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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kocurek v. Wagner (3/3/2017) sp-7155
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MARVIN KOCUREK, )
) Supreme Court No. S-15829
Appellant, )
) Superior Court No. 3AN-13-06181 CI
vs. )
) O P I N I O N
RICHARD WAGNER, )
) No. 7155 - March 3, 2017
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Eric A. Aarseth, Judge.
Appearances: Jeffrey G. Pickett, Law Office of Jeffrey G.
Pickett, Anchorage, for Appellant. No appearance by
Appellee Richard Wagner.
Before: Stowers, Chief Justice, Winfree, Maassen, and
Bolger, Justices. [Fabe, Justice, not participating.]
STOWERS, Chief Justice.
I. INTRODUCTION
An artifact collector appeals a superior court's decision to deny his motion
for a new trial and amendment of judgment where the jury found that a collection of
1
artifacts from Zacatecas, Mexico, had been wrongfully converted and awarded him
1 The parties refer to the "Zacatecas Region" in their briefing, by which they
likely mean the modern state and capital city of Zacatecas in central Mexico.
----------------------- Page 2-----------------------
$5,000 in damages. He alleges that there was no evidentiary basis for the jury's damages
award and that the superior court's reasons for denying his motion were erroneous. But
because the superior court did not abuse its discretion by concluding that the jury's
verdict was not against the weight of the evidence and because the facts do not require
us to disturb the jury's verdict in the interests of justice, we affirm.
A. Facts
In theearly1970sormid-1980s,MarvinKocurek purchasedapproximately
225 pre-Columbian artifacts from a mining engineer named Clayton R. Rasmussen.
According to a handwritten note that Kocurek kept with the collection of artifacts,
Rasmussen had acquired the artifacts in 1936 or 1937 near Zacatecas, Mexico, and
received customs clearance to bring the collection into the United States in 1937.
Kocurek's note does not indicate the amount he paid for the collection, but according to
witness testimony at trial, he paid $50,000 for the collection in some combination of cash
and trade.
Kocurek packed the artifacts with paper towels, toilet paper, and clothing
in an ammunition box that he stored with his prized possessions at the bottom of a
bedroom closet. The artifacts were rarely shown to anyone. Kocurek had the items
photographed sometime during the 1980s but never had them appraised.
Kocurek's son, Eric Kocurek, assisted his father in managing some of
Kocurek's personal finances and business affairs. In August 2011 Kocurek granted
power of attorney to Eric. Cognitive assessments in April 2012 and April 2013 indicated
that Kocurek had some problems with short-term memory, and in April 2012 Eric began
the process of moving his father to Texas to live with family.
During the fall of 2012 Eric accepted an offer by Richard Wagner, who had
been a business and personal acquaintance of Kocurek for several years, to help salvage
and sell several pieces of scrap metal on Kocurek's Alaska property and to split the
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profits. At some point while Wagner was working on the scrap project, he and Kocurek
examined the collection of artifacts in the ammunition box. Wagner then called some
friends in Arizona who were familiar with the antiquities trade and asked whether they
knew anything about the value of a collection like Kocurek's. Through various
connections, Wagner learned that a smaller collection of artifacts like Kocurek's had
been confiscated by the Mexican government when the owner tried to sell it. Wagner
relayed this information to Kocurek and suggested to Kocurek that "if the government
finds out you have this stuff, they will take it." He also told Kocurek that his collection
had significant value and offered to broker a deal with the United States State
Department to get Kocurek a return on the money he had invested in the collection
before it was confiscated or otherwise compromised.
At trial the parties disputed whether this conversation amounted to a
contract between Kocurek and Wagner. Eric testified that he overheard the conversation
and told Wagner that he and his father were not selling the artifacts. Wagner, however,
testified that Kocurek asked him to help sell the artifacts after he told Kocurek about his
plan to "dispose[] of" his own collection of artifacts. According to Wagner:
I asked Marvin [Kocurek] what he was going to do with his
large salvage yard of all these massive amounts of
collectibles, and he didn't know. And he told me that his son
had been trying to get him to sell the stuff off. And I said:
Marvin, you can't take it with you. So he, in turn, asked me
if I would help him. And I agreed to that.
