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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Helfrich v. Valdez Motel Corporation (05/22/2009) sp-6375
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
| RICHARD STEVE HELFRICH, | ) Supreme Court No. S-12776 |
| ) | |
| Appellant, | ) Superior Court No. 3VA-06-60 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| VALDEZ MOTEL CORPORATION, | ) No. 6375 May 22, 2009 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Valdez,
Daniel J. Schally, Judge pro tem.
Appearances: Tim Cook, Cook & Associates,
Anchorage, and Paul H. Bratton, Law Offices
of Paul H. Bratton, Talkeetna, for Appellant.
Paul D. Stockler, Law Office of Paul D.
Stockler, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
EASTAUGH, Justice.
WINFREE, Justice, with whom CARPENETI,
Justice, joins, dissenting in part.
I. INTRODUCTION
The main issue in this appeal is whether a landlord
violates the anti-retaliation statute, AS 34.03.310(a)(2), of the
Uniform Residential Landlord and Tenant Act (URLTA) by evicting a
tenant who demands personal injury compensation following an on-
premises slip and fall. The superior court held that it does
not, and therefore granted a directed verdict to the landlord on
the tenants URLTA retaliation claim. Because a claim for
personal injury damages resulting from an on-premises fall is not
for rights and remedies granted under URLTA,1 we affirm.
II. FACTS AND PROCEEDINGS
Richard Steve Helfrich was employed by the Valdez Motel
Corporation to perform general repairs and maintenance for one of
its properties, the Pipeline Inn.2 Helfrich rented a room at
the Inn on a month-to-month basis at a reduced employee rate.
After finishing work on March 21, 2005, and while
walking in an area behind the Inn, Helfrich slipped, fell, and
broke his leg. Helfrich spent four or five days in hospitals in
Valdez and Anchorage, returning to the Inn on March 24 or 25. He
continued to reside at the Inn through May 2005. Helfrich was
initially unable to work, but at some point he resumed working
for the Inn on a part-time basis.
Helfrich asserts on appeal, and Valdez Motel does not
dispute, that he did not have health insurance or other means to
pay his medical bills. Mark Lee (Lee) and James Bill Lee are
shareholders of the Valdez Motel Corporation. Helfrich testified
in his deposition that he spoke with Bill Lee after returning
from the hospital about how he needed help with [his] medical
bills. Helfrich testified that the Lees never responded whether
they were willing to help. Mark Lee testified in his deposition
that he paid for Helfrichs medicine and some of his trips to the
doctor, and ensured that Helfrich had transportation to his
medical appointments. Lee testified that he asked Helfrich
whether he was going to seek an attorney and that Helfrich said
he was not. Helfrich testified that he consulted attorney Tim
Cook after he never heard back from the Lees about whether they
would cover his medical expenses.
On May 26, 2005, Cook sent Mark Lee a demand letter on
Helfrichs behalf, asserting that Valdez Motel was liable for in
excess of $40,000 in medical bills that Helfrich had incurred.
Cooks letter asked the Lees to seek coverage with their insurance
provider and concluded that it would be in Pipeline Inns best
interest to accept responsibility and provide for [Helfrichs]
care and settle this matter as expediently as possible. On June
1, 2005, Cook spoke with Mark Lee by telephone. Lee told Cook
that Helfrich could continue to stay at the Inn, but that he
could no longer stay at the reduced rental rate.3
Helfrich testified in his deposition that, on the same
day Cook called Lee, Lee and Helfrich had a conversation in the
hallway of the Inn. Helfrich testified that Lee told Helfrich
that he wanted Helfrich off the premises as soon as possible and
that he did not like getting threatening letters from attorneys.
Helfrich testified that after the conversation he found a letter
posted on the door to his room. The letter stated:
June 1, 2005
Steve,
I guess we should have learned from the past
and had nothing to do with you, but thats not
how we do things. Unfortunately, it has
come back and bit us in the ass again and for
that I thank you. I really dont appreciate
getting a threatening letter from an
attorney. I think at this[] point Steve, it
is best you move out as fast as you can. I
recommend perhaps moving in with whoever gave
you such back stabbing advice. If no one, I
guess it is time for a tent (on someone elses
property).
Mark
Helfrich testified that he packed his things and left
the Inn within ten minutes of receiving the letter. He testified
that he never approached Lee to ask if he could stay in his room
either for the night or until he could make other living
arrangements.
Cook wrote Lee a letter on June 2, 2005 confirming
their June 1, 2005 conversation and urging Lee not to raise
Helfrichs rent because it would likely render Helfrich homeless.
Lee testified that at some point after Helfrich received Lees
letter and left the premises, Lee told Helfrich that he could
stay if he paid increased rent. Lee testified in his deposition
that he decided to raise the rent because Helfrich was no longer
an employee. Lee testified that Helfrich was let go for lying
about hiring an attorney and because he suspected that Helfrich
was also lying about whether his fall was actually on Valdez
Motels property.
On June 8, 2005, Helfrich sued Valdez Motel in superior
court, asserting both claims of negligence and claims of
violations of URLTA.4 In August 2006 Helfrich sought partial
summary judgment on the alleged URLTA violations. Helfrich
argued that Valdez Motel unlawfully failed to provide him with a
written eviction notice that met URLTAs notice requirements.
