      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@appellate.courts.state.ak.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

TOMMIE PATTERSON,           )
                            )                           Supreme Court No. S-14338
              Appellant,    )
                            )                           Superior Court No. 3AN-10-06325 CI
     v.	                    )
                            )                           OPINION
INFINITY INSURANCE COMPAN Y,)
                            )                           No. 6792 - June 28, 2013
              Appellee.	    )

                            )


              Appeal from the Superior Court of the State of Alaska, Third
              Judicial District, Anchorage, John Suddock, Judge.

              Appearances: Tommie Patterson, pro se, Anchorage,
              Appellant. Rebecca J. Hozubin, Law Office of Hozubin &
              Moberly, Anchorage, for Appellee.

              Before: Fabe, Chief Justice, Carpeneti, Winfree, and
              Stowers, Justices.

              CARPENETI, Justice.


I.    INTRODUCTION
              A man who held motor vehicle insurance coverage was involved in a motor
vehicle accident. Following the accident, the insurance company paid the man’s medical
providers the policy limit. Two years later, the man filed suit against the insurance
company, alleging that it had shown bad faith following the accident. The insurance
company moved for summary judgment. The superior court granted the motion and
entered final judgment in the case. Just over one month later, the man filed a second
lawsuit, alleging that the insurance company had falsely advertised its services, breached
the insurance contract, embezzled money from him, falsified documents, and
“threaten[ed] to make [him] at fault,” for the accident. The insurance company moved
for summary judgment, and the superior court granted its motion on the grounds that the
man’s entire suit was barred by the doctrine of res judicata. The man appealed. Because
the man’s embezzlement claim in the second suit alleges a distinct injury that constitutes
a harm separate from that litigated in the first suit, we reverse the superior court’s grant
of summary judgment in regards to this claim and remand for proceedings consistent
with this opinion. Because all of the man’s other claims are barred by the doctrine of res
judicata, we affirm the superior court in all other respects.
II.    FACTS AND PROCEEDINGS
              Tommie Patterson was involved in a motor vehicle accident in December
2006. At that time, he held motor vehicle insurance coverage with Infinity Insurance
Company (Infinity). Patterson’s policy provided that Infinity would pay for medical
expenses from a motor vehicle accident totaling up to $5,000. Following the accident,
he sought medical treatment and his medical providers in turn sought payment from
Infinity. Infinity paid the providers $5,000 and then declined to make further payments.
       A.     Patterson’s First Suit Against Infinity
              In December 2008 Patterson filed suit against Infinity, alleging that Infinity
“showed bad faith . . . by claiming that [Infinity] had paid medical bills that have never
been paid and saying that [Patterson] was part of the cause of the [December 2006]
accident.” Patterson later clarified that Infinity had actually paid his medical bills, but
“they were very slow paying these bills and [Patterson] was getting calls daily from
doctors and the hospital.” Patterson disputed the accuracy of affidavits submitted by
Infinity employees, Stephen Nelson and Peggy Taggart, in regards to the timely payment

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of his medical bills. Finally, Patterson alleged that, “[w]ithout [his] knowing or
approving,” Infinity had continued to draw money from his checking account to pay
premiums after he had cancelled his insurance policy.
             In July 2009 Infinity moved for summary judgment, arguing that it fulfilled
its contractual obligations to Patterson by paying out $5,000 and therefore there was no
bad faith breach of contract.     Infinity also asserted that, even assuming Infinity
employees had made comments regarding Patterson’s fault in causing the accident, it
“was not contractually obligated to refrain from offering opinions regarding [Patterson’s]
share of fault in any motor vehicle accident.” Patterson opposed Infinity’s motion for
summary judgment.
             On October 14, 2009, the superior court granted Infinity’s motion for
summary judgment. The court stated that Patterson provided “no facts or evidence to
support his claim that Infinity was slow in paying his medical bills, nor [did] he inform
the court of how long it actually took to pay the bills.”        Regarding the alleged
withdrawals from Patterson’s checking account, the court concluded that “[t]he
continuing withdrawal of premium payments has nothing to do with the underlying
issues in this case and will therefore not be considered by the court.” The court also
noted that it was unsure what Patterson meant when he said that Infinity told him that “he
would be ‘responsible for part of the accident,’ ” but concluded that the comment likely
related to Infinity having explained that Patterson had a $5,000 policy limit on medical
coverage. Because Patterson had not demonstrated a genuine issue of material fact as
to any alleged breach of contract, the superior court ruled that Infinity was entitled to
judgment as a matter of law.
             Patterson moved for reconsideration or recusal. In his motion, Patterson
argued that the assigned judge should have recused himself from the case for
“incompetency.” Rather than rule on that request for recusal, the judge noted that