After Kocurek and Wagner discussed the value and potential sale of
Kocurek's artifacts, Wagner began to execute a convoluted plan to sell the collection
without risking confiscation by the Mexican government. Kocurek and Wagner talked
with one of Wagner's friends, Carlos Lopez, and together they devised a scheme to
clandestinely ship Kocurek's collection to Mexico and then offer it for sale to the United
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States government. Wagner would broker the deal through some attorneys he knew in
Las Vegas. Wagner asked his friend Roxy Weatherton to fly from Minnesota to Alaska
at his expense to help him with his plan for Kocurek's artifacts.
One of the elements of the plan was that the government would buy
Kocurek's collection for the amount Kocurek originally paid for it, with three-percent
interest, compounded, over a 40-50 year period; this amounted to approximately
$232,544.29. Wagner asserted that the basic outline of the plan was drawn up in a
written agreement that Kocurek and Wagner signed with Weatherton as the witness.
This alleged written contract was not available at trial.
Wagner testified that he generally followed the agreement with Kocurek.
In October 2012 Weatherton and Kocurek packed the artifact collection from Kocurek's
ammunition box into a plastic Wal-Mart tote to disguise it. Then the tote was put into
a surplus People Mover bus and driven to the Port of Anchorage, where it was consigned
to a barge sailing to the Port of Seattle. At some point, Wagner and Weatherton took
photographs of the collection in Anchorage for record-keeping purposes.
Wagner and Weatherton then met with Alan Mulliner, an attorney at
Alverson, Taylor, Mortensen & Sanders, a Las Vegas law firm, about additional steps
that Wagner needed to take to successfully execute his plan. Wagner testified that he and
Weatherton described the contract with Kocurek, provided Mulliner with a box of
photographs that Kocurek had given to Wagner, and requested a copy of the notes that
Mulliner had taken during their three-hour meeting. Wagner then called Kocurek to tell
him that "the plan was basically in motion." Wagner retrieved the People Mover bus
from the Port of Seattle and drove it to Mohave Valley, Arizona, where Wagner's friend
Lopez met them. Lopez took possession of the bus to drive it across the border to
Mexico, where, in accordance with Wagner's plan, he was to wait with it until Wagner
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and his attorney had a deal with the United States State Department to purchase the
artifacts.
In the meantime, Kocurek's family moved Kocurek to Texas to live with
his sister Alice Kocurek. Wagner regularly updated Kocurek on his progress, and when
Wagner called after Kocurek's move to Texas, he told Kocurek that he had not heard
anything from the State Department. During this telephone call, Alice picked up the
phone, demanding to know what Wagner was doing with the artifacts. After Wagner
explained the plan, Alice said that she had a copy of the receipt that showed when
Kocurek purchased the artifacts and told Wagner that Kocurek did not want to sell the
items and that they wanted them back. According to Wagner, Alice said that the receipt
2 though she could not verify
was dated before the effective date of the Antiquities Act,
this at trial. Alice later testified that Wagner told her that the law firm in Las Vegas had
the artifacts, a fact Wagner disputed. Wagner told Alice that he would return the
collection but expected some compensation for assisting Kocurek with the plan to find
a buyer for the artifacts. Wagner provided her with the contact information for the Las
Vegas firm.
Around the same time, Eric hired a private investigator to try to find Lopez
at an address in Mexico Wagner provided to him, but the investigator was unable to
locate the town, Lopez, or the artifacts. Kocurek's collection was last accounted for in
Mexico, and its location was unknown at the time of trial.
2 There was some question as to whether the Antiquities Act of 1906 made
the possession of the artifacts illegal. 16 U.S.C. § 431, repealed by Pub. L. 113-287, § 7,
Dec. 19, 2014, 128 Stat. 3272. It was suggested that the artifacts were bought before the
Act went into effect and therefore were legal to own and could legally be sold on the
open market. However, the Act applied only to artifacts removed from U.S. soil, unlike
the artifacts at issue in this case. Id. Therefore, it appears that the Act ultimately did not
affect the outcome of this case.
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FromJanuary to March 2013, Kocurek's Alaska attorney, Wayne Dawson,
and Wagner's Las Vegasattorney, Mulliner, exchanged several letters abouttheartifacts.
