source: Caselaw Access Project

license: Public Domain

text:
    Karl POWERS and Andrea Powers, Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION and Northern Adjusters, Appellees.
    No. S-8776.
    Supreme Court of Alaska.
    Aug. 11, 2000.

      Michaela Kelley Canterbury, Kelley & Kelley, Anchorage, for Appellants.
    Daniel T. Quinn and Joyee Weaver Johnson, Richmond & Quinn, Anchorage, for Ap-pellees.
    Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I, INTRODUCTION

May an injured plaintiff who has successfully arbitrated an uninsured motorist claim against a primary carrier preclude a secondary carrier from further arbitration where the secondary carrier had neither adequate notice of the first arbitration nor any opportunity to participate in it? The trial court answered this question in the negative,. We agree and affirm.

II, FACTS AND PROCEEDINGS

Karl Roth Powers was injured in an automobile collision in December 1994 involving an uninsured driver, At the time, he was a passenger in a car insured by State Farm. The State Farm policy included uninsured/underinsured motorist (UM/UIM) coverage. Powers also had his own UM/UIM coverage with United Services Automobile Association (USAA).

State Farm had the primary obligation to pay any damages resulting from Powers's injury, up to the limit of its policy coverage, under the priority criteria set forth in AS 28.22.221. USAA was obligated to pay damages that exceeded those covered by State Farm, up to the limits of its coverage. Each policy contained an arbitration clause allowing either party to the insurance contract to demand arbitration of any disputes.

In June 1995 Powers and his wife Andrea demanded arbitration with State Farm over the issue of damages. Karl Powers sought compensation for medical expenses, loss of wages, pain and suffering, and loss of enjoyment of life. Andrea Powers sought compensation for loss of consortium. The Powerses did not make a similar demand upon USAA.

Ten months later, in April 1996, counsel for Karl Powers sent USAA's local representative, Northern Adjusters, a letter that stated:

Mr. Powers is arbitrating his damages case with State Farm. Northern Adjusters has secondary coverage for Mr. Powers. To the extent that Northern Adjusters is liable for excess, you are hereby advised of the Demand for Arbitration, and a copy is enclosed.

Unfortunately, this letter did not contain a copy of the demand for arbitration sent to State Farm; rather it contained an apparent demand for arbitration with Northern Adjusters.

Policy coverage and priorities. _... If a person is entitled to uninsured or underinsured motorist coverage under more than one policy providing motor vehicle liability coverage, payments will be made in the following order of priority, subject to the limit of liability of each applicable policy or coverage:
(1) a policy or coverage covering a motor vehicle occupied by the injured person ... as a named insured;
(2) a policy or coverage covering a motor vehicle occupied by the injured person as an insured other than a named insured;
(3) a policy or coverage not covering a motor vehicle occupied by the injured person but covering the injured person as a named insured....

Neither the letter nor the demand for arbitration invited USAA to participate in the State Farm arbitration, nor suggested that USAA seek to intervene. Northern Adjusters forwarded the letter and demand to USAA, and advised the Powerses' counsel to review the document demanding arbitration with Northern Adjusters as it contained errors. Counsel for the Powerses responded that while the demand "was poorly drafted . it was/is intended to advise USAA that the uninsured motorist case will be arbitrated, and USAA is responsible for any excess." USAA did not respond to the letter and took no action regarding the State Farm arbitration.

In October 1996 the arbitrators in the State Farm arbitration issued their Decision and Order. Together with an additional order issued in December, the award to the Powerses totaled $259,105.70, plus costs and arbiters' fees. State Farm paid the Powers-es its UM/UIM policy limit of $100,000 plus costs and fees for a total of $138,859.59. The Powerses then demanded that USAA pay its coverage limit of $100,000 to compensate for the excess damages not covered by State Farm. USAA responded that it was not bound by the State Farm arbitration and requested Powers's medical records for an independent evaluation. Ultimately, USAA disputed the amount of damages claimed by the Powerses and demanded separate arbitration.

The Powerses then filed suit against USAA seeking, among other things, enforcement against USAA of the arbitration award. The Powerses argued that USAA was collaterally estopped from re-litigating the issues decided in the State Farm arbitration. The Powerses also argued that USAA had waived its right to arbitrate damages. USAA sought an order compelling the Powerses to arbitrate their dispute with USAA and dismissing the case with prejudice.

The superior court found the parties' motions to be, "in essence, requests for summary judgment regarding their rights and obligations under the UIM policy." It then dismissed the Powerses' complaint, and granted USAA's motion to enforce the arbitration clause of the parties' insurance contract. The court held that USAA was not collaterally estopped from demanding arbitration because there was a lack of privity between State Farm and USAA. It further held that because neither the Powerses nor USAA "took any action to attempt a consolidation of arbitrations[,]" USAA did not waive its right to arbitration.

This appeal followed.

III. STANDARD OF REVIEW

In "reviewing a grant of summary judgment, [we} must determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment on the law applicable to the established facts." The applicability of estoppel principles to a particular set of facts is a legal question over which we exercise independent review.

IV, DISCUSSION

A. USAA Was Not Collaterally Estopped from Demanding Arbitration.

Collateral estoppel, or issue preclusion, prohibits a party from relitigating an issue where

(1) the party against whom the preclusion is employed was a party to or in privity with a party to the first action; (2) the issue precluded from relitigation is identical to the issue decided in the first action; (3) the issue was resolved in the first action by a final judgment on the merits; and (4) the determination of the issue was essential to the final judgment.

The Powerses argue that the superior court erred in holding that collateral estoppel did not preclude USAA from requiring a second arbitration of damages. This is so, the Powerses contend, because USAA had notice of the arbitration, USAA and State Farm's interests were identical, and USAA's interests were adequately protected by State Farm's participation. . USAA challenges these assertions, and argues that the superi- or court correctly concluded that USAA lacked the privity with State Farm necessary to be bound by the determination in the first arbitration. We agree.

1. Privity

USAA was not a party to the arbitration between the Powerses and State Farm. As noted above, a prior judgment will have a preclusive effect on a non-party only if the non-party was in privity with a party to the prior action. Accordingly, USAA can be bound by the prior Powerses-State Farm arbitration only if it was in privity with State Farm.

We have adopted the approach of the See-ond Restatement of Judgments to issues involving privity; it is an approach that "relies on the various specific relationships that justify preclusion."

According to the Restatement, a non-party may be bound by a determination in a prior action if the non-party (1) substantially participated in the control of a party's presentation in the adjudication or had an opportunity to do so; (2) agreed to be bound by the adjudication between the parties; or (8) was represented by a party in a capacity such as trustee, agent, or executor.

None of these prerequisites exists here. There is no evidence USAA participated in or controlled in any way State Farm's presentation in the arbitration, nor that USAA had any relationship with State Farm. To the contrary, the evidence indicates that USAA had no involvement in the arbitration, and had no contractual relationship with State Farm. In fact, the contract imposing lability on USAA-that between Powers and USAA-specifically stated that any judgment for damages arising out of a suit brought without USAA's consent is not binding upon USAA.

In addition, USAA and State Farm's interests, while similar, were not identical. USAA had no liability until State Farm's policy limit was exceeded. Furthermore, USAA's interest was markedly different in that it had no interest in defending against any amount under $100,000, while State Farm had no interest in defending against any amount over $100,000. As USAA points out, State Farm would have considerably less interest in appealing the final award than USAA, as even a substantial reduction would still result in State Farm paying its full limit.

In sum, it can hardly be said that USAA and State Farm's interests were identical, that State Farm protected USAA's interests, or that USAA had meaningful notice and an opportunity to be heard. USAA was aware of the arbitration, but that alone does not constitute a relationship justifying imposition of liability. The superior court correctly held that USAA was not collaterally estopped from demanding arbitration with the Powers-es because it lacked privity with State Farm.

2. Other collateral estoppel issues

USAA also argues that it cannot be collaterally estopped because the private arbitration between the Powerses and State Farm did not constitute an action, and because the resulting decision and order was not a "final judgment." Because we have concluded that there was no privity between State Farm and USAA and that USAA is therefore not collaterally estopped from demanding arbitration, we need not reach these issues.

B. USAA Did Not Waive Its Right to Demand Arbitration.

Alternatively, the Powerses argue that USAA waived its right to arbitrate this dispute by its "willful failure to participate in the subject arbitration." This argument lacks merit.

