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Nissan v. Alaska (7/18/97), 941 P 2d 1229
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.
THE SUPREME COURT OF THE STATE OF ALASKA
ANCHORAGE NISSAN, INC., )
) Supreme Court No. S-7119
) Superior Court No.
v. ) 3AN-93-7761 CI
STATE OF ALASKA, ) O P I N I O N
Appellee. ) [No. 4850 - July 18, 1997]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Joan M. Woodward, Judge.
Appearances: Victor C. Krumm, Law Office of
Victor C. Krumm, P.A., Sarasota, Florida, for Appellant. James Forbes,
Ingaldson Maassen, P.C., Anchorage, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
A civil jury found that Anchorage Nissan, Inc. (ANI)
committed unfair or deceptive business acts involving the sale of
new or used vehicles. ANI asserts on appeal that the superior
court committed various errors before and during trial. We affirm.
II.FACTS AND PROCEEDINGS
In August 1993 the State of Alaska filed suit against ANI
and several of its employees, alleging violations of the Alaska
Unfair Trade Practices and Consumer Protection Act, AS 45.50.471
(the Act). [Fn. 1] The complaint described the sale by ANI of a
1991 Ford Escort to Charles and Mary McCormick. ANI allegedly
failed to disclose to the McCormicks that the vehicle had been
involved in a serious accident and that the previous owner had told
ANI of an odometer discrepancy. The complaint alleged violations
of AS 45.50.471(b)(11) and (12), as well as common law fraud. ANI
answered and filed a counterclaim against the State of Alaska and a
third-party complaint against State Farm Insurance Company,
alleging negligence and failure to warn based upon their knowledge
of the accident involving the Escort.
The State filed a first amended complaint in September
1993 adding Shawn Gibbons, an ANI employee, as a defendant. In
addition to the 1991 Escort transaction, it alleged violations of
AS 45.50.470(b)(11), (12), and (18) and common law fraud arising
out of four other transactions. Two of these transactions are
relevant to this appeal. [Fn. 2]
One transaction involved the sale of a used 1992
Chevrolet Blazer, previously owned by a rental car company and
previously involved in a major accident, to Anna and John Denis.
According to the complaint, ANI told the Denises that the factory warranty was
still in effect; that the car had not been involved in an accident; and that
the car had not been a "fleet"vehicle owned by a rental car company.
Another transaction involved the sale of a 1985 Chevrolet
Blazer to Monte Parish by ANI employee Shawn Gibbons on behalf of
his father, Melvin Gibbons in October 1992. According to the
complaint, the Blazer was traded to ANI in April 1992 with an
odometer reading of 98,887 miles. By the time it was sold to
Parish, the odometer read approximately 59,000 miles. When ANI
sold the car to Melvin Gibbons in May 1992, it executed an
"odometer disclosure statement"giving the vehicle's mileage as
ANI answered the amended complaint and filed a
counterclaim and third party complaint, alleging that the State
knew of, and negligently allowed to continue, a practice of
insurance companies whereby severely damaged vehicles were retitled
or resold to repair shops, after which they would be sold to the
public without reflection of the accident on the vehicle's title.
The counterclaim alleged a "secret agreement"between the State and
major insurance companies.
State Farm Insurance Company was dismissed with prejudice
as a third party defendant by stipulation in February 1994. The
superior court granted partial summary judgment to ANI by
dismissing the common law fraud count in April 1994.
On May 12 the State moved for leave to file a second
amended complaint under Civil Rule 15(a). The court granted leave
on June 7. The second amended complaint added counts relating to four
additional transactions. [Fn. 3] It alleged, inter alia,
violations of AS 45.45.200 (prohibiting misrepresentations in the
repairs of motor vehicles), AS 45.50.471(a), and AS
45.50.471(b)(4), (5), (6), (11), (12), (14), (15), (18) and (23).
In June the State moved to set the case for trial. In a
pretrial order dated August 5, 1994, the superior court set the
trial for December 28, 1994, with most discovery to be completed by
October 1. ANI answered and counterclaimed on August 19, claiming that the
State had assumed and violated a duty to the public and to
automobile purchasers to oversee the practices of insurance
ANI and the other defendants asked the court for a
continuance in September. ANI claimed that the State had filed a
lengthy witness list and had not begun discovery on ANI's
counterclaim. This motion was denied at the end of September,
though the State was directed to file a revised witness list.
ANI again moved for a continuance in November 1994. It
argued that discovery could not be completed before trial on the
main claim or the counterclaim and that one of the State's experts,
Scotty Dawkins, had not yet completed his examination of the
vehicles. The superior court also denied this motion.
