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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bylers Alaska Wilderness Adventures Inc. v. The City of Kodiak (12/12/2008) sp-6327
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
| BYLERS ALASKA WILDERNESS | ) |
| ADVENTURES INC., JERRY BYLER | ) |
| AND DARREN BYLER, | ) |
| ) Supreme Court No. S- 12343 | |
| Appellants, | ) |
| ) Superior Court No. | |
| v. | ) 3HO-01-00067 CI |
| ) | |
| THE CITY OF KODIAK, MARTIN | ) |
| OWEN as agent and employee of the | ) |
| CITY OF KODIAK and MARTIN | ) |
| OWEN personally, and LARRY | ) |
| SHAKER and EAGLE | ) |
| ADVENTURES, | ) O P I N I O N |
| ) | |
| Appellees. | ) No. 6237- December 12, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Allen Vacura, Stepovich &
Vacura, Fairbanks, for Appellants. Blake H.
Call, Call, Hanson & Kell, P.C., Anchorage,
for Appellees City of Kodiak and Martin Owen.
Before: Fabe, Chief Justice, Matthews,
Eastaugh ,Carpeneti, and Winfree, Justices.
CARPENETI, Justice.
I. INTRODUCTION
A judge initially assigned to a case granted a motion
in limine which precluded several aspects of the plaintiffs past
from being introduced at trial. Due to scheduling conflicts, the
trial was reassigned to a judge who declined to follow the prior
ruling and admitted much of the previously disallowed evidence.
Because the evidentiary rulings were within the discretion of the
court and, in any event, the disputed evidence was not
dispositive of the jurys ultimate finding, we affirm.
II. FACTS AND PROCEEDINGS
A. Facts
Darren Byler (Byler)1 and his father, Jerry Byler, own
Bylers Alaska Wilderness Adventures, Inc. (BAWA), a charter boat
business. Byler first began operating his business in Kodiak but
decided to leave Kodiak for Homer, believing he could do more
business in Homer, with its greater number of tourists. In the
spring of 2000 Byler left Kodiak for Homer and started marketing
his business to Homers major booking agents.
In May 2000 North Country Charters, another charter
company in Homer, referred a client from Nashville, Tennessee to
BAWA. That client, Dr. William Kenner, arranged to charter a
boat with BAWA for a fishing and sightseeing trip. Kenners was
the first inquiry BAWA received upon relocating to Homer.
Kenner later learned from Homers harbormaster that BAWA
was registered in Kodiak. In May 2000 Kenner called Kodiaks
harbormaster, Marty Owen, to inquire further about the Bylers.
Kenner testified that Owen reported: I cant say anything good
about Darren Byler. Upon Kenners request, Owen referred him to
other local charter operators, including Larry Shaker. Kenner
then called Shaker. Shaker gave Kenner two examples of Bylers
allegedly questionable history. Shaker first told Kenner that
Byler had left a hunting party on an island and, due to his ill-
preparedness for bad weather, was forced to abandon the hunting
party. Byler had allegedly used a skiff to drop them on a shore
that was exposed to the wind, a lee shore, and that the weather
was building and . . . he was unable to go back and pick them up
off the island. The hunting party was ultimately rescued by the
Coast Guard.
As further evidence of Bylers unfitness, Shaker also
told Kenner of an incident in which Bylers boat ran out of fuel
and Byler attempted to tow the larger boat with a skiff across
open waters in dangerous passages in Kodiak. Kenner repeated
these stories to Owen, who did not deny Shakers stories about
Byler. Kenner testified that, although Owen did not specifically
respond to any of Shakers accusations, his tone of voice
indicated that he affirmed Shakers statements by saying uh-huh,
uh-huh at appropriate moments. Kenner believed that Shaker
sounded under the influence of alcohol when he recounted these
stories, but Owens failure to discount Shakers stories led Kenner
to believe that Shakers description of the incidents must be
true.
As a result of his conversations with Owen and Shaker,
Kenner cancelled his twelve-day charter with Byler. In addition
to cancelling the trip, Kenner expressed his discontent to North
Country Charters for referring him to Byler. Following this
incident Byler did not receive any more referrals from local
companies. After several weeks Byler left Homer due to the lack
of business. Other charter companies in Homer appeared to be
doing well and did not suffer from a lack of business.
In November 2000 another potential customer, Robert
Abeyta, contacted Byler about chartering a boat for June 2001
when he planned to take his elderly mother on a trip to Alaska.
Abyeta found Byler through internet research. Abeyta and Byler
negotiated an agreement for the two-week charter. After reaching
this agreement, Abeyta contacted Owen. Abeyta reportedly learned
from Owen that Byler had a history of abandoning people to be
rescued by the Coast Guard and was known to run out of fuel.
Owen referred Abeyta to Shaker for further information. Shaker
confirmed Owens negative sentiments and added that Byler had
issues with alcohol and drugs. Abeytas mother died; as a result
Abeyta did not complete the contract with Byler.
B. Proceedings
Byler filed suit against the City of Kodiak, Owen, and
Shaker, alleging defamation and business interference. Byler and
Shaker reached a settlement, and in May 2002 the claims against
Shaker were dismissed with prejudice. Byler pursued his case
against Owen and Kodiak (these joint defendants, now appellees,
will be referred to as Owen). Byler conceded that Mr. Shakers
statements may be relevant for purposes of apportionment of
fault.
In March 2005 Byler moved to exclude any testimony or
exhibits pertaining to [Bylers] Fish and Game violations,
criminal arrests or convictions, or civil lawsuits. Byler argued
that these subjects were irrelevant to the statements at issue
and were more prejudicial than probative. Owen opposed the
motion, arguing that Bylers past was essential to proving the
truthfulness of Owens statements about Byler. Superior Court
Judge Harold M. Brown, the judge in Kenai assigned to the case,
granted Bylers motion in limine. Judge Browns order precluded
Owen from introducing any testimony or exhibits pertaining to any
fish and game violations, criminal arrests or convictions as
identified in the pleadings or civil lawsuits. The order also
precluded Owen from introducing any testimony about Byler
allegedly abandoning a hunting party. The order prohibited such
testimony because none of the members of the hunting party . . .
are listed as witnesses by the Defendant and [because] the Harbor
Master denies any knowledge of the incident. Judge Brown added:
The Court expresses no opinion as to whether the information
concerning the matters described above may later become relevant
and admissible as a consequence of testimony or other events
during trial.
The parties prepared for trial. In August 2005 Judge
Brown set a trial date for February 27, 2006 in Homer. When it
came time for trial in February 2006, Judge Brown was
unavailable. Wanting to secure a trial date as soon as possible,
the parties agreed to a March 2006 trial date in Anchorage before
Superior Court Judge Peter A. Michalski.
Trial commenced on March 13, 2006. The attorneys
conducted voir dire and selected the jury from a pool of forty-
nine potential jurors. During voir dire, Owens attorney asked a
potential juror whether she had any issues associated with folks
who may have had previous convictions for assault or any other of
a number of items. Byler immediately called for a mistrial,
citing Judge Browns motion in limine. After reviewing Judge
Browns motion in limine, Judge Michalski denied the motion for a
mistrial. Judge Michalski warned Byler that, although he was
instructing Owen not to mention the assault during voir dire, he
believed the issues related to the assault and these general
areas are going to come in. Judge Michalski warned Byler that he
has to anticipate that there will be significant . . . unpleasant
evidence that is admissible against him. Judge Michalski ruled
that Bylers assault convictions were admissible and that the
Coast Guard reports may be admissible as business records.
Following this conference Byler raised a standing objection.
During opening statements, Byler objected to statements
by Owens attorney. Owens attorney argued that testimony would
show that Byler was one of Kodiaks known drug dealers, which he
supported by arguing that an anticipated witness, Larry Shaker,
heard it from his wife, a brown shirt, a fish and wildlife person
for the State, who would know the identities of local drug
dealers. When the court questioned the basis for this
accusation, defense counsel defended this attack by arguing that
it was supported by a cop. Judge Michalski sustained an
objection to this reference to Bylers alleged status as a drug
dealer and offered a curative instruction.2
Throughout the trial Judge Michalski allowed testimony
relating to several of the issues previously precluded by Judge
Browns order in limine. In particular, the assault, which Judge
Michalskis modification of Judge Browns order allowed, was
mentioned by the defense in its opening statement. But the court
later struck all references to it because Owen failed to prove
that Byler was convicted of the assault.
At trial Owen testified that he did not recall
confirming Shakers statements to Kenner, and that he most likely
just stayed quiet when Kenner repeated Shakers statements. Owen
also testified that, as Kodiaks harbormaster, he has a duty to
investigate accusations before giving an opinion.
The jury returned a special verdict that found four of
the five elements of defamation: It found that it was more likely
true than not true that (1) Owen communicated a statement or
statements orally to a person other than [Byler], (2) the
statement or statements were reasonably understood by this person
to be about [Byler], (3) the statement or statements were false,
and (4) the statement or statements were a legal cause of harm to
[Byler]. However, the jury found that there was not clear and
convincing evidence that Owen either knew the statement or
statements were false or acted in reckless disregard to their
truth or falsity, and that it was not more likely true than not
true that Owen knew or reasonably should have known that the
statement or statements were false. As the jury found that Byler
did not prove all of the elements of defamation, it concluded
that Owen was not liable.
Byler moved for a new trial. He argued that the
evidence could lead to only one reasonable conclusion that Owen
was at least comparatively at fault. Judge Michalski denied the
motion.
Byler now appeals on three grounds: (1) the court
committed plain error in failing to declare a mistrial, (2) the
court abused its discretion . . . when it allowed the admission
of evidence that was irrelevant and more prejudicial than
probative, and (3) the court abused its discretion in denying the
motion for a new trial.
III. STANDARD OF REVIEW
We review the trial courts decision to grant or deny a
mistrial under the abuse of discretion standard.3 Under that
standard we will disturb the trial courts ruling only if, after
reviewing the whole record, we are left with a definite and firm
conviction that the trial court erred in its ruling.4 We may
reverse and grant a new trial, even if a mistrial was not sought,
only if we find there was plain error.5 In alleging plain error
the appellant must shoulder the heavy burden of demonstrating
that the alleged misconduct raises a substantial and important
question and must show that the error was obviously prejudicial.6
The trial courts evidentiary rulings are also reviewed
under the abuse of discretion standard.7 We leave questions of
admissibility to the sound discretion of the trial court,
reversing only if, upon review of the record as a whole, we are
left with a definite and firm conviction that the trial court
erred in its ruling and the error affected the substantial rights
of a party.8
Finally, we have held that the grant or refusal of a
motion for a new trial rests in the sound discretion of the trial
court, and we will not disturb a trial courts decision on such a
motion except in exceptional circumstances to prevent a
miscarriage of justice. We will uphold a refusal to grant a new
trial if there is an evidentiary basis for the jurys decision.9
IV. DISCUSSION
A. Despite Defense Counsels Objectionable References to
Bylers Character, the Court Did Not Err in Refusing To
Grant a Mistrial.
Byler appeals the courts denial of his mistrial motion
following an objectionable question during voir dire and the
courts refusal to grant a new trial following similarly
prejudicial remarks during the opening statement.10 During voir
dire, Owens attorney asked a juror if she had any issues
associated with folks who may have previous convictions for
assault. Byler immediately moved for a mistrial, arguing that
the question was highly prejudicial, unfair, and this panel
shouldnt be exposed to it. After excusing the jury panel and
hearing argument, the court denied the motion, instructing the
attorneys to quit trying to familiarize [the jurors] with the
issues of the action. During the defenses opening statement,
counsel stated that Byler had been convicted of assault, stated
that Byler left hunters on the beach that had to be rescued by
the Coast Guard, and stated that Byler was one of Kodiaks known
drug dealers. Byler argues that the courts failure to order a
mistrial on the basis of the defenses opening statement
constituted plain error and thus merits reversal even though he
did not move for a mistrial.
Plain error is an obvious mistake that creates a high
likelihood that the jury will follow an erroneous theory
resulting in a miscarriage of justice.11 We have held that a
party alleging plain error has a heavy burden to show that the
error was both obvious and very likely consequential.12 We have
found plain error where the superior court failed to give a
comparative fault instruction to the jury in a negligence case,
despite clear law mandating courts to give such an instruction.13
Byler argues that the improper voir dire question, in
which Owens attorney implied that Byler had committed assault,
set a prejudicial tone that continued throughout the defenses
opening statement. But Judge Michalski promptly gave a curative
instruction14 and warned defense counsel that any reference to
Bylers alleged drug-dealing would be inadmissible unless
supported by evidence more credible than hearsay statements from
a witnesss spouse or defense counsels contention that [e]very
person [defense counsel] called in Kodiak has said [Byler] is a
coke head. In light of Judge Michalskis ruling in Bylers favor
and the courts curative instruction, we conclude that Byler has
not met his heavy burden of demonstrating an obvious mistake that
erroneously influenced the jury in a consequential manner.15
B. The Court Did Not Err in Declining To Follow the
Previous Motion in Limine.