The superior court stated that "(there is much to commend adoption of a policy encouraging consolidated arbitration of claims arising out of the same auto accident" because it provides "prompt, inexpensive and final resolution of disputes." Nevertheless, the court held that because the contact between USAA and the Powerses' counsel prior to arbitration was minimal, and the Powerses did not demand that USAA participate in the State Farm arbitration, or make any effort to consolidate the arbitrations, USAA did not waive its right to arbitration. This reasoning is sound.

Waiver is an "express or implied voluntary and intentional relinquishment of a known or existing right." For a waiver to be implied from a party's conduct, that conduct "must be clear and unambiguous." In Atroulofski v. State," we established the requirements for implied waiver:

An implied waiver arises where the course of conduct pursued evidences an intention to waive a right, or is inconsistent with any other intention than a waiver, or where neglect to insist upon the right results in prejudice to another party. To prove an implied waiver of a legal right, there must be direct, unequivocal conduct indicating a purpose to abandon or waive the legal right....
Neglect to insist upon a right only results in an estoppel, or an implied waiver, when the neglect is such that it would convey a message to a reasonable person that the neglectful party would not in the future pursue the legal right in question. Even where neglect results in prejudice to another party, for an implied waiver to arise there must be direct, unequivocal conduct indicating a purpose to abandon the right.

Under the facts of this case, USAA cannot be said to have engaged in direct, unequivocal conduct that indicated its purpose to abandon its right to demand arbitration with the Powerses. Its failure to pursue intervention in the State Farm arbitration would not convey to a reasonable person that it would not pursue its right to arbitration in the future, for several reasons.

First, the notice the Powerses provided USAA did not invite USAA to participate in their arbitration with State Farm. Without such an invitation, USAA eannot be said to have refused to participate.

Second, following this notice, the Powerses took no action to join USAA, or seek consolidation of their claims against State Farm and USAA. As the superior court correctly noted, "[when an uninsured motorist is represented by counsel, the motorist ordinarily cannot claim that her insurer waived its right to arbitration unless the motorist herself makes some effort to enforce that right,"

Finally, it is not clear that USAA could have intervened had it so desired. The arbitration between the Powerses and State Farm was private, based upon a contract to which USAA was not a party. As previously indicated, the Powerses did not invite USAA to join. It does not appear that State Farm did either. State Farm's contract with the Powerses is not part of the record, so the question of whether or not USAA could have intervened based upon the contractual language providing for arbitration is beyond this court's review.

In Consolidated Pacific Engineering, Inc. v. Greater Anchorage Area Borough, we held that where an agreement to arbitrate is silent concerning consolidation, and one party objects, the court has no jurisdiction to order consolidation. Again, while no party in this case objected to consolidation, neither did either party invite USAA to participate. The Powerses imply that because there were not two arbitrations to consolidate, Consolidated Pacific Emgineering is inapposite. However, the Powerses did in fact send USAA a separate demand for arbitration with USAA. Thus, there were two demands for two separate arbitrations. In any case, even had the Powerses not sent USAA a demand for arbitration, the Powerses do not explain how USAA could have intervened, and the Alaska Uniform Arbitration Act provides no guidance.

In conclusion, USAA did not engage in conduct directly or unequivocally waiving its contractual right to arbitration. It was not on notice it would be bound by the arbitration between the Powerses and State Farm, it was not invited to participate, and it is not clear that USAA could have intervened on its own motion. The superior court's ruling that USAA did not waive its right to arbitration was correct.

V. CONCLUSION

Because USAA lacked privity with State Farm, it is not collaterally estopped from demanding arbitration of the Powerses' claim pursuant to its contract with the Powerses. Further, because USAA did not engage in direct and unequivocal conduct evincing an intention to waive its right to arbitration, it did not waive this right. Accordingly, we AFFIRM the decision of the superior court.

      . AS 28.22.221 states, in part:

      . Seeid.

      . USAA's policy stated in part:
      If we and a covered person do not agree:
      1. Whether that person is legally entitled to recover damages under this coverage; or
      2. As to the amount of damages;
      either party may make a written demand for arbitration....

      . The document enclosed by counsel is confusing. It begins with a sentence fragment:
      PLEASE TAKE NOTICE that the filing party, a party to an Insurance Policy providing for protection against loss due to personal injuries sustained in an accident involving an Uninsured Motorist which provides for arbitration thereunder.
      It then names, as the "Individual with whom claim was discussed," an adjuster for State Farm. Finally, under "claim number," it sets out the number of Karl Powers's contract with USAA.

      . Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995) (quoting Wright v. State, 824 P.2d 718, 720 (Alaska 1992)).

      . See Sever v. Alaska Pulp Corp., 931 P.2d 354, 359 n. 4 (Alaska 1996) (citing State v. United Cook Inlet Drift Ass'n, 895 P.2d 947, 950 (Alaska 1995)).

      . Jackinsky, 894 P.2d at 654 (citations omitted).

      . See Alaska Foods, Inc. v. Nichiro Gyogyo Kai-sha, Ltd., 768 P.2d 117, 121 (Alaska 1989) (citing Blake v. Gilbert, 702 P.2d 631, 634-35 (Alaska 1985); Drickersen v. Drickersen, 546 P.2d 162, 170-71 (Alaska 1976); Pennington v. Snow, 471 P.2d 370, 374-76 (Alaska 1970)).

      . Id. (citations omitted).

      . See Restatement (Second) of Judgments § 39 (1982). ‘

      . Seeid. § 40.

      . Seeid. § 41.

      . See AS 28.22.221.

      . See Loveridge v. Fred Meyer, Inc., 125 Wash.2d 759, 887 P.2d 898, 900-01 (1995) (holding mere awareness of a proceeding, without participation or control, is insufficient to establish privity for res judicata purposes).

      . For the elements of collateral estoppel, see supra text accompanying note 7.

      . Hillman v. Nationwide Mut. Fire Ins. Co., 758 P.2d 1248, 1253 (Alaska 1988) (citations omitted).

      . Id. (citations omitted).

      . 922 P.2d 889 (Alaska 1996).

      . Id. at 894 (citations and quotation marks omitted).

      . See Hillman, 758 P.2d at 1253.

      . 563 P.2d 252 (Alaska 1977).

      . Seeid. At 255. The superior court indicated that there was "a reasonable likelihood that the arbitrations would have been consolidated if any party had so requested" because both USAA and State Farm's arbitration clauses require application of local or state rules, and Alaska Rule of Civil Procedure 42 encourages consolidation of similar claims. This is arguably correct in that the decision in Consolidated Pacific Engineering was based upon the interpretation of an arbitration clause specifying the use of the American Arbitration Association's rules, which require consent from all parties to consolidate. See 563 P.2d at 255. However, because the Powers-State Farm contract is not in the record, we cannot determine what the arbitration terms were.

      . See AS 09.43.010-.180.


author: MATTHEWS, Chief Justice.

text:
    Dallas E. NICHOLS, Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Appellee.
    No. S-8969.
    Supreme Court of Alaska.
    Aug. 11, 2000.

      Donna C. Willard, Law Offices of Donna C. Willard, Anchorage, for Appellant.
    Rod R. Sisson, Sisson & Knutson, P.C., Anchorage, for Appellee.
    Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Chief Justice.

I, INTRODUCTION

Dallas Nichols sued his neighbor's insurance company for intentional and negligent spoliation based on the insurance company's failure to secure critical evidence in Nichols's case against the neighbor. The superior court granted summary judgment to the insurance company, and Nichols appealed. We affirm.

II. FACTS AND PROCEEDINGS

A. Facts

On september 1, 1996, Dallas Nichols was assisting his neighbor, Richard Gittlein, with roof repairs when the ladder Nichols was standing on collapsed beneath him. Nichols fell eight or nine feet, tearing a rotator cuff. It is uncontested that the ladder was "old," "beat-up" and "had a lot of cracks in it." Gittlein left the broken ladder under the deck of his house.

Two months later, on December 5, 1996, a fire heavily damaged CGittlein's house. Nichols claims that the ladder was not destroyed in the fire. Shortly after the fire, on December 18, 1996, Nichols filed a claim with Gittlein's insurance company, State Farm, for his injuries suffered in the ladder accident. The claim was assigned to State Farm agent Janet Sperbeck. She contacted Gitt-lein on December 20th, who reported that he was not sure if he still had the ladder and that it may have been destroyed in the fire.

