Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.


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

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  



                           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  



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  

                                                               -2-                                                        7155

----------------------- Page 3-----------------------


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  

                                                                -3-                                                         7155

----------------------- Page 4-----------------------


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  

                                                               -4-                                                         7155

----------------------- Page 5-----------------------

and his attorney had a deal with the United States State Department to purchase the                                                                                                                                                                                                                                 


                                                  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.                                                                 

                                                                                                                                                           -5-                                                                                                                                                7155

----------------------- Page 6-----------------------


                    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  

                                                               -6-                                                         7155

----------------------- Page 7-----------------------

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  



                       Eric filed theoriginal complaint and this appeal through counsel in exercise  


of his power of attorney from his father.  

                                                                         -7-                                                                       7155  

----------------------- Page 8-----------------------


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  

                                                               -8-                                                         7155

----------------------- Page 9-----------------------

compensation for the harm," and that the jury "must not speculate or guess in awarding                                                                                                                                                                                                                                                                                                     


                                                                  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."                                                                                                                                                                                                                                                                                 

                                                                                                                                                                                                              -9-                                                                                                                                                                                                 7155

----------------------- Page 10-----------------------


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.  




                    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  

                                                              -10-                                                        7155

----------------------- Page 11-----------------------

trial is within the discretion of the superior court, which "must use its discretion and                                                                  


independently weigh the evidence."                                                                                                                       

                                                                     On review of a trial court's decision to deny 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 completely lacking or slight and unconvincing as to make the verdict plainly  



                                                    "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  



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  



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)).  


                                                                             -11-                                                                      7155

----------------------- 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  



                    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  

                                                              -12-                                                         7155

----------------------- Page 13-----------------------

                           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).             



                           Id . at 447, 449.  



                           134 P.3d 349, 352 (Alaska 2006) (quoting Kava, 48 P.3d at 1173).  



                           Hunter, 364 P.3d at 449 (quoting Mullen, 642 P.2d at 1348).  

                                                                                   -13-                                                                             7155

----------------------- 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.  


                                                                                                           -14-                                                                                                    7155  

----------------------- 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).  


                                                                         -15-                                                                    7155

----------------------- Page 16-----------------------

"inconsistent" verdict and a new trial was "required in the interest of justice" under                                                                          


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  



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).  


                                                                                  -16-                                                                           7155

----------------------- 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  

                                                              -17-                                                         7155

----------------------- Page 18-----------------------

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.  


                                                                                -18-                                                                                 7155  

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights