Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

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, 

 Appellant, 

v. 

LARRY D. HEATHCOTT, 

 Appellee. 

) 

) Supreme Court No. S-14321

Superior Court No. 3AN-07-10280 CI 

O P I N I O N 

No. 6750 – February 15, 2013

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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, oneday 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. 

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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. 

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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 

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. 

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2 
 

 

 

 

 

 

 

 

 

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 

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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 

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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). 

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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. 

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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). 

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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 preexisting 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: 

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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,” 

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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, MCCORMICK 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 evidence, are not 

mere technical exclusions, and therefore are within the discretionary power of the judge 

to exclude if justice requires.”). 

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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.”). 

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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 onehalf 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.” 

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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. 

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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. 

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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. 

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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. 

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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). 

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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)). 

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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 

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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 reopen 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 

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 

26 
 

 

 

 

 

 

 

 

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). 

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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. 

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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.”). 

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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 whether 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. 

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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 oneday 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. 

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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. 

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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. 

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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 

Attorney Alexander Schutz, recently entered an appearance for Ms. 

Greenway that was limited to moving for a continuance. 

Appendix A – 2 of 5 

1 

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 does 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 with 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 

The Court has considered the records submitted as exhibits and cannot find 

they provide support for plaintiff’s claims. 

Appendix A – 5 of 5 

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