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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Janice L. Park v. Jessica J. Spayd (5/20/2022) sp-7594
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
JANICE L. PARK, )
) Supreme Court No. S-17743
Appellant, )
) Superior Court No. 3AN-19-09443 CI
v. )
) O P I N I O N
JESSICA J. SPAYD, )
) No. 7594 - May 20, 2022
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Peter R. Ramgren, Judge.
Appearances: Janice L. Park, pro se, Anchorage, Appellant.
Steven M. Wells, Steven M. Wells, P.C., Anchorage, for
Appellee.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
BORGHESAN, Justice.
I. INTRODUCTION
In 2019awoman sued her former husband's medicalprovider, alleging that
from 2003 to 2010 the provider negligently prescribed the man opioid medications,
leading to his addiction, damage to the couple's business and marital estate, the couple's
divorce in 2011, and ultimately the man's death in 2017. The superior court ruled the
claims were barred by the statute of limitations and rejected the woman's argument that
the provider should be estopped from relying on a limitations defense. Because the
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undisputed evidence shows that by 2010 the woman had knowledge of her alleged
injuries, the provider's alleged role in causing those injuries, and the provider's alleged
negligence, we conclude that the claims accrued at that time and were no longer timely
when filed in 2019. And because the record does not show that the woman's failure to
timely file her claims stemmed from reasonable reliance on fraudulent conduct by the
provider, we conclude that equitable estoppel does not apply. We therefore affirm
summary judgment in the provider's favor.
II. FACTS AND PROCEEDINGS
1
Janice Park was married to Jalal Keith Husseini.
The couple initiated a
2
), with
divorce in 2007, which was finalized in 2011 (after an appeal to this court
Husseini owing Park a substantial sum. Husseini died of a drug overdose in 2017,
apparently without paying this debt to Park.
In October 2019 Park, representing herself, sued Jessica Spayd in superior
court. According to the complaint Spayd, a registered nurse, had recently been arrested
by federal authorities for unlawfully distributing opioid medications. Park alleged that
Husseini had been a patient of Spayd's and that beginning in 2003 Spayd had
overprescribed opioid medications to Husseini, who became dependent on them. Park
alleged that by 2005 she was "distraught" over Husseini's dependence on opioids and
that in 2007 she reported Spayd's prescription practices to authorities at the Alaska
Department of Commerce's Board of Nursing. Park alleged that "[a]s a direct and
1 Our discussion of negligence, injuries, and other alleged facts in this case
are drawn solely from Park's allegations. Because the superior court resolved the case
on summary judgment, we assume the truth of the facts alleged in Park's pleadings and
affidavits for purposes of this appeal. We note that Spayd expressly declined to admit
any of those allegations as true.
2 Husseini v. Husseini, 230 P.3d 682 (Alaska 2010).
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proximate result of the emotional and physical addiction from which Husseini suffered,
he and Park fought over his addiction, ultimately ending the marriage"; further, the
"value of the marital estate diminished as the direct and proximate result of Husseini's
drug dependence and reliance upon Spayd for his supply." The complaint alleged that
Spayd was liable under theories of negligence and professional malpractice for damages
including medical expenses; "[l]ost business and marital property"; "[l]oss of
consortium[,] anxiety, fear, and other emotional distress;" and "[l]oss of [Park's] court[-]
ordered marital settlement."
Spayd filed a motion for summary judgment asserting that the limitations
period for Park's claims had expired and that the case should be dismissed. Spayd
argued that Park's claims were untimely under either the two-year limitations period
3 or the six-year period applicable to certain professional
applicable to tort claims
malpractice claims.4 Spayd invoked the "discovery rule," under which "the cause of
action accrues when the plaintiff has information sufficient to alert a reasonable person
5 Spayd maintained that Park herself
to the fact that he has a potential cause of action."