The superior court denied Helfrichs motion for partial
summary judgment in early December 2006. The court also denied
Helfrichs subsequent motion for reconsideration. The court
clarified that a factual dispute barring judgment as a matter of
law existed about the nature of the purported June 1, 2005
eviction notice.
A three-day jury trial took place in May 2007. At the
close of Helfrichs case, Valdez Motel moved for a directed
verdict on Helfrichs claims. The court denied Valdez Motels
directed verdict motion on the negligence claim, but granted
Valdez Motel a directed verdict on the URLTA and punitive damages
claims. Helfrich had advanced two URLTA claims: (1) that the
eviction was in retaliation for seeking remedies under URLTA, and
(2) that the eviction was a wrongful ouster. Only Helfrichs
negligence claim was submitted to the jury, which returned a
verdict finding that Valdez Motel was not liable. The court
later entered final judgment for Valdez Motel and awarded it
Alaska Civil Rule 82 attorneys fees of $13,081.83.
Helfrich appeals the denial of his motion for partial
summary judgment and the grant of Valdez Motels motion for
directed verdict on the URLTA claims. He does not appeal the
grant of directed verdict on his punitive damages claim. He also
asks us to reverse the attorneys fees award that Valdez Motel
received as the prevailing party.
III. DISCUSSION
A. Standard of Review
We review a denial of summary judgment de novo,
affirming only if a genuine issue of material fact exists or the
moving party was not entitled to judgment as a matter of law.5
We view facts in the light most favorable to the
nonmoving party.6
We review a grant of directed verdict de novo,
affirming only if reasonable jurors could not reach a different
conclusion.7 We view the evidence in the light most favorable to
the nonmoving party.8
B. Helfrichs Motion for Partial Summary Judgment
Helfrich asks us to reverse the superior courts denial
of his motion for partial summary judgment. He argues that the
letter Lee posted on Helfrichs door on June 1, 2005 failed to
satisfy the minimum provisions of URLTA9 and the forcible entry
and detainer (FED) statutes regarding notices to quit. Helfrich
implicitly contends that there was no genuine issue of material
fact regarding whether the notice was a notice to quit governed
by URLTA and the FED statutes, that it failed to satisfy the
requirements of those statutes as a matter of law, and that he
therefore was entitled to prevail as a matter of law on those
claims. He asks that we remand to the superior court for
determination of actual damages and award of costs and attorneys
fees.
URLTA was adopted in Alaska to govern landlord-tenant
disputes.10 We have held that URLTA should be harmonized with the
FED statutes, which govern evictions.11
Generally, a landlord may not evict a tenant under the
FED statutes unless the landlord first gives the tenant a notice
to quit,12 otherwise known as an eviction notice. A notice to
quit is a written demand for the tenant to vacate and surrender
the property, thereby terminating the tenancy.13 The notice to
quit must meet certain requirements. It must be in writing and
must be delivered to the tenant, left at the premises, or sent by
registered or certified mail.14 The notice must tell the tenant
why the landlord is terminating the tenancy, what the tenant may
do to avoid termination if the breach or violation may be
corrected, and the date and time of termination under the lease
or rental agreement.15 The notice must direct the tenant to quit
no later than the termination date under the lease or rental
agreement.16 And the notice must notify the tenant that if the
tenant remains in occupation after termination the landlord may
commence a civil action to remove the tenant . . . and recover
possession.17
URLTA also requires the landlord to give written notice
of intent to terminate a tenancy.18 A landlord may terminate any
tenancy if rent is unpaid when due and remains unpaid for seven
days after the landlord provides the tenant with written notice
that rent is due and that the landlord intends to terminate if
the rent is not paid within that time.19 A landlord or tenant may
also terminate a month to month tenancy by a written notice given
to the other at least 30 days before the rental due date
specified in the notice.20
The parties disagreed in the superior court whether
there was a genuine dispute of material fact about whether the
letter Lee posted on Helfrichs door was an eviction notice, and,
accordingly, disagreed whether the letter had to satisfy the FED
and URLTA notice requirements. Valdez Motel appeared to concede
that, if the letter was found to be an eviction notice, it would
be defective under URLTA as a matter of law. Helfrich argued
that there was no dispute that the letter was an eviction notice
because it demanded that he move out as fast as you can, and
because Lee desired that Helfrich comply with that demand.21
Valdez Motel responded that the letter was not an eviction
notice, but an expression of Lees thought or opinion that it
would be best, given the existing animosity between the parties,
for Helfrich to move out. It argued that Helfrich took the
statement move out as fast as you can out of context in
characterizing it as an unequivocal demand. In support of its
arguments, Valdez Motel noted that the sentence read in full: I
think at this point, Steve, it is best you move out as fast as
you can.
The superior court denied Helfrichs motion for partial
summary judgment and his motion for reconsideration. In denying
Helfrichs motion for reconsideration, the superior court stated
that there was a factual dispute as to the nature of the
purported June 1, 2005 eviction notice, such that entry of
judgment as a matter of law was not appropriate.
We agree with the superior courts assessment and affirm
the denial of summary judgment. Although a trier of fact might
have concluded that the letter was an eviction notice, the
letters words and Lees relevant deposition testimony22 create a
genuine issue of material fact as to whether the letter was an
eviction notice that fell within the ambit of URLTA and the FED
statutes. The trial court therefore properly denied summary
judgment to Helfrich on this issue.23
C. Valdez Motels Directed Verdict on Helfrichs URLTA
Retaliation Claims
Helfrich argues that Valdez Motel violated URLTAs anti-
retaliation provision and that the superior court therefore erred
in granting Valdez Motels motion for directed verdict on his
URLTA retaliation claim.
