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Zok v. Alaska (9/29/95), 903 P 2d 574
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, telephone (907) 264-0607, fax (907) 276-
5808.
THE SUPREME COURT OF THE STATE OF ALASKA
HASSAN ZOK, )
) Supreme Court No. S-5728
Appellant, )
) Superior Court No.
v. ) 3AN-88-9941 Civil
)
STATE OF ALASKA, MARK REESE, ) O P I N I O N
RUSSEL SLATEN, )
) [No. 4262 - September 29,
1995]
Appellees. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage,
Joan M. Woodward, Judge.
Appearances: Hassan Zok, pro se, Anchorage.
Venable Vermont, Jr., Assistant Attorney
General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellees.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
EASTAUGH, Justice.
I. FACTS AND PROCEEDINGS
Hassan Zok filed suit against three Anchorage
International Airport Safety Officers and their employer, the
State of Alaska, claiming the officers had assaulted and
illegally arrested him.1 In the liability phase of Zok's
bifurcated trial, the jury found the officers guilty of illegally
arresting Zok. The same jury awarded Zok zero dollars at the
completion of the damages phase of the trial. Zok moved for a
new trial three days later. The motion was denied and this
appeal followed.
II. DISCUSSION
Zok alleges that the court erred in failing to instruct
the jury regarding nominal damages and that the jury's verdict of
zero damages was inconsistent with its prior finding that the
officers were guilty of illegally arresting Zok.2 Zok argues
that these errors entitle him to a new trial.3
A.Inconsistent Verdict
Zok claims that the jury's verdict was inconsistent
with the evidence presented. We have held that challenges to the
consistency of a verdict must be made prior to the discharge of
the jury. Blumenshine v. Baptiste, 869 P.2d 470, 473 (Alaska
1994); Grow v. Ruggles, 860 P.2d 1225, 1226 (Alaska 1993). Zok
did not challenge the jury's verdict before the jury was
discharged; he consequently waived his right to challenge the
verdict's consistency.
B. Failure to Instruct Jury Regarding Nominal Damages
Zok argues that a victim of false arrest is entitled to
nominal damages as a matter of law. He argues that the court's
failure to instruct the jury regarding nominal damages entitles
him to a new trial. The officers respond that even assuming that
Zok was entitled to nominal damages, he waived this argument and
the court's failure to give a nominal damages instruction is
harmless error.
Alaska Civil Rule 51(a) provides in part:
No party may assign as error the giving or
the failure to give an instruction unless the
party objects thereto before the jury retires
to consider its verdict, stating distinctly
the matter to which the party objects and the
grounds of the objection.
In this case, Zok's attorney did not object to the court's
failure to provide an instruction regarding nominal damages
before the jury retired to consider its verdict. Thus, this
court will only review the lack of jury instruction if plain
error has occurred. Conam Alaska v. Bell Lavalin, Inc., 842 P.2d
148, 153 (Alaska 1992). Plain error occurs if a jury instruction
creates "a high likelihood that the jury will follow an erroneous
theory resulting in a miscarriage of justice." Id. (citing
Ollice v. Alyeska Pipeline Serv. Co., 659 P.2d 1182, 1185 (Alaska
1983)). When analyzing plain error in jury instructions we must
ultimately determine whether a correct instruction would have
likely altered the result of the jury's verdict. Id. (citing
Hout v. NANA Commercial Catering, 638 P.2d 186, 189 (Alaska
1981); Miller v. Sears, 636 P.2d 1183, 1190 (Alaska 1981); City
of Nome v. Ailak, 570 P.2d 162, 171 (Alaska 1977)). Thus, we
must determine whether the court's failure to instruct the jury
that nominal damages are available as a matter of law to a victim
of false arrest likely altered the jury's verdict in a way which
resulted in a miscarriage of justice. False arrest is
one way of committing the tort of false imprisonment. Ailak, 570
P.2d at 168; W. Page Keeton et al., Prosser and Keeton on the Law
of Torts ' 11, at 50 (5th ed. 1984); Barry A. Lindahl et al.,
Modern Tort Law ' 41.02, at 503 (rev. ed. 1993). Although this
court has never addressed the issue, Zok is correct when he
argues that a victim of false arrest is entitled to nominal
damages as a matter of law, regardless of whether actual damages
have been proven. Raysor v. Port Auth., 768 F.2d 34, 39 (2d Cir.
1985), cert. denied, 475 U.S. 1027 (1986); Wilson v. Eberle, 18
F.R.D. 7, 9 (D. Alaska 1955); Shelton v. Barry, 66 N.E.2d 697,
702 (Ill. 1946); Ivy v. Wal-Mart Stores, Inc., 777 S.W.2d 682,
684 (Mo. Ct. App. 1989); Tessier v. LaNois, 201 A.2d 927 (R.I.
1964); City of McMechen v. Fidelity and Casualty Co., 116 S.E.2d
388, 392 (W. Va. 1960); Keeton ' 11, at 48. The reasoning behind
this rule is that, as a matter of law, a plaintiff in a false
arrest case need offer no proof of actual damages because injury
in the sense of monetary loss is not an element of the tort.
