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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. John Diamond III v. Platinum Jaxx, Inc. (8/9/2019) sp-7396
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
JOHN DIAMOND III, )
) Supreme Court No. S-16908
Appellant, )
) Superior Court No. 3AN-15-07879 CI
v. )
) O P I N I O N
PLATINUM JAXX, INC., )
) No. 7396 - August 9, 2019
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Frank A. Pfiffner, Judge.
Appearances: Whitney A. Power, Power & Power Law,
LLC, Anchorage, for Appellant. No appearancebyAppellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
STOWERS, Justice.
I. INTRODUCTION
JohnDiamondIIIwasassaultedand sustained severeinjuries whileapatron
at Platinum Jaxx, a restaurant and bar. He filed suit against Platinum Jaxx, Inc., its
landlord, and his assailant, Noel Bungay. A default was entered against Bungay, and the
landlord was later granted summary judgment on the claims against it. Diamond
proceeded to trial on his remaining claims against Platinum Jaxx. After an eight-day
trial, the jury returned a special verdict finding Platinum Jaxx criminally negligent. The
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jury awarded Diamond $1.85 million in damages and apportioned fault between
Platinum Jaxx and Bungay. Platinum Jaxx was found to be 20% at fault for the injuries
Diamond received, and Bungay was found 80% at fault. Diamond appeals the superior
court's pre-trial order that precluded him from proceeding on a piercing the corporate
veil theory. He asks us to reverse the order and remand to allow the superior court to
make findings of fact and conclusions of law on the veil piercing issue. He also appeals
other pre-trial orders excluding evidence, as well as the superior court's post-judgment
cost award allocation.
Because Diamond did not plead the veil piercing issue, we affirm the
superior court's order. The superior court also did not abuse its discretion by excluding
the challenged evidence and by allocating costs according to the percentage of fault of
each defendant. We therefore affirm the court's pre-trial orders and post-judgment cost
award.
II. FACTS AND PROCEEDINGS
In October 2013 John Diamond, III and his girlfriend were patrons at
PlatinumJaxx, a restaurant and bar in downtown Anchorage. While the two were sitting
at the bar, another patron, Noel Bungay, hit Diamond in the head with a pint glass,
causing severe disfigurement. In June 2015 Diamond and his girlfriend filed suit against
Platinum Jaxx, Inc., its landlord, La Mexicana, Inc., and Bungay. Diamond alleged that
(1) Platinum Jaxx violated the dram shop statute by serving alcohol to a "drunken
1 (2) Platinum Jaxx was negligent in the operation of its premises and failed to
person,"
exercise reasonable care to protect its patrons, (3) La Mexicana was negligent in its
1 See AS 04.16.030(a) ("A licensee, an agent, or employee may not with
criminal negligence (1) sell, give, or barter alcoholic beverages to a drunken
person; . . . . [or] (3) allow a drunken person . . . to consume an alcoholic beverage within
licensed premises . . . .").
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duties as landlord and owner of the property, (4) Bungay assaulted Diamond causing
serious physical injury, and (5) all parties negligently caused the girlfriend to suffer
severe emotional distress and loss of consortium. By the time suit was filed, the bar had
been closed for one year, and Platinum Jaxx, Inc. was subsequently involuntarily
dissolved in September 2015.
In May 2016 the superior court entered a default against Bungay. In June
2017 the court granted summary judgment against the girlfriend's claims for emotional
distress and loss of consortium. In July the court granted La Mexicana's motion for
summaryjudgment on the landlord liability claim, and the remaining parties -Diamond
and Platinum Jaxx - proceeded to a jury trial.
Prior to trial, in February 2017, Diamond's attorney sent a letter to
Platinum Jaxx's attorney, stating: "Plaintiffs did not plead piercing the corporate veil as
[ ]
2 Nevertheless, for notice purposes, please be advised that
a count in the Complaint.
