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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Maddox v. Hardy (07/11/2008) sp-6284
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| RUSSELL MADDOX, dba | ) |
| R&R DOG BOARDING, | ) Supreme Court Nos. S- 12243/12246 |
| ) | |
| Appellant/Cross-Appellee, | ) Superior Court No. 3SW-03-00064 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| PENNY HARDY and DORENE | ) No. 6284 July 11, 2008 |
| LORENZ, | ) |
| ) | |
| Appellees/Cross-Appellants. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Seward,
Harold M. Brown, Judge.
Appearances: Peter R. Ehrhardt, Kenai, for
Appellant/Cross-Appellee. Robert C. Erwin,
Robert C. Erwin, LLC, Anchorage, for
Appellee/Cross-Appellant Penny Hardy.
Douglas J. Serdahely, David J. Mayberry,
Patton Boggs LLP, Anchorage, for
Appellee/Cross-Appellant Dorene Lorenz.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
This appeal involves a controversy surrounding a large
fire started by Dorene Lorenz and other persons for the purpose
of clearing rubbish. Russell Maddox, a next-door neighbor, sued
Lorenz and other parties he thought were involved for damages the
fire caused to his home-based business and property. Lorenz
counterclaimed, primarily stating claims based on Maddoxs
behavior toward her after the fire. The superior court dismissed
Lorenzs counterclaims and all of Maddoxs claims except his
nuisance action. At trial, the jury found in favor of Maddox and
awarded him compensatory and punitive damages.
Maddox appeals the superior courts refusal to impose
joint and several liability on the alleged owner of the property
where the fire took place. We affirm because this person did not
own the property during the relevant time period. Lorenz appeals
the jurys findings and its award of damages. She also appeals
the dismissal of her counterclaims. We affirm the jurys verdict,
but reverse the dismissal of most of her counterclaims.
II. FACTS
Russell Maddox owns a home in Seward. In 2000 he began
a home-based dog boarding business called R & R Dog Boarding.
According to Maddox, by late 2001 business was strong and his
kennels were full.
On November 24 and 25, 2001, Dorene Lorenz decided to
clear debris from a piece of property neighboring Maddoxs land.
The ownership of this property at the time of the fire is
contested in this appeal.1 Wilbur J.R. Thomas Jr., a family
friend of Lorenz, drove his excavator to the property. Using the
excavator, he began pulling and crushing debris, piling it in a
common area about fifty feet away from Maddoxs fence.2 While the
parties dispute the piles exact contents, it likely included,
among other things, a Quonset hut, a trailer, a storage shed, a
school bus, old cars, furniture, and wood.
Concerned by this activity, Maddox came over to the
property and asked Lorenz what was happening. Lorenz told him
that she was cleaning up the property and, according to Maddox,
made fun of him for his concern. Maddox testified that, as he
was leaving the property, he smelled gasoline and the pile burst
into flame. Thomas added more refuse to the pile as the fire
burned. The wind was in the direction of Maddoxs property.
The parties dispute the ferocity and size of the fire,
although there is general agreement that it was large. Maddox
testified that flames came over his fence. He further testified
that embers landed on his property and that occasional small
explosions threw pieces of metal onto his property. Maddox spent
much of the evening stomping out embers that fell on the straw he
used for his dogs. The November 24th fire lasted into the night.
The following day, Thomas returned and continued his work
cleaning the property, burning debris in a second location.
After the fires, Maddoxs property was covered with ash.
Maddox contacted the Alaska Department of Environmental
Conservation (ADEC) and complained about the fire. The ADEC told
Maddox to take samples of the ash on his property and have them
sent for testing. Maddox did so, paying for the testing with his
funds. The testing revealed elevated levels of lead. After
these results, the ADEC and the Alaska Department of Health and
Social Services became involved, as did the federal Environmental
Protection Agency (EPA). The agencies conducted their own
testing the parties dispute the interpretation of the results
and recommended cleanup procedures.
In light of the testing results, Maddox closed his dog
boarding business and began efforts to clean his property.
Maddox reopened his business two years later, in January 2004.
Maddox explained the delay by stating that the ADEC and EPA told
him to leave his property alone so they could assess the
contamination and clean the property. After two years, Maddox
tired of waiting for agency action and reopened.
