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Fyffe v. Wright (06/25/2004) sp-5819
Fyffe v. Wright (06/25/2004) sp-5819
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DIANA L. FYFFE and STEPHEN R. )
PIERCE, )
) Supreme Court No. S-10726
Appellants, )
) Superior Court No.
v. ) 3AN-00-11303 CI
)
PATTIE WRIGHT, KEN GILL, RICK )
FICKEL, and KELLY FICKEL, ) O P I N I O N
)
Appellees. ) [No. 5819 - June 25,
2004]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: Diana L. Fyffe, pro se, and
Stephen R. Pierce, pro se, Anchorage. Wayne
E. Watson, Anchorage, for Appellee Pattie
Wright.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Diana Fyffe sued her former landlord, Pattie Wright,
for multiple violations of Alaskas landlord-tenant laws. Wright
counterclaimed for damage to the rental property and unpaid rent.
The superior court found fault on both sides and awarded damages
to Fyffe, considerably offset by the money it found Fyffe owed
Wright. Fyffe appeals, contending that the superior court should
have awarded her more compensation than it did for her
belongings, for punitive damages, for Wrights alleged intentional
infliction of emotional distress, and for costs and fees. Fyffe
also contends that Wrights violation of Alaska landlord-tenant
law should have precluded offsetting Fyffes award. We affirm the
superior courts decision in all respects.
II. FACTS AND PROCEEDINGS
A. Facts
Patti Wright owned a home in Chugiak. In late 1995
Wright signed a lease agreement to rent the home to Diana Fyffe
and Stephen Pierce (sometimes referred to collectively as Fyffe),
who were married at the time. Fyffe and Pierce moved into the
home with their two teenage children, Samantha and Timothy. The
lease provided that upon termination all rent owed to the
landlord had to be paid before the tenant removed any belongings
from the property. The rent was set at $1,000 per month. There
was a $35 fee for bounced rent checks, and a $100 fee for any
monthly rent not received by the 15th day of the month plus a
$10 charge for every additional day the rent was unpaid. The
house was in disrepair when Fyffe and Pierce moved in, but
because Pierce had prior experience in construction work they
agreed to clean and refurbish it themselves in exchange for a
reduction in rent. Fyffe also asked for and received permission
to keep animals outside the house. Pierce was working in a
different city when his family moved in, and they were assisted
by Rick Fickle, an acquaintance.
Pierce and Fyffe divorced in October 1997, but for a
time maintained good relations, continuing to share the home and
act as a financial unit. However, Pierce spent most of his time
working in Valdez until the spring of 1998, when Fyffe moved to
South Carolina and Pierce returned to the Chugiak home. At about
that time, Pierce notified Wright that the family intended to
vacate the house that spring or summer. Pierce put Wright in
touch with Fickle; Wright and Fickle agreed that Fickle would
rent the property and move into the house after Fyffes family
left.
Pierce and Fickle apparently reached an oral agreement
during the month of August that Pierce would leave some of the
familys personal property in a locked storage shed on the
property. Before moving out of the house in early September
1998, Pierce and his two children boxed up many of the familys
belongings and stored them in the shed, though without making a
list of the items stored. Additionally, the family left an old
car on the property and stored four tires and some of Samanthas
equestrian equipment inside it. Fyffe admitted that by the time
her family vacated the home, they owed five months rent to
Wright.
Wright claimed she never visited the house herself
after Pierce moved out. But Fickle reported that the house was
left with extensive damage, including the remains of dead ferrets
and animal urine and feces; a non-working septic system; and
damage to a door and the backyard done by Fyffes dogs. Wright
agreed to waive Fickles first three months of rent, worth a total
of $3,000, in exchange for his cleaning and repair of the house.
Wright claimed that when the Fyffe/Pierce family moved
out of the Chugiak house, she was desperately trying to contact
Fyffe and Pierce to discuss damages and back rent, but that Fyffe
had not given her the familys new contact information and was
avoiding her. On September 17, 1998 Wright wrote to Pierce. She
mentioned the damages and back rent due, and warned that if
Fyffes personal items left on the property were not removed
within fifteen days Wright would dispose of them. Roughly one
week after her family moved out of the Chugiak residence,
Samantha entered the property without permission from Fickle or
Wright. She retrieved her farrier equipment and winter tires
from the car that her family had left at the house.