Shortly before trial, the superior court held that the
State owed ANI no duty and granted summary judgment to the State on
After trial, the jury returned a special verdict, finding
that ANI had committed eighteen deceptive or unfair acts in violation of AS
45.50.471. The superior court entered final
judgment, permanently enjoining ANI from violating AS 45.50.471(a)
and (b)(4), (6), (11), (12), (14), (15), and (23). It also awarded
the State civil penalties totaling $64,000 for fourteen of the eighteen
violations. The court also awarded the State attorney's
fees and costs.
ANI now appeals from the grant of partial summary
judgment to the State on ANI's counterclaim; from the denial of
several of its pretrial motions; from the denial of its motion for
a directed verdict; from evidentiary rulings; and on issues related
to the jury instructions.
A.Grant of Summary Judgment to the State on ANI's Counterclaim
ANI argues that the court erred in dismissing ANI's
counterclaim on summary judgment for the State. [Fn. 4] ANI's
counterclaim alleged negligence by the State's Department of Law
and Department of Public Safety.
ANI's theory was that the State knew that insurance
companies followed a practice by which, after a major accident, the
insurer would assume title to the damaged car upon paying the
insured for the loss. According to ANI, the insurance company
would retitle the car and sell it to a repair shop, knowing that it
would subsequently be sold to the public without disclosure of the
accident. ANI reasoned that the State assumed a duty relating to
this practice through some combination of: its knowledge of the
practice; the Department of Public Safety's power to suspend or revoke
registration of a vehicle that has been destroyed beyond
repair; the Department of Law's power to enforce the Unfair Trade
Practices and Consumer Protection Act, AS 45.50.071; and a "secret
or confidential agreement"between the State and "certain major
insurance carriers, including State Farm, relating to 'totaled'
vehicles, in violation of public policy." The State breached this
duty by failing to oversee the practices of State Farm in relation
to severely damaged vehicles. [Fn. 5]
The State first moved to dismiss on September 13, 1994,
arguing that it could not be held liable for not enforcing a given
law. The superior court denied that motion, writing that "[t]he
allegation of a 'secret agreement' removes this case from a simple
lack of enforcement issue."
The State then submitted an affidavit from Jay Dulany,
the Director of the Division of Motor Vehicles at the Department of
Public Safety. Dulany described discussions he had with
representatives of some insurance companies dealing with the
procedures they should follow in selling vehicles that were total
losses. He affied that he
simply gave the insurance companies verbal
directions as to how they were expected to comply with the law. . . .
. . . .
. . . [T]here have never been any written
agreements between the state DMV and the insurance companies regarding the
processing of titles to totaled vehicles. There have
been meetings at which the insurance companies were told what the law
required, and they were told to follow the law. But there have been no
written agreements of which I am aware.
On December 27 the court granted summary judgment to the
State and dismissed the counterclaim, stating:
[ANI] submitted no evidence of an agreement
which the state might (or might not) have had an obligation to enforce. The
state cannot be sued for making discretionary decisions about which laws to
enforce most vigorously, absent
imposition of a duty of care in accord with the factors set forth in D.S.W. v.
Fairbanks North Star Borough School Dist., 628 P.2d 554, 555 (Alaska 1981).
No duty arises under the D.S.W. factors in this case.
It is not clear whether the superior court granted
summary judgment because it concluded ANI failed to establish an
issue of fact as to the existence of an agreement, or because it
concluded the State owed no duty as a matter of law even if an
We think that there is no material fact issue which
prevents summary judgment against ANI. Civil Rule 56(e) provides
that a party opposing summary judgment "may not rest upon the mere
allegations or denials of [its] pleading, but [its] response, by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial."
Alaska R. Civ. P. 56(e). ANI failed to show any "agreement"other
than oral instructions to the insurance companies relating to the
law's requirements, or perhaps the solicitation of "agreement"by
the insurance companies to surrender the title documents of totaled
vehicles to the DMV under 13 Alaska Administrative Code (AAC)
70.240. [Fn. 6] The affidavits submitted by the State show that there was a
discussion with insurance companies as to whether the law required them to
surrender title of a totaled vehicle for
marking by DMV; they show nothing more.