On January 2, 1997, Sperbeck met with Nichols for the first time. He told her that the ladder was still in existence on the property and that it should be preserved. Sper-beck went to Gittlein's premises on January 2, hoping to find him and ask about the ladder. that the house had been destroyed and all that was left was a shed. Sperbeck left without finding Gittlein or the ladder. When she arrived, she discovered

After this visit, Sperbeck wrote to Gittlein, asking whether he had found the ladder. She called him twice, without reaching him. But she did not contact the State Farm agent who was handling Gittlein's fire claim and who was in communication with Gittlein.

On January 15 Sperbeck called Nichols and spoke with Nichols's wife, Judy. Judy expressed concern that, if Sperbeck failed to collect the ladder, it would soon be too late. Sperbeck traveled to the premises on that date but did not find Gittlein there.

On January 27 Cittliein made contact with Sperbeck. He told her that he could not find the ladder and that it must have been thrown out with the fire debris.

Subsequently, in July 1997, State Farm wrote Nichols stating that its liability analysis was complete and that Cittlein was not negligent. State Farm therefore declined to make any payments under the lability coverage of its policy.

B. Proceedings

On August 6, 1997, Nichols filed suit against Gittlein and State Farm. Nichols alleged that Gittlein was liable for negligently providing a ladder for use by Nichols that Gittlein knew or should have known was defective and unsafe for use. Nichols also alleged that Gittlein and State Farm "acted negligently, intentionally or recklessly in failing to preserve the ladder." These claims for intentional and negligent spoliation were the only claims alleged against State Farm.

After some discovery was conducted, State Farm moved for summary judgment. Initially, its motion was based on an assertion that the ladder was destroyed in the December 5 fire, which occurred before State Farm had any notice of a possible claim by Nichols. Nichols pointed out that his sworn answer to an interrogatory attested to the existence of the ladder after the fire and that there was a genuine issue of material fact on this point.

State Farm then expanded the grounds for its motion. Filing a new affidavit from Janet Sperbeck detailing her activities in the case, State Farm argued that Sperbeck committed no acts of spoliation and that, as State Farm's agent, she had fulfilled State Farm's duty concerning the ladder.

After additional discovery, Nichols filed a supplemental opposition to State Farm's summary judgment motion. Nichols opposed the motion on two grounds: (1) that it was not ripe because of the pendency of Nichols's motion to compel various documents relating to State Farm's investigation of the case; and (2) that the ladder was not destroyed in the fire and that "State Farm had one full month to locate and preserve the ladder but it made no attempt to do so."

State Farm filed a supplemental reply in support of its motion for summary judgment. In it, State Farm noted that Nichols's claim had "apparently, evolved into a claim that State Farm negligently failed to locate the ladder, as opposed to a claim that it spoliated the ladder." It argued that this is essentially a claim for negligent investigation and that an insurer owes no duty of reasonable investigation to a claimant. State Farm cited O.K. Lumber Co. v. Providence Washington Insurance Co. for this proposition and sought summary judgment on this basis.

State Farm also argued that Alaska does not recognize negligent spoliation as a separate tort and that there was no evidence that State Farm had intentionally spoliated the ladder.

The superior court granted summary judgment to State Farm. In relevant part, the superior court wrote:

State Farm owed no duty to Nichols to locate or preserve the ladder. Without a duty, a negligence claim is barred.
In O.K. Lumber v. Providence Washington Ins. an injured claimant claimed damages against the insurer for the insurer's negligent investigation and adjustment of the claim. 759 P.2d 523 (Alaska 1988). O.K. Lumber held that an insurer owes no such duty to the claimant. < 7d. In the same manner, State Farm owes no duty to Nichols.

A week after the superior court granted summary judgment to State Farm, the court granted Nichols's motion to compel against State Farm. The court ordered State Farm to produce Nichols's claim file, Gittlein's fire claim file, and the entire underwriting file.

State Farm did not respond to the order. Instead, Gittlein produced all of the requested documents with the exception of Nichols's file. Gittlein redacted portions of the file that related to the insurance adjuster's assessment of. Gittlein's lability and Nichols's comparative liability. He then moved for a protective order to preserve those redactions.

On December 7, 1998, the superior court entered final judgment for State Farm and awarded State Farm twenty percent of its attorney fees, for a total of $4,000, under Civil Rule 82(b)(2).

After the entry of final judgment, on December 283, 1998, the superior court reviewed Gittlein's redactions in camera. The court granted Gittlein's motion for a protective order and held that the redacted portions were "irrelevant and prejudicial."

Nichols appeals the grant of summary judgment, the issuance of the protective order, and the award of attorney's fees.

III. STANDARD OF REVIEW

We review a grant of summary judgment de novo. Drawing all reasonable inferences in favor of the nonmoving party, we will uphold summary judgment if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.

We review discovery rulings for abuse of discretion. We will find an abuse of discretion when we are left with a definite and firm conviction after reviewing the whole record that the trial court erred in its ruling."

Attorney's fee awards are similarly reviewed for abuse of discretion. We will reverse an award of attorney's fees only if the award is "arbitrary, capricious, manifestly unreasonable, or stems from improper motive."

IV. DISCUSSION

A. Spoliation

In Hazen v. Municipality of Anchorage we recognized that acts of intentional spoliation of evidence can give rise to independent tort claims for intentional interference with a prospective civil action. In Hagen, one of the alleged spoliators, Bailey, was not a party to the original tort lawsuit against the Municipality of Anchorage. Hazen permitted an intentional spoliation tort claim to be maintained against Bailey and against the Municipality. It therefore recognized that intentional spoliation claims can be made against parties to the original action (called "first-party spoliators") and non-parties to the original action (called "third-party spolia-tors").

We have not recognized an independent tort for negligent spoliation of evidence. In Sweet v. Sisters of Providence in Washington we were presented with a first-party negligent spoliation claim. The plaintiffs alleged that a hospital had negligently lost medical records that were critical to plaintiffs medical malpractice claim against the hospital and others. We held that the jury should be instructed that the loss of the medical records raises a rebuttable presumption of negligence on the part of the hospital. This shifts the burden of proof to the hospital to prove that it was not negligent. We noted that the court should first determine whether the missing evidence "sufficiently hinders plaintiff's ability to proceed." If the spoliated evidence is important enough to meet this standard then the rebuttable presumption/burden-shifting remedy can be applied.

We concluded in Sweet that the burden-shifting remedy was a sufficient response to the problem of missing evidence under the cireumstances presented. We did not decide whether negligent spoliation could ever form the basis for an independent suit and implicitly recognized that in cases of third-party spoliation the burden-shifting remedy might not be effective: "We need not decide in this case whether the recognition of a separate tort of negligent destruction of evidence would ever be appropriate, for example, against a third party not associated with the underlying lawsuit."

1. Nichols's claim for negligent spoliation cannot be maintained separately against State Form.

Nichols ignores an important aspect of his claim for negligent spoliation by failing to focus on whether it is a claim of first-party or third-party spoliation. State Farm argues that this is a first-party claim. We agree. State Farm is not, to use the language of Sweet, a "third party not associated with the underlying lawsuit." Instead, State Farm has assumed Gittlein's defense. We see no reason why the Sweet remedy would not be a sufficient response to negligent spoliation of the ladder, whether by Gittlein or State Farm, assuming the ladder's disappearance was found to be a sufficient hindrance to the prosecution of Nichols's claim. If the absence of the ladder were found not to be a sufficient hindrance, then no tort remedy would be needed. Thus here, as in Sweet, we conclude that a separate tort remedy for negligent spoliation may not be maintained.

For this reason, we uphold summary judgment dismissing the negligent spoliation claim against State Farm. In reaching this conclusion, we do not reach the issue as to whether Gittlein, and State Farm as Gitt-lein's agent, had an obligation-potentially enforceable with a Sweet remedy-to preserve the ladder onee Nichols's claim was known. We view the question before us as whether a separate claim for negligent spoliation can be maintained against State Farm. That question we answer in the negative based on Sweet Further questions as to what a defendant should do with respect to important evidence in the defendant's possession or control once a claim is asserted are beyond the seope of this appeal.

