You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Vinson v. Hamilton (6/11/93), 854 P 2d 733
<![CDATA[
Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
JACK VINSON, )
) Supreme Court File No. S-4857
Petitioner, ) Superior Court File No.
) 3AN-90-9186 Civil
)
v. ) O P I N I O N
)
ROBERT J. HAMILTON, ) [No. 3967 - June 11, 1993]
)
Respondent. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, Karl S. Johnstone, Judge, on
appeal from the District Court, Anchorage,
Michael Wolverton, Judge.
Appearances: Barbara J. Hood and Carol
Daniel, Alaska Legal Services Corp.,
Anchorage, and Richard F. Illgen, Preston
Thorgrimson Shidler Gates & Ellis, Anchorage,
for Petitioner. Albert Maffei, Anchorage,
for Respondent.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
Justices.
MOORE, Chief Justice.
RABINOWITZ, Justice, with whom COMPTON, Justice, joins,
concurring in part and dissenting in part.
I. INTRODUCTION
Jack Vinson appeals a decision of the superior court
affirming the district court_s judgment against him in a
proceeding for forcible entry and detainer. Vinson_s landlord,
Robert J. Hamilton, instituted the action after terminating
Vinson_s month-to-month tenancy. Vinson challenges the denial of
both his motion for a continuance and his request for a jury
trial. We reverse the denial of the continuance, and affirm the
denial of a jury trial.
II. FACTS AND PROCEEDINGS
In December 1989 Vinson rented a house from Hamilton
under an oral month-to-month agreement. When Vinson moved into
the house, it was in significant disrepair. Vinson performed
some of the needed repairs in exchange for rent credit. Vinson
was willing to do more extensive repairs on the house, but in
return for his labor he wanted a one-year lease plus rent credit.
Vinson claims that Hamilton agreed to this arrangement. Hamilton
denies it. Based upon Vinson's understanding of this oral
agreement, he continued his repair work, i.e. replacing a broken
living room window, clearing out the cluttered yard, and painting
the exterior of the house.
By September 1990 the relationship between Vinson and
Hamilton had deteriorated. Although Hamilton gave a rent credit
for the repairs made, he now disputed the accuracy of Vinson_s
bill for repair work. Soon afterwards, Vinson received a 30-day
notice to quit, which terminated the month-to-month tenancy as of
November 1.1 Vinson received a summons and complaint for
forcible entry and detainer on November 7.
The forcible entry and detainer (hereinafter FED)
hearing took place on November 14 in the district court. Vinson
appeared pro se but submitted a written motion for a 30-day
continuance.2 In the motion, Vinson raised several counterclaims-
-including retaliatory eviction and breach of a one-year lease--
and offered to post an undertaking as required under Alaska Civil
Rule 85.3 Vinson also made an oral request for a jury trial.
Judge Wolverton denied Vinson_s motion for a continuance,
concluding that the counterclaims related solely to damage claims
and not to the issue of possession. Then, after holding a
hearing, and listening to the arguments advanced by both sides,
Judge Wolverton found that a month-to-month tenancy existed, that
Vinson had received proper notice of its termination, and that he
had to vacate the premises by November 24. Vinson appealed the
district court decision to the superior court.
On October 7, 1991, the superior court affirmed that
decision because it concluded that Judge Wolverton had not abused
his discretion. Judge Johnstone further commented that because
Vinson_s motion contained matters inapplicable to the FED
proceedings, Judge Wolverton could have decided that it was not
filed in good faith. Judge Johnstone also held that Vinson was
not entitled to a jury trial, on the ground that an action for
possession does not involve an amount in controversy in excess of
$250. We reverse in part, and affirm in part.
III. DISCUSSION
A. Vinson_s Motion for a Continuance
Vinson argues that the district court erred in
concluding that Vinson_s defenses were unrelated to the issue of
possession. Vinson also argues that the court abused its
discretion in denying his motion, because he had no time to
obtain counsel, prepare his defenses, or perform discovery.
When a tenant occupies a property after the termination
of his lease, in defiance of a notice to quit, the landlord may
institute an FED action to regain possession. See AS 09.45.070,
.090. This action is summary in nature, and traditionally the
court will recognize almost no affirmative defense or
counterclaim. See McCall v. Fickes, 556 P.2d 535, 537 (Alaska
1976). The sole issue to address is that of possession. See
McDowell v. Lenarduzzi, 546 P.2d 1315, 1317-18 (Alaska 1976).