Plaintiffs intend to argue at trial that [the] corporate veil should be pierced." But
Diamond did not seek to amend his complaint to plead a veil piercing theory or to join
theindividual owners of PlatinumJaxx as defendants. Diamond later sought tointroduce
evidence of Platinum Jaxx's lack of liability insurance to show that Platinum Jaxx was
undercapitalizedand thereforeits corporateveilshouldbepierced. PlatinumJaxx moved
2 Generally, "courts seek to recognize and uphold 'the principles that the
corporation exists as a separate legal entity and that owner liability for the debts of the
corporation is limited.' " L.D.G., Inc. v. Brown , 211 P.3d 1110, 1125 (Alaska 2009)
(quoting Pyramid Printing Co. v. Alaska StateComm'n for Human Rights , 153 P.3d 994,
1000 (Alaska 2007)). But the corporate veil may be pierced - and the corporate status
disregarded - to hold the individual owners liable for the acts of the corporation "if the
corporate form is used to defeat public convenience, justify wrong, commit fraud, or
defend crime," or if the "corporation is nothing more than a 'mere instrument' of a
shareholder." Id. (first quoting Elliott v. Brown , 569 P.2d 1323, 1326 (Alaska 1977); and
then quoting Uchitel Co. v. Telephone Co. , 646 P.2d 229, 235 (Alaska 1982)).
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to preclude the evidence and argued that Diamond did not plead a veil piercing theory.
In two pre-trial orders the superior court precluded Diamond from mentioning liability
insurance at trial and stated that it would "not allow [Diamond] to proceed on a piercing
the corporate veil [theory] to pursue claims against the individual, non-named officers
or shareholders of Platinum Jaxx, Inc." The court reiterated at trial that Diamond was
precluded fromproceeding on a veil piercing theory because "it wasn't pled" and "would
be grossly prejudicial . . . this late in time."
The jury returned a special verdict in favor of Diamond, finding that (1)
Platinum Jaxx, with criminal negligence, violated the dram shop statute; (2) Platinum
Jaxx was negligent as a possessor of land; (3) Platinum Jaxx's negligence was a legal
cause of harm to Diamond; (4) Diamond suffered severe disfigurement and damages of
$1.85 million; and (5) Platinum Jaxx was 20% at fault and Bungay was 80% at fault.
Final judgment was entered against Bungay and Platinum Jaxx in September 2017, with
costs awarded in October. The judgment against Platinum Jaxx was for $331,332.93 in
3 and $2,619.34 in costs (20% of
damages (20% of Diamond's total damage award)
Diamond's total allowable costs).
Diamond appeals pre-trial orders by the superior court that (1) precluded
him from proceeding on a piercing the corporate veil theory, (2) excluded evidence
related to the veil piercing theory, and (3) excluded evidence related to Platinum Jaxx's
reputation that Diamond argues might have increased the jury's percent allocation of
fault to Platinum Jaxx. Diamond also appeals the superior court's award of costs based
on a percentage-of-fault formula. Diamond requests that we reverse the aforementioned
3 This amount is based on 20% of $1,567,750 - the damages award was
reduced from $1.85 million based on statutory tort caps - plus prejudgment interest of
$17,782.93. See generally AS 09.17.010.
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orders and remand for specific findings relating to his veil piercing theory. Platinum
Jaxx did not participate in this appeal.
III. STANDARDS OF REvIEW
The superior court precluded Diamond from proceeding on a piercing the
corporate veil theory because it was not pleaded. Whether a party provided adequate
4
notice to argue a claim is a question of law we review de novo,
and "we will adopt the
5
rule of law that is most persuasive in light of precedent, reason, and policy."
The superior court excluded evidence related to Diamond's veil piercing
theory and to Platinum Jaxx's reputation. We review trial court "decisions to admit or
6
exclude evidence under the abuse of discretion standard." We will find that a trial court
abused its discretion if "the reasons for the exercise of discretion are clearly untenable
7
or unreasonable."
The superior court denied Diamond's requested reallocation of costs. "We
8 "When a review of an award
review a trial court's cost award for abuse of discretion."
of . . . costs requires an interpretation of the Alaska Civil Rules, we apply our
independent judgment."9
4 Alakayak v. British Columbia Packers, Ltd., 48 P.3d 432, 448 (Alaska
2002).
5 Healy Lake vill. v. Mt. McKinley Bank, 322 P.3d 866, 871 (Alaska 2014)
(quoting John v. Baker, 982 P.2d 738, 744 (Alaska 1999)).