Prior to trial Judge Brown ruled that fish and game
violations, criminal arrests or convictions, and defense evidence
regarding the hunting trip accusations would be excluded, while
leaving open the possibility that trial testimony or other trial
events may render the evidence relevant and therefore admissible.
During the trial Judge Michalski allowed the admission of some of
that evidence.
Byler contests the admission of this evidence. He
contends that the evidence is irrelevant and unfairly prejudicial
and Judge Michalski erred in effectively overruling Judge Browns
previous order. There are essentially two facets to this claim:
(1) Judge Michalski violated the law of the case doctrine by
overruling a previous motion in limine and (2) the admission of
this evidence was erroneous. Neither has merit.
1. A superior court judges failure to follow an order
of a prior superior court judge does not violate
the law of the case doctrine.
The law of the case doctrine in Alaska generally
requires adherence by a lower court to an appellate courts
decision and generally prohibits reconsideration of issues which
have been adjudicated in an appeal of the case.16 But when one
superior court judge makes a ruling, that superior court judge is
succeeded by another superior court judge on the same case, and
the subsequent judge declines to follow a previous order from the
prior judge we have held that the doctrine does not apply.17
In Stepanov v. Gavrilovich,18 we upheld a judges
decision not to follow his colleagues earlier decision in a
case.19 We relied on federal case law, both from the United
States Supreme Court and the Ninth Circuit Court of Appeals, and
held that one judge may decline to follow the earlier decision of
a colleague where the later judge is convinced that [the
previous] ruling was erroneous.20 We noted in Stepanov that the
parties were not involved in forum shopping and the change of
judges was necessary due to the earlier judges illness.21 In West
v. Buchanan,22 we reiterated that it is entirely reasonable for a
judge whose responsibility it is to try a case to reconsider and
reverse an earlier ruling if the judge believes the prior ruling
was erroneous.23 In Hayes v. Xerox Corp.24 we similarly found that
the doctrine of law of the case is inapplicable in situations
where one superior court judge reverses a prior judges order.25
Here, Judge Michalski admitted evidence the exclusion
of which he believed to be improper. He notified the parties
that the previously excluded evidence would come in because
assuming that it relates to the defamation, . . . it, in fact,
shows the truth of the statement made, and, therefore, its
relevant as the defense to defamation, being truth of the
statement made. Judge Michalski also noted that he may have
properly gone further in his ruling: I think it may very well be
that by limiting, for example, references and proofs of criminal
behaviors to convictions[,] that actually may be going farther
than defamation requires of the Court. Thus, although Judge
Michalski reversed what he believed to be an erroneous ruling, he
respected the spirit of the ruling by limiting the evidence of
bad acts to convictions. Judge Michalskis reconsideration of
Judge Browns earlier ruling in no way violated the law of the
case doctrine.
2. The superior courts evidentiary rulings were
within its discretion.
Having concluded that it was not error for Judge
Michalski to reverse the previous ruling in this case, we turn
now to whether the subsequent rulings admitting evidence were
erroneous. Byler specifically contests the courts admission of
evidence of the assault, the Coast Guard letter of concern, a
conviction for failing to comply with reporting requirements, and
the insinuation that Byler was a drug dealer. The admission of
this evidence, Byler contends, deprived Byler of a fair trial and
improperly influenced the jury.
To place this dispute in context, it must be remembered
that Bylers suit listed three statements and one failure to deny
that he claimed were defamatory: (1) Owens statement I cant say
anything good about Darren Byler; (2) Owens statement to Abeyta
that Byler abandoned hunters to be rescued by the Coast Guard;
(3) Owens statement to Abeyta that Byler was known to run out of
fuel; and (4) Owens failure to deny or refute Shakers statements
about Byler to Kenner.
In defense of Bylers claims, Owen offered evidence that
his statements were true. Alaska, like the majority of
jurisdictions, follows the Restatement of Torts which considers
truth to be a defense to defamation.26 In response, Byler argued
principally that the evidence was irrelevant and prejudicial.
As to relevancy, evidence is relevant if it tends to
make the existence of a material fact more or less likely.27 In
general, all relevant evidence is admissible. The Alaska Rules
of Evidence set out several exceptions to that rule. Byler
contends that the admission of the contested evidence violated
two exceptions in particular: (1) character evidence is generally
inadmissible and never admissible to prove specific conduct (Rule
404), and (2) the evidence at issue here is more prejudicial than
probative (Rule 403). We consider each of these claims in turn.