In Alaska, statutory provisions assure quick FED
procedures, permitting only a few days to pass between service of
process and the hearing itself.4 Accordingly, a judge cannot
grant a continuance of more than two days, unless the defendant
who moves for one provides an undertaking equal to the rent that
will accrue during the proceedings. Alaska R. Civ. P. 85(a)(3);
see also AS 09.45.120. Furthermore, under Alaska_s version of
the Uniform Residential Landlord and Tenant Act (hereinafter
URLTA), the party seeking a continuance must also show good
cause.5 A grant or denial of a continuance shall be overturned
only if the trial court abused its discretion. Siggelkow v.
Siggelkow, 643 P.2d 985, 986 (Alaska 1982). This court has found
an abuse of discretion when the trial court_s ruling either
substantially prejudices a party or denies the party a
substantial right. Id. at 986-87.
In an FED hearing, a tenant does not show good cause
for a continuance if the need for one arose from his own delays
or lack of diligence. See Taylor v. Gill St. Invs., 743 P.2d
345, 349 (Alaska 1987).6 On the other hand, where a party_s
original counsel had withdrawn on the eve of trial, and the party
had made a diligent effort to obtain new counsel, we overturned
the trial court_s denial of a continuance. Barrett v. Gagnon,
516 P.2d 1202, 1203 (Alaska 1973). Therefore, good cause exists
to grant a continuance when to do otherwise would hinder a
party_s ability to prepare her case in good faith.
Citing McCall, Hamilton argues that Vinson did not show
good cause. In McCall, we held that because month-to-month
tenancies, unlike longer fixed-term leases, were terminable at
will for any reason, not all provisions of the URLTA applied to
them. Id. at 539. Hamilton reads this opinion to mean that
termination of a month-to-month tenancy is automatic, and that a
tenant can raise no meaningful defenses. Accordingly, Hamilton
finds no good cause for a continuance.
Although McCall may deprive month-to-month tenants of
some defenses,7 it does not eliminate all of them. In fact, we
expressly made only one defense unavailable to a month-to-month
tenant: that of the landlord_s waiver through acceptance of late
rent. McCall, 556 P.2d at 540. In comparison, in any action for
possession, a tenant may raise the defense that the landlord has
terminated the lease in retaliation for the tenant_s assertion of
his rights under the law or under the rental agreement. AS
34.03.31(a), (b). Even month-to-month tenants may raise a
defense of retaliatory eviction. McCall, 556 P.2d at 539-40; see
also Edwards v. Habib, 397 F.2d 687 (D.C. Cir. 1968), cert.
denied, 393 U.S. 1016 (1969); Barela v. Superior Court, 636 P.2d
582 (Cal. 1981). Otherwise, these tenants would not assert their
rights under their leases and under the law, rightfully fearful
that landlords would evict them in consequence. Such a result
would frustrate public policy. See, e.g., Edwards, 397 F.2d at
699-702; Barela, 636 P.2d at 586-87.
In this case, Vinson_s motion for a continuance stated
two valid defenses to an action for possession: retaliatory
eviction and the existence of an oral one-year lease. The issue
of the one-year lease, of course, goes to the heart of the
question of possession. Moreover, Vinson adequately stated a
claim for retaliatory eviction by arguing that he received
eviction notices soon after Hamilton challenged Vinson_s bill for
repairs performed. Vinson indicated his willingness to post an
undertaking as Civil Rule 85 requires. Finally, there is no
indication that Vinson did not act diligently in his efforts to
obtain the assistance of counsel and prepare himself for trial.
Therefore, Vinson has shown good cause for a continuance, and the
district court abused its discretion in denying him one.8
B. Vinson_s Right to a Jury Trial
Vinson also argues that Judge Wolverton improperly
denied him a trial by jury. In particular, Vinson challenges the
superior court_s conclusion that because Hamilton_s claim was not
one for rent, there was no amount in controversy and thus no
right to a jury trial.
In Alaska, the right to a jury in civil cases "is
preserved to the same extent as it existed at common law," in
suits where the amount in controversy is more than $250. Alaska
Const. art. I, 16. If a party seeks only equitable relief,
then there is no right to a jury trial. State v. First Nat_l
Bank of Anchorage, 660 P.2d 406, 423-24 (Alaska 1982) (denying a
jury trial where the plaintiff sought only restitution and
injunctive relief, rather than damages at law).
