Greenway v. Heathcott , 2013 Alas. LEXIS 15 ( 2013 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
SIMONE K. GREENWAY, )
) Supreme Court No. S-14321
Appellant, )
) Superior Court No. 3AN-07-10280 CI
v. )
) OPINION
LARRY D. HEATHCOTT, )
) No. 6750 – February 15, 2013
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Guidi, Judge.
Appearances: Jeremy Collier, Law Offices of Joshua
Fannon, Palmer, for Appellant. No appearance by Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices, and Eastaugh, Senior Justice.*
EASTAUGH, Senior Justice.
I. INTRODUCTION
Simone Greenway sued Larry Heathcott alleging, among other things,
identity theft and breach of domestic partnership and fiduciary duties. After a long, one-
day bench trial at which both parties were pro se, the superior court denied Greenway’s
*
Sitting by assignment made under article IV, section 16 of the Alaska
Constitution.
claims. She argues here that it was error not to continue the trial so a particular lawyer
could represent her when he became available, so she could compose her case, and so
she could obtain testimony from a witness whose subpoena was quashed. She also
argues that the court failed to help her sufficiently and failed to explain she could call the
witnesses telephonically after it rejected her witness affidavits. We conclude that the
court did not abuse its discretion as to these issues.
She also asserts that the trial judge was biased, or appeared to be biased,
against her. The audio recording of the trial refutes these assertions and demonstrates
that the trial judge was impartial, patient, and courteous in dealing with Greenway and
in trying to obtain understandable evidence from her.
We therefore affirm the superior court judgment.
II. FACTS AND PROCEEDINGS
A. Facts
Simone Greenway met Larry Heathcott in Alaska. They began a
relationship and Heathcott moved into Greenway’s Wasilla house in February 2000.1
In May 2003 a vehicle driven by Heathcott struck and injured Greenway.
Greenway later claimed that Heathcott misappropriated part of what Heathcott’s insurer
paid to settle her resulting personal injury claim.
In 2005 Heathcott left Alaska for Texas on his motorcycle. After he left,
Greenway allegedly noticed irregularities in documents and accounting records that
1
Our fact description relies on the trial court’s findings and the appellate
record, including the audio pretrial and trial recordings. The recordings have been
invaluable in assessing Greenway’s arguments, especially her contentions the trial judge
was biased, or appeared to be biased, against her.
Greenway’s 78 trial exhibits were returned to her after trial, and are not in
the appellate record. She has submitted no trial exhibits to us.
-2- 6750
indicated to her that her identity had been stolen, and that Heathcott had stolen, or had
helped steal, it.
B. Proceedings
Greenway sued Heathcott in September 2007; her 2008 amended complaint
alleged that he had breached his domestic partnership duties, breached his fiduciary
duties, stolen her identity, taken advantage of her credit, and fraudulently collected her
insurance and unemployment payments.
Superior Court Judge Stephanie E. Joannides originally scheduled trial for
January 2009, and then scheduled a two-day trial for July 2009. Trial was continued or
rescheduled several times at the parties’ requests, once after Heathcott was injured in an
accident, and again after Greenway made a request that cited her health and the need to
get legal assistance. Greenway was pro se after April 8, 2009, when her then-lawyer was
allowed to withdraw. Trial was ultimately rescheduled to begin April 18, 2011.
On April 6, 2011, 12 days before trial was to begin, Greenway moved to
continue the April 18 trial. Superior Court Judge Andrew Guidi denied that motion on
April 8. On April 15 Greenway, citing different reasons, again moved for a continuance.
Judge Guidi denied that motion. Judge Guidi later explained both orally and in writing
why he had denied both motions. Greenway argues on appeal that denying her April 15
motion was an abuse of discretion and also demonstrates judicial bias, or the appearance
of bias, against her.
The morning of trial, the trial court granted the United States’s motion to
quash Greenway’s subpoena for FBI Agent Charles Clapper. She had intended to call
him to support her identity theft claims. Greenway argues on appeal that the court
abused its discretion by failing to grant her a continuance so she could obtain Agent
Clapper’s evidence.
-3- 6750
Greenway called lawyer Richard Kibby as her first witness. He had
represented her in a divorce proceeding about 20 years before, perhaps in 1991. He often
testified he could not remember when he was asked about past events. He testified that
it was a “guess” that he had dealings with Heathcott in 1994 or 1995.2 Greenway
claimed that Heathcott had collaborated in the mid-1990’s with Rhonda Jasek, a former
girlfriend of Heathcott, to perpetrate fraud or identity theft against Greenway.
When Greenway called Heathcott as her second witness, the superior court
asked if there was “some reason” Heathcott had to testify then, given that he would
testify on his own behalf later in the trial. Although the court then allowed Greenway
to call Heathcott to the stand, she argues that this exchange demonstrates judicial bias or
the appearance of judicial bias.
Greenway asked Heathcott how he was able to buy a house in Texas if he
had no money; he replied that he bought the house with no money down. A document
seemed to confirm he made no down payment. Regarding Greenway’s claim that he had
misused part of her personal injury recovery, Heathcott testified when Greenway called
him to the stand that he used $7,000 to get a secured loan for funds needed for medical
care for both himself and Greenway. He testified later at trial that the other $10,000 was
invested at Greenway’s request in high-risk options that were worthless when they
expired. He also testified later that he was penniless when he left on his motorcycle in
2005. Greenway asked Heathcott whether he had known her in 1995, to which he
responded “no.” She also asked him questions not obviously related to her claims, such
as why he doesn’t celebrate Christmas, whether he is a Muslim, and why he stopped her
2
Appellant’s brief states that Kibby “testified that he knew Mr. Heathcott as
early as 1994/95.” But Kibby’s testimony was much more equivocal than appellant’s
brief asserts, and the court permissibly credited Heathcott’s testimony that he first arrived
in Alaska in 1999.
-4- 6750
from skiing. Heathcott seemed confused by these questions, and generally testified that
he did not know what she was talking about.
Greenway testified on her own behalf and introduced 78 exhibits, all of
which were admitted into evidence. She stated that Heathcott had left her with six boxes
of documents, some of which she thought supported her claims. Many of the documents
and much of her testimony seem to concern events, such as an encounter with police in
which she was injured, that had no obvious relevance to establishing Heathcott’s liability
on the claims being tried. The superior court often interrupted her testimony to ask
questions in attempts to determine what she meant, or the significance of various
documents. Greenway testified that in 1991 Rhonda Jasek, Heathcott’s former girlfriend,
had started “becoming [Greenway].” Greenway seemed to contend that Richard Kibby
had been given a power of attorney to act for Greenway in 1994-95, had been (in the
court’s summarizing words) in “cahoots” with Heathcott, and had made Heathcott
Greenway’s fiduciary. She also seemed to contend that many of her exhibits were
documents Heathcott could not or would not have possessed unless he had been trying
to steal her identity. She seemed to believe that, in an attempt to intimidate her, he had
left them for her to find when he left Alaska in 2005.
