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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pedersen v. Blythe (11/16/2012) sp-6723
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
SIEGFRIED PEDERSEN, )
) Supreme Court No. S-14620
Appellant, )
) Superior Court No. 3PA-10-03154 CI
v. )
) O P I N I O N
DANIEL BLYTHE and )
BOBBIE LUXFORD, ) No. 6723 - November 16, 2012
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Kari Kristiansen, Judge.
Appearances: Siegfried Pedersen, pro se, Hudson, Colorado,
Appellant. Notice of nonparticipation filed by Daniel Blythe and
Bobbie Luxford, Willow, Appellees.
Before: Fabe, Chief Justice, Winfree, Stowers, and Maassen,
Justices. [Carpeneti, Justice, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
Siegfried Pedersen was convicted of assault and weapons misconduct. He
brought a civil suit against the victims of those crimes, Daniel Blythe and Bobbie Luxford,
alleging defamation and trespass. The superior court granted the defendants' motion to
dismiss on grounds of collateral estoppel. Pedersen appeals.
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We conclude that the superior court erred when, in deciding the motion to
dismiss, it considered matters outside the pleadings without advising Pedersen of its intent
to do so and giving him a reasonable opportunity to respond. We hold that this error is
harmless with regard to Pedersen's defamation claims. We also hold, however, that it was
plain error for the superior court to dismiss Pedersen's trespass claims, claims to which
collateral estoppel did not apply. We therefore affirm the superior court's judgment on the
defamation claims and reverse and remand on the trespass claims.
II. FACTS AND PROCEEDINGS
Pedersen, Blythe, and Luxford were neighbors in Willow, where Blythe and
Luxford share a residence. Tension grew when Pedersen alleged that Blythe had repeatedly
trespassed on his property. Blythe and Luxford reported to the Alaska State Troopers that
on September 13, 2009, Pedersen parked his car in their driveway, fired a weapon at their
residence, and drove away. Criminal and civil proceedings arose from this incident
(hereafter "September incident").
In February 2011, after a criminal trial on the September incident, a jury found
1
Pedersen guilty of criminal misconduct involving weapons for firing at a dwelling, criminal
misconduct involving weapons for firing from or on a highway,2 and assault.3 Blythe and
Luxford were the victims. In March 2011 Pedersen filed an appeal, now pending in the
court of appeals.
Meanwhile, in November 2010 Pedersen filed a pro se complaint against
Blythe and Luxford in the superior court, seeking "exemplary and punitive" damages.
1 AS 11.61.195(a)(3)(B).
2 AS 11.61.210(a)(2).
3 AS 11.41.220(a)(1)(A).
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Pedersen alleged that Blythe and Luxford defamed him with their statements to the troopers
about the September incident. He also claimed that Blythe trespassed on his property in
May and November 2009.4
Blythe and Luxford filed a motion to dismiss based on collateral estoppel,
relying solely on Pedersen's conviction. The court granted the motion with a single
sentence: "Considering criminal conviction in 3PA-09-2426CR the court finds that as a
matter of law plaintiff[']s complaint should be dismissed."
Pedersen appeals pro se. He argues only that collateral estoppel does not apply
and that he should succeed on his defamation claims. Blythe and Luxford have not
participated in this appeal.
III. STANDARDS OF REVIEW
We review a motion to dismiss de novo, construing the complaint liberally and
accepting as true all factual allegations.5 In reviewing a motion to dismiss, we do not
consider materials outside the complaint and its attachments.6
4 Pedersen also alleged in his complaint that the "[t]roopers failed in their due
diligence" and violated his constitutional rights. We do not discuss his constitutional
claims further because no state actors were parties to the suit and Blythe and Luxford
cannot be held liable for constitutional violations. Belluomini v. Fred Meyer of Alaska,
Inc. , 993 P.2d 1009, 1015 (Alaska 1999) ("[S]tate and federal courts have historically
recognized that the constitution protects individuals from state action but not from
similar deprivations by private actors.").
5 Caudle v. Mendel, 994 P.2d 372, 374 (Alaska 1999) (citing Kollodge v.
State, 757 P.2d 1024, 1026 n.4 (Alaska 1988)).
6 Larson v. State, Dep't of Corr. , 284 P.3d 1, 7 (Alaska 2012) (citing Adkins
v. Stansel, 204 P.3d 1031, 1035 n.20 (Alaska 2009); Dworkin v. First Nat'l Bank of
Fairbanks , 444 P.2d 777, 779-80 (Alaska 1968)).