Alaska Statute 34.03.310(a) prohibits a landlord from
retaliating against a tenant by increasing rent or decreasing
services or by bringing or threatening to bring an action for
possession after the tenant has . . . (2) sought to enforce
rights and remedies granted the tenant under this chapter.24
Whether Helfrichs eviction violated the anti-retaliation statute
depends on whether his lawyers May 26, 2005 demand letter was an
attempt to enforce rights and remedies granted the tenant under
[URLTA].25
URLTA requires that landlords maintain fit premises.26
Maintaining fit premises includes making all repairs and keeping
the premises in a fit and habitable condition;27 keeping common
areas clean and safe;28 keeping the electric, plumbing, heating,
and like systems in good and safe working order and condition;29
providing appropriate trash receptacles;30 providing essential
services such as running water, hot water, and heat;31 providing
locks and keys when requested by the tenant;32 and providing smoke
and carbon monoxide detectors.33 Tenants remedies for landlords
noncompliance with AS 34.03.100(a) include terminating the
tenancy and suing for damages or injunctive relief.34
Helfrich essentially argues that his personal injury
lawsuit asserts the right to safe common areas granted him by AS
34.03.100(a)(2) through the remedy of damages granted him by AS
34.03.160(b). He contends that either threatening to file or
filing a lawsuit is therefore conduct protected from retaliation
by AS 34.03.310(a)(2). Valdez Motel appears to respond that the
right to be free of the landlords negligence and the remedy of
personal injury damages are granted not by URLTA, but by the
states general tort law, and that because Helfrich was not
enforcing rights and remedies granted by URLTA, his conduct was
not protected from retaliation by AS 34.03.310(a)(2).
We have said that the public policy behind AS 34.03.310
is to encourage tenants to assert their rights under their leases
and under the law.35 But we have not determined the scope of
conduct the statute protects.
We have emphasized that Alaskas adoption of URLTA
accord[ed] tenants previously unrecognized rights by recognizing
the contractual nature of the landlord-tenant relationship.36
URLTA grants the tenant a right to require the landlord to
maintain fit premises37 and provides a remedy for damages if the
landlord fails to do so.38 But URLTA does not expressly grant the
tenant a right to be free from the landlords negligence or a
remedy to recover consequential damages for personal injuries
resulting from such negligence if fitness and habitability are
not in issue. Nor does it do so implicitly. Alaskas tort law,
not URLTA, confers this right and this remedy.
We conclude that tenants personal injury claims seeking
recovery for injuries resulting from landlords alleged negligence
do not [seek] to enforce rights and remedies granted the tenant
under [URLTA].39 Alaska Statute 34.03.310(a)(2) therefore does
not protect tenants from eviction if they threaten or file
personal injury lawsuits.
There may be good policy reasons supporting a broader
interpretation of subsection .310(a)(2). Tenants who file
personal injury lawsuits seek damages for injuries resulting from
past conditions, not for ongoing noncompliance with URLTAs duty
to maintain premises safe and fit for habitation. Nonetheless,
personal injury lawsuits or claims may motivate landlords to
comply with URLTA by maintaining safe premises to avoid future
litigation or even to mitigate dangerous conditions identified in
the claim or lawsuit. Moreover, URLTAs anti-retaliation
provision reflects our policy of encouraging tenants to assert
their rights under their leases and under the law.40 Lawsuits
under URLTA and lawsuits under state tort law both further that
policy. Tenants who have not yet been injured are protected from
retaliation if they threaten to sue or sue for rent abatement
under AS 34.03.160(b) for landlords ongoing noncompliance with
URLTAs duty to maintain the premises. But tenants who have been
injured and who choose to sue under tort law instead of URLTA
also assert their rights under their leases and under the law.41
As a matter of policy, those tenants are no less worthy of
protection from retaliation.
Despite these considerations, we conclude that a
narrower reading is more consistent with the text and structure
of AS 34.03.310(a)(2). That subsections plain text protects from
retaliation only a tenants actions to enforce rights and remedies
under URLTA. URLTAs remedy for breach of the landlords statutory
duties under AS 34.03.100(a) and the common law tort remedy for
personal injury damages are not the same. Other states have
enacted versions of URLTA with broader protections. Oregons
statute prohibits retaliation against any tenant who has
performed or expressed intent to perform any other act for the
purpose of asserting, protecting or invoking the protection of
any right secured to tenants under any federal, state or local
law.42 The Alaska legislature could have adopted a similar
protection but did not. We will not second guess that
determination.