In Alaska the admission of character evidence is
governed by Evidence Rule 404. Rule 404 provides generally that
[e]vidence of a persons character or trait of character is not
admissible for the purpose of proving that the person acted in
conformity therewith on a particular occasion, but it then lists
several exceptions. Judge Michalski justified his ruling
allowing some character evidence the two pieces of evidence
concerning Bylers conviction for violating reporting requirements
and the Coast Guard letter of concern by finding that the
evidence was relevant, noting that it was an integral part of
this case. The character evidence that Owen introduced was not
introduced to show that Byler acted in a certain way, but rather
that Owen may have had reason to believe Byler was an unsafe
fisherman and therefore Owen may have had a defense to
defamation.
Reasonable minds could disagree as to whether the
evidence that Owen presented to support his defense of truth was
more prejudicial than probative (and therefore excludable on Rule
403 grounds). In order for the evidence to be relevant, and thus
probative, to this action, it must go to the question of whether
Owen had reason to believe that Byler was an unsafe boat
operator. We examine each of Owens four pieces of evidence (or
allegations) concerning Byler with this question in mind.
The suggestion that Byler was a drug dealer bears
little direct relevance on the question of whether he was an
unsafe sailor. At the same time, it does have the potential to
improperly bias the jury against him. This insinuation is
clearly more prejudicial than probative. But there was no error
here: The court did not admit this evidence. Byler argues that
the court erred in its decision to allow reference to the
allegation. Judge Michalski did not, however, allow reference to
the allegation; as soon as the allegation was raised, the court
sustained Bylers objection to the comment and offered a curative
instruction.
Byler next contests the courts admission of evidence
regarding Bylers allegedly assaultive behavior. During the cross-
examination of Kenner, Owens attorney asked if Kenner would be
wary to charter a boat with someone convicted of assault for
running his skiff up against other folks. Byler objected and
asked Owen to produce proof of convictions for any assaults.
When Owen was unable to produce proof of a conviction, the court
sustained Bylers objection and struck all references to assaults.
Like the insinuation that Byler was a drug dealer, the question
of the admissibility of evidence of assaultive behavior is
misplaced because the court struck all references to such
behavior.
Byler next takes issue with Judge Michalskis admission
of the Coast Guard letter of concern into evidence. The court
ruled that the letter of concern which the Coast Guard issued
after fuel problems aboard Bylers boat were not reported was
admissible for the purpose of cross-examining Bylers witnesses.
After the court allowed hypothetical questions based on the
letter, Owen then questioned another witness about the letter,
characterizing the situation by noting that 25% of Bylers trips
had been referred to the Coast Guard. A letter from the Coast
Guard that details Bylers boating misdeeds, unlike the comments
about drugs and assault, relates directly to the question of
whether Owen had reason to believe that Byler was an unsafe
charter operator. In fact, this letter was issued in response to
the incident involving the allegedly abandoned hunters, the very
incident about which Owen had warned Abeyta. There was no error
in admitting the evidence.
Finally, Byler contests Judge Michalskis admission of
Bylers conviction for violation of reporting requirements. Byler
contends that the conviction is stale, thereby making it more
prejudicial than probative for its impeachment value. Judge
Michalski allowed evidence of the conviction, reasoning that the
evidence was admissible as a basis for the knowledge that led
Shaker to his beliefs about Bylers reputation. The admission
went to the issue of Bylers reputation, not to impeach Byler as
Bylers appeal suggests. Judge Michalski supported his ruling by
reasoning that this conviction bears on the question of whether
one would do business with him and the basis for [Shaker] having
thought this of [Byler]. Although this appears to us to be a
close question since the conviction for false reporting occurred
twenty years earlier, it is arguable that it had some continuing
effect on Bylers reputation. Accordingly, we are not convinced
the court abused its discretion in admitting the evidence.
Further leading to our decision to uphold Judge
Michalskis evidentiary rulings is our conclusion that, even if
error, the rulings were harmless to Byler. Byler argues that
Owen engaged in character assassination and that the admission of
these pieces of evidence biased the jury against him. But the
jury concluded that Owens statements suggesting that Byler was an
unsafe operator were false. And the jurys finding that Owen did
not know the statements to be false, the only question that the
jury found against Byler, is sufficiently supported by other
evidence introduced at trial: Owen believed Shakers statements
to be true because Shaker himself believed they were true.
We accordingly find that the court did not abuse its
discretion in admitting evidence that was relevant to Owens
defense.
C. The Superior Court Did Not Err in Denying Bylers Motion
for a New Trial.