In one letter, Dawson asserted that Wagner had represented to Kocurek that the
Las Vegas firm had possession of the artifacts and was trying to broker a sale of the
items. He stated that the artifacts "have an appraised value in excess of $100,000" and
requested that the firm protect the artifacts until Kocurek could make arrangements to
have them returned to Alaska. He also asserted that Wagner removed the items from
Kocurek's home without authorization. Mulliner responded to the letter, stating that
"this law firm has never taken possession of specific artifacts belonging to Mr. Kocurek
that originate from the Zacatecas Region of Mexico" and that he would discuss
Dawson's letter - specifically the accusation that Wagner removed the items without
permission - with Wagner.
A week later, on March 4, Mulliner sent a letter in which he disputed that
his client took Kocurek's artifacts without permission and stated that Wagner had an
agreement with Kocurek to "broker the sale of the artifacts in exchange for a 20%
commission/finder's fee plus reimbursement for any and all expenses related thereto."
The letter also stated that if Kocurek wanted to resolve the dispute "amicably," Wagner
would accept a settlement payment from Kocurek "in the amount of
$100,000[] . . . [which] represents the estimated commission from the sale of the artifacts
plus related expenses." Dawson responded on March 12, 2013, asserting that Kocurek
was an elderly man suffering from dementia and was unable to knowingly enter into the
contract Wagner described. He demanded that Wagner provide evidence of his "status
as a licensed and bonded dealer in antiquities" given Wagner's demand for the $100,000
commission payment. He also requested the location and insurance information for the
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artifacts. Having received no response to his letter, Kocurek filed suit against Wagner
on April 3, 2013, in the Alaska Superior Court in Anchorage. 3
B. Proceedings
The jury heard evidence about the value of Kocurek's collection over the
course of a six-day trial, during which Wagner represented himself and participated
telephonically. The evidence included an estimate of the value of the artifact collection
based on letters between Kocurek and the Las Vegas firm; testimony from both plaintiff
and defense witnesses about what Kocurek allegedly paid for the artifacts; testimony
from Kocurek's sister about valuation of four pieces from the collection at an Antiques
Roadshow event; and a 2013 Sotheby's sales list and catalogue.
The March 4, 2013 letter from Mulliner to Dawson was read into evidence.
The letter included the terms of the alleged agreement between Kocurek and Wagner,
noting that Wagner was entitled to a "20% commission/finder's fee plus related
expenses." The letter also included the terms of Wagner's settlement offer: "[Wagner]
is willing to accept payment from Mr. Kocurek in the amount of $100,000.00. This
figure represents the estimated commission from the sale of the artifacts plus related
expenses." The March 12, 2013 letter from Dawson to Mulliner, which was also read
into evidence, referenced the $100,000 commission: "[B]ased upon your client's
demand for payment of a $100,000 commission, please provide proof of Mr. Wagner's
status as a licensed and bonded dealer in antiquities."
Eric testified that his father originally purchased the artifact collection for
$15,000 in cash and that he was sure his father also traded "other items" for the
collection; he had heard from others that his father paid $50,000. He also compared
3
Eric filed theoriginal complaint and this appeal through counsel in exercise
of his power of attorney from his father.
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photographs of his father's collection with a Sotheby's 2013 auction catalogue. Eric
suggested that his father's collection had three pieces similar to those in the Sotheby's
catalogue and that each of the Sotheby's artifacts sold at auction for an amount ranging
from $12,000 to $350,000. Based on these comparisons, Eric testified that he estimated
his father's collection to be worth "above a half million dollars," but he also admitted
that he had not had the collection appraised before it was removed from Kocurek's
house. Alice testified that sometime in 2000 Kocurek brought a "sampling" of his
artifact collection on a visit to Texas and left 23 pieces with her for safekeeping. She
later took four of these pieces to an Antiques Roadshow event, where she was told during
a brief appraisal that the artifacts were "genuine" and dated between 900 BCE and
1400 CE.
Wagner testified that Kocurek paid $50,000 to purchase the artifacts.
According to Wagner, the terms of his contract with Kocurek included a sale to the
United States government with 3% interest, compounded, on the $50,000 principal, for
the period that Kocurek owned the artifacts, with Wagner to receive a 20% commission
plus expenses.
The court instructed the jury on its role as fact-finders, how to evaluate the
evidence, the Antiquities Act of 1906, and legal cause. Addressing the jury's fact-
finding role, the court explained: "You, as jurors, are the sole judges of the credibility
of the witnesses. In deciding whether to believe a witness and how much weight to give
a witness's testimony, you may consider anything that reasonably helps to evaluate the
testimony." The court instructed the jury that "[i]f you decide that Richard Wagner
interfered with Marvin Kocurek's right to possess the artifact collection without a legal
excuse, you must decide . . . how much money will reasonably compensate Marvin
Kocurek for the harm." The court explained that while Kocurek must prove damages,
he "does not have to prove the exact amount of damages that will provide reasonable
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compensation for the harm," and that the jury "must not speculate or guess in awarding
damages."
The court explained that Kocurek would be entitled to the "fair market
value of the pre-Columbian artifact collection at the time it was taken." The court gave
the following instruction on the meaning of "fair market value":
[I]magine that an owner of a property puts it up for sale and
is allowed a reasonable time to sell it. The fair market value
is the amount a fully informed seller would receive from a
fully informed buyer in a normal open market sale. In
arriving at this figure, you must assume that the owner would
be free to sell or not to sell and the buyer would be free to
buy or not to buy.
After deliberating, the jury issued a special verdict finding that Wagner
interfered with Kocurek's right to possess the artifact collection without a legal excuse
and that Kocurek was entitled damages. The jury found that Kocurek was entitled to
$5,000 in damages. It did not award any punitive damages against Wagner. In
December 2014 the court entered judgment in favor of Kocurek.
Kocurekmovedfor anewtrial ontheamount ofdamages and,alternatively,
4 He argued that the jury's $5,000 damage award was against the
to amend the judgment.
weight of the evidence because the evidence presented at trial by both the defendant and
the plaintiff's witnesses valued Kocurek's collection between $175,000 to $500,000.
Kocurek pointed to four specific valuations presented to the jury through evidence and
testimony, all of which were well above $5,000: (1) Kocurek's testimony that he
4 Alaska Civil Rule 59(a) provides that "[a] new trial may be granted to all
or any of the parties and on all or part of the issues in an action in which there has been
a trial by jury or in an action tried without a jury, if required in the interests of justice."
And Alaska Civil Rule 59(f) provides that "[a] motion to alter or amend the judgment
shall be served not later than 10 days after the entry of the judgment."
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originally purchased the artifact collection for $15,000 in cash and $35,000 in trade;
(2) Wagner's testimony that Kocurek acquired the artifact collection for $50,000;
(3) Wagner's demand for $100,000, representing the amount he would have received
from his 20% commission on the sale of the collection and as compensation for his
expenses and suggesting that the collection's total value was between $400,000 and
$500,000; and (4) Wagner's testimony that Kocurek was going to be paid $50,000 plus
3% compounding interest for each year that he owned the collection, minus Wagner's
brokerage costs and fees. Kocurek argued that the jury's $5,000 award resulted from
"improper speculation" as to whether Kocurek possessed the artifacts "in violation of
Mexican law" and requested that the court grant his motion for a partial new trial on the
issue of damages, or alternatively, amend the judgment "to reflect the actual damages
incurred by plaintiff pursuant to the evidence presented at trial."
The court denied Kocurek's motion, explaining:
After independently weighing the evidence, the Court
determines that the jury's verdict is not against the weight of
the evidence. The jury was not convinced that the artifacts
warranted a higher damage award. Evidence available to
Plaintiff, but not presented to the jury, was a valuation of the
artifacts in possession of Plaintiff's sister. The jury asked
about this type of evidence during trial. A new trial is not
warranted to allow Plaintiff the opportunity to restructure his
case. No conduct on the part of the Defendant prevented
Plaintiff from presenting stronger damages evidence.
Plaintiff's Motion for a New Trial is DENIED. The
Court also declines to amend the judgment.
Kocurek appeals. Wagner did not participate in the appeal.