2. State Farm was entitled to summary judgment of the claims of reckless or intentional spoliation.

Nichols has also pled intentional and reckless spoliation. But Nichols offers no evidence to support this allegation. In fact, at his deposition he was asked what facts would indicate that State Farm acted negligently, intentionally, or recklessly in failing to preserve the ladder. He admitted he knew of none and opined only that State Farm acted negligently, Accordingly, we conclude that Nichols's claims based on intentional or reckless conduct were properly dismissed.

B. Nichols's Appeal of the Protective Order Is Untimely.

Nichols argues that the trial court should have required State Farm to obey the October motion to compel. But this issue is now moot because State Farm is no longer a party to the case and the materials requested would not have undercut State Farm's entitlement to summary judgment.

Nichols also argues that the trial court should not have granted the protective order. But this point is not properly part of this appeal. The protective order was granted to Gittlein, not State Farm. Gittlein is not a party to this appeal. Nor has there been any final judgment in Nichols's case against Gitt-lein. Therefore, we decline to rule on the trial court's granting of the protective order.

C. The Trial Court Did Not Err in Its Award of Attorney's Fees.

Under Civil Rule 82(b) a trial court is obligated to award the prevailing party in a suit resolved before trial twenty percent of its actual attorney's fees. If the trial court deviates from this formula, it must provide a written explanation for doing so.

Here, the trial court's award was consistent with Rule 82(b)(2) and was supported by numerous affidavits and billing records. Nichols appeals the award, claiming that State Farm's billing was excessive and that the trial court should have given reasons for its finding that the billing was not excessive.

But the trial court is under no obligation to give reasons for an award that complies with the percentages expressed in Rule 82(b)(2). We will reverse an award of attorney's fees only if the award is "arbitrary, capricious, manifestly unreasonable, or stems from improper motive." Nichols has not made a sufficient showing to support reversal under this standard.

V. CONCLUSION

AFFIRMED.

      . This is contested, as Gittlein claims that the ladder was destroyed in the fire.

      . 759 P.2d 523 (Alaska 1988).

      . The court found that there was no just reason to delay entry of a final judgment and expressly directed entry of judgment as allowed by Civil Rulq 54(b) in cases where a judgment does not apply to all claims or parties.

      . -See Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956 P.2d 1199, 1200 (Alaska 1998).

      . See Shade v. CO & Anglos Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska 1995).

      . See Christensen v. NCH Corp., 956 P.2d 468, 473 (Alaska 1998). j

      . Id.

      . See Jones v. Jones, 925 P.2d 1339, 1340 (Alaska 1996). '

      . Id. (quoting Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992)).

      . 718 P.2d 456, 463 (Alaska 1986).

      . See id. at 459.

      . 895 P.2d 484 (Alaska 1995).

      . See id. at 487.

      . See id. at 491-92.

      . See id. at 492.

      . Id. at 491 (citation omitted).

      . Seeid.

      . Id.

      . State Farm argues:
      There is no reason why burden shifting should not be applied where the evidence is lost or destroyed by the investigator (insurance agent, lawyer, paralegal, forensic expert, etc.) of a party as opposed to being lost or destroyed by the party himself. If a plaintiff's lawyer loses or destroys evidence, burden shifting can be applied to the plaintiff and there is no need to create a cause of action allowing defendants to sue plaintiff's lawyer. The same can be said when the tables are turned and evidence is destroyed or lost by a defendant's insurance adjuster.

      . Sweet, 895 P.2d at 493.

      . See Alaska R. Civ. P. 82(b)(3) ("If the court varies an award, the court shall explain the reasons for the variation.").

      . Jones v. Jones, 925 P.2d 1339, 1340 (Alaska 1996) (quoting Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992)).


author: Judge DAVIDSON.

text:
    David WASHINGTON, Plaintiff-Appellant, v. Eugene E. ATHERTON; Kent Johnson; Bill Brunell; and Jon Johnson, Defendants-Appellees.
    No. 99CA1183.
    Colorado Court of Appeals, Div. II.
    May 11, 2000.
    Rehearing Denied June 15, 2000.

      David Washington, Pro Se.
    Ken Salazar, Attorney General, Joseph Sanchez, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees.
   Opinion by

Judge DAVIDSON.

In this C.R.C.P. 106(a)(4) action, plaintiff, David Washington, appeals from the trial court's, judgment rejecting his challenge to the prison disciplinary action taken by defendants, Eugene E. Atherton, Kent Johnson, Bill Brunell, and Jon Johnson. We affirm.

While an inmate at the Buena Vista Correctional Facility, plaintiff was found to be in possession of legal documents belonging to another inmate when that inmate was not present. This was in violation of an earlier written order given to plaintiff prohibiting such conduct. At an administrative hearing, plaintiff was found guilty of disobeying the prior order.

After plaintiff's administrative appeal was denied, he commenced this C.R.C.P. 106(a)(4) action in the district court. The district court entered an order denying relief.

L.

Plaintiff first contends that the hearing officer's failure to recuse himself amounted to violation of due process. We disagree.

An inmate in a disciplinary hearing enjoys only the most basic due process rights. See Villa v. Gunter, 862 P.2d 1033 (Colo.App.1993); see also Mariani v. Colorado Department of Corrections, 956 P.2d 625 (Colo.App.1997). However, due process does require, at a minimum, notice and the opportunity for a meaningful hearing before an impartial tribunal. See Van Sickle v. Boyes, 797 P.2d 1267 (Colo.1990) (review of fire department order); see also Patterson v. Coughlin, 905 F.2d 564 (2d Cir.1990) (inmate is entitled to impartial hearing officer who does not prejudge the evidence).

An administrative hearing officer is presumed to be impartial, and the party challenging the administrative action has the burden to prove otherwise. See Van Sickle v. Boyes, supra. To support a charge of impartiality, an inmate must offer evidence of, or the record must indicate, some impropriety. See Beyah v. Putman, 885 F.Supp. 371 (N.D.N.Y.1995). Furthermore, prison officials serving as hearing officers need not meet the standards of impartiality applicable to judges. Moore v. Selsky, 900 F.Supp. 670 (S.D.N.Y.1995), aff'd, 101 F.3d 683, 1996 WL 219442 (2d Cir.1996). Because of the special characteristics of the prison environment, it is permissible for the impartiality of such officials to be encumbered by various conflicts of interest that, in other contexts, would be adjudged of sufficient magnitude to violate due process. Francis v. Coughlin, 891 F.2d 43 (2d Cir.1989).

Here, plaintiff's claim of impartiality was supported by his assertions that (1) the hearing officer had been involved in one of plaintiff's numerous earlier disciplinary proceedings and was, therefore, a party in another C.R.C.P. 106(a)(4) action; and (2) plaintiff had recently filed some form of grievance against the hearing officer. However, plaintiff failed to make any showing that the hearing officer actually prejudged the case or decided it based on anything other than the evidence presented.

Therefore, we agree with the trial court's conclusion that plaintiff's assertions, standing alone, were insufficient to require recusal. See Grant v. Senkowski, 146 A.D.2d 948, 537 N.Y.S.2d 323 (1989) (fact that hearing officer in prison disciplinary proceeding was subject to legal action by the charged inmate, without a showing being made of actual prejudice, did not require officer to disqualify himself).

IL.

Plaintiff next contends that his disciplinary conviction was erroneous because he had no intent to violate the prior order. We perceive no error.

Review of a prison disciplinary decision is limited to whether the prison officials exceeded their jurisdiction or abused their discretion. See C.R.C.P. 106(a)(4)(I); Kodama v. Johnson, 786 P.2d 417 (Colo.1990). Under this standard, the decision of the prison officials must be upheld if there is "some evidence" in the record to support it. Kodama v. Johnson, supra; Tebbetts v. Whitson, 956 P.2d 639 (Colo.App.1997).

Here, the undisputed testimony at the hearing established that plaintiff was in possession of another inmate's legal documents while that inmate was not present.

At the hearing, plaintiff claimed he had been unaware the owner of the documents had left and that he did not intend to violate the prior order. However, Department of Corrections Code of Penal Discipline II(25), "Disobeying a Lawful Order," does not require that the violation be intentional. Furthermore, even if this type of intent was required, the hearing officer could have inferred that plaintiff knew the other inmate had left based upon plaintiff's initial statement to the guard that the other inmate would be "right back."

Because there was some evidence to support the hearing officer's decision, the trial court correctly declined to disturb that decision. See Kodama v. Johnson, supra.