had alleged that by 2005 she was aware she was being harmed by Husseini's addiction
and that by 2007 she had become suspicious enough of Spayd's prescribing practices to
alert licensing authorities. Accordingly, Spayd argued, Park was on inquiry notice of her
3 AS 09.10.070(a).
4
Preblich v. Zorea, 996 P.2d 730, 733, 734 n.11 (Alaska 2000) (citing
former AS 09.10.050 (1994)). Spayd's reference to a six-year limitations period for
malpractice claims was incorrect. Although the applicable limitations period was
formerly six years, it was shortened to three years in 1997. AS 09.10.053; Christianson
v. Conrad-Houston Ins., 318 P.3d 390, 396 (Alaska 2014); Preblich, 996 P.2d at 734
n.11. The superior court used the correct statutory period in its subsequent decision.
5 Pedersen v. Zielski, 822 P.2d 903, 908 (Alaska 1991).
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potential cause of action by 2007, and the limitations period for her claims expired by
2013 at the latest - well before the complaint was filed in 2019.
Park moved for a continuance under Alaska Civil Rule 56(f) to obtain
6 In support
additional discovery - specifically to obtain affidavits of expert witnesses.
of this motion Park submitted an affidavit describing certain details about the timeline
of events. She stated that when she complained to the Board of Nursing in 2007, the
Board took no action on her complaint. Park did "not pursue the matter further" and at
that time "did not know the full extent of [Spayd's] malpractice." But she said that after
a 2010 court order in connection with Park's divorce gave Park access to records of the
business she had shared with Husseini, Park found Husseini's "extensive drug receipts
. . . and realized the full measure of [Spayd's] gross negligence." The superior court
granted "a single extension of time" for Park to conduct discovery and file an opposition
by January 3, 2020, but indicated that it did not see how the discovery Park sought would
be relevant to the limitations issue.
Park then opposed summary judgment. She submitted an affidavit setting
forth additional facts relevant to when the limitations period began to run. Park stated
that she did not know she had a cause of action against Spayd until Spayd was arrested
in October 2019. In regard to Park's complaint about Spayd to the Board of Nursing,
Park stated that the Board "told [Park] there was no basis for the complaint" and that she
"believed that ended the matter." She further explained that she "did not consider filing
6 Alaska R. Civ. P. 56(f) ("Should it appear from the affidavits of a party
opposing the motion that the party cannot for reasons stated present by affidavit facts
essential to justify the party's opposition, the court may refuse the application for
judgment or may order a continuance to permit affidavits to be obtained or depositions
to be taken or discovery to be had or may make such other order as is just.").
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a civil case until Spayd was arrested [in] 2019 for the same conduct of which [Park] had
complained" and that she now believed the Board of Nursing's decision "was wrong."
At a subsequent hearing, Park told the superior court that she had requested
discovery from Spayd but had not received it; she asked the court to compel Spayd's
response before ruling on summary judgment. The superior court declined, stating that
Park had not explained how discovery would be relevant to the limitations issue.
On the day of oral argument Park filed another memorandum with the
superior court. Park raised the possibility that Spayd had provided false or misleading
information to the Board of Nursing during its investigation undertaken in response to
Park's complaint. If so, Park argued, then the limitations period should be tolled or
Spayd should be estopped from asserting a limitations defense. Park maintained that she
was entitled to discovery of Spayd's correspondence with the Board to explore these
issues.
At oral argument, Park again argued that the limitations period should be
tolled until Spayd's arrest in October 2019. She also reiterated that discovery of Spayd's
communications with the Board was needed to address the limitations defense. The
superior court stated on the record that it did not view Spayd's communications with the
Board as relevant to the limitations issue.
The superior court ruled that Park's claims were barred by the statute of
limitations. The court first determined that Park's negligence claimwas subject to a two-
year limitations period and that her malpractice claim was subject to a three-year period.
The court accepted for purposes of summary judgment the truth of the allegations in
Park's complaint and affidavits. Nevertheless it agreed with Spayd's argument that, in
light of Park's report to the Board of Nursing in 2007, Park's claims accrued at that time
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because Park was aware then of all the elements of her malpractice and negligence
claims. It therefore ruled that the limitations period expired in 2010.