ANI argues that the State assumed a duty of care through
its knowledge of the practice and its actions with regard to the
practice. A party assuming a duty through its own undertaking must
discharge that duty with due care. See State, Dep't of Nat. Res.
v. Transamerica Premier Ins. Co., 856 P.2d 766, 773 (Alaska 1993); see also
Restatement (Second) of Torts sec. 324A (1965). Because
there is no evidence of an agreement or any undertaking by the
State to oversee the practices of insurance companies with regard
to damaged vehicles, we hold that the State has not assumed a duty
The State cannot be held liable for not enforcing a
statute unless it owed a duty of care to the complaining party. We have held
that the judiciary may not interfere with the executive
discretion of the Attorney General's Office by telling it when or
how to enforce the laws. Public Defender Agency v. Superior Court,
534 P.2d 947, 950-51 (Alaska 1975).
There is no other basis for finding that the State owed a duty of
care to ANI and other car dealerships. In determining
whether a duty of care exists, we consider a number of factors:
The foreseeability of harm to the plaintiff,
the degree of certainty that the plaintiff suffered injury, the closeness of
the connection between the defendant's conduct and the injury suffered, the
moral blame attached to the defendant's conduct, the policy of preventing
future harm, the extent of the
burden to the defendant and consequences to the community of imposing a duty
to exercise care with resulting liability for breach, and the availability,
cost and prevalence of insurance for the risk involved.
D.S.W. v. Fairbanks N. Star Borough Sch. Dist., 628 P.2d 554, 555
(Alaska 1981) (citation omitted); see also Hawks v. State, Dep't of
Pub. Safety, 908 P.2d 1013, 1016 (Alaska 1995); Estate of Day v.
Willis, 897 P.2d 78, 81 (Alaska 1995). [Fn. 7]
The circumstances of this case are lacking with respect
to each of the D.S.W. factors. That ANI would buy and resell a car
without knowledge that it had severe structural damage seems
unforeseeable and indeed unlikely still. The certainty that ANI
suffered damage due to any failure of the State to protect car
buyers is small. The connection between the State's conduct and
any injury to ANI seems distant at best. Little moral blame can be
attached to the State under the circumstances. Little future harm
will be prevented by imposing a duty of care. The burden on the
State could be significant. The availability of insurance has no
bearing here. The D.S.W. factors impose on the State no duty of
care to ANI or other dealerships in this situation.
Because we do not interfere with executive discretion to
enforce State law and because the State owes and has assumed no
duty of care, we affirm the superior court's grant of summary
judgment in favor of the State on ANI's counterclaim.
ANI also argues that the superior court erroneously held
that the State was entitled to discretionary function immunity. It
appears the court did not reach the immunity issue, but in any
event our conclusion that the State owed ANI no duty of care makes
it unnecessary for us to consider whether the State was immune from ANI's
claim. Beilgard v. State, 896 P.2d 230, 234 & n.8 (Alaska
B.Denial of ANI's Motions for a Continuance
Twice ANI moved for a continuance. The trial court denied both
motions. ANI appeals these denials. ANI advances five
reasons why the trial should have been continued. [Fn. 8] We
address each in turn.
1.Addition of four new transactions
ANI's best argument is that it had insufficient time to
conduct discovery on the last four transactions added by the second
amended complaint. It points out that the State moved for trial
only one week after the court granted the State leave to file the
second amended complaint.
ANI's argument, however, overstates the prejudice ANI
suffered. The State was granted leave to amend the complaint on
June 7, 1994, but the State mailed a copy of the second amended
complaint to ANI on May 12. The State moved for trial on June 14, but trial
was set for December 28, with discovery to be completed
by October 1. Thus, ANI had over four months to conduct discovery
on the four new transactions. This should have been more than
enough time. The addition of the four new transactions did not oblige the
trial court to continue the trial. [Fn. 9]
2.Length of State's witness list
In opposing ANI's motion to remove the case from the fast-track
calendar, [Fn. 10] the State wrote that, "[a]lthough the
state has identified 48 witnesses on its preliminary witness list, that list
was furnished to facilitate [ANI's] opportunity to
complete discovery. . . . The state will likely call fewer than 20
witnesses, since many of those listed on the state's Preliminary
Witness List would offer cumulative testimony." ANI argues that
the State's subsequent submission of a list of fifty-five
witnesses, including nineteen experts, was a surprise and grounds
ANI's argument is misleading. The State made it clear
that many of the witnesses on its list were cumulative and would
not be called. This practice is not uncommon. Of the "nineteen
experts"listed, sixteen were listed as "percipient[s] and
expert[s]"while only three were listed as "expert[s]." In its August 31,
1994, response to ANI's expert witness interrogatories,
the State made it clear that Scotty Dawkins was to be its primary
expert and that those listed as "percipients and experts"were
primarily auto mechanics. Although they would be fact witnesses
because of their exposure to given vehicles, they might be asked to
give expert opinions about the vehicles' condition. We also note
that when the superior court denied ANI's September 2 motion for a
continuance it also ordered the State to pare its witness list to
thirty-five names, and the State did so. [Fn. 11] The length of
the State's witness list did not require a continuance.