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Patterson had not been notified of the judge’s assignment to the case until distribution
of the October 2009 summary judgment order. The court therefore allowed Patterson
five days to exercise a peremptory challenge, which he did. The case was then
transferred to another judge, who subsequently entered judgment in favor of Infinity.
Patterson did not appeal the grant of summary judgment to Infinity.
       B.     Patterson’s Second Suit Against Infinity
              On April 15, 2010, Patterson filed a complaint alleging that Infinity had:
(1) falsely advertised the protection it would afford Patterson; (2) breached the insurance
contract by failing to represent Patterson in other litigation following the December 2006
accident; (3) embezzled money from Patterson by continuing to draw money from his
account after cancellation; (4) falsified documents regarding the payment of his medical
bills in relation to the December 2006 accident; and (5) committed fraud by “threatening
to make [Patterson] at fault” for the accident. Patterson broadly asserted that all of
Infinity’s actions were in violation of the Racketeer Influenced and Corrupt
Organizations Act (RICO).1
              On October 26, 2010, Infinity filed a motion for summary judgment,
contending that: (1) Patterson’s suit was barred by res judicata and collateral estoppel;
(2) Patterson’s suit was barred by the statute of limitations; and (3) the superior court
lacked jurisdiction over Patterson’s RICO claims. Infinity also argued that Patterson had
not shown a genuine issue of material fact and Infinity was entitled to judgment as a
matter of law.
              On May 13, 2011, Superior Court Judge John Suddock granted Infinity’s
motion for summary judgment, concluding that all of Patterson’s claims were barred by
res judicata. The court first determined that Patterson’s earlier suit, which was dismissed


       1
              18 U.S.C. §§ 1961-1968 (2006).

                                            -4-                                      6792
on summary judgment, resulted in a valid final judgment. Because the parties involved
in the two suits were also the same, the court concluded that the present case “revolve[d]
around identity of claims between those currently at issue and those previously available
to Mr. Patterson and Infinity.” The court then analyzed the relationship between
Patterson’s two suits, concluding that Patterson’s second suit asserted a similar harm as
his first suit, relied on the same set of operative facts as his first suit, and would rely on
the same evidence and proof as his first suit. In particular, the court concluded that both
cases revolved around the “series of transactions” that flowed from the December 2006
accident. Accordingly, the court held that the doctrine of res judicata barred Patterson
from bringing the present suit.
               Patterson appeals the superior court’s grant of summary judgment in favor
of Infinity.
III.	   STANDARD OF REVIEW
               “We review the grant of a summary judgment motion de novo, affirming
if the record presents no genuine issue of material fact and if the movant is entitled to
judgment as a matter of law. All reasonable inferences are drawn in favor of the
nonmovant in this examination.”2 “Whether res judicata applies is a question of law that
we review de novo.”3
IV.	    DISCUSSION
        A.	    It Was Error To Conclude That Patterson’s Embezzlement Claim Was
               Precluded By The Doctrine Of Res Judicata.



        2
            Beegan v. State, Dep’t of Transp. & Pub. Facilities, 195 P.3d 134, 138
(Alaska 2008) (footnote omitted) (citing Matanuska Elec. Ass’n v. Chugach Elec. Ass’n,
152 P.3d 460, 465 (Alaska 2007)).
        3
             Smith v. CSK Auto, Inc., 132 P.3d 818, 820 (Alaska 2006) (citing DeNardo
v. Calista Corp., 111 P.3d 326, 329 (Alaska 2005)).