Greenway introduced into evidence a sheet of thumbnail-sized photographs
and asserted that they depicted her. She argues on appeal that the judge then made
comments that demonstrate judicial bias or the appearance of bias.
Greenway interrupted her own testimony to present the telephonic
testimony of Carl Bauman. He is a superior court judge who explained that he was
testifying under subpoena in his private capacity and not as a judge. He explained that
he was then in a relationship with Greenway. He testified that his current law clerk was
Jeremy Collier, that Collier had known Greenway and her son for many years, that
Collier had “indicated that he would represent” Greenway in the future, but that Bauman
-5- 6750
had not encouraged Collier to represent her. Bauman testified that he believed
Greenway’s difficulty in opening bank accounts may have resulted at least in part from
identity theft issues, but that he had no personal knowledge of who may have stolen her
identity and no independent knowledge Heathcott was responsible for the theft.
When Greenway resumed her testimony, she introduced documents, such
as telephone bills and medical records, to support her claim of identity theft. For
example, she introduced a medical record of a test that she claimed had been conducted
in Texas, where she had never lived. The superior court pointed out that the document
showed that the test had been conducted in Alaska, but had been sent for evaluation to
a laboratory in Texas. She also introduced a document describing a student loan for her
son and bearing the date of “1998,” before her son had begun college. The superior
court remarked that it appeared “1998” was on the document because that was the
effective date of the interest rate, not necessarily the date of the loan.
Toward the end of trial, when Greenway asked about affidavits she had
gathered, the court told her it would not accept affidavits in lieu of testimony. She argues
on appeal that the court abused its discretion by failing to tell her the witnesses could
testify telephonically, and that the episode demonstrates judicial bias or the appearance
of bias.
Late in the trial, the court asked Greenway which exhibits most clearly
supported her claims and whether she thought there was one document (a “smoking
gun”) that proved her claims, or whether she considered a combination of things and
documents proved her claims. She argues here that these questions demonstrate bias or
the appearance of bias.
Heathcott testified again, on his own behalf. He denied stealing
Greenway’s identity, talking with Rhonda Jasek after she left Alaska in 2000, or being
in Alaska when many of the incidents of supposed identity theft occurred. He stated that
-6- 6750
Greenway had accused him of being a member of Al Qaeda, having a secret Russian
bride, and sending subliminal messages from his computer to her television. When the
court asked her about this, Greenway confirmed that she still thought Heathcott was
sending subliminal messages to her television.
Three days after trial ended, the court issued written fact findings and legal
conclusions rejecting Greenway’s claims, including her identity theft and fraud claims.
The court concluded that Greenway had not met her burden of showing fraud or identity
theft. We set out in an appendix some of the findings and conclusions most pertinent to
this appeal.
Greenway appeals.
III. STANDARD OF REVIEW
We “will not disturb a trial court’s refusal to grant a continuance unless an
abuse of discretion is demonstrated. An abuse of discretion exists when a party has been
deprived of a substantial right or seriously prejudiced by the lower court’s ruling.”3 We
consider “the particular facts and circumstances of each individual case to determine
whether the denial was so unreasonable or so prejudicial as to amount to an abuse of
discretion.” 4 We review for abuse of discretion “decisions about guidance to a pro se
litigant, and decisions about the admissibility of evidence.”5 We also review denial of
a motion to disqualify a judge for abuse of discretion.6
It is not obvious what standard of review applies to an appellate claim that
a trial court was biased, if the trial court had no opportunity — such as by motion for
3
Azimi v. Johns, 254 P.3d 1054, 1059 (Alaska 2011) (quoting House v.
House, 779 P.2d 1204, 1206 (Alaska 1989)).
4
Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 183 (Alaska 2009).
5
Shooshanian v. Dire, 237 P.3d 618, 622 (Alaska 2010).
6
Wasserman v. Bartholomew, 38 P.3d 1162, 1170 (Alaska 2002).
-7- 6750
recusal, disqualification, or new trial — to resolve a claim of judicial bias. The apparent
choices seem to be de novo review and abuse of discretion review.7 But the choice is
irrelevant here, because we would reach the same conclusion under either standard.
IV. ANALYSIS
A. Was There Judicial Bias Or An Appearance Of Judicial Bias?
In what appear to be claims of actual bias, Greenway argues that the trial
judge was biased against her and “acted as defense counsel for Mr. Heathcott, elevating
the court’s and Mr. Heathcott’s agendas over that of Ms. Greenway.” She argues that
“the judge’s demeanor, tone, and words” demonstrate bias.
Citing five incidents, Greenway also argues that the judge gave “the
appearance of bias” against her by giving her the impression “through his rulings, his
demeanor, and his tone” that he was “acting as [Heathcott’s] defense counsel.” She also
appears to argue that the trial judge should have disqualified himself sua sponte. She
asks for a new trial.
Greenway’s brief presents her bias arguments last. We address them first,
because judicial bias could moot an appellant’s other contentions, and because judicial
impartiality and the appearance of judicial impartiality are so important in our society.
It is not obvious what must be done to preserve for review a claim of
judicial bias, if, as here, there has been no motion for recusal, disqualification, or new
7
Greenway did not ask the trial court to rule on the issue of judicial bias, so
there is no ruling for us to review. In reviewing a trial court’s conduct, it would be odd
to apply the less-deferential de novo standard of review, rather than the abuse of
discretion standard, if an appellant raises no claim of bias in the trial court.
Phillips v. State, 271 P.3d 457, 459 (Alaska App. 2012), contains an
excellent discussion of the standard to be applied in reviewing denial of a recusal motion
when it is alleged the trial court should have been disqualified for an appearance of bias.
-8- 6750
trial alleging judicial bias or the appearance of bias.8 We assume, without deciding, the
bias issues Greenway raises are properly before us.
A judge must recuse himself or herself if there is bias.9 If the appearance
of bias is involved, we have held that the judge should give weight to preserving the
appearance of impartiality.10 The justifiable reasons for recusal due to bias are listed in
AS 22.20.020(a).11 We have held that even incorrect rulings against a party do not show
bias in and of themselves.12 Finally, if a party alleges the appearance of bias, a “greater
showing” is required for recusal.13
Alaska Code of Judicial Conduct Canon 3(E)(1) provides that if “the
judge’s impartiality might reasonably be questioned,” the judge “shall disqualify himself
or herself.” This requirement includes “instances where: (a) the judge has a personal bias
8
In Cook v. State, 36 P.3d 710, 726 (Alaska App. 2001), the court of appeals
rejected, as unpreserved, Cook’s claim that the trial judge had engaged in a continuing
course of conduct demonstrating apparent bias because that contention was not raised in
Cook’s unsuccessful motion for disqualification.
9
Amidon v. State, 604 P.2d 575, 577-78 (Alaska 1979) (holding that
AS 22.20.020(a) requires recusal if there is bias).
10
Id. (noting that AS 22.20.020 does not require recusal, but that the judge
should give weight to preserving the appearance of impartiality in light of provisions in
the Alaska Code of Judicial Conduct).