III. STANDARD OF REVIEW
Under Alaska Civil Rule 59(a), a superior court may grant a partial new
trial after a jury verdict if required "in the interest of justice." Whether to grant a new
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trial is within the discretion of the superior court, which "must use its discretion and
5
independently weigh the evidence."
On review of a trial court's decision to deny a new
6
trial, "we view the evidence in the light most favorable to the non-moving party" and
"will only reverse a decision to deny a new trial if the evidence supporting the verdict
was so completely lacking or slight and unconvincing as to make the verdict plainly
7
"Although the question whether the trial court applied the
unreasonable and unjust."
correct legal standard is a question of law that we review de novo, our review of the trial
8
court's decision itself is considerably more deferential." "When we review the
substance of a trial court's denial of a new trial, as opposed to its interpretations of law,
'[w]e will not interfere with the trial court's discretion except in the most exceptional
9
circumstances and to prevent a miscarriage of justice.' "
IV. DISCUSSION
A. The Superior Court Applied The Correct Legal Standard.
Kocurek disputes each of the court's reasons for denying his motion and
argues that the court erred because it impermissibly hypothesized why the jury arrived
at its damages award, rather than analyzing whether the jury heard evidence at trial
sufficient to support its $5,000 damages award. But because the court's order expressly
5 Hogg v. RavenContractors, Inc.,134 P.3d349,352(Alaska2006) (quoting
Kava v. Am. Honda Motor Co. , 48 P.3d 1170, 1176 (Alaska 2002)).
6 Hunter v. Philip Morris USA Inc., 364 P.3d 439, 447 (Alaska 2015)
(quoting Kava, 48 P.3d at 1173).
7 Id. (quoting Hogg, 134 P.3d at 352).
8 Hogg, 134 P.3d at 352.
9 Hunter, 364 P.3d at 452 (alteration in original) (quoting Mullen v.
Christiansen, 642 P.2d 1345, 1348 (Alaska 1982)).
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----------------------- Page 12-----------------------
states that it denied Kocurek's motion "[a]fter independently weighing the evidence,"
and because the court's rationale supporting this assertion reflects this standard, we
conclude that thesuperior court conducted an appropriateanalysisunder the correct legal
standard.
Kocurek argues that the jury's consideration of the evidence must have
been improper because all the evidence regarding the valuation of his collection
suggested values far higher than the $5,000 the jury awarded him. In support, Kocurek
cites to testimony that Kocurek told Wagner that he originally purchased the collection
for $50,000; testimony that Kocurek's agreement with Wagner was to sell his collection
for $50,000 plus 3% interest, compounded, for the amount of time Kocurek owned the
collection, approximating a value of $232,544; and evidence of Wagner's offer to return
the artifacts for $100,000, which Kocurek argues implies a value of $500,000 based on
Wagner's assertionthathis contract with Kocurekincluded a20%commission. Kocurek
also asserts that Alice's testimony regarding the assessment of four pieces at an Antiques
Roadshow event combined with Eric's comparisons of the collection with items listed
in a 2013 Sotheby's catalogue compels a conclusion that the artifacts had a minimum
value of $2,000,000.
A superior court may amend a judgment under Civil Rule 59(f) or grant a
new trial under Civil Rule 59(a) "if required in the interest of justice." In Hunter v.
Philip Morris USA, Inc., we reaffirmed that when a party requests a new trial on the basis
that the jury's verdict is against the weight of the evidence, trial courts should use the
standard set forth in Kava v. American Honda Motor Company :
a trial court may set aside a verdict and order a new trial in
the interest of justice if the verdict is against the weight of the
evidence. In deciding a motion for a new trial on this basis,
the court must use its discretion and independently weigh the
evidence. A court may set aside a verdict as being against the
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weight of the evidence even when "there is substantial
evidence to support it." The decision is a matter for the trial
court's discretion. [10]
We have made clear that the standard used by a trial court when deciding
a motion for a new trial on the grounds that the verdict is against the weight of the
evidence is distinct from the standard of review used by the appellate court when
11 In Hogg v. Raven
reviewing a trial court's decision on a motion for new trial.