Fyffe returned to Alaska in September 1998. On several
occasions after her return, Fyffe requested access to the
property from Fickle or Wright in order to retrieve her personal
items. But Fyffe did not actually make a physical attempt to
retrieve her property until November 20 of that year. Fickle
refused to allow Fyffe onto the property.1 After she was denied
access to the property to retrieve her belongings, Fyffe began to
make lists of the personal property allegedly withheld by Wright
and Fickle. Fyffe constructed the lists based on her own memory
of the possessions, as well as the recollections of Pierce, Tim,
and Samantha, who had boxed the items (since Fyffe was not
present when the belongings were packed and stored).
Fyffe claims that from September 20, 1998 until March
or April of 1999 she and Pierce repeatedly and fruitlessly
attempted to contact Wright and her husband Ken Gill at their
home. Wright and Gill said that until Fyffe paid $10,000 in back
rent, a $10 per day late rent fee, and everything she owed
(apparently for damage to the property) she would not be able to
get back her belongings. Gill indicated that the items were in
storage. Meanwhile, according to Fickle, at some point that
spring, Gill apparently removed the entire shed and its contents
from the property.
Fyffe eventually saw a lawyer and discussed suing
Wright to gain access to the property. Wright apparently told
Fyffe or her lawyer that Wright and Gill had considered the items
remaining on the property to be abandoned, and had taken them to
the Salvation Army. Fyffe unsuccessfully searched the Salvation
Army and the thrift stores in town for the familys property or
any record of anything left by Wright or Gill.
B. Proceedings
Fyffe brought suit against Wright in superior court,2
asserting that the actions taken by Wright violated numerous
Alaska landlord-tenant laws. Fyffe demanded compensation for any
property not returned, the expense of renting equipment in her
thwarted attempts to retrieve the property, non-tangible damages
including . . . time loss in researching this action, malicious
intent, mental distress, and litigation costs and fees.
Fyffe sought to introduce itemized lists that she had
made of the sheds contents, setting out the alleged value of each
item. Fyffe had had no idea of the monetary value of many of the
items when she compiled the lists, so she deduced values by
comparing her list with equivalent items in catalogs or thrift
stores. In light of what it viewed as Fyffes questionable
estimation methods, the superior court decided to admit the lists
primarily to identify the items for which Fyffe sought
compensation, and not as definitive proof of their values.
Wright introduced exhibits evidencing the rent, late fees, and
repair costs that she claimed. The court pointedly asked all
parties if they had any objections to the admission of these
exhibits, and no party objected.
Following a one-day bench trial, the superior court
made preliminary findings of fact. The court asked the parties
to submit additional briefing on the legal issue whether Fyffe
could recover damages for emotional distress stemming from the
loss of personal property. The court later held that Ken Gill
did not own the Chugiak residence, but acted as Wrights agent,
and that Wright was legally accountable for Gills actions in
connection with Fyffes property. The court also held that
Wright, acting through Gill, caused the destruction and
disposition of the plaintiffs personal property without providing
notice to Fyffe, as required by AS 34.03.260. That statute
provides that a landlord who fails to give notice to a tenant of
disposition or sale of the tenants property that the landlord
deems abandoned is liable for actual damages, and penal damages
in an amount not to exceed actual damages.
Fyffe claimed $23,542.80 in total damages. The
superior court awarded Fyffe $9,461.303 in actual damages and
$5,000 in punitive damages.4 However, the superior court also
concluded that Fyffes award should be offset by certain moneys
rightfully claimed by Wright. Specifically, the court concluded
that: (1) Fyffe owed Wright a total of $5,250 in unpaid rent; (2)
Fyffe owed Wright a total of $140 for four bounced rent checks,
each with a $35 penalty; (3) the $100 penalty for rent tendered
later than the 15th of the month was unreasonable and should be
reduced retroactively to $50 which, when multiplied by the
eighteen times Fyffe missed the deadline, amounted to $900;5 and
(4) Fyffe owed Wright $3,000 for damages done to the property.