III. PROCEEDINGS
Maddox, represented by counsel, filed a complaint in
March 2003 against Dorene Lorenz, Wilbur J.R. Thomas, Ethel Penny
Hardy, and others he believed were involved in the fire.3 Hardy
was sued as a possible owner of the property. Maddox asserted
claims of nuisance, offensive contact, negligence, negligence per
se, and strict liability and asked for compensatory and punitive
damages. Lorenzs pro se answer,4 after amendments, included a
number of compulsory and permissive counterclaims: defamation,
intentional infliction of emotional distress, battery, and two
counts of nuisance (one for Maddoxs dog boarding business, the
other for an alleged marijuana business).
Maddox moved to dismiss Lorenzs counterclaims in May
2004. In June Superior Court Judge Harold M. Brown issued a
notice of intent to dismiss counterclaims for failure to state a
claim on which relief may be granted and gave Lorenz an
opportunity to amend her counterclaims. After Lorenz filed
amended counterclaims, Maddox again moved to dismiss them.
Lorenz made no response and the judge dismissed Lorenzs
counterclaims without further explanation. Lorenz appeals this
dismissal, arguing that the judge failed to treat her pro se
pleadings charitably and failed to provide her with a minimum
level of information so that she could properly correct her
counterclaims. She also argues that her counterclaims stated
proper claims.
Trial was in Seward on November 15-17, 2005. The jury
returned a verdict in favor of Maddox, finding Lorenz and Thomas
liable in nuisance.5 The jury allocated fault as follows:
Lorenz sixty percent; Thomas forty percent; Hardy zero
percent. The jury further found that Maddox did not fail to
mitigate his damages. In total, the jury awarded Maddox $21,000
for lost earnings, $72,000 for lost property value, and $2,000
for mitigation expenses. The superior court allocated these
damages according to the degree of fault found by the jury. The
jury also assessed punitive damages against Lorenz and Thomas in
the amounts of $500 and $50,000, respectively.
At trial, the judge only instructed the jury on Maddoxs
nuisance claim. Maddox appeals the superior courts refusal to
instruct the jury on his claim of strict liability based on AS
46.03.822.
After the verdict, Lorenz moved for a new trial. The
court denied the motion. Lorenz repeats her arguments on appeal.
Specifically, she appeals the jurys finding of causation and its
award of damages. Thomas has not participated on appeal.
IV. DISCUSSION
A. Statutory Strict Liability Did Not Apply to Hardy
Because She Was Not the Owner of the Property.
Maddox challenges the superior courts refusal to impose
joint and several strict liability on Hardy based on AS
46.03.822. We review questions of law and the trial courts
application of the law to facts de novo.6
Alaska Statute 46.03.822 is an environmental statute
providing joint and several strict liability for damages
resulting from a release of a hazardous substance.7 The statute
applies when two elements are met. First, there must have been
an unpermitted release of a hazardous substance that caused
damages.8 Second, the party being sued must own the hazardous
substance at the time of the release.9
Maddoxs argument rests solely on the statute, but the
parties briefs occasionally refer to common law strict liability.
This reliance is misplaced. The elements of the statute are
distinct from tort laws ultrahazardous activity analysis.10
Moreover, the goal of Maddoxs appeal is to impos[e] joint and
several strict liability on Penny Hardy for the full amount of
the compensatory damages awarded by the jury below. Strict
liability in tort, as modified by AS 09.17.080(d), only provides
several liability. Because the jury allocated zero fault to
Hardy, Maddoxs legal theory cannot be based on common law strict
liability.11
We assume arguendo that the fire released a hazardous
substance within the meaning of AS 46.03.826(5). Accordingly we
only discuss the second element of the statute.
For the second element, Maddox invokes the portion of
the statute that imposes liability on the owner of a hazardous
substance at the time of its release.12 Maddox argues that Hardy
was the owner of the property at the time of the fires release of
lead-tainted ash. Hardy responds that she did not own the
property at the time of the fire.13 The trial court did not reach
the issue of property ownership because the court erroneously
applied the common law strict liability test and concluded that
the fire was not ultrahazardous.
When applying AS 46.03.822 this court follows a title
theory of ownership.14 Accordingly, an owner of property is the
person holding title.15 The issue of property ownership turns on
the August 8, 2001 bill of sale that Hardy delivered to Lorenz.
Maddox did not object to the admission of this document at trial
and on appeal the parties do not dispute the genuineness of this
document. Maddox argues that the controlling fact is that Hardy
and Lorenz did not execute and record a quitclaim deed until
after the fire in 2002. Hardy responds that the pre-fire bill of
sale transferred title.