11
Jourdan v. Nationsbanc Mortg. Corp., 42 P.3d 1072, 1082 (Alaska 2002).
These reasons include, among other things, the judge being a party to the case, being
related to a party or the party’s attorney, being a material witness in the case, or having
a direct financial interest in the case. AS 22.20.020(a).
12
Id. (holding that even if an evidentiary ruling were to be held improper, the
ruling would not rise to the level of bias).
13
Lacher v. Lacher, 993 P.2d 413, 420-21 n.21 (Alaska 1999) (quoting Long
v. Long, 816 P.2d 145, 156 (Alaska 1991) (holding that a judge’s involvement in past
cases with negative outcomes for the appellant did not require recusal).
-9- 6750
or prejudice concerning a party . . . .” Greenway quotes Canon 3(B)(5) and its
commentary. They provide in pertinent part:
In the performance of judicial duties, a judge shall act
without bias or prejudice and shall not manifest, by words or
conduct, bias or prejudice based upon race, color, sex, . . .
disability, . . . or social or economic status. . . .
Commentary. — A judge must refrain from speech, gestures,
or other conduct that manifests bias or prejudice. . . .
A judge must perform judicial duties impartially and fairly.
A judge who manifests bias on any basis in a proceeding
impairs the fairness of the proceeding and brings the judiciary
into disrepute. Facial expression and body language, in
addition to oral communication, can give others an
appearance of judicial bias. A judge must be alert to avoid
behavior that may be perceived as an expression of prejudice.
We first reject any implicit argument that the judge should have recused
himself here. Greenway never asked for that relief, and there is no indication of any pre­
existing bias or prejudice that would have justified pretrial recusal. And, having
reviewed the trial proceedings and listened to the audio recording, we also conclude that
there is no indication of any bias or prejudice justifying recusal after trial began.
We now consider the five incidents that, according to Greenway,
demonstrate that the court acted, or appeared to be acting, as Heathcott’s “defense
counsel,” and that gave at least the appearance of bias against her.
1. Heathcott as Greenway’s witness
Greenway first asserts that when she called Heathcott as a witness during
her case-in-chief, the trial judge “interrupted and demanded” an explanation why
Heathcott had to testify at that point in the trial. We have listened to the audio recording
to assess Greenway’s arguments that the judge’s “demeanor, tone, and words”
demonstrate bias. This is the verbatim exchange when she called Heathcott as a witness:
-10- 6750
Judge Guidi: I think it would be more effective to let you —
I’m assuming, Mr. Heathcott, were you planning to take the
stand in this case?
Heathcott: Yeah on my own terms, basically.
Judge Guidi: Then — then I think that the app — then what
I think I’d rather have you do is wait until Ms. — the rest of
— well, Ms. Greenway is there some reason he has to testify
now? Can you do him —
Greenway: It’s quite important before we go on to these
exhibits.
Immediately after Greenway stated that it was “quite important” that Heathcott then
testify, the court permitted Greenway to call Heathcott as her witness. Nothing in the
court’s “demeanor, tone, or words” during this exchange indicates actual bias or gives
an appearance of bias. Nor did the court appear to act as “defense counsel.”
It was not problematic that the court, on its own initiative, asked whether
it was better for Heathcott to testify only once, later in the trial. Both parties were pro
se, and the exchange took place about half an hour after trial began. By then, Greenway
had demonstrated her difficulty in adducing relevant evidence. The court might have
permissibly concluded that it would help the parties, and the court as the trier of fact, if
the court were to help guide the efficient presentation of evidence.
2. Witness affidavits
Greenway next argues that the trial judge objected “on his own volition”
to her witness affidavits; she also contends that his objection was contrary to “indications
by Judge Joannides that Ms. Greenway would be able to support her case with
affidavits.” In support, she cites the recording of the July 15, 2010 pretrial conference
conducted by Judge Joannides.
Nothing in the exchange at trial supports a claim of bias. When the trial
court, near the close of the trial day, said it was planning to close the evidence “today,”
-11- 6750
Greenway asked, “How about affidavits?” The court answered that “affidavits are
hearsay,” and explained the importance of cross-examination. The audio recording of
the court’s ruling, words, demeanor, and tone does not objectively permit a conclusion
that the court was biased, or appeared to be biased.
And nothing at the pretrial conference should have caused Greenway to
think she could present witness evidence by affidavit at trial. Judge Joannides did not
say expressly that Greenway could do so. Nor were her words “indications” such a
practice would be permitted at trial. The pretrial discussion of affidavits appears to have
concerned the pretrial exchange of documents and discovery and motion practice, not
how the parties could present witness testimony at trial. Greenway invokes no legal
theory, such as law of the case, to support a claim that any pretrial “indications”
prevented the trial judge from rejecting untrustworthy evidence.
Finally, it was not remarkable that the trier of fact rejected this
quintessentially hearsay and suspect evidence even absent an objection by Heathcott.14
Greenway did not argue any legal theory why the affidavits were admissible, nor does
14
See Vachon v. Pugliese, 931 P.2d 371, 381 (Alaska 1996) (citing 1 JOHN
W. STRONG , M C CORMICK ON EVIDENCE § 55, at 244 (4th ed. 1992)) (“It is not an abuse
of discretion for a judge to make sua sponte evidentiary rulings under certain
circumstances . . . . Hearsay objections go to the competence of the ev idence, are not
mere technical exclusions, and therefore are within the discretionary power of the judge
to exclude if justice requires.”).
-12- 6750
she on appeal.15 Moreover, both parties were pro se. It was not an abuse of discretion
to decline to accept affidavits in lieu of testimony subject to cross-examination.
3. Thumbnail photos
Greenway next refers to the exchange that occurred when she introduced
a proof sheet of thumbnail-sized photographs into evidence and testified that the images
depicted her. This is how her brief at page 23 describes the exchange: “[T]he judge
commented that Ms. Greenway looked like a man in a picture presented at trial, and then
sought confirmation of that opinion from Mr. Heathcott, to which both the judge and Mr.
Heathcott laughed.”
This description mischaracterizes the exchange. These are the court’s
actual words: “My question, Ma’am, is can you tell for sure that that’s your body in that
picture, because that seems to me — it looks like a male body.” The court did not state
at any time that “Ms. Greenway looked like a man” in that or any other picture. The
court was trying to determine whether, as she had testified, the image depicted her; the
court was clearly referring to the image, not to her, when it said “it looks like a male
body.”
And contrary to the assertion that “the judge and Mr. Heathcott laughed”
when the court commented about what the picture depicted, the only laughter audible to
us during this exchange was uttered by Greenway and another female; the recording
15
Greenway identifies no evidentiary rule that might have rendered the
affidavits admissible. They are not in the record and she has not described how many
there were, who made them, what they stated, or how they supported her claims. We
therefore could not say their rejection was either error or prejudicial. Because she does
not explain how she was prejudiced, there is no basis for reversal. Barton v. N. Slope
Borough Sch. Dist., 268 P.3d 346, 353 (Alaska 2012) (“When the trial court has
erroneously excluded evidence, a party must show that the error was harmful or
prejudicial before we will reverse.”).