To support his argument, Vinson cites to Pernell v.
Southall Realty, 416 U.S. 363 (1974). In this case, the U.S.
Supreme Court, interpreting the Seventh Amendment,9 found that a
right to a jury trial attached to FED hearings in the District of
Columbia. Id. However, we are not bound to the Pernell
decision, because the Seventh Amendment of the U.S. Constitution
does not apply to state court proceedings. E.g., Minneapolis &
St. Louis R.R. v. Bombolis, 241 U.S. 211, 217 (1916); Bringe v.
Collins, 335 A.2d 670, 673 (Md. 1975), application for stay
denied, 421 U.S. 983 (1975).
We decline to follow Pernell. Pernell holds that
despite being a creature of statute, an FED action is still one
at law, similar to a common-law ejectment action. 416 U.S. at
374-75. On the other hand, many actions for possession of real
property, such as an action to quiet title or one seeking a
prescriptive easement, are equitable in nature and thus demand no
jury trial. See, e.g., McGill v. Wahl, 839 P.2d 393, 396 (Alaska
1992) (denying jury trial in prescriptive easement case); cf.
Elbing v. Hastings, 3 Alaska 125 (D. Alaska 1906) (in suit to
quiet title, disallowing defendants_ characterization of action
as one for ejectment, and thus denying them a jury trial). In
McGill we suggested that whether a jury trial right existed was
dependent not on whether the plaintiff or the defendant was in
possession, but whether a claim for damages as distinct from an
order adjudicating ownership or user rights was sought:
We reject the suggestion that
whether the plaintiff is in possession of the
disputed property at the time of the filing
of the claim . . . is determinative of the
question of whether the claim is treated as a
legal or equitable one. . . .
Our rule prevents the awkward
situation where a party who takes the
aggressive stance of seizing possession of
disputed property is awarded the right to a
jury trial. . . . We choose not to adopt a
policy which encourages unilateral self-help
and confrontational behavior.
839 P.2d at 396-97.
Furthermore, FED statutes do not call for an imitation
of common law ejectment proceedings. At common law, if a tenant
violated the terms of his lease, or if he retained possession
after the lease terminated, an action for ejectment was the
landlord_s only judicial remedy. Lindsey v. Normet, 405 U.S. 56,
71 (1972); Robert S. Schoshinski, American Law of Landlord and
Tenant 6:10 (1980). This action was one at law, and
traditionally parties had a right to a civil jury trial.
Pernell, 416 U.S. at 373-74. However, ejectment was also a
rather slow and complex procedure, and many landlords were
reluctant to rely on it. Instead, they would often evict their
tenants by means of self-help, a method that was allowed under
the common law but frequently led to violence. To avoid
bloodshed, state legislatures of the nineteenth century forbade
self-help as a remedy, but also created summary proceedings in
order to speed resolution of possessory issues. Lindsey, 405
U.S. at 71-72; R. Schoshinski, supra, 6:10.
When interpreting Alaska_s FED statute, we must take
care to preserve the swift proceedings that the legislature
intended. Alaska_s FED provisions forbid the use of forcible
self-help to regain possession of property. AS 09.45.060. At
the same time, they require a summary hearing on the question of
possession alone. AS 09.45.070, .120; see McDowell, 546 P.2d at
1317-18; Alaska R. Civ. P. 85. Claims for damages normally are
not heard, because they can be raised in regular proceedings at
law. See Lindsey, 405 U.S. at 66-69; cf. McDowell, 546 P.2d at
1318 ("A claim for rent is secondary and incidental to a
determination of the right to possession."). This bifurcation of
possessory issues from claims for damages indicates that an award
of possession is distinct from a remedy at law. Therefore, we
hold that in an FED hearing, an award of possession constitutes
equitable relief. 10 Consequently, the parties in an FED hearing
do not have a right to a jury trial.
Although the URLTA allows a tenant in certain FED
actions to raise counterclaims seeking money damages, see AS
34.03.190(a), this fact does not affect our decision. First,
counterclaims may be raised only if the action involves
nonpayment of rent. Id. In Vinson_s case, nonpayment of rent is
not a direct issue. Second, even if such a counterclaim were
involved here, the central issue of the case is still possession,
for possession, not money damages, is what the landlord seeks,
and a tenant has the alternative of pursuing her counterclaims in
a separate judicial proceeding.11 Finally, most FED cases will
not involve counterclaims, and will concern possession alone.
See Lindsey, 405 U.S. at 65-66.
Here, the only issue to be resolved was who could
rightfully possess the property, Vinson or Hamilton. The only
relief Hamilton sought at the FED hearing was a court order to
evict Vinson and allow Hamilton to repossess the house.
Therefore, the remedy that Hamilton sought was equitable in
nature, and Vinson had no right to a jury trial.12
IV. CONCLUSION
On the question of whether the denial of Vinson_s
motion for a continuance constituted an abuse of discretion, we
REVERSE the decision of the superior court, and remand the case
to the district court for further proceedings consistent with
this opinion. On the question of whether Vinson has a right to a
jury trial, we AFFIRM the decision of the superior court.
RABINOWITZ, Justice, with whom COMPTON, Justice, joins,
concurring in part and dissenting in part.
I agree that the district court abused its discretion
in denying Vinson's motion for a continuance. I dissent,
however, from the court's holding denying Vinson's right to a
jury trial.
Our decision in McGill v. Wahl, 839 P.2d 393 (Alaska
1992), illustrates the appropriate right-to-jury-trial analysis
under the Alaska Constitution:
The Alaska Constitution preserves a
jury trial only for those causes of action
which are legal, and not equitable in nature.
A claim for a prescriptive easement, like a
claim for adverse possession, is in the
nature of an equitable claim and was
historically tried in the courts of equity.
We hold that the McGills were not entitled to
a jury trial as a matter of right.
Id. at 396 (citations omitted). The court's opinion departs from
this relatively straightforward historical analysis. The court
states the controlling rule: "If a party seeks only equitable
relief, then there is no right to a jury trial." Yet, I am of
the view that application of this test yields only one possible
conclusion: a right to a jury trial exists in Forcible Entry and
Detainer (FED) actions.
I
In Pernell v. Southall Realty, 416 U.S. 363 (1974), the
United States Supreme Court applied a test identical to Alaska's
historical approach in deciding that litigants have a Seventh
Amendment right to a jury trial in District of Columbia FED
actions. Id. at 384-85. As the court notes, Pernell rested its
holding on the historical fact that "an FED action is . . . one
at law, similar to a common-law ejectment action." Slip op. at
9. Pernell reached this result because the FED action served the
"same essential function" as its historical predecessor: the
action at law for ejectment.
Pernell does not bind us in interpreting the Alaska
Constitution. Yet, Pernell's reasoning accords with our own
prior characterization of the FED action. We have stated that
the Alaska FED proceeding is a direct substitute for the
landlord's common law right to remove a tenant by self-help: "A
suit for forcible detainer under Alaska statutes substitutes the
authority of the courts for private force to compel a citizen
wrongfully in possession of real property to surrender it to
another with a superior claim." Modrok v. Marshall, 523 P.2d
172, 174 (Alaska 1974). In creating the FED action, the Alaska
Legislature staked a middle ground between two common law rights:
ejectment and self-help. The resulting FED action, then, has
legal, not equitable, ancestry. As such, the FED action
inherited not merely the "same essential function"of the action
for ejectment, but also the historical constitutional right to a
jury trial of all actions at law. The majority of state courts
to address the issue reach the same conclusion. See Marquez-
Luque v. Marquez, 238 Cal. Rptr. 172 (App.), modified 193 Cal.
App. 3d 1093 (App. 1987); Hopkins v. Justice of the Peace Court
No. 1, 342 A.2d 243 (Del. Super. 1975); Hill v. Levenson, 383
S.E.2d 110 (Ga. 1989); North Sch. Congregate Housing v.
Merrithew, 558 A.2d 1189 (Me. 1989); Carroll v. Housing
Opportunities Comm'n, 510 A.2d 540 (Md. 1986); Reiter v. Reiter,
784 P.2d 917 (Mont. 1990); Martin v. Rogers, 536 N.E.2d 665 (Ohio
App. 1987); Criss v. Salvation Army Residences, 319 S.E.2d 403
(W. Va. 1984). But see Lum v. Sun, 769 P.2d 1091 (Hawaii 1989);
Alfour Inc. v. Lightfoot, 301 A.2d 197 (N.J. Super. 1973).
II
The court "decline[s] to follow Pernell." This
statement has significant consequences for the continued vitality
of the present right-to-jury-trial analysis in Alaska. Pernell
was based on an assertion of historical fact. As noted above,
the historic common law predecessor to the FED action -- the
action for ejectment -- was an action at law triable to a jury.