Ivy, 777 S.W.2d at 684.4
Thus, once the jury found the officers guilty of
unlawful arrest, Zok was entitled at least to nominal damages.
Had the jury been instructed that, having found an unlawful
arrest, it was required to award Zok nominal damages, the jury
would have been legally bound to do so.
Zok's right to an award of nominal damages is not
insignificant, even though the amount of such an award would have
been insignificant. It is recognized that "[a]n award of nominal
damages is a significant legal right . . . ." 1 Marilyn Minzer
et al., Damages in Tort Actions ' 2.02, at 2-10 (1993). Courts
use the term "nominal damages" to describe two types of awards:
(1) a "trifling or token allowance" for a technical invasion of a
plaintiff's rights or a breach of a legal duty when no actual
injury is shown, or (2) "the very different allowance" made when
actual loss or injury is shown, but plaintiff has failed to prove
the extent and amount of damages. Id., ' 2.10, at 2-18.
One court has described the first type of nominal
damages as follows:
[W]henever any cognizable right of a person
is violated, though there be no substantial
injury nor general nor consequential damages,
the law requires that the right be declared
and affirmed and disapproval of its violation
significantly voiced through the form of an
award of nominal damages.
Cottone v. Cristiano, 156 N.Y.S.2d 115, 117-18 (City Ct. of City
of N.Y. 1956). It is this type of claim for nominal damages
which Zok presents.
In Farrar v. Cain, 756 F.2d 1148 (5th Cir. 1985),
appeal following remand, Estate of Farrar v. Cain, 941 F.2d 1311
(5th Cir. 1991), aff'd in part and rev'd in part, sub nom, Farrar
v. Hobby, 113 S. Ct. 566 (1992) (holding nominal damages
sufficient to establish prevailing party status but affirming
denial of attorney's fees on ground that award of nominal damages
does not usually entitle a prevailing party to fees under 28
U.S.C. ' 1988), the jury found that Hobby had violated the
plaintiffs' civil rights, but awarded no damages against Hobby or
other defendants. Id. at 1149-50. The plaintiffs argued on
appeal that the trial court erred in failing to instruct the jury
on nominal damages and in failing to award nominal damages as a
matter of law because, in civil rights cases, nominal damages are
routinely presumed or inferred. Id. at 1150. Plaintiffs had not
objected at trial to the proposed instructions and special jury
interrogatories. Id. On appeal, the Fifth Circuit held that the
failure to object precluded review of the damages instructions
concerning defendants other than Hobby because as to those
defendants -- who did not violate plaintiffs' civil rights --
there was no fundamental error or miscarriage of justice. Id. at
1151. With regard to Hobby, however, the Fifth Circuit observed:
Even when a violation of a civil
right causes no actual injury to the
plaintiff, the plaintiff is entitled to
recover nominal damages. We have awarded
nominal damages, not to exceed one dollar,
when an infringement of a fundamental right
was shown and we have also held that, once a
jury has found a violation of a plaintiff's
civil rights, it "could not ignore that
finding in calculating damages. Violation of
[the plaintiff's] constitutional rights was,
at a minimum, worth nominal damages."
Because the jury explicitly found that
defendant Hobby had violated Farrar's civil
rights, the jury should have awarded Farrar
nominal damages, not to exceed one dollar,
and it was error for the trial court not to
do so when the Farrars so moved in their
motion for a new trial.
Id. at 1152 (footnotes omitted). The court remanded for entry of
an award of nominal damages against Hobby. Id. at 1152-53.
The failure to instruct regarding nominal damages
altered the jury's special damages verdict and deprived Zok of
the valuable right of full vindication for his unlawful arrest.
Recovery of nominal damages is important not for the amount of
the award but for the fact of the award. In this situation, the
finding of liability, without an award of the nominal damages to
which Zok was entitled as a matter of law was a fundamentally
incomplete remedy for the particular tort Zok suffered. Thus,
the failure to give a nominal damages instruction constitutes
plain error. We must therefore review the failure to instruct to
determine whether a new trial is necessary.
Nominal damages are by definition minimal monetary
damages. Magnett v. Pelletier, 488 F.2d 33, 35 (1st Cir. 1973);
Minzer ' 2.01, at 2-2. Consequently, the jury could not properly
have returned a large nominal damages award for Zok.5 Rather,
nominal damages are usually one cent or one dollar. Scavenius v.
City of Anchorage, 539 P.2d 1161, 1165 (Alaska 1975) (stating
that the difference between an award of zero dollars and a
nominal award is de minimis); Minzer ' 2.01, at 2-2. Thus, had
the jury been instructed that Zok was entitled to nominal
damages, it could have awarded him only a nominal amount, e.g.,
one dollar.
It is generally recognized that because of the
inconsequential monetary value of nominal damages, an appellate
court will not reverse a judgment merely for the purpose of
permitting the recovery of nominal damages. Kalilikane v.