3.Discovery on counterclaim
ANI argues that it could not adequately conduct discovery
on its counterclaim. Because the trial court properly granted
summary judgment to the State on the counterclaim, the issue is moot unless
ANI was prejudiced in its ability to oppose summary
In denying ANI's second motion for a continuance, the
superior court wrote:
The counterclaim which forms the basis for the
motion to continue arises out of allegations set forth in the original
complaint. The fact that defendants brought the counterclaim only in their
answer to the second amended complaint and have run into alleged delays in
conducting discovery on this claim does not warrant delay of this trial.
The superior court believed that ANI did not deserve a continuance
because its counterclaim was untimely and because it had delayed in
conducting discovery. In fact, ANI's counterclaim to the State's
first amended complaint was substantially the same as its original
counterclaim. [Fn. 12]
Nevertheless, the superior court did not abuse its
discretion in denying a continuance. ANI primarily complains that
it had unsuccessfully sought documents relating to the supposed
secret agreement. As seen in Part III.A above, ANI has not been
able to demonstrate that this was a result of State chicanery
rather than the simple non-existence of facts supporting the counterclaim.
ANI argues that the State was late in supplementing the
opinions of Dawkins, the State's primary expert witness, concerning
his inspections of several of the vehicles. In the superior court, ANI raised
the State's failure when ANI moved to limit Dawkins's testimony. [Fn. 13] ANI
now argues that the State's failure
required a continuance.
The State answers that the delay was attributable to ANI.
In response to the State's request for production, ANI wrote:
"Vehicles are available for inspection at mutually convenient time
during the two week period of September 27-October 7, at ANI."
However, when Dawkins tried to inspect the vehicles, he found that
the Datsun had been sold. Furthermore, the 1992 Blazer was made
available to Dawkins only in late October, and Dawkins had some
problems coordinating the inspection of the Subaru with one of
ANI's experts. Dawkins further affied that he was in close contact
with ANI's experts and that they were "well aware"of his opinions
virtually from the time he formed them.
ANI complains that only eight days before trial the State
announced it would call a "wholly new expert,"Gerald Levy from Cal
Worthington Ford, to testify to issues concerning Ford Motor
Company's warranty coverage. We conclude from the following
circumstances that ANI was either not prejudiced, or was given a
reasonable opportunity to protect itself.
ANI's August 26, 1994, witness list listed "Ray Jaeger or
designee (expert), Cal Worthington Ford,"to testify on warranty
issues. The State's final witness list listed a "Designated Expert
on Warranty Coverage"from Cal Worthington Ford who would testify
that the 1991 Ford Escort was not eligible for complete factory
warranty coverage when ANI sold it to the McCormick family.
Further, ANI's attorney complained at trial that he might
have deposed Levy if he had known Levy's name and the subject of
his proposed testimony. The trial court found that the State may
have erred in not listing Levy's name earlier, but found no
prejudice and offered ANI the opportunity to question Levy outside
the presence of the jury. Had it accepted that offer, ANI could
have prepared for trial or demonstrated prejudice to the court. In
any event, there is no indication that ANI was not completely
familiar with the issues and the substance of the testimony to be
We conclude that the superior court did not abuse its
discretion in denying ANI's motions to continue.
C.Denial of ANI's Motion to Sever
Civil Rule 18(a) provides that "[a] party asserting a
claim . . . may join . . . as many claims either legal or equitable
or both as the party has against an opposing party." Alaska R.
Civ. P. 18(a). Civil Rule 42(b), however, provides that a court
may order a separate trial of any claim "in furtherance of
convenience or to avoid prejudice, or when separate trials will be
conducive to expedition and economy." Alaska R. Civ. P. 42(b).
ANI moved to sever the eight claims and for separate trial of each
claim, arguing that evidence offered about any one
transaction would be inadmissible character evidence under Evidence
Rule 404 with respect to the other transactions. [Fn. 14] The
superior court denied the motion, and ANI appeals. [Fn. 15]
Evidence Rule 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is
not admissible if the sole purpose for offering the evidence is to prove the
character of a person in order to show that the person acted in conformity
therewith. It is, however, admissible for other purposes, including, but not
limited to, proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
ANI's argument fails for several reasons. First, the
evidence of any given transaction was not offered for the "sole
purpose"of showing that ANI acted in conformity with some bad
character trait. Evidence relating to the sale of the 1991 Escort
to the McCormicks, for example, was offered to show that ANI sold
the Escort in violation of AS 45.50.471.