IIL

Finally, plaintiff contends that the order he was found guilty of failing to obey was improper and amounted to an amendment of the Code of Penal Discipline. We are not persuaded.

The order at issue simply prohibited plaintiff from possessing legal documents of other inmates while those inmates were not present. Plaintiff notes that this conduct is not specifically prohibited by the Code of Penal Discipline. That fact, however, in no way renders the order illegal or improper. The Code does not delineate all conduct that prison officials may need to prosecribe under all possible cireumstances. See Meyers v. Aldredge, 492 F.2d 296 (3d Cir.1974) (it is nearly impossible for prison authorities to anticipate, through a narrowly drawn regulation, every conceivable form of misconduct that threatens prison security). Indeed, if all conduct justifying discipline were required to be set forth in the Code, there would be no need for the Code provision of "Disobeying a Lawful Order" of which plaintiff was found guilty.

In sum, we agree with the trial court's determination that the underlying order given to plaintiff was neither illegal nor improper.

The judgment is affirmed.

Judge PLANK and Judge DAILEY concur.


text:
    2000 OK CR 12
    Terry Lynn NICHOLS, Petitioner v. DISTRICT COURT OF OKLAHOMA COUNTY, State of Oklahoma, Honorable Robert M. Murphy, Jr., Associate District Judge, Respondent
    No. PR-2000-703.
    Court of Criminal Appeals of Oklahoma.
    June 1, 2000.
   ORDER GRANTING PETITION FOR WRIT OF PROHIBITION AND/OR WRIT OF MANDAMUS AND DENY ING APPLICATION TO STAY PROCEEDINGS

{1 On May 26, 2000, Petitioner Terry Lynn Nichols, by and through counsel Brian Hermanson, W. Creekmore Wallace, Rodney J. Uphoff, and Barbara E. Bergman, filed in this Court an "Application to Assume Jurisdiction for Alternative Writ of Prohibition and/or Mandamus [with combined brief]". Petitioner's request for relief is threefold: "1) an order from this Court immediately staying all criminal proceedings in Oklahoma County District Court Case No. CF-99-1845 until further notice from this or the [Oklahoma] Supreme Court should the Supreme Court accept original jurisdiction of this matter; 2) an order assuming original jurisdiction and directing this application to assume original jurisdiction be transferred to the Supreme Court of Oklahoma for a determination of jurisdiction of the subject matter; and 3) an alternative writ of prohibition and/or mandamus from this Court vacating Associate District Judge Robert M. Murphy, Jr.'s order of May 8, 2000, allowing cameras into the courtroom for the preliminary hearing, trial, and other proceedings in this matter." Petitioner argues that original jurisdiction should be assumed because the trial court's order constitutes an exercise of judicial power which is unauthorized by law and in violation of Canon 8(B)(Q)(e)2) of the Code of Judicial Conduct. Petitioner further argues the trial court's order infringes on his constitutional rights to a fair trial by an impartial jury as guaranteed by U.S. Const. amend. VI and XIV and by Okla. Const. art. II, §§ 7 and 20 and his right to due process secured by U.S. Const. amend. V and XIV and Okla. Const. art. II, § 7, and therefore extraordinary relief is the only adequate remedy.

T2 This case arises out of the prosecution by the State of Oklahoma of Terry Nichols based upon his alleged participation in the April 19, 1995, bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma. Petitioner has been charged with 163 felony counts, including 160 counts of first degree murder. On February 25, 2000, numerous media organizations (the "Media") filed a motion asking Judge Murphy to permit them to televise the preliminary hearing, trial, and other proceedings in this case. Both the State and the defense objected to the Media's motion. On March 10, 2000, the court held a hearing on the motion. On May 8, 2000, Judge Murphy issued an order » granting the Media the right to broadcast any and all court proceedings in this matter. Judge Murphy acknowledged Canon 3(B)(9)(e)(2) of the Code of Judicial Conduct, promulgated by the Oklahoma Supreme Court, explicitly prohibits broadcast in this situation. However, he determined the Canon violated the State and Federal Constitutions and therefore need not control his decision. He found the trial judge or presiding judge has final authority to order, manage and control the courtroom and that camera coverage would not adversely affect Petitioner's right to a fair trial. The record indicates that several motions are scheduled for June 7, 2000, and the preliminary hearing is now set for August 7, 2000.

3 Jurisdiction to decide the constitutionality of the Canons of the Code of Judicial Conduct is vested in the Oklahoma Supreme Court. Therefore, we do not address or rule on Petitioner's claim concerning the validity of Judge Murphy's ruling insofar as it relates to the constitutionality of Canon 3(B)(9)(e)(2).

14 However, jurisdiction to ensure due process in criminal proceedings rests with the Court of Criminal Appeals. Okla. Const., art. VII § 4. When criminal charges are filed against an individual and when a criminal defendant is tried for those alleged crimes, it is this Court which must ultimately decide the correctness and fairness of the entire criminal proceedings.

15 For a writ of prohibition, Petitioner must establish: (1) a court, officer or person has or is about to exercise judicial or quasi-judicial power; (2) the exercise of said power is unauthorized by law; and (8) the exercise of said power will result in injury for which there is no other adequate remedy. Rule 10.6(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1999). For a writ of mandamus, Petitioner has the burden of establishing: (1) he has a clear legal right to the relief sought; (2) the respondent's refusal to perform a plain legal duty not involving the exercise of discretion; and (8) the adequacy of mandamus and the inadequacy of other relief. Rule 10.6(B). From a review of the record before this Court, and applicable legal authority, we find Petitioner has met the burden for a writ of prohibition and/or mandamus.

16 The concepts of fair trial and free press are embodied within our constitutional framework. However, the "public trial" guaranteed by the Sixth Amendment is not one belonging to the public, but one belonging to the accused. Estes v. Texas, 381 U.S. 582, 85 S.Ct. 1628, 1662, 14 L.Ed.2d 543 (1965). The atmosphere essential to the preservation of a fair "public" trial-the most fundamental of all freedoms-must be maintained. See Id., 381 U.S. at 540, 85 S.Ct. at 1632. In order to ensure a fair trial, courts have devised careful safeguards by rule, contempt proceedings and reversal of, convictions obtained under unfair conditions. Id. In Estes, the U.S. Supreme Court found the use of television, however, "cannot be said to contribute materially to [the] objective of a fair trial." Id., 881 U.S. at 544, 85 S.Ct. at 1634. "Rather its use amounts to the injection of an irrelevant factor into court proceedings. In addition experience teaches that there are numerous situations in which it might cause actual unfairness-some so subtle as to defy detection by the accused or control by the judge." Id. 381 U.S. at 544-45, 85 S.Ct. at 1634. The potential impact of television on the jurors, the possibility the quality of the testimony in criminal trials may be impaired, the additional responsibilities the presence of television places on the trial judge, and the impact of courtroom television on the defendant were among the concerns mentioned by the Court. Id., 381 U.S. at 545-549, 85 S.Ct. at 1634-86.

17 The requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed. Nixon v. Warner Communications, Inc., 485 U.S. 589, 610, 98 S.Ct. 1806, 1818, 55 L.Ed.2d 570 (1978). No constitutional provision guarantees a right to televise trials. First Amendment rights of the press are subject to reasonable time, place, and manner restrictions,. Umited States v. Hastings, 695 F.2d 1278, 1282 (lith Cir,1988). The federal courts prohibit televising of trials by specific rule. See Rule 58, Federal Rules of Criminal Procedure.

T8 Television is a powerful medium. At its best, it educates and informs. At its worst, it has the potential for "distorting the integrity of the judicial process bearing on the determination of the guilt or innocence of the accused, and, more particularly, for casting doubt on the reliability of the fact-finding process carried on under such conditions." Estes, 381 U.S. at 592, 85 S.Ct. at 1664 (Harlan J., concurrence). Petitioner's fundamental right to a fair trial assured by the Due Process Clause of the Fourteenth Amendment takes precedence over the interest of the press in televising the proceedings in this case.

'A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. * * * (T)o perform its high function in the best way "justice must satisfy the appearance of justice.

In re Murchison, 349 U.S. 183, 186, T5 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (internal citation omitted).