After the jury returned its verdict that Owen did not
know the statements were false and did not act in reckless
disregard of their falsity, Byler moved for a new trial. Byler
sought a new trial under Alaska Civil Rule 59(a) because [g]iven
the evidence presented, reasonable jurors would have found that
Mr. Owen was at least comparatively at fault. The trial court
denied the motion.
On appeal, Byler must show that there was no
evidentiary basis for the jurys finding.28 But there is
substantial support for the finding that Owen believed Shakers
statements were true. First, Shaker testified that he believed
his statements about Bylers past to be true. Second, Owen
testified that he did not contest Shakers story although he did
not form an opinion on its truth or falsity. If Owen had no
opinion on the falsity of the statement and trusted Shakers
assessment, which Shaker himself believed to be true, it is
reasonable to conclude that he repeated the statements without
believing them to be false. Because there was an evidentiary
basis for the jurys finding, the court did not err in failing to
grant a new trial.
V. CONCLUSION
The superior court did not commit plain error in
failing to declare a mistrial sua sponte during Owens opening
statement, was within its discretion to deem certain types of
evidence admissible, and did not abuse its discretion in failing
to grant a new trial. We therefore AFFIRM the decision of the
superior court in all respects.
_______________________________
1 Because most of the evidence in this case concerns the
actions of Darren Byler, he is referred to as Byler in this
opinion.
2 Judge Michalski admonished Owens attorney and gave the
following instruction: Ladies and gentlemen, the Court sustains
the objection to the reference to Mr. Shaker and his wifes
employment and the references to information through that
process. Youre to disregard that reference and to the that
statement at this time.
3 Walker v. State, 652 P.2d 88, 92 (Alaska 1982).
4 Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005).
5 Randall v. State, 583 P.2d 196, 200 (Alaska 1978).
6 Id. (internal citations omitted).
7 Dobos v. Ingersoll, 9 P.3d 1020, 1023 (Alaska 2000).
8 Id.
9 Reeves v. Alyeska Pipeline Serv. Co., 56 P.3d 660, 668
(Alaska 2002) (internal citations omitted).
10 Owen argues that Byler waived this claim because he
failed to raise it in his Statement of Points on Appeal. He
further contends that Byler additionally waived his second claim,
in which he argues the superior court erred in its evidentiary
rulings. Although Bylers Statement of Points on Appeal does not
explicitly list these issues, these claims are not waived because
they are subsumed under his second point on appeal: [t]he trial
court erred in not granting Plaintiffs Motion for a Mistrial.
Furthermore, we will consider claims even if they are not
explicitly stated in the points on appeal if the appellant raised
the issue before the lower court and both parties have briefed
the issue. Native Village of Eklutna v. Bd. of Adjustment for
the Mun. of Anchorage, 995 P.2d 641, 646 (Alaska 2000). Byler
clearly raised these issues before the lower court by frequently
objecting to the courts admission of the contested evidence, and
both parties briefs treat these issues. Therefore, we will
consider all three of Bylers claims on appeal.
11 Shields v. Cape Fox Corp., 42 P.3d 1083, 1087 (Alaska
2002) (internal citation omitted).
12 Id.
13 Id.
14 See supra n.2.
15 Although we hold that the trial judge acted
appropriately in denying Bylers motion for a mistrial, we note
our strong disapproval of defense counsels trial tactics.
Counsel repeatedly referred, in the jurys presence, to irrelevant
and unsubstantiated allegations of wrongdoing by Byler, to which
Byler properly objected, requiring the court to issue multiple
cautionary instructions to the jury. In our opinion, there was
no excuse or justification for counsels actions, which bordered
on sharp practice.
16 Mogg v. Natl Bank of Alaska, 846 P.2d 806, 810 (Alaska
1993).
17 See id. at 810 n.8; Hayes v. Xerox Corp., 718 P.2d 929,
934 (Alaska 1986).
18 594 P.2d 30, 36 (Alaska 1979).
19 Id.
20 Id.
21 Id.
22 981 P.2d 1065 (Alaska 1999).
23 Id. at 1067 (internal citations omitted).
24 718 P.2d 929 (Alaska 1986).
25 Id. at 934.
26 Fairbanks Pub. Co. v. Pitka, 376 P.2d 190, 192-93
(Alaska 1962) (The truth of a defamatory statement of fact is a
complete defense to an action for defamation.); see also
Restatement (Second) of Torts 581A (1977).
27 Alaska R. Evid. 402.
28 Reeves v. Alyeska Pipeline Serv. Co., 56 P.3d 660, 668
(Alaska 2002).
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