Second, any prejudice to ANI was limited by Jury
Instruction 18, which read:
The state has alleged several different
violations of the Unfair Trade Practices and Consumer Protection Act in
connection with each of eight transactions. You are to decide whether
Anchorage Nissan committed each violation claimed on its own merits,
separately from the other violations claimed.
Thus, if you find that it is more likely than not that Anchorage Nissan, Inc.
committed any specific violation in connection with any of the eight
transactions, you must find that Anchorage Nissan committed an unfair or
deceptive act or practice as to that specific violation. If you do not find
that it is more likely than not that a specific violation occurred, then you
must find that Anchorage Nissan, Inc. did not commit a deceptive act or
practice with regard to that particular claim. If you find that Anchorage
Nissan, Inc. committed one or more violations, you may not assume that it is
more likely that Anchorage Nissan, Inc. committed other violations. This is
called "propensity"evidence, and it is
forbidden under Alaska law. When deciding a particular claim, however, you
may consider evidence relating to other violations to
decide whether Anchorage Nissan, Inc. had any specific intent, plan, or motive
in connection with the particular transaction under
Third, the primary relief sought by the State was a
permanent injunction preventing ANI from continuing any deceptive
practices. The civil fines were $64,000, and these were determined
by the trial judge, not the jury. This is not a case in which
inflammatory propensity evidence caused an excessive punitive
For these reasons, we hold that the trial court did not
abuse its discretion in denying ANI's motion to sever. [Fn. 16]
D.Refusal to Allow Cross-Examination of Gibbons Relating to
ANI argues that the court erred when it granted the
State's motion to prevent ANI from cross-examining Gibbons on the
reasons ANI terminated his employment. ANI argues that this
evidence was relevant to Gibbons's motive to lie as a witness at
trial. [Fn. 17]
Evidence of bias or interest on the part of a witness is
admissible for the purpose of impeaching the witness's credibility.
Alaska R. Evid. 613(a). ANI claims that Gibbons was fired for
lying to a customer. The jury should have been allowed to hear
that evidence in order to evaluate his credibility.
Nevertheless, we affirm the trial court's ruling for
several reasons. First, ANI has not followed Alaska Appellate Rules 210 and
212. Appellate Rule 210(c) requires that the
appellate excerpt of record contain "other orders or rulings sought to be
reviewed." Alaska R. App. P. 210(c)(2). ANI failed to
include in the excerpt the court order preventing ANI from cross-examining
Gibbons. ANI's briefs contain no citation to the record
for the court order, and its opening brief notes that the "motion,
opposition, and order have been misplaced so are not part of the
excerpt." ANI could have supplemented the excerpt when it realized
the omission. Alaska R. App. P. 210(c)(3). It did not. The
record is very large in this case, consisting of 3,300 numbered
pages. The transcript consists of 1,939 pages. The appellate
excerpts alone total 1,436 pages. ANI has also failed to comply
with Appellate Rule 212(c)(8)[c], which states, "Appellant's brief
shall indicate the pages of the record where each point on appeal
was raised in the trial court." Alaska R. App. P. 212(c)(8)[c]. Given the
clarity of these rules, we are not willing to assume that the error was
Second, ANI has not explained how it was prejudiced.
Gibbons testified about transactions involving the 1985 S-10
Blazer. ANI simply asserts that "[i]t became prejudicial error
when the jury [verdict] was rendered." ANI has not identified what parts of
Gibbons's testimony would have been less persuasive to the
jury if ANI could have impeached his credibility by showing he had
a motive to lie.
Assuming there was any error, ANI has not demonstrated how it was
prejudiced. [Fn. 18]
E.Evidence Relating to "Post-Incident Activity"and the
After ANI repurchased the 1992 Blazer from John Denis, it consigned
the vehicle to Reliable Auto Sales. While the Blazer was
in Reliable's used car lot, the words "salvage only"were written
on a buyer's guide in the Blazer's window. The court denied ANI's
motion to exclude evidence relating to post-incident conduct. ANI
argues that the evidence of the "salvage only"sign should have
been excluded under Evidence Rules 402, 403, 404, 405, and 407.
ANI claimed below that Evidence Rule 404 barred admission
of the buyer's guide. ANI's motion anticipated that the State
would proffer evidence that ANI "did not issue a warning or
otherwise recall"the vehicle. ANI's motion cited a case holding
that post-accident conduct of failing to recall a product was
inadmissible under Evidence Rules 404 and 405 to show actions in
conformity with character. American Nat'l Watermattress Corp. v.