The court then rejected Park's argument that Spayd should be estopped
from relying on the statute of limitations. The court acknowledged Park's assertion that
the Board's inaction on Park's complaint against Spayd must have been the result of
Spayd providing misleading information to the Board. But the court concluded that
"despite receiving an extension of time to obtain discovery," Park had not presented any
evidence indicating fraudulent conduct that she had relied on in declining to file suit
7
earlier.
Finally,thecourtrejected Park'sequitabletolling argument. Observingthat
the limitations period may be tolled while a party pursues a separate legal remedy, the
court reasoned that Park's complaint to the Board of Nursing did not toll the limitations
period because the Board did not have authority to give Park any relief for her injuries.
Parkmoved for reconsideration. Sheargued that thecourt's rejection ofher
equitable estoppel argument for lack of evidence overlooked that the court had allowed
Park only a brief extension to obtain discovery and that Spayd had not responded to
Park's discovery requests. Park also argued that evidence of Spayd's dishonesty was
described in an FBI agent's affidavit submitted in connection with Spayd's 2019 arrest,
thus creating a dispute of material fact on the estoppel issue.
The superior court denied reconsideration. Regarding the discovery issue,
the court ruled that Park had failed to show that she "exercised due diligence in
attempting to uncover the concealed facts" or that further discovery would have yielded
7 Equitable estoppel requires "evidence of fraudulent conduct upon which
[the plaintiff] reasonably relied when forebearing from the suit." Pedersen, 822 P.2d at
908-09 (quoting Gudenau & Co. v. Sweeney Ins. , 736 P.2d 763, 769 (Alaska 1987)).
-6- 7594
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material evidence. As to the FBI affidavit, the court observed that although it described
egregious conduct by Spayd between 2014 and 2019, it contained no evidence of earlier
fraudulent conduct on which Park might have reasonably relied in declining to bring suit.
Park appeals.
III. STANDARD OF REVIEW
We review de novo a grant of summary judgment and will affirm only if
there are no genuine issues of material fact and the moving party is entitled to judgment
8
as a matter of law.
All reasonable inferences are drawn in favor of the non-moving
9
party.
"[S]ummary judgment is appropriate only when no reasonable person could
10
discern a genuine factual dispute on a material issue."
"[A] non-moving party does not need to prove anything to defeat summary
11
judgment." However "a non-moving party cannot create a genuine issue of material
fact merely by offering admissible evidence - the offered evidence must not be too
conclusory, too speculative, or too incredible to be believed, and it must directly
12
contradict the moving party's evidence." "Any dispute [of fact] must not only be
genuine and material[] but [must also] arise from admissible evidence, such as affidavits
13
recounting personal knowledge of specific facts."
8 Parker v. Tomera , 89 P.3d 761, 765 (Alaska 2004).
9 Id.
10
Christensen v. Alaska Sales &Serv., Inc., 335 P.3d 514, 520 (Alaska 2014).
11 Id. at 516.
12
Id. (emphasis omitted).
13
Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002) (quoting Brady v. State,
(continued...)
-7- 7594
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IV. DISCUSSION
A. Park's Claims Are Barred By The Applicable Limitations Statutes.
14
A claim that is not filed within the applicable limitations period is barred.
A personal injury claim, such as Park's negligence claim against Spayd, must be filed
15 A professional malpractice
within two years of the date on which the claim accrues.
claim alleging economic harms, such as Park's malpractice claim alleging damage to her
16
marital business and marital estate, must be filed within three years of the accrual date.