Our analysis is confirmed by our review of statutory
schemes elsewhere. Several other states adopting URLTA have also
adopted provisions similar to AS 34.03.310(a)(2).43 But none
appears to have decided whether seeking compensation for personal
injuries sustained as a result of a prior dangerous condition on
the premises is protected conduct under the retaliatory eviction
provision. New Yorks anti-retaliation statute, which is not
based on URLTA, resembles AS 34.03.310 in specifying that tenant
actions must vindicate legal rights protected by landlord-tenant
laws to be protected from retaliation.44 A New York municipal
court has held that this statute protects from retaliation only
conduct related to tenants contract actions to enforce rights
related to the warranty of habitability, not tort actions seeking
compensation for personal injury.45 New Yorks landlord-tenant law
requires the landlord to keep the premises safe and fit for human
habitation and entitles the tenant to damages for breach of this
duty.46 In Pezzolanella v. Galloway, a tenant threatened to sue
in tort for damages after her child was injured when her kitchen
ceiling collapsed.47 The tenant alleged that her landlord
breached his duty under the landlord-tenant law to keep the
premises safe and fit for human habitation.48 The landlord
subsequently commenced a summary eviction proceeding in which the
tenant raised retaliation as an affirmative defense.49 The court
rejected the tenants argument that the lawsuit was an action to
secure her rights under housing laws.50 It therefore held that
threatening to file the lawsuit was not conduct protected from
retaliation and that the landlord did not violate the statute by
evicting the tenant.51
Helfrichs purported eviction occurred after he
requested compensation for personal injuries allegedly suffered
as a result of Valdez Motels negligence. Because we have held
that claims for compensation for personal injuries are not
protected by URLTAs anti-retaliation statute, we must next
determine whether Helfrichs pre-eviction demands asserted any
other rights and remedies granted by URLTA.52
On appeal Helfrich alleges that Valdez Motel failed to
comply with the requirement that it keep all common areas of the
premises in a clean and safe condition.53 But the demand letter
Helfrichs attorney sent did not explicitly or implicitly threaten
to sue for noncompliance with the requirements contained in AS
34.03.100(a). The letter did refer to common law tort duties by
stating that liability in this case is fairly straightforward.
An innkeeper has a clear duty under Alaska law to maintain safe
conditions for their lodgers. The letter also urged Valdez Motel
to seek coverage for Helfrichs expenses and damages from its
insurance provider, and Helfrichs subsequent complaint referred
to the request for reimburse[ment] for damages from Valdez Motels
insurance carrier. In context the demand letter refers to a
liability insurer covering tort claims for negligently caused
damages.
Likewise, the letter refers to typical personal injury
remedies for an on-premises slip and fall: out-of-pocket medical
expenses plus unspecified damages. The demand letter did not
explicitly refer to or implicitly invoke any statutory URLTA
remedy. Its exclusive focus was on recovery of what would be
considered common law tort damages. A tenant may sue under URLTA
to recover damages and obtain injunctive relief for any
noncompliance by the landlord with . . . AS 34.03.100 . . . .
But remedies for a landlords noncompliance with URLTA generally
relate to habitability or fitness disputes. URLTA damages
compensate tenants who live with conditions that render a
dwelling unfit, uninhabitable, or unsafe, or who are
constructively evicted by those conditions.54 Fault is irrelevant
to such URLTA claims.55 Common law tort remedies compensate
plaintiffs for consequential damages resulting from personal
injury, including medical expenses, loss of employment or lack of
income, and pain and suffering. Helfrichs attorneys demand
letter did not seek any URLTA-specific remedies, such as rent
abatement or injunctive relief. Instead it requested
compensation for Helfrichs medical expenses and damages, noting
that as a result of the accident Helfrich was unable to work and
continued to suffer pain and interference with normal activities.
Likewise, it asserted that Helfrich fell on an icy pathway that
was clearly dangerous. It therefore made out a claim of fault,
implying that the landlord was negligent.
Helfrich could have threatened to sue under both tort
law and URLTA, but only invoked rights granted by Alaskas tort
law and only sought typical common law tort remedies. Helfrichs
attorneys demand letter did not, in the words of AS
34.03.310(a)(2), seek to enforce rights and remedies granted
under URLTA.56
We conclude that subsection .310(a)(2) is inapplicable
as a matter of law, and that no reasonable juror could find any
facts that would support a verdict for Helfrich on his
retaliation claim.57 We therefore hold that the superior court
did not err in granting Valdez Motels motion for directed verdict
on Helfrichs URLTA claims.58
D. Rule 82 Attorneys Fees
The trial court awarded Valdez Motel, as the prevailing
party, attorneys fees under Alaska Rule of Civil Procedure 82.59
Helfrich appears to argue that we should reverse that award
because Valdez Motel should not have prevailed. Because the
superior court did not err in denying Helfrichs motion for
summary judgment and granting Valdez Motels motion for directed
verdict, Valdez Motel was the prevailing party. Valdez Motel was
therefore entitled to recover Rule 82 attorneys fees.60
IV. CONCLUSION
The superior court orders denying Helfrichs motion for
partial summary judgment, granting Valdez Motels motion for
directed verdict, and awarding attorneys fees are AFFIRMED.
WINFREE, Justice, with whom CARPENETI, Justice, joins, dissenting
in part.
I respectfully dissent from the courts decision to
affirm the trial courts directed verdict dismissing Richard Steve
Helfrichs statutory retaliation claim under Alaskas Uniform
Residential Landlord and Tenant Act.1
One of the purposes and policies underlying the Act is
to encourage landlords to properly maintain rental premises.2
Under AS 34.03.100 a landlord is required to make all repairs and
do whatever is necessary to put and keep the premises in a fit
and habitable condition3 and to keep all common areas of the
premises in a clean and safe condition.4 Premises is defined
broadly to include a dwelling unit and related structures, as
well as grounds, areas, and facilities held out for the use of
tenants generally.5
Prior to the Act landlords had some immunity from
liability for personal injuries caused by dangerous conditions of
a rental premises.6 But in Newton v. Magill we held that because
of the legislatures adoption of the Act7 and our own previous
approval of the trend toward a more general duty of care for
landowners,8 the common law rules of landlord immunity were in
conflict with modern public policy.9 We held that landlords are
not strictly liable as insurers of the fitness of the rental
premises, but rather have a duty to use reasonable care to
discover and remedy conditions which present an unreasonable risk
of harm under the circumstances.10 We reached that holding:
because it would be inconsistent with a
landlords continuing duty to repair premises
imposed under the [Act] to exempt from tort
liability a landlord who fails in this duty.