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Whether a statement is defamatory and whether collateral estoppel applies are
both questions of law that we review de novo.7
We review for plain error issues not preserved for appeal.8 Plain errors are
obvious mistakes that create "a high likelihood that injustice has resulted."9 But we must
disregard harmless errors that have no substantial effect on the rights of parties or on the
outcome of the case.10
IV. DISCUSSION
A. The Superior Court Must Give Notice Of Its Intent To Consider Evidence
Outside The Pleadings When Deciding A Motion To Dismiss.
If a party submits a motion to dismiss that relies on materials outside the
pleadings, the superior court may either exclude the evidence or convert the motion into one
for summary judgment.11 In either event, the court must "expressly state whether [it has] in
fact excluded or considered [outside] materials" in reaching its decision.12 If the court
converts the motion to one for summary judgment, it must give opposing parties a
7 DeNardo v. Bax , 147 P.3d 672, 677 (Alaska 2006); Rapoport v. Tesoro
Alaska Petroleum Co ., 794 P.2d 949, 951 (Alaska 1990).
8 Marcia V. v. State , 201 P.3d 496, 502 (Alaska 2009) (citing In re Adoption
of L.E.K.M., 70 P.3d 1097, 1100 (Alaska 2003)).
9 Id. (quoting Miller v. Sears , 636 P.2d 1183, 1189 (Alaska 1981)).
10 Alaska R. Civ. P. 61; Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142,
1146 (Alaska 1999) (citing Alaska R. Civ. P. 61; Veal v. Newlin, Inc., 367 P.2d 155, 157
n.8 (Alaska 1961)).
11 Alaska R. Civ. P. 12(b).
12 Martin v. Mears , 602 P.2d 421, 426 (Alaska 1979).
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"reasonable opportunity to present all materials made pertinent."13 The "reasonable
opportunity" is particularly important for pro se parties, given that trial judges are obligated
to inform pro se litigants of procedural requirements such as "the necessity of submitting
affidavits to preclude summary judgment."14
We have implied in the past that courts may consider materials outside the
pleadings on a motion to dismiss if those materials are subject to "strict judicial notice."15
Other authorities have found "strict judicial notice" to encompass statutes and regulations,
matters of public record (including other court proceedings), and matters of common
knowledge.16 But just as it does when converting a motion to dismiss, the court must give
notice to the opposing party of its intent to take judicial notice and "afford him an
opportunity to dispute the facts judicially noticed."17
13 Alaska R. Civ. P. 12(b); Martin , 602 P.2d at 426; see also Demmert v.
Kootznoowoo, Inc ., 960 P.2d 606, 612 (Alaska 1998) ("A party opposing a motion for
summary judgment is entitled to conduct discovery germane to its opposition.").
14 Genaro v. Municipality of Anchorage, 76 P.3d 844, 846 (Alaska 2003)
(quoting Coffland v. Coffland, 4 P.3d 317, 321 (Alaska 2000); Breck v. Ulmer , 745 P.2d
66, 75 (Alaska 1987)).
15 Martin , 602 P.2d at 426 n.6 (quoting Schwartz v. Commonwealth Land Title
Ins. Co. , 374 F. Supp. 564, 578 (E.D. Pa. 1974)).
16 Buck v. Thomas M. Cooley Law Sch. , 597 F.3d 812, 816 (6th Cir. 2010);
Schwartz, 374 F. Supp. at 578; 61A AM . JUR . 2D Pleading § 529 (2012) ("In addition,
the court may consider matters which are properly the subject of strict judicial notice,
such as state statutes or regulations, matters of public record, and matters of common
knowledge.").
17 Schwartz, 374 F. Supp. at 579 (citing 9 J. WIGMORE ON EVIDENCE 2568 (3d
ed. 1940); Soley v. Star & Herald Co., 390 F.2d 364 (5th Cir. 1968)).
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The motion to dismiss submitted by Blythe and Luxford relied solely on
Pedersen's criminal conviction, and the superior court relied solely on the conviction in its
order of dismissal. However, the superior court did not give Pedersen notice that it was
converting the motion to dismiss to a motion for summary judgment, nor did it notify him
that it intended to take judicial notice of the conviction. Assuming that Pedersen's criminal
conviction was the type of public record of which the court could take strict judicial notice
without converting the motion to dismiss into one for summary judgment, the court was still
required to give Pedersen express notice of its intent to rely on the conviction, which it failed
to do. This was error.
B. The Court's Failure To Give The Required Notice Before Dismissing
Pedersen's Defamation Claims Was Harmless Error.
We find the lack of notice to be harmless error, however, with regard to
Pedersen's defamation claims. Pedersen alleged to be defamatory (1) the defendants'
statements that he had fired shots at their dwelling, and (2) Blythe's statement that he had
seen Pedersen's vehicle in the defendants' driveway.
