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Kinnan v. Sitka Counseling

Supreme Court of Alaska

April 17, 2015

ARTHUR J. KINNAN, Appellant,

Appeal from the Superior Court of the State of Alaska No. 1SI-12-00216 CI, First Judicial District, Sitka, David V. George, Judge.

Arthur J. Kinnan, pro se, Sitka, Appellant.

Brian E. Hanson, Brian E. Hanson, LLC, Sitka, for Appellees.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.


BOLGER, Justice.


Arthur J. Kinnan lived in a three-bedroom residence as part of a substance abuse treatment program operated by Sitka Counseling. Funding for that program ended, and Sitka Counseling informed Kinnan that he would be required to vacate the residence. Kinnan filed suit against Sitka Counseling and two of its staff members, alleging several torts based on the defendants' conduct when removing him from the premises, violations of Alaska's Landlord Tenant Act, and deprivation of constitutional rights under 42 U.S.C. § 1983. After a bench trial, the superior court ruled in favor of Sitka Counseling on all claims.

Kinnan argues that the superior court wrongfully denied a continuance to allow him to seek counsel, wrongfully excluded the testimony of a late-disclosed witness and two affidavits, and improperly facilitated questioning regarding Kinnan's mental disability. We conclude that any error resulting from the exclusion of Kinnan's witness was harmless and we see no abuse of discretion in the superior court's denial of Kinnan's continuance, its exclusion of the affidavits as hearsay, or its consideration of Kinnan's mental disability. And we also reject Kinnan's argument that the superior court's adverse rulings created an appearance of judicial bias.


Sitka Counseling operated a substance abuse treatment program in a three-bedroom residence. Arthur J. Kinnan lived in the residence as part of this program, but Sitka Counseling terminated the program in September 2011, after program funding ended. On August 31, 2012, Sitka Counseling provided Kinnan written notice that he had ten days to vacate the residence. Kinnan vacated the residence on September 14, after visits to the residence from Michael McGuire, Sitka Counseling's executive director, and Eric Skousen, another staff member.

Kinnan then filed suit against Sitka Counseling, McGuire, and Skousen (collectively Sitka Counseling), alleging that McGuire and Skousen committed assault and battery in attempting to remove him from the residence. In particular Kinnan alleged that on September 10, 2012, McGuire entered the residence uninvited and stated "in an angry voice" while standing "very close" to Kinnan that because he had resigned from Sitka Counseling, "he was not bound by the ususal constraints of his professional relationship with . . . Kinnan and . . . intended to engage in physical combat." Kinnan further alleged that on September 14, Skousen "barged into" the residence and "took hold of the front of [Kinnan's] shirt, lifted [Kinnan] off the ground, shook [Kinnan] and told [Kinnan] that if [Kinnan] didn't leave the house immediately he would throw him to the floor, handcuff [Kinnan] and drag [Kinnan] out into the street and hurt him."

In addition to the assault and battery claims, Kinnan alleged negligent hiring and supervision; trespass to real estate; trespass to personal property; violations of the Landlord Tenant Act[1]; intentional infliction of emotional distress; violation of constitutional rights under 42 U.S.C. § 1983; and conspiracy to violate constitutional rights under 42 U.S.C. § 1983.

According to Sitka Counseling, Kinnan subsequently returned to the residence. Sitka Counseling allowed him to remain there but filed a forcible entry and detainer (FED) counterclaim, [2] seeking to regain possession of the residence.

A scheduling conference was held on February 5, 2013. Both Kinnan and his attorney, James McGowan, were present. The superior court then entered a pretrial order setting the trial for the week of October 28, 2013, and establishing various pretrial deadlines, including due dates for Alaska Civil Rule 26 disclosures and witness lists.

A hearing on the FED action was held on February 22, 2013. At the outset of the hearing, McGowan informed the superior court that Kinnan wished to "fire" him, and the court allowed McGowan to withdraw as counsel. Kinnan proceeded without counsel from this point forward. Following the FED hearing, the court ruled that Kinnan's occupancy of the residence was not covered by the Landlord Tenant Act and ordered Kinnan to peacefully vacate the residence by February 28, 2013.

As for Kinnan's suit, Sitka Counseling never received any initial disclosures from Kinnan nor any responses to its discovery requests in the months that followed.[3] Nor does it appear that Kinnan took any action or submitted any filings in his case until October 10, 2013, when he filed a witness list that was eight days late and included only his witnesses' names and addresses. On October 15 Kinnan filed a request for a continuance, citing his difficulty in retaining another attorney. He requested that the trial date be postponed until November 18, 2013.

A pretrial conference was held on October 17, 2013. The judge denied Kinnan's request for continuance and explained that the trial would be held as scheduled on October 28, 2013. The court also partially granted Sitka Counseling's request to exclude the witnesses on Kinnan's untimely witness list. The judge explained that Kinnan would be allowed to call himself, the other parties, and impeachment witnesses.

A bench trial on Kinnan's complaint was held on October 28, 2013. The superior court granted a directed verdict in Sitka Counseling's favor on Kinnan's Landlord Tenant Act claim, his trespass to personal property claim, and his ยง 1983 claims. At the conclusion of the trial, the court ruled that Kinnan failed to carry his burden of proof on his remaining claims: assault, battery, trespass to real property, negligent supervision and hiring, and intentional infliction of emotional distress. The court then dismissed Kinnan's complaint with prejudice. Kinnan appeals pro se, based on 1) the denial of his requested continuance, 2) the exclusion ...

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