Additionally, the court found that Fyffe had paid Wright a total
of $814 of the money she owed. Adding the $5,250, $140, $900,
and $3,000, and subtracting the $814, the court found that Fyffe
and Pierce owed Wright a total of $8,476; it reduced the
plaintiffs award accordingly. The court refused to award
anything to Fyffe for her emotional distress claim because it
found that Fyffe had not proven that her distress was
sufficiently severe. The court did not address Fyffes other
claims for relief. Combining the total damages to Fyffe and
Pierce, and subtracting the damages to Wright, the court held
that the plaintiffs were entitled to a total of $5,985.30, and
entered judgment accordingly.6
Following the superior courts decision, Fyffe filed
several post-trial motions: a motion to dismiss the evidence and
testimony of the defendants, a motion for a new hearing of fact,
a motion for alteration and amendment of the superior courts
written decision, and a motion for a new trial. The court denied
all of Fyffes post-trial motions. Fyffe appeals the courts award
of damages and its denial of the post-trial motions.
III. STANDARD OF REVIEW
We review the superior courts application of the law to
undisputed facts under the de novo standard.7 We review the
superior courts findings of fact and its application of the law
to disputed facts under the clearly erroneous standard.8 Under
that standard, we must have a definite and firm conviction that a
mistake was made before rejecting a trial courts factual
findings.9 Additionally, it is the function of the superior
court, not of this court, to judge witness credibility and to
weigh conflicting evidence.10 Thus, if most of the evidence is
oral testimony, or the superior courts factual determinations
depend largely on conflicting testimony, then the superior courts
greater ability to assess witness credibility requires
deferential review by this court.11 We review de novo the law
applied by a trial court in determining damages, but review the
damages actually awarded for abuse of discretion.12
IV. DISCUSSION
A. The Superior Court Did Not Err in Considering Exhibit B.
Fyffe argues that the superior court erred in allowing
an offset against her recovery. The superior court based its
offsetting calculation at least in part on Exhibit B, submitted
by Wright. Exhibit B itemizes the amounts of money Fyffe
allegedly owed to Wright, and is fairly specific as to unpaid
rent, late fees, and bounced checks. However, Exhibit B also
summarizes all alleged damage to the property caused by Fyffe in
one figure: $3,000. Wright explained at trial that this
represents the three months of rent she forgave Fickle in
exchange for his agreement to fix and clean the property.
Fyffes argument on this point contains three main
contentions: (1) although Fyffe did not object to the admission
of Exhibit B at trial, her right to object in subsequent
procedures was preserved; (2) even if Fyffes right to object to
Exhibit B was waived, the superior court should not have admitted
Exhibit B into evidence; and (3) even if Exhibit B was properly
admitted into evidence, the court erred in relying on Exhibit B
to reduce Fyffes damages, because Wright violated AS 34.03.070(b)
and other laws. Fyffe is mistaken as to all three contentions.
1. Fyffe waived her right to object to the admission of Exhibit
B.
Alaska Rule of Evidence 103(a)(1) provides that error
may not be based upon a ruling admitting or excluding evidence
unless a substantial right of a party is affected and a timely
objection or motion to strike appears of record. When a party
fails to object to the admission of evidence, that party waives
the objection.13 By her own admission, Fyffe made no objection to
Exhibit B at trial. Under these circumstances, Fyffe waived her
objection to Exhibit B.
Fyffe also claims that Wright failed to disclose
Exhibit B during discovery and, as a result, Fyffe was not
prepared to litigate the entire rental history or provide an
adequate defense. If Fyffe believed that Wright violated the
rules of discovery by failing to disclose Exhibit B or the
evidence underlying it before trial, it was Fyffes responsibility
to move to compel disclosure under Alaska Rule of Civil Procedure
37(a)(2). Fyffe was represented by counsel before and at trial,
and at no time did Fyffes attorney move to compel disclosure.
Fyffe cannot now object to the admission of Exhibit B.
2. The superior court did not err in admitting
Exhibit B.