A criminal conviction prevents a person from relitigating in a civil suit "any
element of a criminal charge of which he stands convicted."18 A pending appeal of the
criminal conviction "is irrelevant for the purposes of res judicata and collateral estoppel."19
A successful defamation claim must establish the existence of "a false and defamatory
18 Haynes v. McComb , 147 P.3d 700, 701 (Alaska 2006) (citing Burcina v.
City of Ketchikan, 902 P.2d 817, 822 (Alaska 1995)).
19 Wyatt v. Wyatt, 65 P.3d 825, 831 (Alaska 2003) (citing Lyman v. State, 824
P.2d 703, 705 (Alaska 1992)) (applying rule to collateral estoppel). We also observed
in Wyatt that a "motion to vacate any judgment resting on the preclusive effect of the
earlier judgment following its reversal would provide adequate relief" if an appeal were
later successful. Id.
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statement," among other factors.20 A statement "is defamatory if it tends to harm the
reputation of another."21
After a full criminal trial, a jury found beyond a reasonable doubt that Pedersen
"discharged [a] firearm at or in the direction of a dwelling." Pedersen does not raise any
colorable argument on appeal as to why the superior court in this case was not obliged to
accept that finding as true for purposes of collateral estoppel, nor can we discern any from
our own review of the record.22 As for Blythe's statement about seeing Pedersen's vehicle
in his driveway, it is not defamatory on its face, as it does not on its own tend to harm
Pedersen's reputation; the statement is defamatory only if taken to impute a serious crime
to Pedersen.23 This is in fact how Pedersen construes it. But a jury already convicted
20 State v. Carpenter, 171 P.3d 41, 51 (Alaska 2007) (citing French v. Jadon
Inc. , 911 P.2d 20, 32 (Alaska 1996)).
21 MacDonald v. Riggs , 166 P.3d 12, 16 (Alaska 2007) (quoting Green v. N.
Publ'g Co. , 655 P.2d 736, 739 (Alaska 1982)).
22 See Lamb v. Anderson, 147 P.3d 736, 739 (Alaska 2006) (quoting Scott v.
Robertson , 583 P.2d 188, 193 & n.27 (Alaska 1978)) ("[W]e adopted the rule that a
criminal conviction resulting from a jury trial could be introduced as 'conclusive proof'
(rather than merely persuasive evidence) 'of the facts necessarily determined.' ").
23 Defamation damages are appropriate where "words impute a serious crime
to the plaintiff." French , 911 P.2d at 33. See also RESTATEMENT (SECOND) OF TORTS
§ 571 (1977) ("One who publishes a slander that imputes to another conduct constituting
a criminal offense is subject to liability . . . if the offense imputed is of a type which . . .
would be (a) punishable by imprisonment . . . or (b) regarded by public opinion as
involving moral turpitude.").
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Pedersen of that serious crime, so it is not a false statement. Accordingly, Pedersen is
collaterally estopped from litigating the "false and defamatory" element of his defamation
claims, and the superior court's procedural error, in failing to expressly notify him of its
intent to rely on his conviction, cannot have affected this result.
C. The Dismissal Of Pedersen's Trespass Claims Requires Remand.
Pedersen's complaint also alleged that Blythe committed trespass in May and
November 2009. Construing the complaint liberally, and accepting as true all factual
allegations,24 we find that these claims are sufficient to survive a motion to dismiss.
Furthermore, these tort claims could not have been subject to collateral estoppel - the sole
basis for the superior court's order of dismissal - as they were apparently unrelated to
Pedersen's criminal convictions based on the September incident.
Pedersen argues that the "trial [c]ourt abused any discretion it may have had
by dismissing the case in error, given [that] [c]ollateral [e]stoppel does not apply," but his
brief does not specifically address dismissal of his trespass claims. We nonetheless
consider them because he is proceeding pro se and because it appears that it was plain error
for the court to implicitly dismiss those claims on the basis of collateral estoppel.25 We
reverse the superior court's dismissal of the trespass claims and remand to the superior court
for consideration of those claims.
24 Larson v. State, Dep't of Corr ., 284 P.3d 1, 4 (Alaska 2012) (citing
Clemensen v. Providence Alaska Med. Ctr., 203 P.3d 1148, 1151 (Alaska 2009);
Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 253 (Alaska 2000)).
25 See Tracy v. State, Dep't of Health & Soc. Servs., Office of Children Servs. ,
279 P.3d 613, 618 (Alaska 2012) (considering a claim and finding plain error even
though pro se litigants failed to develop the argument).
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V. CONCLUSION
For the foregoing reasons, the judgment in this case is AFFIRMED in part and
REVERSED in part. The matter is REMANDED for further proceedings consistent with
this opinion.
-9- 6723
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