Manville, 642 P.2d 1330, 1336 (Alaska 1982) (holding that the error
The State inferred that ANI or its agent, Reliable Auto,
had written "salvage only"on the vehicle, permitting the jury to
find that ANI or its agent admitted the vehicle was unsafe. The
evidence was that it was unknown who wrote those words, but the
buyer's guide was inside the vehicle and was not accessible to many
persons. The inference the State draws is not unreasonable, and
thus this evidence is probative.
Apparently ANI asserted throughout trial that there was
nothing wrong with the Blazer even after the Denises had returned the truck to
ANI. Evidence that it was being sold only for salvage
would go to the credibility of ANI's witnesses. It was
consequently not impermissible character evidence. See Alaska R.
Evid. 404, 405.
Finally, any possible error was harmless. The jury
ultimately found that ANI committed unfair or deceptive acts in:
failing to conduct a reasonable pre-sale inspection of the Blazer;
selling it to the Denises without disclosing that it had been in an
accident; misrepresenting that it had been privately owned and had
not been a rental car; and representing that it had remaining
factory warranty coverage. The buyer's guide may be relevant but
does not seem prejudicial to ANI on any of these issues. Admission
of the evidence was certainly not "inconsistent with substantial
justice"under Civil Rule 61 such that reversal would be warranted.
Alaska R. Civ. P. 61 (harmless error).
ANI now relies on Evidence Rules 402, 403, and 407, but
it did not rely on those rules in the superior court. Issues not
raised in the court below are ordinarily considered waived and will
not be considered on appeal, except where plain error has been
committed. In re L.A.M., 727 P.2d 1057, 1059 (Alaska 1986).
"Plain error exists where an obvious mistake has been made which
creates a high likelihood that injustice has resulted." Miller v.
Sears, 636 P.2d 1183, 1189 (Alaska 1981). ANI has not demonstrated that
admission of this evidence resulted in any injustice. [Fn. 20]
F.Denial of ANI's Motion for a Directed Verdict
ANI moved for a directed verdict on many of the claims in the
State's complaint. It appeals the denial of this motion. [Fn. 21] ANI's
brief merely lists the provisions of the Act under which
a violation was charged. ANI provides no substantive discussion of
the issue, and instead asserts that its superior court motion "is
incorporated by reference"because it is so long and detailed.
This practice does not satisfy Appellate Rule 212(c)(1)[i], which
requires that the appellant's brief contain "the contentions of the
appellant with respect to the issues presented, and the reasons
We need not consider arguments which a party on appeal
merely adopts and incorporates by reference to its lower court
memoranda. Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1124 (Alaska
1996) (citing Bidwell v. Scheele, 355 P.2d 584, 587-88 (Alaska
1960)); Brandon v. State, 778 P.2d 221, 229 n.1 (Alaska App. 1989).
Nothing about ANI's terse and cursory treatment of the issue on
appeal suggests any reason to reverse. Moreover, ANI's reply brief
makes no attempt to rebut the State's substantive arguments on this
ANI has not demonstrated on appeal that the evidence does
not support the claims which were the subject of its motion. It
has not established that reasonable persons could not differ. It
was not error to deny ANI's directed verdict motion.
ANI argues that several jury instructions were given in error. [Fn.
1.Instructions 11 and 12
Jury Instruction 11 described "unfair or deceptive acts."
Instruction 12 told the jury that ANI had a legal duty to make a
reasonable inspection of every used vehicle it acquired for sale to
ANI notes that it objected below to subparagraphs 9, 10,
and 11 of Instruction 11 and to Instruction 12, asserting that they
had no basis in statutory or case law. ANI's appeal brief makes no
effort to show why these instructions were incorrect as a matter of
law; it only mentions that ANI objected below. See Johnson &
Higgins of Alaska, Inc. v. Blomfield, 907 P.2d 1371, 1376 n.4
(Alaska 1995) (holding that the court will not consider a point on
appeal because of insufficient briefing). ANI has not demonstrated
that there was any prejudicial error.
2.Instructions 20 through 29
Instructions 20 through 29 identified the State's nine
claims against ANI, grouped by transaction. [Fn. 23] ANI argues
that the trial court erred by allowing the jury discretion to go
outside the "specific statutory violations"alleged in the
complaint, and that the instructions "fail[ed] to connect to any
allegation in the complaint."[Fn. 24]
With respect to ANI's first argument, each claim in the
second amended complaint included an allegation that ANI violated
AS 45.50.471(a) in the relevant transaction. Subsection (a) generally outlaws
unfair or deceptive acts or practices in the
conduct of trade or commerce. Subsection (b) gives specific
examples of acts or practices that would violate subsection (a),
but subsection (c) makes it clear that the list is not exclusive.