                                             -5-	                                       6792

              In its May 2011 order, the superior court granted Infinity’s motion for
summary judgment on the grounds that all of Patterson’s claims were barred by the
doctrine of res judicata. The court concluded that, because both of Patterson’s suits
concerned alleged improprieties resulting from Infinity’s conduct following the
December 2006 accident, Patterson was precluded from bringing the present case.
              Patterson contends that this court “should reverse the [s]uperior [c]ourt’s
findings that Infinity had a right to [s]ummary [j]udgment . . . . [a]nd that [r]es [j]udicata
barred [him] from relitigating his case.” Infinity responds that: (1) the superior court’s
order in the first case was a final judgment on the merits; (2) the superior court was a
court of competent jurisdiction to hear the first case; and (3) the first case involved the
same parties and the same underlying transaction.
              “A judgment is given res judicata effect by this court when it is (1) a final
judgment on the merits, (2) from a court of competent jurisdiction, (3) in a dispute
between the same parties (or their privies) about the same cause of action.”4 A dismissal
based on summary judgment constitutes a final judgment on the merits.5 “[A]
fundamental tenet of the res judicata doctrine is that it precludes relitigation between the
same parties not only of claims that were raised in the initial proceeding, but also of
those relevant claims that could have been raised then.”6 We have stated that “[t]he
question of whether the cause of action is the same does not rest on the legal theory
asserted but rather on whether the claims arise out of the same transaction — the same



       4
              Angleton v. Cox, 238 P.3d 610, 614 (Alaska 2010) (citing Smith, 132 P.3d
at 820).
       5
              See id. at 616 (explaining that summary judgment is a decision on the
merits).
       6
              Calhoun v. Greening, 636 P.2d 69, 72 (Alaska 1981).

                                             -6-                                        6792

set of underlying facts.”7 “We exercise pragmatism in making this determination and
consider whether the facts are related in time, space, origin, or motivation, whether they
form a convenient trial unit, and whether their treatment as a unit conforms to the parties’
expectations or business understanding or usage.”8
              Because it was resolved on summary judgment, Patterson’s first suit
resulted in a final judgment on the merits. Patterson does not allege that the superior
court lacked jurisdiction to render a final judgment in the first case and we do not find
any indication that the superior court lacked such jurisdiction. Thus, because the parties
are identical, the only issue is whether Patterson’s claims in his second suit arise out of
the same underlying transaction at issue in the first suit.
              Patterson’s first suit alleged that Infinity, in its conduct following the
December 2006 accident, “showed bad faith . . . by claiming that [Infinity] had paid
medical bills that have never been paid and saying that [Patterson] was part of the cause
of the accident.” Patterson supported his bad faith claim with largely unsupported
allegations that Infinity embezzled funds from him, failed to represent him as a plaintiff
in lawsuits against other individuals involved in the accident, and falsified affidavits
regarding payment of medical bills. In general, Patterson broadly alleged that Infinity
had used “deception and trickery” in its conduct toward Patterson. In his second suit,
Patterson alleged that Infinity, in its conduct following the December 2006 accident: (1)
falsely advertised the protection it would afford Patterson; (2) breached the insurance
contract by failing to represent Patterson in other litigation; (3) embezzled money from
Patterson by continuing to draw money from his account after cancellation; (4) falsified

       7
              Angleton, 238 P.3d at 614.
       8
              Alderman v. Iditarod Props., Inc., 104 P.3d 136, 141 (Alaska 2004)
(quoting McElroy v. Kennedy, 74 P.3d 903, 908 (Alaska 2003)) (internal quotation marks
omitted) (citing RESTATEMENT (SECOND ) OF JUDGMENTS § 24 (1982)).