-13- 6750
contains no audible laughter attributable to the judge or Heathcott. The court asked
Heathcott to look at the disputed image and say whether it seemed to depict a male’s
body, but it did not ask Heathcott to agree that Greenway “looked like a man,” as
Greenway’s brief suggests.
Greenway contends that she found the court’s remarks “distasteful,”
“demeaning,” and “sexist,” and it appears that she genuinely believed she had been
insulted. But having carefully listened to this exchange, we are convinced that her
subjective belief at trial was not objectively justified by what the judge actually said or
how he said it. When Greenway told the court she thought its comment was “insulting,”
the court patiently and calmly explained that “ma’am, I’m not trying to insult you.”
Considered in context of the identity question, the court’s comments do not seem
“sexist,” and the audio recording does not support the contention that the court and
Heathcott shared a private, distasteful joke at her expense. We detect no offensive
content or tone in what the court said. The audio recording establishes that the court
asked about the disputed image respectfully, and did not, in its words or tone, demean
her appearance.
Greenway’s testimony that these very small photos, including the disputed
image, were of her, made it relevant for the court to determine whether they actually
depicted her. The court described the proof sheet images as being only “one-half by one-
half inch.” The exhibits are not available to us, but the appellant’s claim of bias turns on
what she claims — erroneously — the judge said and how he said it.
4. “Smoking gun”
Greenway next argues that something the court said about her exhibits at
the close of her case demonstrates bias. Her brief at page 24 states that the court
“indicated . . . Ms. Greenway would need to show him a ‘smoking gun’ if she had it, or
rest her case.”
-14- 6750
Here is what the court actually said:
I just want to give you one more chance to tell me if — and
I hate to use this term, it’s such an overused term, but is there
a document — you’ve brought a whole box of [inaudible]
records — that you think is just an absolute smoking gun
proof that Mr. Heathcott stole your identity and was — or
was, you know, we’ll just stop there, that or is it just the
combination of little things and all these little doc — all these
other documents adding up, and that’s the conclusion you
want me to draw from it?
Appellant’s brief misdescribes the court’s actual words and the court’s
objectively apparent purpose. The court was giving Greenway an opportunity to specify
which of her many documents most clearly supported her claims. It was also asking
whether she thought there was one document that proved her claims, or whether she
thought a combination of things and documents proved her claims. The court’s words
made it clear it would consider all her admitted exhibits and all the evidence, even if
there were no “smoking gun.” The court admitted all of Greenway’s exhibits and agreed
to consider them and it did not tell her she would have to either produce a “smoking gun”
or rest her case.
The court’s words implicitly expressed some doubt about the strength of
Greenway’s claims against Heathcott. Given the evidence, any such doubt would have
been both unremarkable and appropriate, and would not have indicated bias against
Greenway. The court’s inquiry came at the end of a long trial day during which
Greenway had failed to adduce evidence that Heathcott had harmed her. The inquiry
gave Greenway an additional opportunity to focus her case and emphasize her most
probative evidence.
-15- 6750
We conclude that the court’s words, tone, and demeanor during this
exchange do not objectively support an assertion that the court was biased against her
or gave a reasonable appearance of bias against her.
5. Continuance denial
Finally, Greenway contends that denying her a continuance shows bias.
She asserts that the court elevated the interests of the court and Heathcott above hers.
She also asserts that the court “insinuated” it knew better than she her proper trial tactic,
favoring Heathcott and harming “the unprepared” Greenway.
Nothing in the court’s rulings, words, demeanor, or tone in denying a
continuance or explaining its denial reflects bias, or an appearance of bias, against
Greenway. The court did not demonstrate bias when it noted the potential effect a
continuance might have on Heathcott and explained that a continuance might be
detrimental to Greenway. Party prejudice and judicial convenience are always
potentially relevant to a continuance motion.16 And there is no indication the court gave
unjustified importance to its own availability and convenience.17
In short, Greenway’s contentions of bias and the appearance of bias are
unwarranted. The audio recording instead demonstrates that the trial judge dealt
patiently, fairly, and courteously with both parties, and gave Greenway extra
16
Gottschalk v. State, 602 P.2d 448, 451 (Alaska 1979) (noting that denial of
a continuance was not an abuse of discretion when granting it would have
inconvenienced the court and at least one witness); see Green v. State, 544 P.2d 1018,
1023 (Alaska 1976) (“While blind adherence to the requirements of court calendaring
should never be used as an excuse to deny one accused of a serious crime the
fundamental right to organize his defense, there is a compelling public interest in the
prompt and orderly disposition of such matters.”).
17
For reasons we discuss in Part IV.B, the trial court did not err by failing to
continue the trial.
-16- 6750
opportunities to explain her claims and address the court’s reservations about her
evidence.
B. Was It An Abuse Of Discretion Not To Grant Greenway Another
Continuance?
Greenway filed suit in September 2007. Trial was originally set for January
2009, but was rescheduled or continued several times upon requests by both parties.18
It was re-set for a two-day trial in July 2009 and then, after Greenway filed a request
citing her health and her need to get legal assistance, rescheduled for February 2010.
(She nonetheless remained self-represented after April 2009.) At the July 15, 2010
pretrial conference, Judge Joannides rescheduled trial for April 18, 2011; the order
stated, “The trial will last [three] trial days.” Judge Joannides told the parties: “I have
you set for three mornings.”
Greenway advances three arguments in contending that it was an abuse of
discretion not to grant her an additional continuance.
1. Continuance so Greenway could retain a particular attorney
Greenway first argues that the court should have granted her request for a
three-month continuance, “at least until September,” so “her chosen attorney” could
represent her. The only motion seeking that relief was her April 15, 2011 motion, filed,
and denied, three days before trial was to begin.19
That motion described Greenway’s personal and medical history,
indigency, and emotional state and argued that the absence of counsel would compromise
18
In denying Greenway’s April 6, 2011 continuance motion, the court noted
that she “has previously been granted two continuances of trial as well as continuances
on other matters.”
19
Counsel other than Greenway’s present lawyer made limited appearances
for Greenway in filing the April 6 and April 15 continuance motions.
-17- 6750
her “right to a fair trial on a level playing field.”20 It asserted that Jeremy Collier, a
recent Alaska Bar admittee and friend of her son, had said he would represent Greenway
“after he becomes available in mid August, 2011.” It asked that trial be continued “at
least until September [2011].” Greenway moved for expedited consideration, but did not
request oral argument or ask the court to personally assess her ability to represent herself.
The court entered a short written order denying the April 15 motion the
same day it was filed, thus giving it the expedited consideration Greenway requested.
Trial was held on April 18, 2011, as scheduled. After hearing the trial evidence, the
court explained the continuance denial both orally and in writing. Appendix A includes
its written explanation.