Only where the admission of evidence constitutes plain
error, and affects a substantial right is the failure to object
to the evidence excused.14 To establish plain error a litigant
must . . . establish that the application of that rule of law to
the facts of his case was so obvious that it should have been
noticed by the trial court sua sponte.15 The appellant bears the
burden of proving plain error.16 Fyffe has not met her burden of
proving that the evidence in Exhibit B was so manifestly improper
that the superior court should have excluded the exhibit sua
sponte.
3. The superior court did not err in relying on
Exhibit B.
Fyffe also argues that even if Exhibit B was properly
admitted and all objections to it waived, it was legal error to
rely on Exhibit B. If we read Fyffes brief under a generous pro
se standard,17 it appears that Fyffe is arguing that despite her
failure to object at trial, her complaint and trial briefings
discussed numerous provisions of landlord-tenant law that Wright
violated. Fyffe suggests that by violating these statutes,
Wright waived her right to offset the damages she owes Fyffe.
Therefore, Fyffe appears to argue that even if it was properly
admitted, Exhibit B is irrelevant.
Fyffe seems to imply that a civil defendants failure to
comply with the law as it applies to other aspects of a dispute
between the parties bars that defendant from introducing evidence
in her favor or from seeking to reduce the amount of damages for
which she will be held liable. To the extent that this is in
fact what Fyffe argues, such a contention contradicts the most
basic notions of fairness and due process. Wrights alleged
violation of one statute does not preclude her from introducing
evidence concerning damages or raising a counterclaim.
Fyffe makes the related argument that Exhibit B was
inadmissible because it does not conform to requirements of AS
34.03.070(b).18 The crux of Fyffes argument is that AS 34.03.070
completely controls the procedure a landlord must follow to
recover damages caused by a tenant. Fyffe argues that
any possible recovery by a landlord for damages to property, even
in the form of offsetting damages that a landlord must pay to a
former tenant, must be itemized and sent to the tenant within the
statutory period. According to Fyffe, [t]here was no itemized
list of charges properly served to the Appellants within the 30
days [prescribed] by law; therefore Wright is not entitled to
recover any damages under AS 34.03.070(b).
Fyffe reads the statute far too broadly. It regulates
only a landlords ability to deduct damages and unpaid rent from a
tenants security deposit. It is not an instruction to a
reviewing court as to how to measure the damages the landlord and
tenant owe each other. The superior court was under no
obligation to demand from Wright an itemized list of the specific
physical harms to her property that Fyffe allegedly caused, nor
was it barred from reducing Fyffes damage award by inadequacies
in Wrights notice or itemization of damages. The court did not
err in relying on Exhibit B.
B. The Superior Courts Property Evaluations Were Not Clearly
Erroneous.
Fyffe argues on appeal that [t]he Superior Court was
clearly erroneous, and committed a serious miscarriage of justice
when it evaluated the Appellants chattels. Fyffe lists numerous
points of error by the superior court, generally asserting that
the superior court: (1) based its decision on faulty fact-
finding, credibility determinations, and evaluations of evidence;
(2) made unfair or incorrect decisions to admit or bar evidence;
(3) issued a written decision contrary to the summary of its
decision at trial; and (4) grossly misinterpret[ed] the request
for relief in the original complaint. Most of these claims
consist of assertions that the superior court misevaluated
evidence, witness credibility, and facts. As noted above, we
review a superior courts findings regarding property evaluation
and disposition under the clearly erroneous standard.