T9 In our analysis of the issues, as set forth above, we have relied extensively upon United States Supreme Court precedent in resolving the federal constitutional questions as we are required to do under principles of federalism. However, as the court of last resort for criminal appeals in the State of Oklahoma we are equally obligated to apply the Oklahoma Constitution. Article 2 of the Oklahoma Constitution affords an accused the right to a fair public jury trial and due process of law. Our state constitution also affords all persons the freedom of speech and press. Okla. Const. art. II, § 22. Thus, the issue before us presents the same clash of constitutional rights as discussed above in our analysis of the federal constitutional claims. And we reach the same result. We specifically find that to televise or record a criminal trial over the objection of a defendant would violate an accused's right to due process of law as guaranteed by Section 7, Article 2 of the Oklahoma Constitution.

10 In order to ensure the solemnity of the judicial proceedings, to minimize the potential tainting of a possible future jury pool, to curtail outside interference with these criminal proceedings, and to ensure the reliability of the result ultimately determined in this case, Petitioner's Application for a Writ of Prohibition and/or Mandamus is RANTED. The Application to Stay the Proceedings is DENIED. The May 8, 2000, order by Judge Murphy granting the Media the right to broadcast any and all court proceedings in this matter is hereby VACATED.

1 11 IT IS SO ORDERED.

{ 12 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this ist day of June, 2000.

/s/ Reta M. Strubhar RETA M. STRUBHAR, Presiding Judge

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Vice Presiding Judge

CHARLES A. JOHNSON, Judge, Recuse

/s/ Charles S. Chapel CHARLES S8. CHAPEL, Judge

/s/ Steve Lile STEVE LILE, Judge

      . Courtroom Television Network LLC ("Court TV'), The New York Times Company, for itself and its division KFOR-TV-(Channel 4, Oklahoma City) ("KFOR"), Ohio/Oklahoma Hearst Argyle Television, Inc. (Channel 5, Oklahoma City) ("KOCO"), KOTV, Inc. (Channel 6, Tulsa) ("KOTV'), KTUL, LLC. (Channel 8, Tulsa) ("KTUL"), and Griffin Television, LL.C. (Channel 9, Oklahoma City) ("KWTV").

      . Rule 53 is more restrictive than Canon 3(B)(9)(e)(2) and the federal courts have consistently enforced its provisions. See Conway v. U.S, 852 F.2d 187, 188 (6th Cir.1988); United States v. Edwards, 785 F.2d 1293, 1296 (5th Cir.1986); United States v. Kerley, 753 F.2d 617, 619-20 (7th Cir. 1985); United States v. Hastings, 695 F.2d 1278, 1284 (lith Cir.1983); United States v. McVeigh, 931 F.Supp. 753, 755 (D.Colo. 1996).


author: JOPLIN, Judge:

text:
    2000 OK CIV APP 66
    Paul Brandon BITTLE, Plaintiff/Appellant, v. OKLAHOMA CITY UNIVERSITY, a not-for-profit corporation, and the Board Of Trustees of Oklahoma City University, Defendants/Appellees.
    No. 93,684.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    April 21, 2000.

      Elizabeth J. Bradford, Midwest City, Oklahoma, For Appellant.
    James C. Chandler, G. David Ross, B. Gore Gaines, Lytle, Soulé & Curlee, P.C., Oklzhoma City, Oklahoma, For Appellees.
   JOPLIN, Judge:

¶1 Plaintiff/Appellant Paul Brandon Bittle (Bittle) seeks review of the trial court's order granting judgment to Defendants/Appellees Oklahoma City University, a not-for-profit corporation (OCU), and the Board of Trustees of Oklahoma City University (Board), in Bittle's action to recover damages for alleged fraud, breach of contract and negligence after OCU dismissed Bittle for academic reasons. In this proceeding, Bittle asserts judgment for OCU and Board should be reversed because (1) his initial petition stated a valid claim for breach of contract, (2) the evidence on summary judgment relative to his claims was conflicting, and (8) the trial court erred in denying him both further discovery prior to ruling and permission to amend to cure any defect in pleading.

T2 OCU is a private university, organized as a not-for-profit corporation and governed by Board. OCU admitted Bittle to the OCU Law School for the fall semester of 1997. But, when Bittle's cumulative grade-point average fell below the minimum required by OCU academic standards after the fall semester of 1998, OCU dismissed him. Pursuant to OCU policy, Bittle sought administrative review, but upon consideration of the matter, OCU denied him relief.

13 Bittle then commenced the instant action against OCU and Board. In particular, Bittle alleged that his constitutional law professor frequently arrived late for class, discharged class early, or canceled class altogether; that neither the professor nor OCU provided make-up classes or academic counseling to assist students as OCU implicitly agreed; and that the failures of the professor (OCU's agent), OCU and Board in these particulars caused his academic dismissal. Bittle also alleged that OCU's internal administrative appellate procedure denied him the fundamental protection of constitutional due process, including denial of the right to examine the evidence against him, to present evidence on his own behalf, and even the right to a hearing at all. On these facts, Bittle asserted claims for fraud, breach of contract, tortious breach of contract, negli-genes, unjust enrichment and violation of his right to due process, seeking actual and punitive damages.

{4 OCU filed a motion to dismiss, asserting Bittle's failure-on the alleged facts of the case-to state an actionable claim under any legally recognized theory of recovery. Board filed a motion for summary judgment/motion to dismiss, asserting no Hability-as OCU's not-for-profit corporate governing body-for any OCU act or omission of which Board had no knowledge or in which Board did not actively participate, and no contractual relationship between Bittle and Board.

T5 Bittle responded to OCU's motion to dismiss, arguing viability of all claims stated in his petition, or alternatively, in the event a ruling favorable to OCU, permission to amend to cure any defects in pleading. Bit-tle also responded to Board's motion for summary judgment/motion to dismiss, asserting-in essence-material facts in controversy concerning each of his legally recognized claims, precluding summary judgment. On consideration of the briefs, submitted materials and arguments of the parties, the trial court granted judgment to OCU and Board. Bittle now appeals, and the matter stands submitted on the trial court.

16 As a general proposition, "[the applicable test for appraising the sufficiency of a pleading challenged for failure to state a claim upon which relief may be granted teaches that no dismissal may be effected unless it should appear beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle her to relief," Dyke v. Saint Francis Hosp., Inc., 1993 OK 114, ¶ 7, 861 P.2d 295, 298-299. Stated otherwise, "[a] petition can generally be dismissed only for lack of any cognizable legal theory or for insufficient facts under a cognizable legal theory." Miller v. Miller, 1998 OK 24, ¶ 15, 956 P.2d 887, 894. Yet, "if [a] dismissal motion also tenders for consideration materials [outside] the pleadings," the motion to dismiss is treated and reviewed as a motion for summary judgment. Dyke, 1993 OK 114, ¶ 7, 861 P.2d at 299.

17 In this respect, "Oklahoma procedural law dictates that summary judgment is appropriate only when it appears that there is no substantial controversy as to any material fact and that one of the parties is entitled to judgment as a matter of law." Flanders v. Crane Co., 1984 OK. 88, ¶ 10, 693 P.2d 602, 605; Rule 13(e), Rules for the District Courts of Oklahoma, 12 0.S., Ch. 2, App. More particularly:

Summary judgment is proper only when there is no genuine issue of material fact. (Citation omitted.) The burden is on the moving party to establish, through eviden-tiary material attached to the motion for summary judgment, that no genuine issue as to any material fact exists. (Citation omitted.) Thereafter, the opposing party must submit a statement of material facts which the party alleges are controverted and which are supported by evidentiary materials. (Citation omitted.)

Wynn v. Avemeco Ins. Co., 1998 OK 45, 17, 963 P.2d 572, 574. "[A] summary judgment ruling must be made on the record actually presented by the litigants, not on a record potentially possible (Citation omitted.)" Prudential Ins. Co. of America v. Glass, 1998 OK 52, 13, 959 P.2d 586, 588. That is, "(allthough the allegations of the pleadings standing alone may raise an issue of material fact, summary judgment is not to be denied if other documentation pertinent to the motions palpably show the absence of such an issue." Weeks v. Wedgewood Village Inc., 1976 OK 72, 1 12, 554 P.2d 780, 784.