“[A] party who seeks to continue a case for trial must show that he acted
with due diligence upon the grounds for which continuance is sought.”21 There is no
general right to counsel in civil cases under the United States or Alaska Constitutions,
and Greenway had no constitutional right to counsel in this case.22 A continuance for the
20
The April 15 motion requested reconsideration of Greenway’s April 6
continuance motion, and argued that the court had “overlooked or misconceived”
material facts about Greenway’s inability to proceed pro se. But the April 15 motion
alleged numerous new facts and did not reassert the only continuance ground — her
sister’s illness — raised by the April 6 motion. It was therefore deficient as a motion for
reconsideration. Alaska R. Civ. P. 77(k)(2); Miller v. Miller, 890 P.2d 574, 576 n.2
(Alaska 1995) (holding that a dispute over parental responsibility cannot be raised for
the first time in a motion for reconsideration). Rather than decide whether the court
should have reconsidered the April 6 motion, we decide whether it should have granted
the April 15 request for a continuance. Greenway does not argue that a continuance was
required for the only reason raised in her April 6 motion.
21
Azimi v. Johns, 254 P.3d 1054, 1061 (Alaska 2011) (quoting Sparks v.
Gustafson, 750 P.2d 338, 341 (Alaska 1988)).
22
Id.-18- 6750
purpose of finding and obtaining counsel requires a showing of diligence.23 When, as
here, a party seeks a continuance so a particular lawyer can represent her in the future,
the trial court must weigh various, often circumstantial, considerations, including the
diligence of the moving party.24 In arguing that the court erred, Greenway emphasizes
the complexity of her claims, her limited ability to represent herself, and the absence of
prejudice to Heathcott.
The April 15 motion sought a continuance so a particular lawyer who was
then unavailable could represent Greenway. It did not explain why it was being made
on the eve of trial, when the lawyer first expressed willingness to represent Greenway,
or whether this was a new development. All the other circumstances asserted —
Greenway’s long history of hardship, trauma, and tragedy, and the fact she had no lawyer
— could have been raised in ample time before trial to prevent undue delay or possible
inconvenience or prejudice to Heathcott. As of April 15 the lawsuit was more than three
and a half years old.
23
See Taylor v. Gill St. Invs., 743 P.2d 345, 349 (Alaska 1987) (“A party is
not automatically entitled to a continuance when counsel withdraws, especially if the
party is not free from fault or does not use due diligence to obtain substitute counsel.”
(citing Barrett v. Gagnon, 516 P.2d 1202, 1203 (Alaska 1973))).
24
See Azimi, 254 P.3d at 1061 (“We are mindful that it is difficult for lay
persons to represent themselves in court, but the superior court was correct to consider
that Johns was also entitled to his day in court and that the case had already been stayed
for six months at Azimi’s request.”). Cf. Gregoire v. Nat’l Bank of Alaska, 413 P.2d 27,
32-33 (Alaska 1966) (holding that it was not an abuse of discretion to deny a 30-day
continuance so identified counsel could represent the moving party at trial, where the
movant had agreed to the withdrawal of other counsel shortly before trial).
-19- 6750
The motion was procedurally and substantively deficient. It was not
supported by affidavit, as Civil Rule 40(e)(2) requires.25 Its unsworn assertions that
Greenway could not effectively represent herself were not supported by any assessment
of a third person, such as a physician, counselor, or friend. The motion did not describe
Greenway’s past efforts to obtain replacement counsel after her prior lawyer had been
allowed to withdraw on April 8, 2009, two years before the scheduled trial. The motion
simply asserted that her “previous hopes to obtain an attorney have not panned out.” It
therefore failed to establish her diligence in finding replacement counsel. The motion
was unsupported by any direct representation by Collier that he would represent
Greenway — an omission that might explain why the court’s post-trial explanation noted
the “possibility . . . Collier may ultimately choose not to” represent Greenway. The
motion did not describe Greenway’s diligence in preparing for a pro se trial, although she
had had ample time to prosecute her case since its inception and since the withdrawal of
her lawyer two years before.
Additional facts came out at trial, three days after the motion was denied.
There was testimony Collier was then a judicial law clerk, had known Greenway’s
family for many years, and had told his judge he was willing to represent Greenway after
25
Continuance motions “must be supported by the affidavit of the applicant
setting forth all reasons for the continuance.” Alaska R. Civ. P. 40(e)(2). The motion
was not sworn or verified by Greenway, and was not accompanied by an affidavit from
herself or anyone else, including Collier. She cosigned the motion and stated, “[T]he
statements are mine . . . and are true,” but that statement did not make the motion an
affidavit and did not satisfy alternative standards applicable when a notary is unavailable,
in part because the motion did not state that it was certified “under penalty of perjury.”
AS 09.63.020(a). Cf. Bennett v. Weimar, 975 P.2d 691, 695 n.10 (Alaska 1999) (holding
that the trial court was correct to not consider a plaintiff’s response to a summary
judgment motion because the response was not notarized and did not meet the
requirements of AS 09.63.020(a)).
-20- 6750
his clerkship ended in August. But Collier did not testify or otherwise confirm his
willingness to represent Greenway. And although her difficulty in presenting a coherent
case against Heathcott became evident after trial began, that circumstance did not require
sua sponte reconsideration of the April 15 motion. Never after April 15 did Greenway
renew her motion for a continuance so Collier could represent her.
Greenway made occasional comments at trial about the difficulty she had
preparing and representing herself, but she did not again ask the court to continue the
trial. She also commented after trial began that she had “wanted to wait until September
to continue this,” but this comment communicated no renewal of her April 15
continuance request. She has not argued that the court abused its discretion by failing
to grant, sua sponte, a three-month continuance that she did not again request after her
April 15 motion was denied.
We first conclude that the superior court did not abuse its discretion by
denying the April 15 continuance motion as it was presented. Although Greenway
focuses on the future availability of the particular attorney, she failed to demonstrate
diligence in trying to replace prior counsel, who had withdrawn two years before trial.
The apparently recent development that a particular lawyer would represent her in the
future did not render irrelevant all other pertinent considerations, such as her diligence,
the total delay likely, and potential prejudice. The information conveyed by the motion
justified the court’s factual finding (as expressed later orally and in writing) that granting
the requested continuance would cause a very long additional delay. Greenway does not
argue that the court erred in so finding. That additional delay would have made the case
five years old before it could be tried.
Our conclusion is also confirmed by the relevant trial evidence, most of
which the trial court discussed in its oral and written explanations for the denial. Its
explanations discussed Kibby’s fading memory and failing health and potential loss of
-21- 6750
evidence, the possibility Kibby and other witnesses may not be around, the staleness of
events that “occurred up to 17 years ago,” Greenway’s prior continuances, and the
“possibility . . . Collier may ultimately choose not to engage himself to Ms. Greenway’s
service.” The court found that if it had granted the requested continuance, “it is clear that
trial would have to be continued for at least another year in order to allow counsel to re­
open discovery.” As the court recognized, whatever discovery there had been was
unlikely to satisfy new counsel. And we observe that co-defendant Rhonda Jasek, who
had allegedly stolen Greenway’s identity or defrauded Greenway with Heathcott’s help,
had never even been served. After noting that the law clerk was not an experienced
lawyer, the court orally explained that “even an experienced attorney from the time they
started a case like this would need probably a year in the [indiscernible] to get this case
ready.”26 The court also orally observed that Heathcott was entitled to finality.