The legislature by adopting the [Act] has
accepted the policy reasons on which the
warranty of habitability is based. These are
the need for safe and adequate housing,
recognition of the inability of many tenants
to make repairs, and of their financial
disincentives for doing so, since the value
of permanent repairs will not be fully
realized by a short-term occupant.[11]
The Act provides some protections to a tenant who
complains about the condition of the rental premises. A landlord
may not retaliate . . . by bringing or threatening to bring
eviction proceedings after the tenant has complained to the
landlord of a violation of AS 34.03.100.12 For an example with
some relevance to this case, a landlord should be statutorily
prohibited from giving a tenant an eviction notice in retaliation
for the tenants complaint of an unsafe accumulation of ice on a
common area pathway outside a fire-door exit of the tenants
apartment building. In Vinson v. Hamilton we stated that the
anti-retaliation provisions of AS 34.03.310 reflect a public
policy of encouraging tenants to assert their rights under the
Act without fear of eviction.13
A tenant has two separate, but cumulative, statutory
remedies for a landlords failure to comply with AS 34.03.100.14
Faced with a noncompliance with AS 34.03.100 materially affecting
health and safety, the tenant may give notice that the tenancy
will terminate unless the breach is remedied.15 If the landlord
does not remedy the breach by repairs or the payment of damages
or otherwise, the tenancy terminates pursuant to the notice and
the tenant may vacate the premises without further rental
obligations.16 In addition a tenant may recover damages and
obtain injunctive relief for any noncompliance by the landlord
with AS 34.03.100.17
The Act also provides some protections for the
assertion of these rights and remedies. A landlord may not
retaliate . . . by bringing or threatening to bring eviction
proceedings after the tenant has . . . sought to enforce rights
and remedies granted the tenant under [the Act].18 If in the
earlier example the tenant actually sued the landlord over the
unsafe ice accumulations, the landlord should be statutorily
prohibited from giving the tenant an eviction notice in
retaliation for the attempt to seek compensation for damages
caused by, or injunctive relief to ameliorate, the unsafe
condition of the premises.19
In this case Helfrich asserted a claim that Valdez
Motel Corporation illegally retaliated against him with an
eviction notice after his attorney made contact to seek the
payment of medical bills and related damages incurred as a result
of Valdez Motels alleged failure to maintain a common area in a
safe condition. The trial court found that Helfrich was a
tenant of Valdez Motel and that his tenancy was covered by the
Act, and Valdez Motel does not contest that finding.
In his letter to Valdez Motel, Helfrichs attorney
stated that on March 21, 2005, Helfrich slipped and fell on an
ice accumulation on the path outside the back (fire-exit) door,
which he noted to be a well-used access route [that] has been the
scene of other accidental falls during the past winter. He
advised Valdez Motel that Helfrichs medical bills were in excess
of $40,000. He asked Valdez Motel to assume its rightful
responsibility and make every effort to obtain from its insurer
full coverage for all expenses and damages that Mr. Helfrich has
suffered.
After receipt of the letter Valdez Motels
representative placed what Valdez Motel later admitted was
intended to be an eviction notice on Helfrichs room door, stating
in part: I really dont appreciate getting a threatening letter
from an attorney. I think . . . it is best you move out as fast
as you can. I recommend perhaps moving in with whoever gave you
such back stabbing [sic] advice. If no one, I guess it is time
for a tent (on someone elses property). Helfrich vacated the
premises immediately after finding the eviction notice.
The trial court granted Valdez Motels motion for a
directed verdict on Helfrichs retaliation claim at the close of
his case-in-chief. The trial court conceded Helfrich had
presented evidence that he sought to enforce rights, but
concluded the rights Helfrich was attempting to enforce were not
rights related to his tenancy. The trial court stated that a
negligence action stands on its own without any connection to a
landlord-tenant relationship and that seeking damages for
personal injuries caused by unsafe conditions on the landlords
property is not encompassed within AS 34.03.160(b).
By affirming the trial courts decision, the court
ignores or repudiates Newton v. Magill and Vinson v. Hamilton and
the policies underlying those cases, and also ignores the
legislatures statement of the Acts purposes and policies and its
mandate that the Act be liberally construed to promote those
purposes and policies.
The court proceeds as if a landlords tort duties to
tenants rest only on the evolution of the common law duties of
property owners and have nothing whatsoever to do with the Act
and its modification of the tenancy relationship between the
landlord and tenant. Newton v. Magill dispels that notion: a
landlords tort duties to tenants are what they are today because
of the Act.20 The landlords duty under AS 34.03.100 is the tort
duty of reasonable care under all of the relevant
circumstances.21 Failure to comply with that duty is both a tort
and a breach of AS 34.03.100.