18 On appeal from an order granting summary judgment, we review by a de novo standard. Prudential Ins. Co. of America, 1998 OK 52, 12, 959 P.2d at 588. That is, "this Court will examine [the] pleadings and evidentiary materials to determine what facts are material and whether there is substantial controversy as to one material fact. (Citation omitted.)" Sperling v. Marler, 1998 OK 81, 13, 963 P.2d 577, 579. "If [a] substantial controversy as to a[ny] material fact exists, then summary judgment is improper." Id.

T9 In the present case, insofar as OCU's motions and Bittle's responses tendered for consideration evidentiary materials outside the pleadings, the parties and the trial court treated the motions to dismiss as motions for summary judgment. Accordingly, we review the trial court's order under summary judgment standards.

110 In two related propositions, Bit-tle complains the trial court should have granted him both further discovery prior to ruling and permission to amend his petition to cure any defects in pleading. As to the further-discovery issue, we find no affidavit of counsel attesting an inability to respond and need for further discovery contemplated by Rule 13(d), Rules for the District Courts of Oklahoma, 12 O.S., Ch. 2, App. In the absence of a specific request for further discovery supported by an affidavit of counsel attesting to the need therefor, we cannot say the trial court erred in refusing further discovery.

T11 As to the permission-to-amend issue, "the trial court has always possessed discretion over whether to allow an amendment to a pleading," and "[iJts decision will not be overturned absent an abuse of that discretion," but "the trial court's disceretion is limited by the provisions of 12 O.S. 1991, § 2015(A), requiring that leave to amend be given freely if justice requires." Prough v. Edinger, Inc., 1998 OK 1830, 18, 862 P.2d 71, 75-76. That is, while the " 'outright refusal to grant leave [to amend] without any justifying reason appearing for the denial' is an abuse of discretion, ... there is no abuse if the court relies on a reason such as 'undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ... [or] futility of amendment." Prough, 1993 OK 130, 1 9, 862 P.2d at 76.

{12 In denying Bittle's alternative prayer to amend, the trial court in the present case must have implicitly believed Bittle could not amend to state a cognizable claim, i.e., that amendment would be "futile." In order to determine whether the trial court abused its discretion in denying Bittle's request to amend, we must consequently first determine whether Oklahoma law recognizes an actionable tort or contract claim arising out of the relationship between an educational institution and a student for the institution's alleged failure in its educational mission and obligation to its students.

11 13 Bittle asserts in four of eight propositions in his petition in error that his relationship with OCU is predominantly contractual in nature; that the law of contracts-ignored by the trial court-consequently governs the rights and remedies of the parties; that he presented evidentiary materials arguably demonstrating OCU's breach of the parties' contract to provide him educational services in accord with this state's regulatory norms; and that OCU presented no evidence to the contrary, requiring reversal of the trial court's order. In one of his two remaining propositions, Bittle complains the trial court erred in treating his claims as sounding in tort for educational malpractice.

114 The great weight of authority generally holds that the law recognizes no cause of action for "educational malpractice," either in tort or contract, by a student against a private educational institution asserting inadequate or improper instruction. See, e.g., Regents of the University of Mich-gan v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985); Swidryk v. St. Michael's Medical Ctr., 201 N.J. Super. 601, 4983 A2d 641 (1985); Paladino v. Adelphi University, 89 A.D.2d 85, 454 N.Y.S.2d 868 (1982). The courts uniformly reason that such a claim runs afoul of established public policy which both accords educational institutions broad discretion in matters purely academic, particularly in the evaluation of student performance, and directs judicial noninterference in decisions within that discretion. Id. As the New Jersey Superior Court analyzed the obstacles inherent in application of a tort theory of recovery:

... For one, the conflicting theories of the science of pedagogy prevent[s] the construction of a workable rule of care. In other words, different but acceptable scientific methods of academic training malkle it unfeasible to formulate a standard by which to judge the conduct of those delivering the services. Second, the nature of the claim prevents a finding of legal causation. For example, failure in schools could stem from a variety of factors including the student's physical, neurological, emotional, cultural and environmental background, as well as the actual system itself. Lastly, school systems are already beset by social and financial problems for which no solution is yet available. To expose the schools to liability in light of the above policy considerations would be an undue burden on society. (Citation omitted.)
[Moreover:]
To entertain a cause of action for "educational malpractice" would require the courts not merely to make judgments as to the validity of broad educational poli-cles-a course we have unalteringly eschewed in the past-but, more importantly to sit in review of the day-to-day implementations of those policies. Ree-ognition in the courts of this cause of action would constitute blatant interference with the responsibility for the administration of the school system.... (Citation omitted.)

Swidryk, 493 A2d at 648. On this rationale, decisions from other states in the main hold where a student is dismissed from a private educational institution for academic reasons and brings suit asserting improper or inadequate instruction, no cause of action either in tort or contract arises. "Liability of private school or educational institution for breach of contract arising from expulsion or suspension of student," 47 A.L.R.5th 1, 89, § 28 (1997).

115 That said, however, we find some authority which suggests that an educational institution's brochures, policy manuals and other advertisements may form the basis of a legally cognizable contractual relationship between the institution and its students. Seq, e.g., Guckenberger v. Boston University, 957 F.Supp. 306, 318 (D.Mass.1997). Consequently, where the pleadings or evidence demonstrate some specific, identifiable agreement for an educational institution's provision of particular services to its students and an arguable breach of that specific agreement, the courts of many jurisdictions-apparently either as outside of or an exception to the general public policy bar to "educational malpractice" claims-recognize presentation of a potentially viable breach of contract claim. See, eg., CenCor, Inc. v. Tolman, 868 P.2d 396 (Colo.1994); Ross v. Creighton University, 957 F.2d 410 (7th Cir.(Ill.) 1992); Squires v. Sierra Nevada Educ. Foundation, 107 Nev. 902, 823 P.2d 256 (1991).

116 In the present case, Bittle alleged no specific agreement with OCU for the provision of particular educational services beyond the provision of an adequate legal education. While Bittle tangentially argues OCU's own internal policies and the accreditation standards for Oklahoma state educational institutions establish a baseline standard of performance below which a breach of contract claim will lis, we discern no intenrt-either in Art. XIII-A, § 4, of the Oklahoma Constitution or in 70 O.S. §§ 4101, et seq., § 4103 granting to the State Regents of Higher Education authority to regulate and accredit private educational institutions of Oklahoma-to recognize a private right of action for the redress of a private educational institution's alleged substandard performance under the academic accreditation benchmarks of this state. Seq e.g., Walker v. Chouteau Lime Co., Inc., 1993 OK 35, ¶¶ 3-7, 849 P.2d 1085, 1086; Holbert v. Echeverria, 1987 OK. 99, ¶ 7, 744 P.2d 960, 963. See also, Swidryk, 493 A.2d at 644.

117 In this respect, we are persuaded by the overwhelming weight of authority from other jurisdictions that, absent a specific, identifiable agreement for the provision of particular services, the public policy of this state similarly militates against recognition of a claim by a student against a private educational institution arising from the institution's alleged improper or inadequate instruction however denominated-either in tort or contract-for "educational malpractice." Notwithstanding his protestations to the contrary, all of Bittle's claims for fraud, breach of contract, tortious breach of contract, negligence, and unjust enrichment commonly allege a willful or negligent failure of OCU to provide him an adequate legal education as OCU implicitly agreed by admitting him and accepting his payment of tuition, and Bittle has failed to identify or present evidence of any OCU brochure, policy, advertisement or other matter which might reasonably establish a specific agreement for the provision of particular services-beyond the provision of basic education services-as to render OCU's failure in some enumerated particular actionable as a breach of contract. We therefore hold Bittle, in his alternative tort and contract claims, presented neither any recognized legal theory of recovery, nor sufficient facts under any recognized legal theory, and conclude the trial court properly granted judgment to OCU and Board on Bittle's claims of fraud, breach of contract, tortious breach of contract, negligence, and unjust enrichment.