Greenway argues that a continuance would not have prejudiced Heathcott. (She asserts
he would have incurred no additional legal fees or travel expenses because he was
unrepresented and because, even though he lived in Texas, he periodically flew through
Anchorage to work.) But the trial court justifiably thought a continuance would have
caused substantial further delay, likely into the fall of 2012, and would have significantly
delayed the end of the lawsuit, and thus Heathcott’s repose. Even as early as the July
2010 pretrial conference, Heathcott had expressed frustration that the lawsuit was then
lingering on, that he did not understand the basis of the claims against him, and that he
considered the lawsuit “malicious and frivolous.”
In the abstract, given the general value of having trial counsel, we assume
that courts would be reluctant to deny a well-supported motion for a continuance so an
26
The law clerk was prohibited from representing Greenway, or even
preparing to do so, until after his clerkship ended in mid-August. Alaska Admin. R. 2(d).
-22- 6750
identified lawyer could represent the moving party at trial. But that consideration would
not render irrelevant other pertinent circumstances, such as party prejudice, undue delay
of trial, or lack of diligence. That is the situation here.
Finally, neither in the superior court nor on appeal has Greenway addressed
how counsel might have altered the outcome. She has not discussed how the outcome
might have been different in a case the trial court found, after reviewing the evidence,
to have no merit. Her relative disorganization did not prevent the admission of all the
exhibits she offered, and it is apparent the trial court considered them. We acknowledge
the difficulty of demonstrating on appeal how a lawyer would have helped at trial, given
the theoretical possibility Greenway’s lack of counsel kept her from doing the very
things that might demonstrate prejudice. But that difficulty does not excuse her from at
least addressing how lack of trial counsel now prevents her from showing prejudice.27
We conclude that the court did not abuse its discretion by denying the April
15 motion.
2. Continuance to obtain Agent Clapper’s evidence
When trial commenced, the court granted the United States’s motion to
quash Greenway’s subpoena for FBI Agent Clapper. Greenway had intended to call him
to support her identity theft claim. She asserted that he was investigating that claim and
had relevant information.
Greenway does not argue that it was error to quash the subpoena. Her brief
instead asserts that the court should have granted “the requested continuance” of
27
To show an abuse of discretion in denying a continuance, a party must
show the party was deprived of “a substantial right” or was “seriously prejudiced” by the
denial. Ben M. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 204
P.3d 1013, 1018-19 (Alaska 2009) (declining to reverse on the basis of a denied
continuance, noting that the appellant had failed to show how a recently appointed
attorney had prejudiced him).
-23- 6750
unspecified duration so she could attempt to satisfy the government’s requirements to
obtain the agent’s testimony. Her brief also contends that her “repeated exclamations
that she needed Agent Clapper to prove her case” should have demonstrated the
necessity of granting her “requested continuance.” Her brief concludes that the “denial
of the requested continuance” prejudiced her because Agent Clapper had documents and
testimony “crucial” to her case.
The record contains no formal continuance request, written or oral,
pertinent to Agent Clapper. We must therefore decide whether her words conveyed an
informal request that should have put the court on notice that it needed to decide whether
to “extend” or “continue” the trial so Agent Clapper’s presence might be obtained.
Greenway was pro se, and did not effectively represent herself. But there
was nothing inherently complex about asking the court for time to secure Agent
Clapper’s evidence, if Greenway desired that relief. Nor was there anything inherently
complex about telling the court what documents she had given Agent Clapper and how
they supported her claims against Heathcott. Doing so also would have helped the court
realize she was asking for relief and would have helped it assess the importance of any
such request.28 Likewise, when the court informed the parties it hoped to close the
28
Although she generally argued below that documents she had given Agent
Clapper were critical to her claims, she did not describe the documents in a way that
would have allowed the court to appreciate their relevance or potential admissibility, nor
does she do so on appeal.
She also did not tell the trial court that she expected to follow the procedure
outlined by the Assistant U.S. Attorney to get Agent Clapper’s testimony. The record
does not indicate how long that procedure might have taken, but it required a written
request that had to be evaluated by several individuals. The trial court interpreted the
comments of the government as indicating the government did not want Agent Clapper
to testify.
-24- 6750
evidence that day, it would have been simple for Greenway to ask the court to allow
Agent Clapper to testify in the future, if that is what she wished.
Neither her actual words nor the tenor of her comments put the court on
notice that Greenway was asking for relief, rather than expressing disappointment. Her
expressions of concern about her case, and of the importance of Agent Clapper, were not
the equivalent of an informal continuance request. We therefore conclude that she did
not request, even informally, a continuance for this purpose.
Because Greenway did not ask for a continuance so Agent Clapper could
testify, the court had no opportunity to ask for Heathcott’s response, to weigh the
pertinent factors after hearing from both parties and considering whether relief was
appropriate, and if it was, to fashion relief after weighing the parties’ interests.29 The
circumstances are not so self-evident that we can say that it was plain error not to grant
a continuance.30 And we decline here to make a discretionary assessment the trial court
was not asked to make.
29
Salazar v. State, 559 P.2d 66, 72 (Alaska 1976), lists factors a trial court
should consider when ruling on a request for a continuance to secure testimony:
(1) whether the testimony is material to the case; (2) whether
the testimony can be elicited from another source; (3)
whether the testimony is cumulative; (4) probability of
securing the absent witness in a reasonable time; (5) whether
the requesting party was diligent and acting in good faith; (6)
the inconvenience to the court and/or others; and (7) the
likelihood that the testimony would have affected the jury’s
verdict.
30
Cf. Merrill v. Faltin, 430 P.2d 913, 917 (Alaska 1967) (“[W]e shall
consider plain errors, even though not objected to below, which are so substantial as to
result in injustice.”).
-25- 6750
The leniency granted to pro se litigants did not excuse Greenway from
requesting, at least informally, a continuance so she could obtain Agent Clapper’s
testimony. Greenway was not unaware that she could request a continuance; she had
previously made four continuance requests, two of which were successful, and two of
which had been made in the past 12 days.
Greenway’s argument here rests on her assertion that she asked for a
continuance to obtain Agent Clapper’s evidence. She does not contend that the court
abused its discretion by failing to grant a continuance she did not request. Because she
did not ask for a continuance with regard to Agent Clapper, there is no basis for
considering whether the court abused its discretion.
3. One-day continuance to prepare case for trial
When trial began and the court announced that it “hope[d] to close the
evidence . . . today,” Greenway protested; she told the court that “you didn’t give me
much time at all,” that she had left at home trial resources she had intended to present at
trial the next day, and that her case was complex.
