concurring.
I join the per curiam opinion in holding that Cook's default judgment must be set aside and the case remanded for a determination of damages. I also join Justices Eas-taugh and Carpeneti in concluding that Cook's peremptory challenge must be treated as timely on remand; but I set out my reasons separately, because they differ from those adopted in Justice Carpeneti's concurring opinion.
Civil Rule 42(c)(8) allows a party who "enters an action after the case has been assigned to a specific judge" to file a peremptory challenge at any time "before the commencement of trial and within five days after a party appears." I would apply the literal terms of this rule to Cook's situation.1
Cook's motion to set aside the judgment under Rule 60(b) did not commence a new action for purposes of the peremptory challenge rule; rather, it sought to reopen the earlier action, which already had been closed by final judgment. And since Cook had never appeared in that action before it was closed, he had no right to enter it merely by filing a motion. Instead, his Rule 60(b) motion essentially sought leave to reopen and enter the action. Because Cook was not yet entitled to enter the action, his notice of peremptory challenge was not effective when it was filed and did not bar Judge Cutler from presiding over his motion. In short, unlike Justices Eastaugh and Carpeneti, I would not read Rule 42 as having given Cook the right to demand that a new judge hear his Rule 60(b) motion for relief from the default judgment.
But now that satisfactory grounds have been found for relief under Rule 60(b), Cook is entitled to reopen and enter the original action. And because the original judgment has been set aside, he now unquestionably qualifies as a party entering the action "before the commencement of trial." Accordingly, I would read Rule 42 to require that Cook's peremptory challenge be honored as timely on remand.2 I favor this reading of the rule over those advanced in this court's two other separate opinions because I think that it is textually more faithful to the rule and, unlike the dissenting opinion's reading, avoids conflict with our'recent decision in Mundt v. Northwest Explorations, Inc.3
_I thus would set aside the default judgment, would remand for further proceedings as directed in the per curiam opinion, and would require the case to, be reassigned to another judge on remand.
. Cf. Gardner v. State, 702 P.2d 250, 251 n. 4 (Alaska App.1985) (observing that a literal interpretation of the criminal rule providing for peremptory challenges is "in keeping with the general principle that disfavors interpretations resulting in findings of waiver").
. Even if Cook's peremptory challenge were untimely, I would be inclined to hold that Rule 42 should be relaxed, and the untimeliness excused, upon a finding of grounds for relief under Rule 60(b). Cf. Riley v. State, 608 P.2d 27, 29 (Alaska 1980) (holding, in the criminal context, that [tlhe right to peremptorily challenge a judge is sufficiently important so that it should not be lost by inaction before there is an opportunity to confer with an attorney").
. 963 P.2d 265, 268 (Alaska 1998) (holding that nothing in AS 22.20.022 or Rule 42(c) prevents an intervenor who enters a case after an initial judgment and appeal from exercising the right to peremptorily change judges").