1. Exhibit 1
Fyffe argues that the superior court erred in its award
of damages for items she listed in Exhibit 1. Exhibit 1
consisted of personal belongings of Samantha Fyffe-Schmidt19 and
Timothy Fyffe.20 The superior court found that Fyffe failed to
prove by a preponderance of the evidence that Samanthas items
left in the car (farrier equipment and winter tires) were
destroyed or removed by Wright, because of Fickles testimony that
Samantha had retrieved personal items from the car. And the
court relied on Pierces testimony that he had taken Tims
belongings to Anchorage in rejecting Fyffes claim for
reimbursement on those items. The court therefore awarded Fyffe
nothing for the items in Exhibit 1. Finding no clear error, we
affirm both findings.21
2. Exhibit 2
Exhibit 2 consisted of an extensive list of
furnishings, appliances, and assorted miscellaneous items stored
in the shed,22 the total value of which Fyffe estimated to be
almost $5,400. The superior court found that Fyffe and Pierce
failed to prove that the listed furnishings had been removed by
Gill, or that the items had actually been left in the shed at
all. The court based this decision on (1) Fickles testimony that
the contents of the shed consisted principally of cardboard
boxes; (2) testimony that the shed was too small to have
contained all of the furnishings and property allegedly stored in
it; (3) testimony by Pierce that only Fyffes personal items (and
not furnishings) had been left in the shed; and (4) the fact that
Fyffes complaint had identified the collectibles, and not any
furnishings, as the primary items of loss. Thus, the court
awarded nothing to Fyffe and Pierce for the items listed in
Exhibit 2.
Fyffe takes issue with the superior courts evaluation
of the conflicting testimony at trial. We reject her arguments;
determining witness credibility is the trial courts
responsibility in a bench trial23 and we cannot say that the
courts findings are clearly erroneous. Fyffe also disagrees with
the courts finding that it is highly improbable that all of the
furnishings identified on Exhibit 2 could have fit in the shed.
Fyffe states that [t]he Courts decision is based on its own
theory of proportion. She asserts that the size of the shed gave
ample room to store all of the chattels described in [E]xhibits 1-
6. Determining the capacity of the shed and the volume of Fyffes
personal property is a fact-intensive issue for which the
superior court is better-equipped than this court. The superior
courts determination was well within its discretion in light of
the weight of the other evidence presented, and its skepticism as
to the sheds ability to contain all of the items that Fyffe
claimed is not clearly misplaced. The lists of the items in the
shed were not compiled until at least several months after the
shed was packed, and they were compiled by Fyffe, who had not
even been present. In fact, even Fyffe expressed some doubts as
to whether Pierce stored all of the items listed in Exhibit 2 in
the shed or took them to his new home.
Fyffe asserts that the superior court did not award her
for the loss of certain chattels because she identified
collectibles, and not furnishings, as the primary items of loss
in the complaint.24 But the court did not refuse to compensate
Fyffe for her furnishings because of the wording of her
complaint. Rather, the court balanced the complaints wording
against the evidence and the courts view of the parties
credibility. The superior court was entitled to weigh the
credibility of the parties testimony against what it viewed as
the complaints paucity of attention to the furnishings.
3. Exhibit 3
Exhibit 3 listed ten boxes of Fyffes clothing, three
boxes of home schooling materials for her children, assorted
sentimental items, various collectible items and ornaments, a box
of tax and financial records, and materials left over from a
failed crafts business Fyffe had started; Fyffe estimated the
total worth of these items to be $6,800. The superior court
found that the items listed had been converted or disposed of by
Wright and Gill. The court rejected Fyffes assertion that her
tax records were worth $600; it awarded her nothing for them.
The court held that, although the value of the remaining items in
the exhibit may be substantially overstated, such values were the
best evidence presented, and it awarded Fyffe their claimed
value, or $6,200. The superior courts deduction of $600 for the
tax records was not clearly erroneous: The value of Fyffes tax
records is entirely speculative.
4. Exhibit 525
1. Exhibit 5 listed Fyffes entire doll collection (numbering
approximately thirty-five dolls) with a claimed value totaling
$5,325. For several dolls, Fyffe provided estimated ranges of
values that she had derived from a variety of sources (for
example, she mused that her grandmothers Kewpie doll could be
worth anywhere from $300 to $1,850, but estimated it at $900 in
reaching her total for the list). Where a range of values were
provided, the superior court adopted the lowest value. For all
other dolls in the list, the court accepted Fyffes valuations.
The superior court agreed that Gill and Wright were
responsible for the loss or destruction of Fyffes doll
collection. However, the court found that Fyffe had
unnecessarily delayed her attempts to retrieve the dolls until
November 1998, and that this delay had caused the dolls to
suffer some damage from exposure to the conditions in the shed.