Contractors, Inc., we clarified that when an appellate court reviews a trial court's denial
of a new trial under Civil Rule 59, the question of "[w]hether the trial court applied the
correct legal standard" is reviewed de novo, but that "our review of the trial court's
decision itself is considerably more deferential."12 "If there is an evidentiary basis for
the jury's decision, denial of a new trial must be affirmed."13
Here, Kocurek moved for a partial new trial on the amount of damages and,
alternatively, to amend judgment. In its order denying the motion, the court stated that
"[a]fter independently weighing the evidence, [it concluded] that the jury's verdict is not
against the weight of the evidence." The court reasoned that a new trial was not
"warranted to allow Plaintiff the opportunity to restructure his case" and that Wagner had
notprevented Kocurek "frompresenting stronger damagesevidence,"demonstratingthat
the court considered whether a new trial was warranted in the interests of justice and
exercised its discretion in deciding that it was not. The order shows that the court
evaluated Kocurek's motion under the correct legal standard as set forth in Kava : the
10 Id. at 447 (quoting Kava, 48 P.3d at 1176).
11
Id . at 447, 449.
12
134 P.3d 349, 352 (Alaska 2006) (quoting Kava, 48 P.3d at 1173).
13
Hunter, 364 P.3d at 449 (quoting Mullen, 642 P.2d at 1348).
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----------------------- Page 14-----------------------
court "independently weigh[ed] the evidence" and used its discretion to not "set aside
a verdict and order a new trial in the interests of justice [because] the verdict [was not]
14 We conclude that the trial court conducted a
against the weight of the evidence."
proper analysis under the correct legal standard.
B. The Superior Court Did Not Abuse Its Discretion Because, Viewing
The Evidence In The Light Most Favorable To The Non-Moving
Party, There Was An Evidentiary Basis For The Jury's Verdict.
The essence of Kocurek's appeal is that Kocurek suffered damages as a
result of Wagner's actions much greater than the $5,000 the jury awarded him and that
there was no evidentiary basis for the jury's verdict.
When we review a superior court's decision to deny a "weight of the
evidence" motion for a new trial, we utilize the standard of review expressed in
Mullen v. Christiansen :
A motion for a new trial will be granted when the evidence to
support the verdict is so completely lacking or is so slight and
unconvincing as to maketheverdict plainly unreasonableand
unjust. If there is an evidentiary basis for the jury's decision,
denial of a new trial must be affirmed. We will not interfere
with the trial court's discretion except in the most exceptional
circumstances and to prevent a miscarriage of justice.[15]
In Hunter, we further clarified:
In reviewing the substance of a trial court's order denying a
new trial, we view the evidence in the light most favorable to
the non-moving party, and "will only reverse a decision to
deny a new trial if the evidence supporting the verdict was so
14 48 P.3d at 1176.
15 642 P.2d at 1348 (citations omitted); see also Hunter, 364 P.3d at 448-49.
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----------------------- Page 15-----------------------
completely lacking or slight and unconvincing as to make the
verdict plainly unreasonable and unjust." [16]
In applying this standard of review to a superior court's denial of a new trial
under Civil Rule 59, we have reversed superior court decisions where the jury failed to
award any damages after returning a verdict that supported the essential elements of the
tort. For instance, in Pugliese v. Perdue, we reversed the superior court's denial of a
motion for a new trial where the only issue at trial was the amount of damages because
the defendant admitted negligence, liability, and lack of comparative negligence in a
negligence action.17 The jury awarded the plaintiff nothing for his injuries and we held
that a new trial was required because "a verdict finding that [plaintiff's] injuries resulted
from some other traumatic cause would have required sheer speculation."18 Similarly,
in Fancyboy v. Alaska Village Electric Co-op, Inc., we reversed a superior court's denial
of a new trial where, in an incident involving a house fire that resulted in the death of the
plaintiffs' child, the jury awarded damages only for property loss and for stipulated
medical expenses even though there was no dispute that the plaintiffs had also shown
non-economic damages.19 We held that the jury's failure to award damages for the
plaintiffs' burns and loss of consortium due to the death of one of their children was an
16 364 P.3d at 447 (first citing Kava, 48 P.3d at 1173, and then quoting Hogg,
134 P.3d at 352).
17 988 P.2d 577, 581-83 (Alaska 1999); see also Kingery v. Barrett, 249 P.3d
275, 284 (Alaska 2011) (restating our holding that "[i]nadequacy of a jury verdict can
be grounds for a new trial in cases where negligence and causation are conceded or
proved, but no damages are awarded").