6 Loncar v. Gray, 28 P.3d 928, 930 (Alaska 2001).
7 Burke v. Maka, 296 P.3d 976, 980 (Alaska 2013) (quoting Lewis v. State,
469 P.2d 689, 695 (Alaska 1970)).
8 Alexander v. State, Dep't of Corr., 221 P.3d 321, 324 (Alaska 2009).
9 Kozevnikoff v. Tanana vill. Council, 89 P.3d 757, 759 (Alaska 2004).
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Iv. DISCUSSION
A. The Superior Court Did Not Err By Precluding Diamond From
Proceeding On A Piercing The Corporate veil Theory.
In its July 2017 pre-trial order the superior court stated that it would "not
allow [Diamond] to proceed on a piercing the corporate veil [theory] to pursue claims
against the individual, non-named officers or shareholders of Platinum Jaxx, Inc."
Diamond argues that "[i]n ordering that [he] was precluded from proceeding on a veil
piercing theory, the trial court did not analyze the veil piercing factors on the record,"
and that the court "failed to make any findings of fact or conclusions of law related to its
corporate veil piercing order." He requests that we "reverse the trial court's order related
to corporate veil piercing . . . [and] remand this case to the trial court for the purpose of
making detailed and explicit findings."
Diamond is correct that the superior court did not make findings of fact or
conclusions of law in its order - but it did not need to. The court's explanations at trial
- that the theory "wasn't pled" and that allowing the theory in "would be grossly
prejudicial . . . this late in time" - are adequate to give us "a clear understanding of the
10
basis of the trial court's decision." The question before us instead is whether Diamond
adequately raised the veil piercing issue.
Diamond did not plead a piercing thecorporateveiltheory in his complaint,
and he did not seek to file an amended complaint asserting this claim at any point in the
proceedings. Diamond argues that his February 2017 letter to Platinum Jaxx provided
sufficient notice to overcome his failure to plead, and he relies on L.D.G., Inc. v. Brown
for the proposition that "if a party has notice of the conduct for which the opposing party
10 Beaulieu v. Elliott, 434 P.2d 665, 670 (Alaska 1967).
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is seeking relief, the opposing party may recover under any theory supported by the
evidence."11
In L.D.G. we considered whether failure to plead the veil piercing theory
12 The plaintiff in L.D.G.
was "sufficient to keep the question from going to the jury."
indicated "six months before the start of trial[] that he was prepared to argue that
L.D.G.'s corporate veil should be pierced," and he "submitted supplemental proposed
jury instructions . . . pertaining to piercing the corporate veil, accompanied by a notice
indicating that . . . he would also argue that the corporate veil should be pierced."13 We
held that the parties "were on sufficient notice of [the plaintiff's] piercing the corporate
veil theory."14 But L.D.G. is distinguishable because the plaintiff originally filed suit
against both L.D.G. and the sole shareholder of the company personally.15 The sole
shareholder was thus on notice that the plaintiff sought to hold him personally liable.
Diamond's complaint did not name any of the individual owners of Platinum Jaxx, and
he never sought to join the owners as parties to the suit. They therefore were not
required - nor did they have the opportunity - to defend themselves individually.
Wealso evaluated failuretoplead in Alakayakv.BritishColumbia Packers,
Ltd., reviewing a superior court ruling "that the plaintiffs did not properly plead
corporate 'alter ego' claims" and were therefore precluded from conducting discovery
11 211 P.3d 1110, 1124 (Alaska 2009) (quoting McCormick v. City of
Dillingham, 16 P.3d 735, 743 (Alaska 2001)).
12 Id. at 1124-25.
13 Id.
14 Id. at 1125.
15 Id. at 1116.
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16
on those claims. While we acknowledged that the complaint "did not specifically
request piercing of the corporate veil," we also observed that "it did name the [parent
corporations] as defendants, and it stated that it would seek recovery from those
17 We concluded that because the parent
defendants for the actions of the subsidiaries."
corporations had "notice of the conduct for which the opposing party [was] seeking
relief," the plaintiffs' "alter ego" theory was therefore adequately pleaded.18 Alakayak
is thus also distinguishable because the parent corporations "were independently
sued . . . and the complaint expressly alleged that they were 'responsible for the
liabilities' of their wholly owned subsidiaries."19 Diamond's complaint contains no such
language that would put the individual owners of PlatinumJaxx on notice that they might
be held personally liable.
In both L.D.G. and Alakayak we relied on McCormickv. City of Dillingham
for the proposition that notice can be sufficient to overcome the failure to plead.20 In
McCormick we considered whether a party who originally brought suit on a de facto
21 We
partnership theory could later proceed on a piercing the corporate veil theory.
concluded that because the initial complaint named McCormick as the sole defendant,
16 48 P.3d 432, 459 (Alaska 2002).
17 Id. at 460.
18 Id. (quoting McCormick v. City of Dillingham, 16 P.3d 735, 743 (Alaska
2001)).
19 Id.
20
McCormick, 16 P.3d at 743.
21 Id.
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22
he was on notice that he might be held personally liable. Accordingly, L.D.G,
Alakayak , and McCormick all involved some form of actual notice - in the pleadings,
to a party to the case - that the plaintiff sought to hold the party liable.
Here, Diamond's complaint provides no notice to the individual owners of
Platinum Jaxx that they might be held personally liable. And because the individual
owners were not parties to Diamond's suit against Platinum Jaxx, Diamond's February
2017 letter to Platinum Jaxx's counsel did not provide the owners notice of Diamond's
intent to pierce the corporate veil. Being actually named as a party is important. A
named party has the right to assert affirmative defenses, counterclaims, and cross-claims
and to conduct discovery, file motions, and make its own defense at trial. And a named
party may be held personally liable for its share of damages. It is difficult to understand
how Diamond believes he could pierce Platinum Jaxx's corporate veil and obtain a
judgment againstPlatinumJaxx's individual ownerswhentheywerenot joined as parties
to the action. 23
Diamond also did not pursue other opportunities to raise his veil piercing
theory. He presumably became aware of the need to pierce the corporate veil by at least
February 2017, the date his attorney sent the letter, yet he did not seek to amend his
complaint to plead a veil piercing theory or to join the individual owners of Platinum
Jaxx as defendants.24
22 Id.
23 Cf. Alaska R. Civ. P. 19 ("A person . . . shall be joined as a party in the
action if . . . the person claims an interest relating to the subject of the action and is so
situated that the disposition of the action in the person's absence may . . . as a practical
matter impair or impede the person's ability to protect that interest . . . .").
24 See Alaska R. Civ. P. 15(a) ("[A] party may amend the party's pleading
(continued...)
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Because Diamond did not plead a veil piercing claim, the claim was not
adequately raised. The individual owners of Platinum Jaxx were not parties to the case
and therefore did not receive notice that they might be held personally liable. The
superior court did not err in precluding this claim for failure to plead. We also conclude
that the superior court did not abuse its discretion in concluding it would be "grossly
25 We
prejudicial" to allow Diamond to introduce this theory so late in the proceedings.
affirm the superior court's order precluding Diamond from proceeding on a piercing the
corporate veil theory.
B. The Superior Court Did Not Abuse Its Discretion By Excluding
Evidence Related To Piercing The Corporate veil.
Diamond argues that the superior court erred by (1) precluding mention of
liability insurance and (2) precluding mention of Wallie Scott vierra, a former owner of
Platinum Jaxx.
Under Alaska Evidence Rule 411, evidence of liability insurance "is not
admissible upon the issue whether the person acted negligently or otherwise
wrongfully."26
But Diamond argues he "sought to offer the evidence not for the issue
whether Platinum Jaxx acted negligently or otherwise wrongfully, but rather to
demonstrate that it was undercapitalized and subject to corporate veil piercing." But
whether Platinum Jaxx was undercapitalized was not at issue in Diamond's case.
24 (...continued)
only by leave of court or by written consent of the adverse party; and leave shall be
freely given when justice so requires.").
25 While Diamond first asserted his veil piercing theory in the February 2017
letter to Platinum Jaxx, it does not appear that he argued this theory before the superior
court until June 2017 - only a month and a half before trial - in his opposition to
Platinum Jaxx's motion to preclude evidence of liability insurance.
26 Alaska R. Evid. 411.
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Because a veil piercing claim was not pleaded, and therefore was not at issue, this
27
evidence was not relevant under Alaska Evidence Rule 402,
was not admissible under
28 29 The
and was unfairly prejudicial under Evidence Rule 403.