[Fn. 25] ANI's argument amounts to a claim that the State should
have been limited to the list in subsection (b). That argument is
groundless. Subsection (a) is not limited to the examples listed
in subsection (b).
We reject ANI's argument that the instructions are not
closely connected with the allegations in the complaint.
Instruction 11 gave the jury an understanding of unfair or
deceptive acts or practices. Instructions 21 through 29 exactly
track the second amended complaint with regard to the alleged
facts. Instruction 20 told the jury how to apply the facts to the
law. The instructions were clear.
The superior court committed no error in connection with
the jury instructions.
0 AS 45.50.471 outlaws unfair methods of competition and
unfair or deceptive acts or practices in the conduct of trade or
(a) Unfair methods of competition and
unfair or deceptive acts or practices in the conduct of trade or commerce are
declared to be unlawful.
(b) The terms "unfair methods of
competition"and "unfair or deceptive acts or practices"include, but are not
limited to, the following acts:
[The list of examples of unfair or
deceptive acts mostly involve misrepresentations of fact to the consumer by a
seller of goods or services. These include
representing that goods are new when they are not; representing that goods are
of a particular quality when they are not; using
deception, fraud, etc., with the intent that others rely upon that concealment
or omission with the sale of goods; representing that an agreement involves
rights, remedies or obligations which it does not involve; knowingly making
false statements regarding the need for parts, replacement, or repair service;
and resetting the odometer of a vehicle. See AS 45.50.471(b)(5), (6), (12),
(14), (15), (18).]
(c) The unlawful acts and practices
listed in (b) of this section are in addition to and do not limit the types of
unlawful acts and practices actionable at common law or under other state
0 The other two transactions involved the sale of the same
1986 Nissan truck. According to the complaint, ANI sold the truck
to Melissa Myers, but did not disclose that the vehicle had a bent
frame as a result of a serious accident. Due to the bent frame,
Myers experienced difficulty in controlling the vehicle, including
problems with the vehicle's alignment, and returned the truck to
ANI for repairs. ANI could not repair the truck and accepted the
return of the truck.
The same 1986 Nissan truck was then sold to William and
Kelly Rettberg, who purchased an extended warranty. According to
the complaint, the Rettbergs were told that the truck had not been
involved in an accident. When the Rettbergs discovered the
alignment problem, ANI refused to provide service to the truck
under the extended warranty.
0 The first involved the sale of a new Eagle Talon to Mike
Ralston. According to the complaint, Ralston asked ANI for all
"work orders"describing work performed on the car before the sale.
However, ANI did not disclose the work order for a rebuilt engine.
The second involved the sale of a 1986 Subaru to
Trevelyan Anderson. According to the complaint, ANI represented to
Anderson that the car was "in great shape"even though it knew from
previous inspections that the car needed extensive repairs.
The third involved the sale of a 1979 Datsun 280ZX to
Bryan Boettcher. According to the complaint, the car had been in
an accident and had not been properly repaired. The complaint
alleged that ANI either knew or should have known after reasonable
inspection that the car was damaged, and breached its duty to
disclose the damage to Boettcher.
The fourth involved the sale of a 1990 Nissan Maxima to
John Nielson. According to the complaint, Nielson returned the car
to ANI complaining that the Antilock Braking System (ABS) light was
on. An ANI employee took the car and returned it twenty minutes
later, saying there should be no more problems. Nielson later
discovered that the ABS system had not been repaired, but the ABS
sensor wires had been cut. The complaint also alleged that ANI
misrepresented the need for other repairs to the car.
0 In reviewing a grant of summary judgment, we determine
whether there was a genuine issue of material fact and whether the
moving party was entitled to judgment as a matter of law; we draw
all reasonable inferences of fact in favor of the non-moving party
and against the moving party. Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d
1130, 1134 (Alaska 1996).
0 On appeal, ANI phrases the alleged duty as "a duty to
take reasonable steps to ensure that wrecked vehicles were properly
retitled to provide notice to subsequent purchasers."
0 The regulation imposes a duty to surrender title on an
insurance company "obtaining title to an unrepairable vehicle
through the satisfaction of an insurance claim." But totaled vehicles are not
necessarily "unrepairable,"as the practice at
issue here suggests; the cost of repair merely exceeds the fair
market value of the vehicle. The closest statutory requirement is
similarly inapplicable here. See AS 28.10.351 ("A person who
dismantles, scraps, or destroys a registered vehicle shall
immediately forward to the department the certificates of title and
registration . . . .").