The court ably details the reasons this interpretation
of the Act would promote its purposes and policies, but instead
adopts a narrower reading of the Act. This narrow reading of the
Act is in direct conflict with: (1) the legislatures mandate for
liberal application of the Act; (2) the liberal effect given the
Act in Newton v. Magill; and (3) Vinson v. Hamiltons liberal
interpretation and construction of the public policy underlying
the anti-retaliation provisions of AS 34.03.310. From a
practical standpoint, the courts narrow reading of the Act
produces a perverse framework of anti-retaliation protection.
The tenant who complains about unsafe conditions of a
stairway cannot be threatened with eviction for her complaints
but when her child is injured on the unsafe stairway and she
seeks to have the landlord take responsibility and pay the childs
medical bills, she can be evicted with impunity. The tenant who
complains about plumbing problems cannot be threatened with
eviction for his complaints but when the plumbing explodes, raw
sewage covers his basement apartment, and he seeks to have the
landlord take responsibility and pay for cleaning or replacing
his personal property, or for precautionary inoculations against
disease, he can be evicted with impunity. This should not be the
law of Alaska.
We should promote the statutory purpose of encouraging
landlords to maintain rental premises. We should promote the
public policy of encouraging tenants to assert their rights under
the Act without fear of eviction threats. We should acknowledge
Newton v. Magill and liberally construe the phrase damages . . .
for any noncompliance by the landlord with . . . AS 34.03.100, to
include tort and contract damages.22 A liberal interpretation of
AS 34.03.100(a) and (b) cannot lead to the result the court
reaches today.23
The court seems to fear that acknowledging a
retaliation claim under Helfrichs circumstances is an
acknowledgment of some kind of strict liability standard
accompanying the landlords repair and maintenance obligations
under AS 34.03.100. But we expressly rejected that possibility
in Newton v. Magill.24 Acknowledging the validity of Helfrichs
claim simply means that whether a tenant is complaining about or
suing about the landlords failure to maintain the rental
premises as required by AS 34.03.100, the landlord cannot
threaten eviction of the tenant in retaliation for the tenants
assertion of rights under AS 34.03.160 and AS 34.03.100.25
I would reverse the trial courts directed verdict on
Helfrichs statutory retaliation claim and remand for trial of
that claim.
_______________________________
1 AS 34.03.310(a)(2).
2 Because the superior court resolved the issues raised
in this appeal on summary judgment and directed verdict, the
superior court did not make factual findings. Our fact
description relies on the superior court record, including
exhibits, depositions taken after Helfrich filed his complaint,
and transcripts of the relevant trial proceedings. In describing
the facts, we take permissible inferences in favor of the
nonmovant. We are not finding facts or resolving factual
disputes.
3 The amount of the resulting rent increase is unclear
from the record. The new total appears to have been either $900
per month or $106 per day.
4 AS 34.03.010 et seq.
5 Ondrusek v. Murphy, 120 P.3d 1053, 1055 (Alaska 2005)
(citing City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska
2004)) (affirming denial of summary judgment on negligence claim
because genuine issue of material fact existed).
6 Id. at 1056.
7 D.P. v. Wrangell Gen. Hosp., 5 P.3d 225, 228 (Alaska
2000) (citing Fairbanks N. Star Borough v. Lakeview Enters.,
Inc., 897 P.2d 47, 53 n.5 (Alaska 1995)) (reversing grant of
directed verdict in favor of hospital in medical malpractice
action).
8 Id.
9 As a preliminary matter, it is unclear whether URLTA
applies to this case. AS 34.03.330(b) exempts from URLTAs
requirements (4) transient occupancy in a hotel, motel, lodgings,
or other transient facility and (5) occupancy by an employee of a
landlord whose right to occupancy is conditioned upon employment
substantially for services, maintenance, or repair to the
premises. Neither party argues here that URLTA does not apply,
and we therefore assume that it does. We express no opinion as
to whether the exceptions would apply in this case.
10 AS 34.03.010.
11 AS 09.45.060-.160; McCall v. Fickes, 556 P.2d 535, 539
(Alaska 1976).
12 AS 09.45.100(a).
13 Blacks Law Dictionary 1093 (8th ed. 2004).
14 AS 09.45.100(c).
15 AS 09.45.105(1).
16 AS 09.45.105(2).
17 AS 09.45.105(3).
18 AS 34.03.220(b), .290(b).
19 AS 34.03.220(b).
20 AS 34.03.290(b).
21 Helfrichs brief on appeal raises for the first time an
argument based on Valdez Motels response to one of his requests
for admission. In Request for Admission Number 28, Helfrich
stated , Please admit that [Lees letter] was intended to be a
notice of eviction. Valdez Motel responded, Admit. The superior
court has a duty to go outside the pleadings to consider the
entire setting of the case to the extent that the material was
brought to the courts attention by the parties on the motion.
Prentzel v. State, Dept of Pub. Safety, 169 P.3d 573, 582 (Alaska
2007) (quoting Jennings v. State, 566 P.2d 1304, 1310 (Alaska
1977)) (emphasis added).
The superior court denied Helfrichs motion for partial
summary judgment on December 4, 2006 and denied his motion for
reconsideration on January 10, 2007. The trial began on May 14,
2007. It appears that Helfrich did not file the admission with
the superior court or otherwise bring it to the courts attention
before it was admitted as an exhibit at trial. Although Helfrich
attached other exhibits to his motion for partial summary
judgment, he did not attach the admission to that motion or to
his motion for reconsideration. Nor did Helfrich mention the
admission in either motion or his reply to Valdez Motels summary
judgment opposition. Helfrich does not appear to have renewed
his motion for partial summary judgment at any point after the
admission was filed with the court. Because Helfrich did not
bring the admission to the courts attention when he moved for
summary judgment or before the court denied the motion, we do not
consider this argument on appeal.