Maddox first argues, citing the recording statute AS
40.17.090, that the 2002 (post-fire) quitclaim deed should have
been conclusive on this issue [of ownership]. Maddox is wrong.
The recording statute provides that properly acknowledged
documents are admissible as evidence of the conveyance without
further proof16 and that properly acknowledged and recorded
documents create presumptions with respect to title.17 His
argument that the recorded chain of title creates a conclusive
finding of ownership for the relevant time periods misconstrues
the statute. Maddoxs argument is also contrary to case law
holding that the presumptions of a recorded deed can be overcome
by clear and convincing evidence.18 Here, the bill of sale
provides clear and convincing evidence to overcome the
presumption that title transferred on the date listed in the
recorded deed.
Maddox next argues, relying on the recording act, that
he was an innocent third party to the conveyance and, thus, that
the transfer of title was not effective as to him until the deed
was recorded. Maddoxs recording argument finds some support in
case language. For example, when upholding the validity of an
unacknowledged deed, we have added the qualification that the
unacknowledged deed is only valid as between the parties.19 But
Hardys interpretation of the recording act is superior. Even if
a deed is not recorded, title transfers upon execution of a bill
of sale.20 Thus, ownership for the purposes of AS 46.03.822
transfers upon execution of a bill of sale.21 Importantly, the
policy behind the recording act is not at issue in this case.
The recording act is meant to protect a subsequent purchasers
reliance on a sellers title by providing a means for resolving
competing claims to title.22 Maddox was not a purchaser of
property. He never relied on ownership records. The events at
issue would have occurred regardless of recording.
B. The Superior Court Properly Denied Lorenzs Motion for a
New Trial.
Lorenz moved for a new trial after the jurys verdict.
The superior court denied the motion. On appeal Lorenz
challenges the jurys finding of causation and its award of
compensatory and punitive damages.
The question of whether to grant or deny a motion for a
new trial rests in the sound discretion of the trial court.23 In
reviewing an order denying a new trial, this court views the
evidence in the light most favorable to the non-moving party.24
[W]e will reject a jurys award of damages and order a new trial
only when the evidence supporting the jurys conclusion is so
completely lacking or slight and unconvincing as to make the
verdict plainly unreasonable and unjust. 25
1. Sufficient evidence supports the jurys finding of
causation.
Lorenz argues that there was insufficient evidence to
support the jurys finding that the fire was the source of the
lead that contaminated Maddoxs property. She makes two
arguments. First, she argues that testing revealed that there
was no contamination. Second, she argues that no evidence was
presented to actually demonstrate that the fire was the source of
any lead particles found on Maddoxs property.
Construing the evidence in the light most favorable to
Maddox, we find that the trial court did not abuse its discretion
when it denied Lorenzs motion for a new trial. The jurys
determination that Maddoxs property was contaminated by lead is
adequately supported by the evidence. The sample of ash that
Maddox sent out for testing contained in excess of ten percent
lead by weight. Initial testing by the Alaska Department of
Health and Social Services caused the EPA to conclude that the
ash on Maddoxs property contained lead in levels exceeding state
and federal environmental standards. Maddoxs expert testified
that many samples taken from Maddoxs property contained lead in
amounts exceeding state and federal standards. While Lorenz
argues that later testing by the EPA found that lead was no
longer present in levels exceeding the cleanup standards, Maddoxs
expert directly addressed this later testing and both disputed
Lorenzs interpretation of the results and criticized the EPA for
using improper testing procedures. Lorenz also argues that blood
tests conducted on Maddox and the dogs on his property revealed
no elevated levels of lead. But this argument does not address
Maddoxs argument that his property was contaminated. Maddox
never claimed and received no damages for personal injury.
Lorenzs second argument that there was insufficient
evidence linking the lead on Maddoxs property to the fire
involves a similar inquiry. Many of the samples taken by Maddox
and the environmental agencies were of ash. Lorenz does not
argue that this ash came from a non-fire source. The states
environmental report suggested that the ash from the fire
contained high levels of lead. The states report also explained
that the prevailing wind would have blown this ash in the
direction of Maddoxs property. Moreover the EPA found elevated
levels of lead in soil samples taken from the burn site of each
fire. Lorenz argues that Maddoxs expert could not rule out other
sources of the lead on Maddoxs property (she does not suggest
what those sources might be) and did not know if Sewards soil
naturally contained elevated levels of lead. She also points out
that no one conducted a forensic investigation to determine the
source of the lead. But these arguments ignore the applicable
burden of proof and standard of review and are insufficient to
warrant a new trial.