                                            -7-                                       6792
documents regarding the timely payment of his medical bills; and (5) committed fraud
by “threatening to make [Patterson] at fault” for the accident.
              Patterson’s allegations that Infinity failed to represent him in other
litigation, failed to timely pay his medical claims, and threatened to make him at fault in
the December 2006 accident were directly at issue in the first case. Accordingly, each
of these claims is barred by res judicata.
              Unlike the above three claims, however, Patterson’s claim that Infinity
falsely advertised the protection it would afford him was not explicitly brought in his
first suit. But Patterson’s false advertising claim is merely a new legal theory derived
from the same underlying facts alleged in his first case. The legal analysis necessary to
prove Patterson’s false advertising claim would include an analysis of Patterson’s
insurance contract with Infinity as well as Infinity’s course of conduct following the
December 2006 accident, both of which were directly at issue in the first case. As the
superior court pointed out, “Patterson could have raised [his false advertising] claims as
part of [the first] lawsuit against Infinity, but he failed to do so.” Because Patterson’s
false advertising claim arises from the same alleged injury, alleges a similar harm, and
would require similar proof as his claims in the first case, we conclude that Patterson’s
false advertising claim is barred by the doctrine of res judicata.9
              Patterson’s embezzlement claim requires a different analysis. Like his false
advertising claim, Patterson did not explicitly assert a claim for embezzlement against


       9
                See Tope v. Christianson, 959 P.2d 1240, 1243 (Alaska 1998) (“Res
judicata precludes subsequent litigation of any claim that was or could have been
litigated in the earlier proceeding.”); Plumber v. Univ. of Alaska Anchorage, 936 P.2d
163, 168 (Alaska 1997) (“Res Judicata prevents the relitigation in a second suit for relief
from judgment of matters which were adjudged or could fairly have been adjudged in
the first suit.” (quoting Pankratz v. State, Dep’t of Highways, 652 P.2d 68, 74 (Alaska
1982))) (internal quotation marks omitted).

                                             -8-                                     6792

Infinity in the first case — although he did allege that Infinity had impermissibly
withdrawn money from his bank account after he had cancelled his policy as part of his
claim that Infinity had acted in bad faith. Patterson’s embezzlement claim would
therefore require at least some similar proof as his bad faith claim in the first case.
Despite this overlap in evidence, Patterson’s embezzlement claim alleges injury and
harm — pecuniary harm caused by the withdrawal of funds from his bank account —
that is distinct from his original bad faith claim, which primarily regarded conduct
directly resulting from the December 2006 accident.10 Moreover, the superior court in
the first case found that Patterson’s embezzlement claim had “nothing to do” with
Patterson’s other claims and declined to consider the issue at all. We therefore reverse
the superior court’s res judicata-based grant of summary judgment in regard to
Patterson’s embezzlement claim.
       B.	    Patterson Was Provided A Full And Fair Opportunity To Be Heard
              On The Issues In His First Case.
              Patterson argues that he was not “given a [f]ull and fair opportunity to be
heard on the issues” in his first case. Generally, “[a]pplication of res judicata depends
only upon the plaintiff having had a full and fair opportunity to litigate his claims . . . .”11
In support of his argument, Patterson contends that: (1) his first case was dismissed
without a trial in violation of his constitutional right to a jury trial; (2) the first assigned
judge should have recused himself because he had previously represented insurance



       10
             See Smith v. CSK Auto, Inc., 132 P.3d 818, 822 (Alaska 2006) (holding
claim not barred by res judicata where it stemmed from a different injury, caused a
different harm, and required different proof than claims in first complaint); Alderman,
104 P.3d at 141.
       11
            Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1254 (Alaska 2001) (internal
quotation marks omitted).