Evidence Rule 411,
superior court did not abuse its discretion by excluding this evidence.
vierra was a former owner of Platinum Jaxx who was convicted in 2008
of money laundering and drug distribution and forced to forfeit his 25% ownership
interest in the corporation. Diamond intended to use evidence related to vierra, the
history of Platinum Jaxx's operation, and its ownership structure to pierce the corporate
veil. But again, Diamond did not plead this claim and therefore this evidence was not
relevant under Evidence Rule 402 and was unfairly prejudicial under Rule 403. The
superior court did not abuse its discretion by excluding this evidence.
Weaffirmthesuperiorcourt'sordersexcludingevidencerelated topiercing
Platinum Jaxx's corporate veil because this evidence was not relevant to the trial on
Platinum Jaxx's negligence.
C. The Superior Court Did Not Abuse Its Discretion By Excluding
Evidence Related To Platinum Jaxx's Reputation.
1. Media coverage of shootings outside Platinum Jaxx
Diamond argues that the superior court erred by excluding media evidence
regarding the reputation of Platinum Jaxx. He asserts that media coverage of prior
27 Alaska R. Evid. 402 ("Evidence which is not relevant is not admissible.").
28 Alaska R. Evid. 411 ("Evidence that a person was or was not insured
against liability is not admissible upon the issue whether the person acted negligently or
otherwise wrongfully.").
29 Alaska R. Evid. 403 ("Although relevant, evidence may be excluded if its
probative value is outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury . . . .").
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shootings outside Platinum Jaxx demonstrates (1) that Platinum Jaxx had notice that
violent acts had occurred, (2) that it was foreseeable that such acts might occur again,
and (3) that Platinum Jaxx had a duty to take precautions and provide reasonable
protections to its patrons. Diamond argues this "evidence would likely have increased
the jury's allocation of fault to Platinum Jaxx" and that we should reverse the superior
court's exclusion of this evidence and remand for the court to make specific findings
under Alaska Civil Rule 52. 30
The two shootings in question occurred in 2011 and 2012, and both took
place outside and off the premises of Platinum Jaxx. This evidence would not be
relevant to the security measures in place inside Platinum Jaxx over a year later or to the
propensity for violence inside the bar, which is where Diamond's assault took place.
And Evidence Rule 404 specifically excludes evidence of prior bad acts to show a
general propensity to act in conformity therewith.31 It was reasonable for the superior
court to conclude that any relevance of the evidence would likely have been substantially
outweighed by the risk of unfair prejudice and the potential for the jury to use the
evidence for an improper purpose32 - i.e., to conclude that because Platinum Jaxx may
have been negligent in the past that it was also negligent on the night of Diamond's
30 We do not understand why Diamond asks us to remand for the superior
court to make specific findings of fact. The relief Diamond would actually need would
be for us to reverse the court's orders and judgment and remand for a new trial.
31 Alaska R. Evid. 404(b)(1).
32 Alaska R. Evid. 403.
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33
assault. The superior court did not abuse its discretion by excluding media coverage
evidence.
2. Cherie Lee Burno's testimony
Diamond also challenges the superior court's preclusion of testimony by
Cherie Lee Burno, an employee of Platinum Jaxx during the time period when Diamond
was assaulted by Bungay. Diamond sought to admit Burno's testimony to demonstrate
that (1) Platinum Jaxx was a dangerous place, (2) it was on notice of the violence within
its bar, and (3) its management of the bar was negligent given the foreseeability of harm
to a patron. He asserts that her testimony "would likely have increased the jury's
allocation of percentage of fault to Platinum Jaxx."
But Burno was not present at the time of Diamond's assault and therefore
34 and
did not have "personal knowledge of the matter" as required by Evidence Rule 602,
she could not share an opinion "rationally based on [her] perception" as required by
Evidence Rule 701.35 Of greater significance, her testimony about prior acts of violence
33 Cf.Oakly Enters., LLCv. NPI, LLC , 354 P.3d 1073, 1083-84(Alaska2015)
("Oakly Enterprises argues that the environmental report was admissible . . . to show that
the spill . . . was due to 'NPI's corporate culture [which] allowed for polluting' . . . .