2. Sufficient evidence supports the jurys award of
compensatory damages.
Lorenz argues that there was insufficient evidence to
support the jurys award of compensatory damages. She challenges
the jurys award of lost earnings for Maddoxs dog kennel business
on mitigation of damages grounds and the lost property value
determination on sufficiency of evidence grounds.
a. Sufficient evidence supports the jurys
finding that Maddox mitigated his damages.
Lorenz argues that Maddoxs lost business earnings
should be reduced because Maddox did not mitigate his damages.
As a result of the fire Maddox closed his dog boarding business
for two years, reopening it in January 2004. Lorenz argues that
Maddox could have reopened his business less than four months
after the fire. Maddox responds that he kept his business closed
because the ADEC and EPA told him to leave his property alone so
they could assess it and clean it up if it was contaminated.
A wronged partys damages award is reduced by that
partys failure to mitigate.26 The reasonableness of a partys
mitigation is a question of fact.27 The jury found that Maddox
did not fail to mitigate his damages.
Because the jurys mitigation determination is supported
by the evidence, we find that the trial court did not abuse its
discretion when denying Lorenzs motion for a new trial. Lorenzs
expert testified that the cleanup procedures recommended by the
agencies would take two days to implement. But Maddox testified
that the ADEC and EPA told him to leave his property alone until
they finished their assessments and any necessary cleanup. Given
that the EPA was conducting on-site assessments in June 2002,
potentially conducted additional assessments after June, and
issued its final preliminary assessment report in January 2004,
there is evidence that the agencies were conducting an
investigation during the two years that Maddox closed his
business. The contamination that the agencies were investigating
could have reasonably informed Maddoxs decision to keep his dog
boarding business closed.
b. Sufficient evidence supports the jurys
finding that Maddoxs property is now
worthless.
Lorenz challenges the jurys assessment of damages for
lost property value. The jury awarded Maddox the fair market
value of his property $72,000. Lorenz argues that Maddox did
not prove that his property was worthless. Maddoxs primary
evidence was from an appraisers post-fire valuation of the
property at $72,000. The appraiser worked under the assumption
that the property was not contaminated. But the appraiser did
state that he thought that if the property was contaminated it
would be worth nothing, and may be less. Lorenz contends that
this was an unfair method of valuing the property because the
appraiser in his appraisal did not treat Maddoxs property as if
it were contaminated and was hesitant to assume that it was.
Maddox responds that there was sufficient evidence for the jury
to determine that the property was contaminated and that, given
this contamination, the jury could have found that the property
was worth nothing.
The jury could have reasonably found that Maddoxs
property is now contaminated.28 The testimony of Maddoxs
appraiser suggests that the property would be worthless if it was
contaminated. The jury is entitled to combine evidence from
multiple sources to reach its determination. Nothing in the
record suggests that it was unfair for Maddox to establish the
lost value of his property in this manner.
Lorenz also argues that Maddox failed to properly
establish the value of his property.29 Maddox testified that his
property was worth $72,000 before the fire. Lorenz did not
object to this testimony at trial. Maddox and the appraiser
provided testimony suggesting the value of Maddoxs property after
the fire. Alaska allows lay testimony from the owner of property
as to the value of the property before and after a damaging
event.30 Maddox has provided enough evidence for this court to
determine that the jurys damages award was not so unreasonable
and unjust as to require a new trial.
3. Sufficient evidence supports the award of punitive
damages.
Lorenz argues that her behavior was not egregious
enough to trigger the jurys assessment of $500 in punitive
damages against her. She notes that the jury found that her
actions were not motivated by financial gain and that she did not
know of the adverse consequences of the fire.
Alaska Statute 09.17.020 governs awards of punitive
damages. The statute provides that the plaintiff must establish
by clear and convincing evidence that the defendants conduct (1)
was outrageous, including acts done with malice or bad motives;
or (2) evidenced reckless indifference to the interest of another
person.31 A showing of malice is not required. It is sufficient
to show that the defendants conduct amounted to reckless
indifference to the rights of others, and conscious action in
deliberate disregard of [those rights]. 32 We will reverse a
punitive damages award only if consideration of the record as a
whole leaves us with a firm conviction of error and the need to
intervene to prevent a miscarriage of justice.33
The jury reasonably could have determined that Lorenz
acted with reckless indifference to Maddoxs interests.34 Maddox
testified at trial that Lorenz mocked him for raising concerns
before she started the first fire. Maddox further testified that
the two fires were sizable, that the wind was blowing in the
direction of his property, that the fires consumed objects
containing lead, that the fires deposited a great deal of ash,
and that explosions within the fires threw pieces of metal onto
his property. The jury reasonably could have credited Maddoxs
testimony. Lorenzs arguments are insufficient to upset the jurys
determination.