Even if the admission had been submitted before the
court ruled, it would not have compelled a grant of Helfrichs
summary judgment motion given our conclusion below that the
superior court did not err in concluding that there was a factual
dispute about the nature of the notice.
22 Lee testified that as a friend he did not wish to see
Helfrich again and that as a landlord he probably would have
preferred that [Helfrich] would have moved out. In response to
Cooks question whether the letter was tantamount to an eviction
notice, Lee responded that [i]n my mind it was a note from -- you
know, more of a friends reaction than it was an employee/employer
reaction.
23 Helfrich asks us to grant him summary judgment and
remand for determination of actual damages for FED and URLTA
violations. In his amended complaint, Helfrich alleged that the
failure to comply with FED and URLTAs mandatory eviction
procedures was an unfair practice under the Alaska Unfair
Practices and Consumer Protection Act, AS 45.50.471-.561. But
Cook waived the unfair practices claim at trial, and did not
assert any other claims for damages based on deficiencies in the
alleged notice to quit. Although Helfrich argues on appeal that
the alleged notice to quit violates URLTA and FED as a matter of
law, he does not specify how he was damaged by the alleged
deficiencies. He also does not argue in the alternative that we
remand for determination as a matter of fact whether the alleged
notice was actually an eviction notice and, therefore, whether
Helfrich suffered damages based on the alleged deficiencies. Any
claim of damages resulting from deficiencies in the alleged
notice is therefore waived.
24 AS 34.03.310(a)(2) (emphasis added). [T]his chapter
refers to Chapter 03, the Uniform Residential Landlord and Tenant
Act. URLTA also protects other types of tenant conduct from
retaliation by landlords, AS 34.03.310(a), but enforcement of
rights and remedies granted under URLTA is the only type of
tenant conduct at issue in this case.
25 AS 34.03.310(a)(2).
26 AS 34.03.100(a).
27 AS 34.03.100(a)(1).
28 AS 34.03.100(a)(2).
29 AS 34.03.100(a)(3).
30 AS 34.03.100(a)(4).
31 AS 34.03.100(a)(5).
32 AS 34.03.100(a)(6).
33 AS 34.03.100(a)(7).
34 AS 34.03.160(a) & (b). That provision states (b)
Except as provided in this chapter, the tenant may recover
damages and obtain injunctive relief for any noncompliance by the
landlord with the rental agreement or AS 34.03.100, 34.03.210, or
34.03.280.
Tenants have additional URLTA remedies for violations
of URLTA rights not implicated in this case. For example, if a
landlord fails to deliver possession, a tenant is entitled to
rent abatement, may terminate the tenancy, and may maintain an
action for possession. AS 34.03.170. If a landlord wrongfully
fails to supply heat, water, hot water, or essential services, a
tenant may deduct from the rent reasonable cost of replacement
services, diminution in fair rental value, and substitute housing
if necessary. AS 34.03.180. In case of fire or casualty damage,
a tenant may terminate the tenancy or deduct from the rent for
diminution in fair rental value. AS 34.03.200. And if a
landlord wrongfully ousts, excludes, or diminishes services, a
tenant may terminate the tenancy or recover possession and sue
for up to one and a half times actual damages. AS 34.03.210.
35 Vinson v. Hamilton, 854 P.2d 733, 736 (Alaska 1993)
(holding litigant was entitled to continuance to prepare defense
of retaliatory eviction because even month-to-month tenants may
raise this defense).
36 McCall v. Fickes, 556 P.2d 535, 537-38 (Alaska 1976).
37 AS 34.03.100.
38 AS 34.03.160(b).
39 AS 34.03.310(a)(2).
40 Vinson, 854 P.2d at 736.
41 Id.
42 Or. Rev. Stat. 90.385 (2003).
43 E.g., N.M. Stat. 47-8-39 (1978) (providing an owner
may not retaliate against a tenant because she, in the previous
six months, prevailed in a lawsuit as either plaintiff or
defendant or has a lawsuit pending against the owner relating to
the residency); Tenn. Code Ann. 66-28-514 (1999) (prohibiting
retaliation if tenant has made use of remedies provided under
this chapter); Wash. Rev. Code 59.18.240 (2004) (prohibiting
retaliation for [a]ssertions or enforcement by the tenant of his
rights and remedies under this chapter).
44 The statute prohibits retaliation for [a]ctions taken
in good faith, by or in behalf of the tenant, to secure or
enforce any rights under the lease or rental agreement . . . or
under any other law of the state of New York, or of its
governmental subdivisions, or of the United States which has as
its objective the regulation of premises used for dwelling . . .
. N.Y. Real Prop. Law 223-b(1)(b) (McKinney 2006).
45 Pezzolanella v. Galloway, 503 N.Y.S.2d 990 (N.Y. City
Ct. 1986).
46 N.Y. Real Prop. Law 235-b (McKinney 2006), quoted in
Pezzolanella, 503 N.Y.S.2d at 991.
47 Pezzolanella v. Galloway, 503 N.Y.S.2d 990, 991 (N.Y.
City Ct. 1986).
