in unreasonable, vexatious and bad faith litigation conduct"; (4) "insofar as evidence has been presented to the court concerning the merits of the claims, they appear to be spurious and without factual support"; and (5) "the case has been made[] unnecessarily complex by [Morgan's] antics."

Morgan appeals. She argues that the superior court abused its discretion by dismissing the case with prejudice, abused its discretion in the awards of sanctions and attorney's fees, and treated her unfairly throughout the proceedings.


We review for abuse of discretion a superior court's orders to impose discovery sanctions, 1 to award attorney's fees, 2 and...

To continue reading