C. The Superior Court Erred when It Awarded Prejudgment
Interest on Maddoxs Punitive Damages Against Lorenz.
The superior court awarded Maddox prejudgment interest
on the jurys award of punitive damages of $500 against Lorenz.
Lorenz argues that this award violates the prohibition on
prejudgment interest for punitive awards set forth in AS
09.30.070(c). Maddox, correctly, conceded the point.
D. The Superior Court Erred in Part in Its Dismissal of
Lorenzs Counterclaims.
After Lorenz filed an amended statement of her
counterclaims, Maddox moved to strike all of Lorenzs
counterclaims. In response, the superior court issued a notice
of intent to dismiss counterclaims in which the court suggested
that Lorenz failed to state any claim on which relief may be
granted and provided Lorenz twenty days to amend her
counterclaims. After Lorenz filed an amended pleading, Maddox
again moved for dismissal on Civil Rule 12(b)(6) grounds. Lorenz
did not file an opposition to this motion. The superior court
granted Maddoxs motion to dismiss all of Lorenzs counterclaims
without further explanation.
Lorenz makes two challenges. First, she argues that
the superior court erred by not treating her pro se pleadings
charitably and by not providing her sufficient information so
that she could properly amend her counterclaims. Second, she
argues that the superior court erred in its denial of her
counterclaims because each counterclaim sufficiently stated a
claim for relief.
Because we independently review and charitably construe
Lorenzs counterclaims, we do not address Lorenzs first argument.
We treat Lorenzs final pro se pleading of counterclaims as an
opposition to Maddoxs Rule 12(b)(6) motion. Accordingly we reject
Maddoxs argument that Lorenz defaulted by failing to respond to
his final Rule 12(b)(6) motion.35
We review the superior courts dismissal of Lorenzs
counterclaims for failure to state a claim upon which relief can
be granted de novo, presum[ing] all factual allegations of the
complaint to be true and [making] all reasonable inferences . . .
in favor of the non-moving party.36
1. The superior court erred when it dismissed Lorenzs
defamation counterclaims.
Lorenzs first and second counterclaims were for
defamation. Lorenz alleged that Maddox made false statements to
the government, the press, and local citizens about issues
related to the lawsuit and her cleanup efforts. She alleged that
Maddoxs words placed an unfortunate shadow on her vocation as an
interior designer and her role as one of Sewards Historical
Preservation Commissioners.
In his motion for dismissal, Maddox argued that Lorenzs
pleadings did not set forth the allegedly false statements and
that Lorenz failed to properly allege damages. On appeal Lorenz
argues that a complete reading of her complaint provided
sufficient information about Maddoxs statements. She also argues
that she adequately alleged damages by claiming harm to her
standing in the community. In response, Maddox contends that
Lorenz never set forth the allegedly defamatory statements, made
no claim that the statements were false, and inadequately pled
damages.
The elements of defamation are: (1) a false and
defamatory statement; (2) an unprivileged publication to a third
party; (3) fault amounting at least to negligence on the part of
the publisher; and (4) the existence of either per se
actionability or special harm.37
A charitable reading of Lorenzs pro se counterclaim
leads us to conclude that Lorenz included sufficient allegations
of the statements that Maddox made. Lorenz alleged that Maddox
wrote disparaging letters to the editor in the Seward Phoenix
Log, that Maddox sought news coverage of the effects of the burn,
that Maddox contacted state and federal agencies alleging illegal
activities in connection with Lorenzs fire, and that Maddox
distributed flyers disparaging Lorenzs cleanup activities. While
these allegations did little to suggest the substance of Maddoxs
statements, they generally put Maddox on notice of Lorenzs
claims.
Lorenzs complaint sufficiently alleged that the
statements Maddox made were false by making the general assertion
that Maddox made wholly and in-part false statements. While the
lack of specific statements in her pleadings makes this falsity
allegation broad, this assertion was sufficient to put Maddox on
notice of Lorenzs position.