                                              -9-	                                        6792

companies for other reasons; and (3) Patterson was not informed of a change of judge
in the first case.
               Even as applied to a pro se litigant, “it is clear that summary judgment is
not unconstitutional.”12 We have explained:
               We have routinely affirmed use of the summary judgment
               procedure by the superior courts, and have limited the
               procedure to cases in which the pleadings and evidence show
               “that there is no genuine issue as to any material fact and that
               [the moving] party is entitled to a judgment as a matter of
               law.” This standard is adequate to prevent the violation of a
               party’s due process right or right to a jury trial.[13]
Thus, Patterson’s constitutional right to a jury trial was not violated in the first case.
               Next, Patterson fails to explain how the first judge’s failure to recuse
himself because he previously represented insurance companies denied Patterson an
opportunity to be fully and fairly heard. Alaska Statute 22.20.020(a) sets out the reasons
for recusal.14 None of these reasons applies in this case. Patterson’s argument is most


       12
             Capolicchio v. Levy, 194 P.3d 373, 380 (Alaska 2008) (summary judgment
not unconstitutional when applied to pro se litigant).
       13
               Id. at 380-81 (footnote omitted).
       14
               AS 22.20.020(a) provides:
               (a) A judicial officer may not act in a matter in which
                      (1) the judicial officer is a party;

                      (2) the judicial officer is related to a party or a party’s
               attorney by consanguinity or affinity within the third degree;
                      (3) the judicial officer is a material witness;

                      (4) the judicial officer or the spouse of the judicial
               officer, individually or as a fiduciary, or a child of the judicial
                                                                                  (continued...)

                                             -10-                                         6792

appropriately characterized as based on AS 22.20.020(a)(9), which provides that “[a]
judicial officer may not act in a matter in which . . . the judicial officer feels that, for any
reason, a fair and impartial decision cannot be given.” The fact that a superior court
judge previously represented other insurance companies does not, without any further
evidence, require the conclusion that Patterson was denied a full and fair opportunity to
litigate his claims in his first suit. Moreover, if Patterson thought there was any
procedural error or impropriety in the first case, the remedy would have been to appeal
the court’s final judgment in that case.



       14	
              (...continued)
              officer has a direct financial interest in the matter;
                      (5) a party, except the state or a municipality of the
              state, has retained or been professionally counseled by the
              judicial officer as its attorney within two years preceding the
              assignment of the judicial officer to the matter;
                     (6) the judicial officer has represented a person as
              attorney for the person against a party, except the state or a
              municipality of the state, in a matter within two years
              preceding the assignment of the judicial officer to the matter;
                     (7) an attorney for a party has represented the judicial
              officer or a person against the judicial officer, either in the
              judicial officer’s public or private capacity, in a matter within
              two years preceding the filing of the action;
                    (8) the law firm with which the judicial officer was
              associated in the practice of law within the two years
              preceding the filing of the action has been retained or has
              professionally counseled either party with respect to the
              matter;
                      (9) the judicial officer feels that, for any reason, a fair
              and impartial decision cannot be given.

                                             -11-	                                        6792

                  Regarding Patterson’s final argument, it is true Patterson was not notified
of the first judge’s assignment to the first case until after distribution of the judge’s order
on summary judgment. But Patterson was not denied an opportunity to contest the
court’s procedure in the first case — rather, the first judge allowed a motion for
rehearing on the superior court’s summary judgment order, which the succeeding judge
ultimately denied. Patterson did not challenge that decision or any procedural deficiency
in the first case by filing an appeal. Because Patterson could have challenged any
procedural deficiency by filing an appeal, Patterson had an opportunity to fully and fairly
litigate his claims in the first case. That Patterson chose not to pursue an appeal in the
first case does not preclude application of res judicata in the present case.15 We therefore
conclude that Patterson was afforded a full and fair opportunity to litigate his claims in
the first suit.
V.     CONCLUSION
                  Because Patterson’s embezzlement claim arises from a distinct injury and
constitutes a separate harm, we REVERSE the superior court’s grant of summary
judgment in regards to this claim and REMAND for further proceedings consistent with
this opinion. Because all of Patterson’s other claims are barred by the doctrine of res
judicata, we AFFIRM the superior court in all other respects.




       15
              See Smith v. CSK Auto, Inc., 132 P.3d 818, 823 (Alaska 2006) (upholding
decision based on res judicata despite alleged error and due process deficiencies in first
case because “[a] party’s remedy for an alleged erroneous decision in an earlier action
is limited to an appeal from that action” and noting that “[r]elitigation of the issues or
claims is not permissible simply because the party alleges error in the first action”).

                                              -12-                                       6792