[But] [t]he proposed use of the [environmental report] can only reasonably be
characterized as to show a propensity - i.e., because NPI was responsible for pollution
found at a different location, it must be responsible for the pollution on [another]
property three years earlier. . . . [T]he superior court, in excluding the report, further
noted that it would confuse the jury, likely because of its remoteness from the events at
issue in terms of both time and geography. For all these reasons, we see no abuse of
discretion in the superior court's exclusion of the report." (third alteration in original)).
34 Alaska R. Evid. 602 ("A witness may not testify to a matter unless evidence
is introduced sufficient to support a finding that the witness has personal knowledge of
the matter.").
35 Alaska R. Evid. 701 ("If the witness is not testifying as an expert, the
(continued...)
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within the bar may have been relevant to Platinum Jaxx's notice and duty, but as with
the media coverage evidence, her testimony would be inadmissible propensity evidence
under Rule 404(b). It was reasonable for the superior court to conclude that any
relevance of her testimony would have been substantially outweighed by the risk of
unfair prejudice and the potential for the jury to use the evidence for an improper
36 The superior court did not abuse its discretion by excluding Burno's
purpose.
testimony.
D. The Superior Court Did Not Abuse Its Discretion By Awarding
Diamond's Costs Based On Percentage Of Fault.
Diamond argues that the superior court abused its discretion by awarding
his costs against Bungay and Platinum Jaxx in accordance with each tortfeasor's
percentage of fault. He posits that equitable apportionment in fact "would require only
that Bungay be responsible for costs incurred in proving damages, not those incurred in
proving Platinum Jaxx's liability." Because the majority of Diamond's litigation costs
were associated with proving Platinum Jaxx's liability, not Bungay's, he argues it would
be unjust to require the defaulted defendant to subsidize the defendant which litigated the
case. Diamond requests that we reverse the superior court's order denying his motion
for review of the clerk's costs award and allocate the majority of costs to Platinum Jaxx.
35 (...continued)
witness's testimony in the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the witness and (b) helpful
to a clear understanding of the witness's testimony or the determination of a fact in
issue.").
36 If what Diamond really hoped for was to inflame the jury's passion against
Platinum Jaxx, that is precisely the type of improper effect the Evidence Rules are
intended to prohibit. See Alaska R. Evid. 403.
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----------------------- Page 15-----------------------
While Diamond's motion to reallocate costs was filed late and failed to
meet the standard for excusable neglect, the superior court nevertheless reviewed the
motion on the merits before denying it; the court found that the clerk properly allocated
costs based on the jury award. Under Civil Rule 79, "[i]n a case in which damages are
apportioned among the parties . . . costs must be apportioned and awarded according to
37 Rule 82(e) provides that fees awarded must "be
the provisions of Civil Rule 82(e)."
apportioned among the parties according to their respective percentages of fault."38 The
clerk therefore allocated 80% of the costs to Bungay and 20% of the costs to Platinum
Jaxx in accordance with the jury's allocation of fault to each party.
Diamond argues that Civil Rule 94 "permits the relaxation of the [civil]
rules to advance justice"39 and that it would be unjust to hold Bungay liable for the
majority of Diamond's costs associated with litigating against Platinum Jaxx. We have
never held that the superior court has the discretion under Rule 94 to alter the allocation
of costs if it believes that injustice would otherwise occur, and it is not necessary for us
to do so here. We will assume without deciding that the superior court has that
discretion. But under an abuse of discretion standard we will uphold an award of
attorney's fees and costs "unless it is manifestly unreasonable."40 Costs were correctly
awarded as provided by Rules 79 and 82(e), and we conclude that the superior court's
37 Alaska R. Civ. P. 79(h).
38 Alaska R. Civ. P. 82(e).
39 Alaska R. Civ. P. 94 ("These rules are designed to facilitate business and
advance justice. They may be relaxed or dispensed with by the court in any case where
it shall be manifest to the court that a strict adherence to them will work injustice.").
40 Circle De Lumber Co. v. Humphrey, 130 P.3d 941, 946 (Alaska 2006); see
also Dickerson v. Goodman, 161 P.3d 1205, 1207 (Alaska 2007) ("A refusal to apply
Civil Rule 94 is reviewed for abuse of discretion.").
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cost award was not manifestly unreasonable and did not result in manifest injustice. We
affirm the court's order and the costs award.
v. CONCLUSION
The superior court's pre-trial orders and its post-judgment costs award are
AFFIRMED.
-16- 7396
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