Lorenzs complaint insufficiently alleged damages for
some of her potential defamation claims. Lorenzs complaint could
be read to state causes of action in libel and slander per se.
These claims do not require an allegation of special damages.38
However, to the extent that Lorenz attempted to recover for
slander requiring proof of special damages (slander per quod),
she failed to plead damages with any specificity.39 But this
failure might be attributable to insufficient guidance from the
trial court.
On remand, Lorenz should replead all of her defamation
claims. The trial court can then consider a renewed Rule
12(b)(6) motion or a motion for a more definite statement under
Rule 12(e). Maddox can also utilize discovery to distill Lorenzs
claim and may choose to file a motion for summary judgment. We
note that some of Maddoxs statements may be privileged. For
example, Maddoxs communications with state and federal officials
alleging illegal activities likely warranted a qualified
privilege and, if so, the only question would be whether the
privilege was abused.40 We further note that the jurys special
verdict in favor of Maddox might provide him with a defense of
truth as to most of Lorenzs defamation claims. But we take no
conclusive position on the validity of Lorenzs claims as they
relate to Maddoxs ability to assert privileges or other defenses.
2. The superior court erred when it dismissed Lorenzs
claims for the intentional infliction of emotional
distress.
Lorenzs third, fourth, sixth, seventh, and eighth
claims for relief involved the intentional infliction of
emotional distress (IIED). Maddox argued that Lorenz failed to
allege extreme or outrageous conduct and that she made
insufficient and improper allegations of damages. On appeal,
Lorenz groups her claims together into a more general argument of
IIED.
Lorenzs pleadings can be read to state a cause of
action for IIED. An action for IIED lies where: (1) the conduct
is extreme and outrageous, (2) the conduct is intentional or
reckless, (3) the conduct causes emotional distress, and (4) the
distress is severe.41 Lorenz claimed at least one instance of
arguably outrageous conduct: Maddox allegedly stated that the
next time he caught [Lorenz] alone he would shoot her. However,
some of Lorenzs other allegations do not appear to amount to
outrageous conduct for the purposes of IIED. For example, she
alleged that Maddox verbally harassed and taunted her and her
daughter.42
Lorenz sufficiently alleged that Maddoxs conduct was
intentional and that it caused her emotional distress. Lorenzs
allegations suggested that the distress was severe, resulting in
anxiety, depression, and migraine headaches.
On remand, Lorenz should replead all of her IIED
claims.43 Maddox will have the same options as outlined above
concerning Lorenzs defamation claims. We make no comment on
collateral estoppel or mootness that might result from our
decision in this appeal.
3. The superior court erred when it dismissed Lorenzs
claim for battery.
Lorenzs fifth claim for relief was for battery.
Maddox, basing his response on Lorenzs three-paragraph claim for
relief, moved for dismissal because the paragraphs did not state
a cause of action. On appeal, Lorenz argues that an earlier
paragraph in her answer alleged that Maddox threw a five-gallon
bucket of dirty water on her.
Battery occurs when an actor intends to cause harmful
or offensive contact with another and an offensive contact
results.44 Lorenzs allegation that Maddox threw a bucket of water
on her would constitute an intentional, offensive touching.
Accordingly the superior court erred in dismissing this
counterclaim.
4. The superior court erred when it dismissed Lorenzs
nuisance claims.
Lorenzs ninth and tenth counterclaims alleged that
Maddox operated a dog boarding business and a drug business from
his property and that both of these activities constituted a
nuisance.
A nuisance is a substantial and unreasonable
interference with the use or enjoyment of real property.45 Lorenz
correctly argues that Maddoxs briefing never suggests why her
nuisance claims should fail on Rule 12(b)(6) grounds. A kennel
of barking dogs can constitute a nuisance.46 Maddoxs alleged
marijuana business might constitute a private nuisance.47
Maddox argued in his motion to dismiss that the
counterclaims were not part of the same transaction or occurrence
as his claims. But Maddox based his entire motion on Rule
12(b)(6). As is the case with Lorenzs other permissive
counterclaims, the superior court erred when it failed to accept
Lorenzs permissive nuisance counterclaim in accordance with Civil
Rule 13(b).