Consequently, Pernell concluded that: "The proceeding
established by [the FED statute], while a far cry in detail from
the common-law action of ejectment, serves the same essential
function -- to permit the plaintiff to evict one who is
wrongfully detaining possession and to regain possession
himself." Pernell, 416 U.S. at 375. Pernell, then, took care to
distinguish between the "details"and the "essential function"of
an action. Our decisions have applied a similar test, asking
whether the claim asserted is legal or equitable "in nature"
rather than "in detail."13 In doing so, both the United States
Supreme Court and this court refined the historical law-equity
test to allow for growth in the law and, thus, to guarantee a
jury trial for all nascent actions that are "in nature"-- i.e.,
serve "the same essential function"as -- an action at law.
The court's analysis focuses on the procedural
differences between an FED action and an action for ejectment.
In doing so, the court bases its comparison on the "details" of
the two actions and not on their "essential functions." Indeed,
the court concedes that the historical action for ejectment was
an action at law for which a jury trial was available. Moreover,
the court does not dispute that the FED action performs the "same
essential function"as an action for ejectment. Yet, the court
concludes that a jury trial is not required. Thus, since the
court declines to follow Pernell, it must also decline to follow
the "same essential function"test. In doing so, it also
abandons our own test based on the "nature" of the asserted
claim.
It appears to me that the court is applying a bright
line test: the right to a jury trial attaches only to those
claims seeking money damages.14 The court suggests such a rule in
its opinion. See Slip Op. at 9-10. In support of this rule, the
court recharacterizes some of our past cases to fit this model.
The court's treatment of McGill v. Wahl, 839 P.2d 393 (Alaska
1992), exemplifies its recharacterization of our case law in this
area.15
The court also indicates that it was drawn in making
its decision by the pull of legislative policy: "When
interpreting Alaska's FED statute, we must take care to preserve
the swift proceedings that the legislature intended." Slip Op.
at 10-11. This rationale is unpersuasive for two reasons.
First, regardless of the legislature's intent, the Alaska
Constitution is the source of the right to a jury trial. The
Alaska Legislature cannot abrogate the right to a jury trial
merely by streamlining existing actions at law. Second, if the
court is concerned that tenants will request a jury trial merely
to forestall inevitable eviction, the procedural mechanism of
summary judgment can dispose of cases with no genuine issues of
material fact.16 Pernell, 416 U.S. at 384. The West Virginia
Supreme Court of Appeals stated the point as follows:
there may be some concern that if all
tenants assert their right to a jury trial
under this statute the purpose of the
statute, i.e., to provide the landlord with a
quick procedure to remove a hold-over tenant,
will be thwarted. We do not think this is
likely; although we hold that there is a
right to a jury trial under the expedited
procedures, that right is not unlimited and
in certain cases it would be fruitless to
assert it. Certainly all of the rules that
apply to summary judgments in other jury
trial contests apply with equal force.17
Criss, 319 S.E.2d at 407 (citations omitted). Or, a landlord
could anticipate such problems by including a waiver-of-jury-
trial provision in the lease.
III
On the basis of the foregoing I believe that under our
current test Vinson is entitled to a jury trial because the FED
action is "in nature" a common law action of ejectment.
Therefore I dissent from the court's holding that Vinson is not
entitled to a trial by jury.
_______________________________
1. Either a landlord or a tenant may terminate a month-to-
month lease by delivering to the other a written notice at least
30 days before the rental due date listed in the notice. AS
34.03.290(b).
2. This motion was a "form"document, which Alaska Legal
Services Corporation (ALSC) had tailored to his case.
3. In an FED action, the court can grant no continuance
longer than two days unless the defendant movant "give[s] an
undertaking to the adverse party, with sureties approved by the
court, conditioned to the payment of the rent that may accrue if
judgment is rendered against the defendant." Alaska R. Civ. P.
85(a)(3); see also AS 09.45.120. Vinson offered to post an
undertaking of $150--his $300 monthly rent, less $150, the amount
of one month_s rent credit.
4. Under Alaska Civil Rule 85(a)(2), "[s]ummons shall be
served not less than two days before the day of trial. The date
set for trial shall be not more than 15 days from the date of
filing of the complaint unless otherwise ordered by the court."