17
A cause of action generally accrues at the time of injury. But under the
discovery rule, the limitations period does not begin to run until the plaintiff discovers,
or reasonably should have discovered, the existence of all essential elements of the cause
18 The elements of negligence and professional malpractice are duty, breach,
of action.
causation, and damages.19
"We look to the date when a reasonable person has enough
13 (...continued)
965 P.2d 1, 8 (Alaska 1998)).
14 Miller v. Fowler, 424 P.3d 306, 311 (Alaska 2018).
15 AS 09.10.070(a)(2).
16 AS 09.10.053; Christianson v. Conrad-Houston Ins., 318 P.3d 390, 396
(Alaska 2014) ("Alaska applies a three-year statute of limitations for professional
malpractice actions.").
17 Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264, 1274 (Alaska 2013).
18 Id. at 1274-75. The common-law discovery rule "developed as a means to
mitigate the harshness that can result fromthe [accrual] rule's preclusion of claims where
the injury provided insufficient notice of the cause of action to the plaintiff." Id. at 1274
(alteration in original) (quoting Cameron v. State, 822 P.2d 1362, 1365 (Alaska 1991)).
19 Christianson, 318 P.3d at 398; Shooshanian v. Wagner, 672 P.2d 455, 464
(continued...)
-8- 7594
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information to alert that person that he or she has a potential cause of action or should
20
begin an inquiry to protect his or her rights."
The date on which the limitations period begins to run depends on whether
the plaintiff actually made an inquiry upon receiving information that should prompt the
plaintiff to do so.21 If the plaintiff did make an inquiry, and if the inquiry was
unproductive, the question becomes whether the inquiry was reasonable.22 If it was
reasonable, then the limitations period is tolled until the plaintiff receives either " 'actual
knowledge of' the facts giving rise to the cause of action" or "new information which
would prompt a reasonable person to inquire further."23
The superior court's decision, as well as the parties' briefing and argument
on appeal, focus on Park's complaint to the Board of Nursing in 2007. Spayd maintains
that by this point in time Park was aware of all the elements of her causes of action: that
she had been injured by Husseini's addiction to opiates and that Spayd's conduct was
both a breach of the professional duty of care and the cause of Park's injuries.
Accordingly, Spayd argues that Park's causes of action accrued in 2007 and were barred
by 2010. Park counters by arguing, essentially, that her complaint to the Board -
resulting in the Board's decision not to take any action against Spayd - amounted to a
19 (...continued)
(Alaska 1983).
20 Gefre, 306 P.3d at 1275 (quoting Mine Safety Appliances Co. v. Stiles , 756
P.2d 288, 291 (Alaska 1988)).
21 See id.
22 Id.
23 Id. (quoting Cameron, 822 P.2d at 1367).
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reasonable yet unproductive inquiry that tolled the limitations period until Spayd's arrest
in 2019. According to Park's affidavit, when the Board "told [her] there was no basis
for the complaint," she "believed that ended the matter."
The focus on what happened in 2007 is misplaced. We assume without
deciding that Park's complaint to the Board of Nursing was a reasonable yet
unproductive inquiry that tolled the limitations period for her claims. Yet by Park's own
admission, in 2010 she received new information that would prompt a reasonable person
to inquire further.
In 2010 the superior court in the divorce case issued an order allowing Park
to access the records of the business she had run with Husseini during the marriage. In
an affidavit filed in support of a motion in this negligence case, Park stated: "I did not
find Mr. Husseini's extensive drug receipts until I was given a court order to access our
business property after remand, and realized the full measure of [Spayd's] gross
negligence." At the time Park is referring to in this statement, she was already aware that
she had suffered injury as a result of Husseini's addiction (damages) and that Spayd's
prescription of opioid medications had contributed to Husseini's addiction (causation).
Park's subsequent admission - that she had become aware of Spayd's gross negligence
(duty and breach) - meant Park was on notice in 2010 of all the elements of her cause
of action against Spayd. 24
Park argues that the cause of action did not accrue until 2018, the date of
Husseini's death, because that is when she suffered the final injury: Husseini would
never be able to pay the judgment he owed in the divorce. In other words, Park contends
that it was not until Husseini's death that she learned the full extent of her injuries.
24
The elements of negligence and professional malpractice are duty, breach,
causation, and damages. Christianson, 318 P.3d at 398; Shooshanian, 672 P.2d at 464.