V. CONCLUSION
For the reasons stated, we conclude that the superior
court correctly denied a strict liability instruction with
respect to Maddoxs claim against Hardy; correctly refused to
grant Lorenzs motion for a new trial; and correctly dismissed
what Lorenz now argues is a negligent infliction of emotional
distress claim. But it was error to award prejudgment interest
on Maddoxs punitive damage award and to dismiss Lorenzs
defamation, intentional infliction of emotional distress,
battery, and nuisance claims. Accordingly the final judgment
entered by the court is AFFIRMED in part and VACATED in part and
this case is REMANDED for further proceedings in accordance with
this opinion.
_______________________________
1 Maddox contends that Ethel Penny Hardy was the owner.
Hardy responds that she sold the lot to Dorene Lorenz before the
fire, executing a bill of sale on August 8, 2001. Maddox replies
that a quitclaim deed was not executed and recorded until 2002,
after the fire.
2 Maddox testified that Thomas Walker operated the
excavator. Thomas Walker denied Maddoxs assertion. Wilbur
Thomas Jr. testified that he was the sole operator of the
excavator. The jury, in its special verdict, found Wilbur Thomas
Jr. liable and it found that Thomas Walker was not responsible
for the nuisance that harmed Maddox.
3 The complaint also named Thomas Development, Inc.,
Thomas Walker (Dorene Lorenzs stepfather), and Marty Lorenz
(Dorenes father) as defendants. Maddox dismissed Marty Lorenz
prior to trial. It is unclear when Thomas Development, Inc.,was
dismissed. The jury found that Thomas Walker was not responsible
for the nuisance that harmed Maddox.
4 Lorenz is represented by counsel on this appeal.
5 The jury also listed Hardy as a liable party, but did
not allocate any fault to her.
6 Petrolane Inc. v. Robles, 154 P.3d 1014, 1018 (Alaska
2007).
7 The statute creates a private cause of action. Fed.
Deposit Ins. Corp. v. Laidlaw Transit, Inc., 21 P.3d 344, 356
(Alaska 2001).
8 AS 46.03.822(a).
9 AS 46.03.822(a)(1).
10 Compare AS 46.03.822 (environmental statute), with
Parks Hiway Enters., LLC v. CEM Leasing, Inc., 995 P.2d 657, 665
(Alaska 2000) (common law).
11 Maddox does not argue that a common law strict
liability finding could provide a way to allocate damages to
Hardy. Such a reallocation is not allowed. AS 09.17.080(a); AS
09.17.900 (defining fault to include strict liability); see also
Borg-Warner Corp. v. Avco Corp., 850 P.2d 628, 633 (Alaska 1993).
12 AS 46.03.822(a)(1).
13 Both parties implicitly assume that the property owner
also owned the hazardous substance at the time of the release.
14 Parks Hiway Enters., 995 P.2d at 661.
15 Id.
16 AS 40.17.090(a).
17 AS 40.17.090(b).
18 See Rausch v. Devine, 80 P.3d 733, 738-39 (Alaska
2003). As explained below, title transfers on the execution of
a bill of sale even if the sale is not recorded. Because the
purposes of the recording act are not implicated in this case,
the presumptions of the act do not conclusively control.
19 Smalley v. Juneau Clinic Bldg. Corp., 493 P.2d 1296,
1301 (Alaska 1972).
20 14 Richard R. Powell, Powell on Real Property
82.01[3], at 82-13 (Michael Allan Wolf ed., rev. 2005). Even
if one characterizes the bill of sale as a contract for sale,
equitable title transfers upon the execution of the contract.
Id. 81.03[1], at 81-82 to -83. [A] person is an owner of
property although he or she holds only the equitable title. 63C
Am. Jur. 2d Property 26 (1997) (citation omitted).
21 Lacking equitable title and possessing almost no other
indicia of ownership, we conclude that Hardy cannot be held
liable under AS 46.03.822. See United States v. Newmont USA,
Ltd., 504 F. Supp. 2d 1050, 1061 (E.D. Wash. 2007) (In instances
where a party is deemed to hold bare legal title, courts . . .
have looked for other indicia of ownership to determine owner
liability under CERCLA.); cf. Casperson v. Meech, 583 P.2d 218,
222 (Alaska 1978) (noting that beneficial ownership transfers
upon execution of a bill of sale and holding that the owner of
legal title was relieved of his obligation to assure a lessees
quiet enjoyment of the property upon the transfer of equitable
title).
22 14 Powell, supra note 20, 82.01[2][a], at 82-9,
82.01[3], at 82-11 to -12.