Alaska_s version of the Uniform Residential Landlord
and Tenant Act states that "[i]n an action for possession under
this chapter, the summons and complaint shall be served under the
provisions of [Civil] Rule No. 85." AS 34.03.285.
5. According to the URLTA, "A continuance may not be
granted plaintiff or defendant except for good cause shown." AS
34.03.285. Whereas Civil Rule 85(a)(3) expressly applies only to
the defendant movant, AS 34.03.285, by contrast, applies to
either party.
6. In Taylor, the tenant had already received two
continuances, due to the withdrawal of his attorney from the
case, but did not use due diligence to find himself new counsel.
We held that the court properly denied the tenant additional
time, and that no abuse of discretion occurred. Taylor, 743 P.2d
at 349.
7. For example, some defenses, such as breach of the
landlord's promise to repair, arise when the possessory dispute
involves nonpayment of rent, rather than termination of the
lease. Where termination is the only issue, to prohibit month-to-
month tenants from raising these defenses would be more logical.
See AS 34.03.190.
8. Vinson also argues that by denying him a continuance,
despite his willingness to post an undertaking, Judge Wolverton
denied him the opportunity to conduct discovery, and denied him
due process of law. Because we find that Judge Wolverton abused
his discretion by denying Vinson a continuance, we need not
decide these other issues.
9. The Seventh Amendment assures a right to a jury trial
"[i]n Suits at common law, where the value in controversy shall
exceed twenty dollars." U.S. Const. amend. VII.
10. Needless to say, when the relief afforded is equitable
in nature, no amount of money damages is in controversy.
Therefore, Judge Johnstone properly determined that Vinson_s
claim did not meet the Alaska Constitution_s amount in
controversy requirement. See Alaska Const. art. I, 16.
11. Notably, AS 34.03.190(a) does not require tenants to
pursue counterclaims by way of an FED hearing.
12. The parties also dispute whether Vinson_s oral request
for a jury at the FED hearing was proper under Alaska Civil Rule
38. Because no right to a jury trial exists here, we decline to
address this question.
13. See Keltner v. Curtis, 695 P.2d 1076, 1079 & n.5 (Alaska
1985) ("a party to a proceeding adjudicating ownership of
personal property should be entitled to a jury trial."); State v.
First Nat'l Bank of Anchorage, 660 P.2d 406, 423-24 (Alaska 1982)
(no right to a jury trial because litigant sought only equitable
relief of restitution or injunction).
14. The court concedes, as it must, that a tenant can bring
a counterclaim for money damages in a state FED action. Slip Op.
at 11; see AS 34.03.190(a). The court also notes that such a
counterclaim was not brought in this case. Slip Op. at 11. The
court, however, adds that "even if such a counterclaim were
involved here, the central issue of the case is still possession,
for possession, not money damages, is what the landlord seeks,
and a tenant has the alternative of pursuing her counterclaims in
a separate judicial proceeding." Slip Op. at 11-12. This
reasoning casts significant doubt upon our prior decision in
Shope v. Sims, 658 P.2d 1336 (Alaska 1983), in which we adopted
the rule that "when a case involves both legal and equitable
claims, the facts common to such claims must be tried to a jury
if a proper demand is made." Id. at 1340. Shope does not allow
us to characterize an entire case based on a "central issue" or
"dominant essence"test. Rather, the common issues of fact must
be submitted to a jury.
15. The court states that in McGill "we suggested that
whether a jury trial right existed was dependent not on whether
the plaintiff or the defendant was in possession, but whether a
claim for damages as distinct from an order adjudicating
ownership or user rights was sought." Slip Op. at 9 (emphasis
added). Our decision in that case was based on neither ground.
Instead, we first noted that plaintiff's complaint alleged a
prescriptive easement. McGill, 839 P.2d at 396. Next, we
reasoned that a "claim for a prescriptive easement, like a claim
for adverse possession, is in the nature of an equitable claim
and was historically tried in the courts of equity." Id.
(emphasis added). Lastly, we concluded that plaintiff was not
entitled to a jury trial on his equitable claim. Id. Nowhere in
our discussion did the absence of a claim for money damages take
on dispositive significance.
16. Again, this concern must be subordinate to a clear
command of the Alaska Constitution.
17. On this point the Pernell court noted that "the right to
be tried by jury was recognized by statute [in the District of
Columbia] for over a century . . . and it does not appear to have
posed any unmanageable problems during that period." Pernell,
416 U.S. at 384.
]]>