0 D.S.W. is not the exclusive source of a duty of care.
For example, in addition to the considerations outlined in D.S.W.,
a statute may create a duty of care. Busby v. Municipality of
Anchorage, 741 P.2d 230, 233 (Alaska 1987). ANI does not argue
here that a statute creates a duty to ANI on behalf of the State.
0 We review the trial court's refusal to grant a motion for
a continuance for an abuse of discretion. Gregoire v. National
Bank of Alaska, 413 P.2d 27, 33 (Alaska), cert. denied, 385 U.S.
0 The State also argues that ANI had ample opportunity to
conduct discovery relevant to the last four vehicles because it
knew of the problems when the purchasers brought the vehicles back
to ANI. This argument is unpersuasive. Just because ANI might
have known of a problem did not mean it knew that it someday would
have to defend a lawsuit relating to that problem.
0 This case was subject to Alaska Civil Rule 16.1. After
trial has been set, a continuance may be granted under that rule
only for "extraordinary good cause." Alaska R. Civ. P. 16.1(i).
Here, both continuances were filed after trial was scheduled.
0 Although this order was entered on September 30, 1994,
toward the end of the discovery period, ANI had until October 28 to
0 The counterclaim to the original complaint was based on
two similar negligence theories, failure to investigate vehicles
that had been in an accident and failure to warn of improper
ANI has not appealed the denial of its motion to limit
0 The second amended complaint originally described nine
transactions. It is unclear when the claim regarding the Nielson
transaction was dropped, but it was not included in the jury
0 We review a trial court's refusal to sever claims for an
abuse of discretion. Miller v. Sears, 636 P.2d 1183, 1192 (Alaska
0 On appeal, ANI also argues that the evidence was
irrelevant under Evidence Rule 403 as to each of the other claims.
We need not consider an argument not raised below, except where
plain error has been committed. In re L.A.M., 727 P.2d 1057, 1059
(Alaska 1986). ANI failed to raise this argument below, and no
injustice has been committed.
0 The trial court's decision to disallow evidence relating
to Gibbons's termination is reviewable for an abuse of discretion.
Hutchins v. Schwartz, 724 P.2d 1194, 1197 (Alaska 1986); Alaska N.
Dev., Inc. v. Alyeska Pipeline Serv. Co., 666 P.2d 33, 42 (Alaska
1983), cert. denied, 464 U.S. 1041 (1984).
Because we so hold, it is not necessary to decide whether ANI
complied with Alaska Evidence Rule 403.
0 The trial court's admission of evidence is reviewed for
abuse of discretion. Hutchins, 724 P.2d at 1197; Alaska N. Dev.,
666 P.2d at 42.
ANI does not explain why it is raising issues not asserted in
the trial court. "If the point on appeal was not raised in the
trial court, the brief shall explain why the point is raised for
the first time on appeal." Alaska R. App. P. 212(c)(8)[c].
0 This court reviews a motion for a directed verdict in the
light most favorable to the non-moving party. Moloso v. State, 644
P.2d 205, 208 (Alaska 1982). A directed verdict is justified only
if the evidence is such that fair-minded persons, in the exercise
of reasonable judgment, could not differ. Sloan v. Atlantic
Richfield Co., 541 P.2d 717, 723 (Alaska 1975) (citation omitted).
Where the record shows evidence from which fair-minded jurors could
reach differing conclusions, the motion is properly denied. Id.
0 Issues related to jury instructions present questions of
law subject to our independent judgment. Beck v. State, Dep't of
Transp. & Pub. Facilities, 837 P.2d 105, 114 (Alaska 1992).
0 Instruction 20 read:
The following nine instructions identify for
you the state's specific claims in connection with each transaction. In order
to decide whether or not each of the claimed violations occurred, you must
decide two things. First, you must decide if it is more likely than not that
the facts claimed by the state actually happened. And, second, you must
decide whether the facts you find to have been proved constitute an unfair or
deceptive act under Instruction 11 and the legal concepts explained in
Instructions 12-18. . . .
ANI also claims that Instruction 22b violated due process
because it differs from the State's complaint. This argument has
no merit because Instruction 22b is substantially similar to the
claim alleged in the complaint. ANI's cursory argument waives any
alleged due process violation. Johnson & Higgins of Alaska, Inc.
v. Blomfield, 907 P.2d 1371, 1376 n.4 (Alaska 1995).
AS 45.50.471(c) states:
The unlawful acts and practices listed in (b)
of this section are in addition to and do not limit the types of unlawful acts
and practices actionable at common law or under other state statutes.