Greenway’s brief argues at pages 18 and 19 that it was an abuse of
discretion to “refuse” to grant “the alternative motion for a one-day continuance” to
permit her to prepare her exhibits and prepare for trial. But Greenway made no such
“alternative motion,” and the court did not “refuse” to grant any such unrequested
continuance. Greenway did not ask on April 18, even informally, for any continuance.
There was no continuance motion before the court after April 15. The last continuance
motion was made and denied three days before trial began.
Greenway does not argue that a court must consider whether to grant sua
sponte an unrequested one-day continuance, even in a pro se case. She cites no authority
that would justify granting an unrequested one-day trial continuance, or that would
justify, much less require, reversal for failing to grant an unrequested continuance.
-26- 6750
In general, pro se litigants are granted considerable leeway with regard to
procedural requirements.31 In Pieper v. Musarra, the question was w hether a party had
preserved an issue on appeal.32 We noted that the procedural leeway given to pro se
litigants had to be balanced against concerns for judicial finality, judicial efficiency, and
fairness to the opposing party.33 A pro se’s procedural defects have been excused when
a deficiency results from “lack of familiarity with the rules.”34 But here appellant did
nothing that informed the trial court it should advise her how to accomplish something
she might have been attempting to do.35
Greenway’s brief alleges circumstances that might have been relevant to
an exercise of the trial court’s discretion had she requested a one-day continuance. For
example, she alleges that she was unable to effectively prepare or represent herself,36 that
31
See, e.g., Smith v. Sampson, 816 P.2d 902, 906-07 (Alaska 1991)
(considering pro se litigant’s due process claims despite his failure to argue them on
appeal).
32
Pieper v. Musarra, 956 P.2d 444, 446 (Alaska 1998).
33
Id.34
Wright v. Shorten, 964 P.2d 441, 444 (Alaska 1998) (internal quotation
marks and citation omitted) (holding that the superior court should have considered
Wright’s procedurally deficient letter to be an answer to a complaint, in part because the
letter stated that he did not know what he was supposed to do).
35
Judges have a duty to inform pro se litigants how to correct procedural
defects in what they are trying to accomplish, Breck v. Ulmer, 745 P.2d 66, 75 (Alaska
1987), but Greenway does not argue that the court breached any possible duty to inform
her that she needed to move for a one-day continuance. And her comments were not
sufficient to alert the court that she needed any guidance on how to correct any possible
procedural deficiency in something she was trying to do.
36 Her brief asserts that she was exhausted from reviewing exhibits and
preparing for trial, that she was in pain and on pain medication, and that Heathcott had
“systematically taunted and traumatized” her.
-27- 6750
a one-day delay would not have prejudiced Heathcott, that because trial was originally
scheduled for three days, it was inappropriate for the court to state that trial would only
last one day,37 that a one-day continuance would have allowed her to prepare her
exhibits, and that she had left trial resources at home in the expectation that trial would
last more than one day.38 But alleging these circumstances on appeal does not
demonstrate that the trial court abused its discretion by not granting an unrequested one-
day continuance. The failure to request relief in the trial court presumptively precludes
appellate review; a meaningful request would have allowed the trial court to hear from
both sides, learn the relevant facts, and exercise its discretion after weighing the parties’
needs.
C. Was It An Abuse Of Discretion Not To Tell Greenway She Could Call
Witnesses Telephonically?
Greenway argues that after it rejected her witness affidavits, the court
should have informed her she could call those witnesses telephonically.
37
The scheduling order did not guarantee three trial days, or even a second
trial day, if there was no more relevant evidence to present. The order granted each party
“1.5 trial days.” And Judge Joannides told the parties that the trial was set for “three
mornings.” Trial began at 8:42 a.m. and ended at 4:55 p.m.; it thus lasted 6.5 hours, not
including breaks. Heathcott took only about 21 minutes of trial time to present his direct
evidence.
38
The case was tried in Anchorage. Greenway resided in the Kenai Peninsula
Borough. As far as we can determine from the audio recording, Greenway did not
describe the “trial resources” she left at home or explain their bearing on her claims.
Even if she had made a formal continuance request, the court would not have been
justified in granting it for the “trial resources” reason absent any showing how her case
would be harmed by not having those materials at trial.
-28- 6750
Even though pro se litigants are granted considerable leeway with regard
to procedural requirements,39 we observed in Bauman v. State, Division of Family &
Youth Services that “[c]ourts should not save a litigant from his choice of lawyer,
including when a litigant chooses himself as legal representative.”40 We also stated that
informing a pro se litigant of the need to do something (there, file a responsive affidavit)
would require the court to become too involved in the litigant’s case and that “[t]his
open-ended participation by the court would be difficult to contain.”41
Here, Greenway had already presented telephonic witness testimony earlier
in the trial. She did not need to be told of a procedure she had so recently followed. We
conclude that the court did not abuse its discretion by failing to inform Greenway that
she could present witness testimony telephonically.
We also observe that the court often asked Greenway to clarify her
testimony or to tie proffered evidence to her claims against Heathcott. It did so in an
appropriate manner that should have helped Greenway understand and address the
court’s possible reservations about her evidence and her claims. In closing remarks, the
superior court noted, “I had two choices: — I could either sit here and smile politely at
you and nod my head and look like I understood what you were talking about or I could
basically tell you that I didn’t understand what you were talking about at times and ask
you questions on it.” The record reveals that the trial court frequently went out of its
way to help this pro se litigant focus her case and introduce relevant evidence. It was not
required to do more.
39
See supra note 31.
40
768 P.2d 1097, 1099 (Alaska 1989).
41
Id.-29­ 6750
Greenway also argues that the court should not have told her the affidavits
were inadmissible absent objection from Heathcott, and that Judge Joannides had
suggested at the pretrial hearing that Greenway would be allowed to introduce the
affidavits at trial. We discussed the affidavits and the relevance of the pretrial hearing
in Part IV.A.2. We concluded there that the trial court did not abuse its discretion by
rejecting the affidavits, and that Greenway’s failure to demonstrate how she was
prejudiced by their rejection also forecloses reversal.
V. CONCLUSION
For these reasons, we AFFIRM the judgment of the superior court.
-30- 6750
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT ANCHORAGE
SIMONE K. GREENWAY, )
)
Plaintiff, )
)
v. )
)
LARRY D. HEATHCOTT, et al., )
)
Defendants. )
) Case No. 3AN-07-10280 CI
TRIAL ORDERS
The parties appeared before the Court on April 18, 2011 for trial. Both
were self-represented. The Court now enters the following orders:
I. MOTION FOR CONTINUANCE
At the start of trial Ms. Greenway, renewed her motion for a continuance.
The motion was denied for the reasons stated on the record, as again summarized in the
Court’s comments at the close of the evidence. The reasons include the following:
(1) This action was filed in 2007 and plaintiff has already been granted two trial
continuances; (2) plaintiff relies on testimony about events that occurred up to 17 years
ago and which have already dimmed appreciably in the memory of the testimony of her
witnesses, such as Richard Kibby, and (3) there is a significant risk of losing further
evidence if trial is again delayed if the health of witnesses (such as Mr. Kibby) declines.