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But "under the discovery rule it is irrelevant if the full scope of injury is not
25
known immediately."
In Sopko v. Dowell Schlumberger, Inc. we held that a plaintiff
who was aware that he suffered some injury had "sufficient information to prompt an
inquiry into his cause of action" even though the full extent of his injury was not known
26 The same is true of Park. Park was well aware of the injuries to her
until years later.
marriage and finances prior to 2018. Park's complaint alleged that she was "distraught
over [Husseini's] drug dependence" in 2005; that "[a]s a direct and proximate result of
the emotional and physical addiction from which Husseini suffered, he and Park fought
over his addiction, ultimately ending the marriage"; that "[t]heir business was failing
because Husseini did not work"; and that "[t]hroughout the pendency of the divorce the
value of the marital estate diminished as the direct and proximate result of Husseini's
drug dependence." Park and Husseini began divorce proceedings in 2007; their divorce
was finalized in 2011. Although Park did not know that Husseini would ultimately die
of a drug overdose and fail to pay Park her share of the marital estate, Park was well
aware, even before the divorce was finalized in 2011, that she had been injured by
Husseini's addiction.
By 2010 Park was also aware that Spayd had a role in that addiction
through what Park describes as grossly negligent prescriptions. Park was on notice of
all the elements of her negligence and malpractice claims against Spayd. The limitations
periods for these claims therefore began to run in 2010 and expired in 2012 and 2013
25 Sopko v. Dowell Schlumberger, Inc. , 21 P.3d 1265, 1272 (Alaska 2001).
26 Id. at 1271-72 (rejecting worker's argument that cause of action did not
accrue until he was diagnosed with permanent injury five years after exposure to toxic
chemicals whenworkerexperiencedphysicalsymptomsimmediatelyfollowing exposure
and was diagnosed with "toxic fume exposure" by physician days later).
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respectively. Because Park did not file suit against Spayd until 2019, her claims are
time-barred.
B. Park's Equitable Defenses To The Statute Of Limitations Do Not Save
Her Claims.
Park argues that Spayd should be equitably estopped from raising a statute
of limitations defense to Park's claims. To establish equitable estoppel, "a plaintiff must
produce evidence of fraudulent conduct upon which [she] reasonably relied when
forbearing from suit."27
"The fraudulent conduct may be either an affirmative
28
Park
misrepresentation[] or a failure to disclose facts [when] there is a duty to do so."
asserts that Spayd must have made fraudulent representations to the Board of Nursing
in 2007, leading the Board to take no action on Park's complaint, which in turn caused
Park not to file suit. Park further asserts that the superior court erred by faulting Park for
not presenting evidence of Spayd's mispresentations even though the court declined to
order Spayd to respond to Park's discovery requests.
The focus on the Board of Nursing's investigation - and any
misrepresentations Spayd may have made during that process - is again misplaced.
Park stated that she realized Spayd's negligence upon seeing Husseini's prescription
receipts in 2010. Even if it was reasonable for Park to view the Board's inaction against
Spayd as an indication that Spayd had not been negligent, it was not reasonable for Park
to continue relying on the Board's inaction once she independently realized in 2010 that
Spayd had been grossly negligent. Therefore Park cannot establish that she reasonably
27 Gudenau & Co. v. Sweeney Ins. , 736 P.2d 763, 768 (Alaska 1987).
28 Waage v. Cutter Biological Div. of Miles Lab'ys, Inc. , 926 P.2d 1145, 1149
(Alaska 1996).
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relied on false statements Spayd may have made to the Board of Nursing. 29 Equitable
estoppel does not apply.
In her reply brief, Park raises for the first time the issue of equitable tolling,
which the superior court ruled did not apply. Because Park failed to address equitable
29 For this reason, Park's assertion that the superior court erred by not giving
her more time to conduct discovery and by not compelling discovery into Spayd's
communications with the Board of Nursing, even if true, does not affect the outcome of
this case. Even if discovery showed that Spayd had lied to the Board, Park could not
show that she reasonably relied on those misrepresentations in light of her independent
discovery of Spayd's negligence.