23 Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1173
(Alaska 2002) (citation omitted); accord Hogg v. Raven
Contractors, Inc., 134 P.3d 349, 352 (Alaska 2006).
24 Kava, 48 P.3d at 1173.
25 Domke v. Alyeska Pipeline Serv. Co., 137 P.3d 295, 299
(Alaska 2006) (quoting Pugliese v. Perdue, 988 P.2d 577, 581
(Alaska 1999)).
26 See Gates v. City of Tenakee Springs, 822 P.2d 455,
460 (Alaska 1991) (quoting Univ. of Alaska v. Chauvin, 521 P.2d
1234, 1239 (Alaska 1974)).
27 Id.
28 See supra Part IV.B.1.
29 Lorenz also claims error because Maddoxs appraisal
took place three years after the fire. Lorenz does not suggest
that the propertys value changed over the three years and shows
no prejudice from this delay.
30 Osborne v. Hurst, 947 P.2d 1356, 1361 (Alaska 1997).
31 AS 09.17.020(b).
32 Chizmar v. Mackie, 896 P.2d 196, 210 (Alaska 1995)
(quoting State v. Haley, 687 P.2d 305, 320 (Alaska 1984)).
33 Wal-Mart, Inc. v. Stewart, 990 P.2d 626, 638 (Alaska
1999) (quoting Johnson & Higgins of Alaska, Inc. v. Blomfield,
907 P.2d 1371, 1376 (Alaska 1995)).
34 AS 09.17.020(b)(2). Lorenz confuses the jurys finding
that she did not know the adverse results of the fire beforehand
by suggesting that this finding would prevent the jury from
determining that she acted with reckless indifference. However,
knowledge of a result is a higher state of mental culpability
than reckless indifference. Cf. AS 11.81.610(c) (criminal
statute).
35 We note that the trial courts ultimate dismissal was
on Rule 12(b)(6) grounds and was not based on failure to file a
responsive pleading.
36 J & S Servs., Inc. v. Tomter, 139 P.3d 544, 547
(Alaska 2006) (quoting Kollodge v. State, 757 P.2d 1024, 1026
(Alaska 1988)).
37 MacDonald v. Riggs, 166 P.3d 12, 15 (Alaska 2007)
(quoting French v. Jadon, Inc., 911 P.2d 20, 32 (Alaska 1996)
and citing Restatement (Second) of Torts 558 (1977)).
38 Restatement (Second) of Torts 568(1), 569 (libel);
id. 570(c), 573 (slander per se) (1977).
39 See Alaska R. Civ. P. 9(h).
40 See, e.g., Fairbanks Publg Co. v. Francisco, 390 P.2d
784, 793 (Alaska 1964); Restatement (Second) of Torts 598 &
cmt. e (conditional privilege for communications to public
officials concerning matters that affect the discharge of their
duties).
41 McGrew v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 106 P.3d 319, 324 (Alaska 2005) (quoting
Lincoln v. Interior Regl Hous. Auth., 30 P.3d 582, 589 (Alaska
2001)). Alaska has adopted the definition of outrageous
behavior found in Restatement (Second) of Torts 46 cmt. d
(1965). Lybrand v. Trask, 31 P.3d 801, 803 n.4 (Alaska 2001).
42 The Restatement (Second) of Torts 46 cmt. d explains
that [t]he liability clearly does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other
trivialities. The rough edges of our society are still in need
of a good filing down . . . .
43 Lorenz, in her brief, suggests that she stated a claim
for negligent infliction of emotional distress (NIED) and this
claim was erroneously dismissed. But none of Lorenzs emotional
distress claims used the word negligent. Instead, they
consistently alleged intentional or knowing actions by Maddox.
We therefore conclude that Lorenz did not allege counterclaims
for negligent infliction of emotional distress and the courts
general dismissal of her counterclaims was not in error with
respect to the NIED tort.
44 Restatement (Second) of Torts 18 (1965).
45 AS 09.45.255.
46 See, e.g., Van Deusen v. Seavey, 53 P.3d 596, 599
(Alaska 2002).
47 Regardless of the type of business involved, noise and
traffic associated with a business could be actionable as a
nuisance. See, e.g., Wade v. Fuller, 365 P.2d 802, 804 (Utah
1961). A nuisance requires more than the mere consumption of
drugs on the premises. See, e.g., Davis v. State, 641 A.2d 941,
951 (Md. App. 1994).
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