48 Id.
49 Id.
50 Id. at 992-93.
51 Id.
52 AS 34.03.310(a)(2).
53 AS 34.03.100(a)(2).
54 AS 34.03.160-.210.
55 See, e.g., AS 34.03.200 (providing tenant remedies for
fire or casualty damages).
56 AS 34.03.310(a)(2).
57 Any claim Helfrich may have made in the superior court
regarding unlawful ouster is waived. Helfrich states in his
brief to this court that [w]hile Helfrich believes that he was
wrongfully ousted by both the unlawful eviction notice and the
retaliatory demand for enhanced rent . . . , his argument here
does not rely here upon Alaskas wrongful ouster statute. See AS
34.03.210.
Any claim of ouster in this case would be problematic
in any event. Unlawful ouster involves the landlords physical
interference with the tenants ability to inhabit the premises.
Shaefer v. Murphey, 640 P.2d 857, 860 (Ariz. 1982) (holding that
service of unlawful notice to quit, followed by tenants vacating
premises, was not unlawful ouster); see also 49 Am. Jur. 2d
Landlord and Tenant 515 (2006) (contrasting ouster with
constructive eviction so as to suggest that ouster involves
physical dispossession). Valdez Motel did not physically
interfere with Helfrichs possession.
58 Helfrich also states that [e]ven if, arguendo, these
actions were not within Alaskas specific statutory prohibition on
retaliatory conduct, they are certainly a breach of the URLTA
duty of good faith contained in AS 34.02.320. Helfrich does not
elaborate on this argument. The argument is therefore waived
because it is inadequately briefed. Shearer v. Mundt, 36 P.3d
1196, 1199 (Alaska 2001) (stating that generally issues not
briefed or only cursorily briefed are considered waived).
59 Alaska Rule of Civil Procedure 82 provides for award of
attorneys fees to the prevailing party in civil litigation. If
the prevailing party recovers no money judgment, attorneys fees
are calculated according to Rule 82(b)(2).
60 Helfrich raises no objection to the award of Rule 82
attorneys fees beyond his argument that he should have prevailed.
1 AS 34.03.
2 AS 34.03.010(b)(2). The legislature has directed that
the Act be liberally construed and applied to promote its
underlying purposes and policies. AS 34.03.010(a).
3 AS 34.03.100(a)(1).
4 AS 34.03.100(a)(2).
5 AS 34.03.360(14).
6 Newton v. Magill, 872 P.2d 1213, 1216 (Alaska 1994)
(identifying Alaskas common law rules of landlord liability).
7 Id. at 1214, 1217 (citing AS 34.03.100).
8 Id. at 1217 (citing Webb v. City & Borough of Sitka,
561 P.2d 731, 733 (Alaska 1977)).
9 Id. at 1217-18.
10 Id. at 1218.
11 Id. at 1217.
12 AS 34.03.310(a)(1). Complained is not defined in the
Act, but the relevant Websters definition of complain is to
express discontent [or] dissatisfaction. Websters Third New
International Dictionary 464 (2002). See AS 01.10.040(a)
(instructing that [w]ords and phrases shall be construed
according to the rules of grammar and according to their common
and approved usage).
13 854 P.2d 733, 736 (Alaska 1993).
14 AS 34.03.160(a)-(c).
15 AS 34.03.160(a).
16 Id. (emphasis added).
17 AS 34.03.160(b)-(c) (emphasis added).
18 AS 34.03.310(a).
19 The statutory remedy afforded a victim of illegal
retaliation is limited. Under AS 34.03.310(b) a tenant may
assert retaliation as a defense to an eviction action and is
entitled to the same statutory remedies afforded to a tenant
expressly or constructively evicted in violation of law; in the
latter event the tenant may recover possession or terminate the
rental agreement and, in either case, recover an amount not to
exceed one and one-half times the actual damages. AS 34.03.210.
20 Newton, 872 P.2d at 1217-18.
21 Id. at 1218.
22 The Act does not define damages, nor does the Act
expressly limit damages, but common usage of the term certainly
favors Helfrich and supports my view of Newton v. Magill.
Websters defines damages as compensation imposed by law for a
wrong or injury caused by a violation of a legal right. Websters
Third New International Dictionary 571 (2002). Blacks defines
damages as monetary compensation for loss or injury. Blacks Law
Dictionary 416 (8th ed. 2004).
23 The court also seems to hold that unless a tenant
expressly refers to a specific provision of the Act in a
communication to a landlord, the communication will not be
interpreted to refer to rights under the Act at all. This is
form over substance and clearly inconsistent with the purposes
and policies of the Act, especially the anti-retaliation
provisions of AS 34.03.310. The relevant inquiry should be
whether the rights asserted by the tenant are protected by the
Act, not whether the tenant is conscious of the specifics of the
Act. The fact that Helfrichs attorney sought medical bill
reimbursement and damages for injuries alleged from an unsafe
condition on the rental premises is sufficient to invoke the
protections of AS 34.03.100(b) and AS 34.03.310(a).
24 872 P.2d at 1218.
25 I also note my view that a demand or suit for
compensation made in the context of a continuing tenancy can be
easily construed as an expression of discontent or
dissatisfaction with the landlords performance of obligations
under AS 34.03.100, i.e., a complaint protected from retaliation
by AS 34.03.310. See Newton, 872 P.2d at 1216.
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