18 Pugliese, 988 P.2d at 582.
19 984 P.2d 1128, 1135-36 (Alaska 1999).
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----------------------- Page 16-----------------------
"inconsistent" verdict and a new trial was "required in the interest of justice" under
20
Civil Rule 59.
But we have declined to reverse a superior court's denial of a motion for
a new trial where "the evidence 'does not necessarily establish' that [defendant's]
negligence was the cause of [plaintiff's] injuries"21 and where the testimony or evidence
was conflicting.22 In such decisions, we have also considered the jury's role in weighing
the credibility of witnesses and testimony.23 For instance, in Richey v. Oen we affirmed
a superior court's denial of an "against the weight of evidence" motion for a new trial,
explaining that the jury is entitled to discount testimony and make credibility
determinations: "Jurors are entitled to disbelieve a witness or otherwise discount a
witness's testimony. Such credibility determinations made by the jury are generally left
24
undisturbed by this court on review."
We find this last point to be significant in this case. Kocurek fails to
account for the jury's role in making credibility determinations. Instead, he spends a
significant amount of his brief discussing speculative damages and burdens of proof and
20 Id .
21 Kingery, 249 P.3d at 284 (quoting Hogg, 134 P.3d at 353). In Hogg, we
affirmed the superior court's denial of a motion for a new trial where the jury had
determined that the defendant had been negligent but thatthedefendant's negligencewas
not the cause of the plaintiff's injuries. 134 P.3d at 353.
22 See Richey v. Oen, 824 P.2d 1371, 1376 (Alaska 1992) ("In the face of
conflicting testimony, the jury determined that [the plaintiff] suffered no injuries as a
result of the accident."); Kingery, 249 P.3d at 284 ("[I]f conflicting evidence about
causation exists we will not reverse the superior court's denial of a motion for a new trial
following a verdict for the defendant.").
23 See Richey, 824 P.2d at 1376.
24 Id . (citations omitted).
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----------------------- Page 17-----------------------
arguing that he presented evidence sufficient to meet these standards. He also fails to
account for several key considerations. For example, the jury was specifically instructed
on the issue of speculative damages. The court told the jury that while Kocurek must
prove damages, he "does not have to prove the exact amount of damages that will
provide reasonable compensation for the harm," and that the jury "must not speculate or
guess in awarding damages." Kocurek finally fails to discuss why there is no evidentiary
basis for the verdict in light of the fact that he received some damages, as opposed to
zero damages. He also fails to give effect to our deferential standard of review.
While it is true that nothing in the record suggests that the collection was
worth exactly $5,000, the relevant question for us is not whether there was evidence of
this specific amount but whether there was an evidentiary basis for the jury's award in
light of the jury's responsibility to make its own credibility determinations. Here, the
bulk of the evidence regarding the value of Kocurek's collection was speculative or
reflected calculations of value that the jury was not required to accept. We also note that
the superior court heard and saw the same witnesses and evidence that the jury did and
undoubtedly reached its own conclusions about the credibility of the testimony and
evidence. Given the lack of evidence of credible appraisals or a written agreement
between the parties, the jury had to rely primarily on the oral testimony of witnesses, and
the jury was not required to believe any of them. The jury could permissibly have
rejected all of the estimates and valuations but still have concluded the collection was
worth something. We conclude that the superior court did not abuse its discretion in
denying Kocurek's motion because, viewing the evidence in the light most favorable to
Wagner, there was an evidentiary basis for the jury's award and none of the superior
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court's allegederrors meet the threshold for "exceptional circumstances"that requireour
intervention to "prevent a miscarriage of justice." 25
V. CONCLUSION
We AFFIRM the superior court's decision denying Kocurek's motion for
a new trial or to amend the judgment.
25 Fancyboy, 984 P.2d at 1135 n.28 (quoting Sebring v. Colver, 649 P.2d
932, 934 (Alaska 1982)); see also Pugliese, 988 P.2d at 581-83.
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