Ms. Greenway and her significant other, Carl Bauman, testified that she expected to have
the assistance of counsel at the end of August of this year, and she urges a delay until
Appendix A – 1 of 5 6750
then. They testified that a superior court law clerk in Kenai, Jeremy Collier, who is a
long-time friend of Ms. Greenway’s family, wishes to take on Ms. Greenway’s case after
his clerkship expires in August.1 The Court cannot discount the possibility that upon
becoming more familiar with the facts of the case, regardless of his present intentions,
Mr. Collier may ultimately choose not to engage himself to Ms. Greenway’s service.
Beyond that problem, if the Court were to grant Ms. Greenway’s request to allow for her
retention of counsel in August, it is clear that trial would have to be continued for at least
another year in order to allow counsel to re-open discovery. For all of these reasons, the
Court does not find good cause for the continuance requested by Ms. Greenway.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Based on the testimony and exhibits presented at trial, the Court makes the
following findings and determinations:
Findings of Fact
. . . .
8. Ms. Greenway testified that even though she did not meet or have
any contact with Mr. Heathcott until October 1999, Mr. Heathcott and Ms. Jasek began
conspiring from Texas, as early as 1991, to steal her identity. As Ms. Greenway puts it,
she believes that Rhonda Jasek “was becoming her,” i.e., Ms. Greenway, years before
Ms. Greenway and Mr. Heathcott actually encountered one another.
....
14. Ms. Greenway’s pleadings allege an implied contract with Mr.
Heathcott that they would share a permanent domestic partnership, and on that basis she
seeks an equitable division of the property accumulated during their relationship. She
1
Attorney Alexander Schutz, recently entered an appearance for Ms.
Greenway that was limited to moving for a continuance.
Appendix A – 2 of 5 6750
also claims that he made promises to take care of her for the rest of her life. Mr.
Heathcott denies she is due anything and responds that if any property division is
warranted, it should favor him because he paid the mortgage on their home for years,
supported Ms. Greenway when she stopped working, and left her vehicles and other
property for which she has never paid. Mr. Heathcott has not filed a counterclaim, but
he did present evidence at trial of the value of contributions he made to the home, to Ms.
Greenway and evidence of the value of property he left with her.
15. Ms. Greenway focused the entirety of her energy at trial on
attempting to prove claims that Mr. Heathcott was her fiduciary and participated in a
scheme to steal her identity and defraud her. Among other things, she alleged that,
before he even met her, he somehow appropriated her tax refunds and took out student
loans in the name of the children. Mr. Heathcott insists he never knew of Ms. Greenway
until they met. He denies he ever lived in Alaska prior to 1999. He denies that he has
ever attempted to steal Ms. Greenway’s tax refunds or identity, or conspire with Rhonda
Jasek to do so. He further denies that he has ever been Ms. Greenway’s “fiduciary” or
held a power of attorney over her affairs. He denies all of her charges of fraud and
misrepresentation.
16. The parties admit they never held each other out as husband and
wife. The parties filed separate tax returns. The parties did not jointly own the house at
975 Plymouth Circle; title was solely in Ms. Greenway’s name. There is no evidence
they held joint title to any of the motor vehicles. The parties had no children together
and did not participate in a joint business. There was evidence that Mr. Heathcott
contributed to the improvement and expense of the home. Mr. Heathcott had a separate
bank account but also set up a joint bank account with Ms. Greenway only so that he
could, on occasion, transfer funds to her while he was on the North Slope. Mr. Heathcott
Appendix A – 3 of 5 6750
testified that he transferred funds to Ms. Greenway for a couple of months after he left
Alaska “just to try to help her get on her feet.”
17. Neither party presented any evidence that they had an express or
written agreement that they would live together indefinitely and share in the fruits of
their relationship as though they were married. They did not present any evidence
concerning whether and how property accumulated during their cohabitation should be
redistributed, nor did they present any evidence that they had an expectation that it would
be.
Conclusions of Law
1. As the plaintiff, Ms. Greenway has the burden of proving by a
preponderance of the evidence her claims of domestic partnership, fraud,
misrepresentation, and breach of fiduciary relationship, including her claims that Mr.
Heathcott and/or Rhonda Jasek, stole and profited from her identity.
2. In Bishop v. Clark, 54 P.3d 804, 811 (Alaska 2002), the court
explained that “property accumulated during cohabitation should be divided by
determining the express or implied intent of the parties.” Quoting Wood v. Collins, 812
P.2d 951, 956 (Alaska 1991). The Bishop opinion offered the following guidance:
In determining the intent of cohabitating parties, courts
consider, among other factors, whether the parties have (1)
made joint financial arrangements, such as joint savings or
checking accounts, or jointly titled property; (2) filed joint
tax returns; (3) held themselves out as husband and wife; (4)
contributed to the payment of household expenses; (5)
contributed to the improvement and maintenance of the
disputed property; and (6) participated in a joint business
venture. Whether they have raised children together or
incurred joint debts is also important.
3. Insofar as Mr. Heathcott may seek an interest in the property in
Wasilla at 975 Plymouth Circle, he has the burden of presenting clear and convincing
Appendix A – 4 of 5 6750
evidence to controvert the express terms of title to the property. Callahan v. Dye, No.
S-11390/11440, 2006 WL 2667668, at *8 (Alaska June 14, 2006). He has not met that
burden.
4. At trial, Ms. Greenway did not present any evidence supporting her
claim of a domestic partnership, implied contract, or of express promises to provide
future support. The Court does not find sufficient evidence presented at trial to establish
any of these claims. Insofar as Mr. Heathcott claims Ms. Greenway owes him for any
of the property he left behind, the same conclusion applies. Indeed the parties’ own
testimony borders on a waiver of the domestic partnership claim.
5. Based on the evidence presented at trial, the Court d oes not find
sufficient evidence to establish Ms. Greenway’s remaining claims of fraud,
misrepresentation, and breach of fiduciary relationship, particularly her claims that Mr.
Heathcott and/or Rhonda Jasek, stole and profited from her identity. Ms. Greenway was
unable to provide a rational and coherent factual basis for her allegations concerning
stolen identity.4 The Court finds Mr. Heathcott to be a much more reliable reporter of
events. Based on the evidence presented, it is impossible for the Court to conclude that
Ms. Greenway’s identity was necessarily stolen, let alone that defendant was the culprit.
Accordingly, IT IS HEREBY ORDERED the Court will separately enter
judgment dismissing this action w ith prejudice, with costs to be awarded in defendant’s
favor.
ORDERED this 21st day of April, 2011, at Anchorage, Alaska.
/s/ Andrew Guidi
Superior Court Judge
4
The Court has considered the records submitted as exhibits and cannot find
they provide support for plaintiff’s claims.
Appendix A – 5 of 5 6750