Nevertheless, we are troubled by the suggestion in the superior court's
order that Park was somehow responsible for not producing evidence in support of her
equitable estoppel argument. Park sought and received a short extension to pursue
discovery. After this extension of time had expired, Park told the superior court that she
had not received the discovery she needed and asked the court to compel it. The court
denied the request, stating that Park had not adequately explained the relevance of
discovery to the limitations issue. When Park explained at oral argument why discovery
into Spayd's communications with the Board could be relevant to the estoppel issue, the
court disagreed, stating this evidence would not be relevant. Yet the court's summary
judgment order implicitly conceded the potential relevance of this discovery by faulting
Park for "not provid[ing] this court with any facts suggesting the existence of fraudulent
conduct upon which she relied when refraining from filing suit."
We emphasize that superior courts should hold "self-represented litigants
. . . to a less demanding procedural standard," and take a "lenient approach" in
construing their motions. Daggett v. Feeney , 397 P.3d 297, 304 n.19 (Alaska 2017)
(quoting Mitchell v. Mitchell, 370 P.3d 1070, 1083 (Alaska 2016)); Regina C. v.
Michael C. , 440 P.3d 199, 205 n.25 (Alaska 2019) (quoting Sengupta v. Univ. of Alaska ,
139 P.3d 572, 581 (Alaska 2006)). Although true that Park did not adequately explain
the relevance of discovery in her initial motion to compel, she ultimately did explain its
relevance. It was therefore problematic for the court to reject Park's estoppel argument
for lack of evidence after having denied her request to obtain evidence on this point. But
as we explained above, any error is harmless because of Park's independent discovery
of Spayd's negligence in 2010.
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30
tolling in her opening brief, the argument is waived. Yet even if the issue had been
preserved, equitable tolling would not make Park's claims timely.
Equitable tolling applies "when a plaintiff has multiple legal remedies
available to [her]. Courts will not force a plaintiff to simultaneously pursue two separate
31 Accordingly the limitations period for the second remedy
and duplicative remedies."
is tolled while the plaintiff pursues the first remedy.
We have held that when litigation as to the first remedy terminates, a new
limitations period begins to run for the remaining remedy.32 Park filed her complaint
with the Board of Nursing in 2007. Although the record does not disclose precisely
when the Board informed Park that it was closing its investigation, Park indicated that
the investigation was closed before her divorce was finalized in 2011. Even assuming
33 a new three-year limitations period would have begun to run
equitable tolling applied,
30 See, e.g. , Eberhart v. Alaska Pub. Offs. Comm'n , 426 P.3d 890, 894-95
(Alaska 2018) (declining to consider issue raised for the first time in reply brief).
31 Solomon v. Interior Reg'l Hous. Auth., 140 P.3d 882, 884 (Alaska 2006)
(quoting Gudenau & Co., 736 P.2d at 769).
32 Id. at 885-86 (noting that "we have uniformly applied a new full statutory
period in equitable tolling cases," although declining to decide "whether a plaintiff will
always have the full statutory limitations period in which to file once the circumstances
that justify equitable tolling abate").
33 Id. at 884 ("[T]he statute of limitations is tolled only for those who initially
pursuetheir rights in ajudicialorquasi-judicialgovernmental forum."(quoting Gudenau
& Co., 736 P.2d at 768)).
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once the Board's investigation closed, expiring well before Park filed suit in 2019.
34
Thereforeneither equitable estoppel nor equitabletolling saves Park's untimelyclaims.
V. CONCLUSION
The judgment of the superior court is AFFIRMED.
34 Park's brief requests that we "[d]ismiss" the superior court's order on
attorney's fees. Yet she did not appeal the superior court's award of attorney's fees and
does not present any argument for why the award is erroneous. Any challenge to the
award of attorney's fees is therefore waived.
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