FRANKLIN SCHUG v. JOE JOSEPHSON (2011)

MEMORANDUM OPINION AND JUDGMENT *

1. Franklin Schug claimed he was injured during a flight from Alaska to Arizona while in the custody of the State of Alaska, Department of Corrections.   Schug retained attorney Joe P. Josephson to represent him and sued the State.   After trial a jury returned a verdict in the State's favor.

2. Schug then sued Josephson pro se.   In July 2008 Josephson moved for summary judgment on all of Schug's claims.   The superior court gave Schug detailed instructions on how to oppose summary judgment and granted him two extensions of time to retain an expert attorney witness to contest Josephson's summary judgment motion.   After Schug failed to present evidence contradicting Josephson, the superior court granted summary judgment in Josephson's favor in March 2009.¹

3. No final judgment was entered after the grant of summary judgment.   Schug continued filing motions, seeking more time to respond to the summary judgment motion, reinstatement of his case, and court-ordered assistance of an expert attorney witness to allow him to oppose summary judgment.   The superior court denied those motions in July 2009, noting that it had “no authority to appoint or pay for an expert witness for a pro se indigent plaintiff.”   Schug then filed a reconsideration motion, which was denied by operation of Alaska Civil Rule 77(k)(4).²  Schug continued filing motions, including requests for a court-appointed expert witness under Alaska Evidence Rule 706.³  The superior court ultimately entered an April 2010 order advising Schug his case was dismissed as a result of the March 2009 summary judgment order.

4. Schug filed this pro se appeal soon after the superior court's April 2010 order.⁴  The two substantive points in Schug's statement of points on appeal refer to “Rule 706 allowing court appointed experts” and “Rule 28 court appoint[ed] expert witnesses.”   Schug's brief does not mention either Rule 706 or Rule 28;  the brief instead argues that Josephson committed professional malpractice while representing Schug during the earlier litigation against the State.

5. It appears that Schug's “Rule 28” reference is to Alaska Criminal Rule 28, which gives a trial court authority to appoint an independent expert witness in a criminal proceeding.   But the Alaska Criminal Rules do not apply to Schug's civil proceeding against Josephson.⁵  It appears that Schug's “Rule 706” reference is to Evidence Rule 706, which gives a trial court authority to appoint an independent expert witness in a civil proceeding.   But we have held, in a civil proceeding not implicating the constitutional right to counsel and related assistance, that Evidence Rule 706 is not a basis for a trial court to appoint an expert witness for an indigent party.⁶  Having resolved the two substantive points Schug actually raised notwithstanding his failure to brief them, we are left with an issue not raised in Schug's points on appeal but argued in his brief—whether Josephson committed professional malpractice while representing Schug in the earlier litigation against the State.   But the record reflects that:  (1) Josephson filed a summary judgment motion supported by admissible evidence;  (2) the superior court gave Schug detailed information on how to oppose the summary judgment motion and Schug had around seven months to present admissible evidence to contest the summary judgment motion;  and (3) Schug ultimately failed to contest the summary judgment motion with admissible evidence to create a genuine issue of material fact.   We therefore must conclude that the superior court did not err in granting summary judgment on Schug's claims against Josephson.

6. The superior court's decision is AFFIRMED.

FOOTNOTES

FN1. Cf. Ball v. Birch, Horton, Bittner & Cherot, 58 P.3d 481, 489–90 (Alaska 2002) (affirming grant of partial summary judgment against legal malpractice plaintiff who did not support claims with expert affidavits)..  FN1. Cf. Ball v. Birch, Horton, Bittner & Cherot, 58 P.3d 481, 489–90 (Alaska 2002) (affirming grant of partial summary judgment against legal malpractice plaintiff who did not support claims with expert affidavits).

FN2. Civil Rule 77(k)(4) provides that a reconsideration motion is deemed denied after 30 days in the absence of a contrary order from the court..  FN2. Civil Rule 77(k)(4) provides that a reconsideration motion is deemed denied after 30 days in the absence of a contrary order from the court.

FN3. Evidence Rule 706(a) allows a court sua sponte or on the motion of a party to appoint an independent expert witness, as opposed to an expert witness for one party's benefit..  FN3. Evidence Rule 706(a) allows a court sua sponte or on the motion of a party to appoint an independent expert witness, as opposed to an expert witness for one party's benefit.

FN4. We accept Schug's appeal as timely filed in light of the absence of an entry of final judgment and the superior court's April 2010 order advising Schug that his case was dismissed.   Cf. Alaska R. Civ. P. 58 (stating every judgment must be set forth on document separate from findings, conclusions, opinions, or memoranda)..  FN4. We accept Schug's appeal as timely filed in light of the absence of an entry of final judgment and the superior court's April 2010 order advising Schug that his case was dismissed.   Cf. Alaska R. Civ. P. 58 (stating every judgment must be set forth on document separate from findings, conclusions, opinions, or memoranda).

FN5. See Alaska R.Crim. P. 1 (restricting application of Alaska Criminal Rules to criminal proceedings)..  FN5. See Alaska R.Crim. P. 1 (restricting application of Alaska Criminal Rules to criminal proceedings).

FN6. Willoya v. State, 53 P.3d 1115, 1118, 1121–22 (Alaska 2002) (stating, in inmate's medical malpractice lawsuit, that Alaska R. Evid. 706 is a “procedural option for a judge when the issues ․ are unusually complex” but is “not intended as a means for an indigent party to obtain expert testimony at public expense”);  cf.   Alaska Admin.   R. 12(e)(1), 12(e)(5)(D)(ii) (relating to appointment of expert witnesses in cases implicating constitutional right to counsel)..  FN6. Willoya v. State, 53 P.3d 1115, 1118, 1121–22 (Alaska 2002) (stating, in inmate's medical malpractice lawsuit, that Alaska R. Evid. 706 is a “procedural option for a judge when the issues ․ are unusually complex” but is “not intended as a means for an indigent party to obtain expert testimony at public expense”);  cf.   Alaska Admin.   R. 12(e)(1), 12(e)(5)(D)(ii) (relating to appointment of expert witnesses in cases implicating constitutional right to counsel).