McCravey, 737 P.2d 862, 866 (Hawaii 1987); Kraisinger v. Ligget,
592 P.2d 477, 480 (Kan. 1979); Gebhardt v. Public Serv.
Coordinated Transp., 137 A.2d 48, 54 (N.J. Sup. 1957); Minzer '
2.40, at 2-49. Some courts, however, have held that a lower
court's decision not to award nominal damages will be reversed
where nominal damages are necessary to recover punitive damages
or determine who is the prevailing party for purposes of an
attorney's fees allocation.6 Schulte v. Florian, 370 S.W.2d 623,
626 (Mo. 1963) (failure to award nominal damages requires
reversal only when costs predicated on award of nominal damages);
Minzer ' 2.02, at 2-10, 2-16, 2-17 & ' 2.40, at 2-49 (citing
cases).
In this case, the trial court granted summary judgment
to the officers on the issue of punitive damages and attorney's
fees are not at issue. Thus, the failure to instruct regarding
nominal damages did not cause Zok to suffer a substantive
monetary loss.
Nevertheless, the jury found that the officers
illegally arrested Zok. Zok's right to be free from unlawful
confinement is sufficiently important and fundamental in our
society that a violation of that right requires an award of
nominal damages. Full vindication of that right cannot be
achieved simply by finding wrongdoing unless the judgment
reflects an award of at least nominal damages.7 Consequently,
judgment must be entered awarding Zok nominal damages of one
dollar. A new trial is unnecessary because the error can be
corrected by the court as a matter of law, and thus there is no
harm in correcting the verdict after the jury has been
discharged. O'Brien v. Mobil Oil Corp., 749 S.W.2d 457, 460-61
(Mo. App. 1988) (Satz, C.J., concurring).
III. CONCLUSION
We REMAND for entry of an award of nominal damages of
one dollar in favor of Zok. We reject all other claims of error
Zok has raised or attempted to raise in this appeal.
_______________________________
1 Zok, who is pro se on appeal, was represented by an
attorney in the trial court.
2 Zok also asserted in his statement of points on appeal
that the trial court erred in failing to admit evidence at trial.
Zok provided no substantive argument on this point in his opening
brief, and only mentioned the court's alleged failure to admit
evidence in his reply brief. We have held that where an issue is
only mentioned in the opening brief it will not be considered on
appeal, even if the issue is more fully argued in the reply
brief. Adamson v. University of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1991). Consequently, even applying a more lenient
standard for Zok as a pro se litigant, see Breck v. Ulmer, 745
P.2d 66, 75 (Alaska 1987), cert. denied, 485 U.S. 1023 (1988)
(stating that pleadings of pro se litigants should be held to
less stringent standards than those of lawyers), Zok waived this
issue. Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 411
(Alaska 1990).
Similarly, Zok's claim of ineffective assistance of
counsel is also waived because he failed to argue this point on
appeal in more than a cursory fashion. Moreover, we have never
recognized a right to effective assistance of retained counsel in
civil proceedings. Zok's remedy for any perceived deficiency in
his attorney's services is a legal malpractice action.
3 Under Alaska Civil Rule 59(a), a court may grant a new
trial if required in the interest of justice. The decision to
grant or deny a new trial is within the trial court's discretion.
The trial court's decision to deny a new trial will only be
overturned in "the most exceptional circumstances and to prevent
a miscarriage of justice." Buoy v. ERA Helicopters, Inc., 771
P.2d 439, 445 n.6 (Alaska 1989). In reviewing such denials, this
court will view the evidence in the light most favorable to the
non-moving party. Hayes v. Xerox Corp., 718 P.2d 929, 933
(Alaska 1986).
4 A person is subject to liability to another for false
imprisonment if (1) he or she acts intending to confine the other
or a third person within boundaries fixed by the actor; (2) his
or her act directly or indirectly results in such a confinement
of the other; and (3) the other is conscious of the confinement
or is harmed by it. Restatement (Second) of Torts ' 35, at 52
(1965).
5 In his brief, Zok argues that the jury could or should
have awarded him ten million dollars in nominal damages. A
nominal damages award greater than some trivial figure would have
been legally excessive.
6 We held in Oaksmith v. Brusich, 774 P.2d 191, 201
(Alaska 1989), that nominal damages are a sufficient basis for an
award of punitive damages. We have never determined whether
nominal damages are required for a punitive damages award. We
have indicated that in cases where actual damages are not an
essential element of the cause of action, once culpability of the
defendant is established, a verdict for exemplary damages is
permitted even if there is no award of nominal damages. Haskins
v. Shelden, 558 P.2d 487, 493 (Alaska 1976).
7 We have previously reversed and remanded a case
involving inverse condemnation even though the amount in
controversy came "perilously close" to being de minimus and a new
trial was required. Wickwire v. City and Borough of Juneau, 557
P.2d 783, 786 n.11 (Alaska 1976).
In this case, remand is even more clearly appropriate
than in Wickwire due to the importance of Zok's right to be free
from unlawful confinement and because a new trial is not
necessary to correct the error below.