118 As to Bittle's due process claim, we first note that where state law guarantees a right to a public education upon payment of tuition, a property interest protected by the due process clause of the Fourteenth Amendment to the United States Constitution may arise. Harris v. Blake, 798 F.2d 419 (10th Cir.1986); Gaspar v. Bruton, 513 F.2d 843 (10th Cir.1975). However, "[in the case of disciplinary action by a private educational institution, the federal constitutional requirements of due process normally do not apply, since there is no 'state action.'" Daniel A. Klein, J.D., "Expulsion, Dismissal, Suspension, or Other Discipline of Student of Public School, College, or University as Violating Due Process Clause of Federal Constitution's Fourteenth Amendment-Supreme Court Cases," 88 L.Ed.2d 1015, § 2(b); Coleman v. Wagner College, 429 F.2d 1120 (2nd Cir.(N.Y.) 1970) (unless state has undertaken regulation of permissible discipline in particular cireumstance at issue, imposition of discipline by private university pursuant to internal procedures not "state action.") The mere fact that a private educational institution may be regulated under state law, or receives direct and indirect federal assistance, does not elevate the acts of the private institution to "state action." Tynecki v. Tufts University School of Dental Medicine, 875 F.Supp. 26, 33 (D.Mass.1994).

T 19 Moreover, the United States Supreme Court has held that so long as an educational institution affords a dismissed student some post-dismissal appellate procedure, the norms of 14th Amendment due process are not offended. Board of Curators of the University of Missouri v. Horowitz, 485 U.S. 78, 85, 98 S.Ct. 948, 55 L.Ed.2d 124 (1977); Ewing, 474 U.S. at 225, 106 S.Ct. 507; Harrig, 798 F.2d at 424. Indeed, the weight of authority suggests that an educational institution need not, in the course of the post-dismissal appellate process, afford the affected student those due process protections ordinarily afforded a party in the course of the civil or criminal adjudicatory process in order to survive due process serutiny. "Right of student to hearing on charges before suspension or expulsion from educational institution," 58 A.LR.2d 908, 907 § 2. Furthermore, at least some jurisdictions recognize that a private college's dismissal of a student for purely academic reasons, unrelated to any other misconduct arguably contrary to school policy, is not subject to judicial review under any circumstance as within the exclusive discretion of the educational institution. Tedeschi v. Wagner College, 98 Misc.2d 510, 402 N.Y.S.2d 967, 970 (N.Y.Sup.1978) ("The decision to suspend plaintiff on the basis of her academic performance cannot be disturbed nor reviewed by this Court as it is within the purview and discretion of the school to suspend plaintiff on that ground.") See also, Swidryk, 493 A.2d at 644.

120 In the present case, Bittle does not dispute that his continued enrollment at OCU was conditioned on maintenance of a cumulative grade point average at or above that set by OCU policy. In this respect, neither the allegations of Bittle's petition nor the evidentiary materials offered on summary judgment establish any cognizable "state action" either guaranteeing Bittle an education at OCU, or regulating permissible discipline by OCU, as to invoke constitutional due process protections. Moreover, Bittle admits OCU afforded him post-dismissal administrative review, and during that process, the authorities agree Bittle is not entitled to the full panoply of constitutional due process protections. Bittle therefore forwards no actionable violation of the due process clauses of the Fourteenth Amendment to the United States Constitution or of Art. II, § 7 of the Oklahoma Constitution in the present case.

1 21 Nevertheless, some authority suggests that if a student demonstrates both (1) some contractual agreement with the private educational institution delineating a particular administrative procedure for the resolution of disciplinary grievances, and (2) the institution's failure to follow its own procedures, a valid cause of action for breach of the contractually guaranteed procedure may arise. Klein, 88 L.Ed.2d 1015, § 2(b), supra; Boehm v. University of Pennsylvania School of Veterinary Medicine, 392 Pa.Super. 502, 573 A.2d 575, 579 (1990); Corso v. Creighton University, 731 F.2d 529, 533 (8th Cir.(Neb.) 1982).

{22 In the present case, however, Bittle alleged in his petition only that OCU's internal appellate procedures did not meet constitutional due process muster, and in response to the motions to dismiss/motions for summary judgment, Bittle neither identified, nor offered evidentiary materials arguably demonstrating OCU's breach of any of its administrative post-dismissal appellate procedures. Insofar as Bittle based his due process claims on denial of those procedures ordinarily accorded litigants in a judicial proceeding, we have previously recognized ample authority for the proposition that a student subject to a private educational institution's disciplinary action is not entitled to the full panoply of constitutional due process safeguards. In view of the public policy considerations counseling against judicial review of a private educational institution's disciplinary decisions generally, and of purely academic disciplinary decisions specifically, we consequently conclude the trial court properly granted judgment to OCU and Board on Bittle's due process claims.

1 23 The order of the trial court granting judgment to OCU and Board is therefore AFFIRMED.

« 24 ADAMS, J., and BUETTNER, J., concur.

      . Bittle later averred in response to the motions to dismiss/motion for summary judgment OCU's denial of his requested access to records-allegedly destroyed-on which OCU relied both in reaching the dismissal decision and in denying him administrative relief.

      . In support of its motion to dismiss, OCU attached a copy of the accreditation standards promulgated by the Oklahoma Regents of Higher Education, arguing the Regents to be the only authority with power to redress an accredited university's sub-standard performance, ie., the assertion by Bittle of OCU's violation of the accreditation standards gave rise to no private right of action by Bittle against OCU.

      . To its motion for summary judgment/motion to dismiss, Board attached the affidavit of the Chairman of Board attesting that neither the issues raised by Bittle, nor review of Bittle's dismissal, had ever been presented to Board. The Chairman also attested that Board had no contractual relationship with Bittle, and that the members of Board, either collectively or individually, reaped no benefit from Bittle's enrollment at OCU, the Board members serving without compensation.

      . In support, Bittle attached a copy of his petition and an affidavit, in which he attested to the alleged deficiencies of his constitutional law professor, and to absence of a program providing academic assistance to OCU students.

      . Bittle attached a copy of the Regent's accreditation standards, arguing the standards minimally required OCU to adopt internal procedures affording OCU students due process.

      . Rules 4(m), 13(h), Rules for District Courts, 12 O.S. Supp.1993, Ch. 2, App., and Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. Supp. 1997, Ch. 15, App.

      . See also, Iacampo v. Hasbro Inc., 929 F.Supp. 562, 567 (D.R.I.1996) ("Like a battlefield surgeon sorting the hopeful from the hopeless, a motion to dismiss invokes a form of legal triage, a paring of viable claims from those doomed by law.")

      . "Should it appear from an affidavit of a party opposing the motion that he cannot for reasons stated present facts essential to justify his opposition, the court may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."

      . Quoted from Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 LEd.2d 222 (1962).

      . Shown by the record before us only in one of Bittle's responsive pleadings to the motions to dismiss/motion for summary judgment.

      . 'Private, denominational, and other institutions of higher learning may become co-ordinat-ed with the State System of Higher Education under regulations set forth by the Oklahoma State Regents for Higher Education."

      . "A private educational institution shall be accredited under rules promulgated and adopted by the Oklahoma State Regents for Higher Education unless such institution is accredited by a national or regional accrediting agency which is recognized by the Secretary of the United States Department of Education as a reliable authority as to the quality of education or training offered by institutions of higher education for the purposes of the Higher Education Act of 1965, [20 U.S.C.A. § 1001 et seq) as amended."

      . In rejecting this same argument in a case brought by a medical student expelled for violation of school standards, the Court there said:
      As a general rule courts will not interfere with purely academic decisions of a university. (Citation omitted.) The New Jersey courts should not be required to sit in day to day review of the academic decisions of a graduate medical education program. This function is best left to the state board of medical examiners, the board of higher education and the Advisory Graduate Medical Education Council of New Jersey.

      . Relying on Rendeli-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 LEd.2d 418 (1982); Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 LEd.2d 534 (1982); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974).

      . "[The weight of authority is to the effect that no formal hearing is required, that is, that the hearing need not be conducted with all the formalities of a trial in a court, even where a statute requires a hearing. Under this view it has been held not necessary that formal (written) charges be preferred, that evidence in support of the charges be introduced at the hearing, that the witnesses be heard under oath, that the student be represented by counsel, that he be confronted with the witnesses against him, that he be permitted the privilege of cross-examination as a matter of right, or that the hearing be governed by the strict rules of evidence." (Footnotes omitted.)

      . See, footnote 13, supra ("As a general rule courts will not interfere with purely academic decisions of a university.")

      . Private school "students who are being disciplined are entitled only to those procedural safeguards which the [private] school specifically provides."

      . The Eighth Circuit ruled that where the school's student handbook specifically regarded expulsion as serious penalty, and granted a student subject to a serious penalty the right to appellate hearing after expulsion, but the school conducted no such hearing, the trial court's order enjoining further action by the school pend: ing hearing should be affirmed.