The court therefore halved the total value of the dolls and
awarded Fyffe $1,987.50 for the collection. The evidence shows
that Samantha Fyffe had entered the property and retrieved some
of her belongings roughly a week after the family vacated.
Additionally, Fyffe returned to Alaska in September, yet she did
not actually attempt to retrieve her property until November.
The courts ruling was not clearly erroneous.
5. Exhibit 6
1. Exhibit 6 listed a book and encyclopedia collection
(estimated by Fyffe to be worth $2,550) and a Bradford Exchange
plate collection (estimated by Fyffe to be worth $544.80). The
superior court held that Fyffe did not prove by a preponderance
of the evidence that her book collection had been in the shed and
disposed of by Wright or Gill. But the court did find that the
collection of Bradford Exchange plates had been packed in the
shed and disposed of by Wright or Gill. The court therefore
awarded Fyffe only the value of the plates, $544.80. Fyffe
asserts on appeal that [t]he Courts written decision is contrary
to the summary of its decision at trial concerning Exhibit 6,
because the superior court had acknowledged the existence of the
books listed in Exhibit 6 at the conclusion of the trial, but
then stated the plaintiffs did not establish the books were in
the shed in its written decision. Fyffe asserts that this
indicates the courts bias against her. Fyffe is wrong.
First, the courts oral summary at trial was, as the
court explicitly stated at the time, its tentative thoughts, not
a complete decision. The court specifically stated that it would
review its conclusions more carefully before issuing a written
decision. Second, the court did not rule from the bench that
Fyffe had proven that her books were in the shed; rather, it
indicated that, even assuming the books had been in the shed,
Fyffe had overvalued them. Finally, we have held that, as a
general rule, where inconsistencies exist between a courts
written findings and its oral statements, the written findings
control,26 unless the written order is so contradictory to the
oral decision that its usefulness is impaired. 27 There is no
necessary contradiction between the oral and written decisions of
the superior court on this issue. We uphold the courts written
decision.
C. The Superior Court Did Not Err in Denying Fyffes Claim for
Intentional Infliction of Emotional Distress.
Fyffe asserts that the superior court erroneously
denied her intentional infliction of emotional distress (IIED)
claim. In order to recover for IIED a party must show: (1)
extreme and outrageous conduct, (2) that is intentional or
reckless, (3) and causes emotional distress (4) that is severe.28
Fyffe discusses at length the extreme and outrageous
conduct required under Alaskan law for an award of IIED. She
notes correctly that we have held that such conduct is similar to
that required for an award of punitive damages.29 She seems to
suggest that because the superior court awarded her penal damages
under AS 34.03.260, it should award damages for IIED as well.
But Wright does not contest the outrageousness of her own
conduct, and Wrights behavior was not an issue in the superior
courts ruling. Rather, the court denied Fyffes claim because she
failed to prove the requisite severity of her own emotional
distress. To the extent that Fyffe is asserting that any
defendant found liable for penal damages must automatically be
liable for IIED, she is incorrect. Penal damages under AS
34.03.260 are determined by the behavior of the defendant only.30
A successful claim of IIED, on the other hand, also depends on
the effects of a defendants behavior upon the plaintiff.
Furthermore, AS 34.03.260(d) allows an award of penal damages
even against a landlord who violates the statute negligently.
But to prevail on a claim for IIED, the plaintiff must prove at
least recklessness on the defendants part.31 In short, the
superior court was not required to decide in Fyffes favor on her
IIED claim merely because it had awarded her penal damages under
AS 34.03.260(d).
The superior court denied Fyffes IIED claim because she
failed to prove that her emotional distress was sufficiently
severe.32 We have upheld a definition of severe emotional
distress as distress of such substantial quality or enduring
quantity that no reasonable person in a civilized society should
be expected to endure it.33 Examples of serious emotional
distress may include neuroses, psychoses, chronic depression,
phobia, and shock. However, temporary fright, disappointment or
regret does not suffice under this standard.34 Fyffe asserts that
she was extremely distraught over the theft of her chattels, and
that the severity of her emotional distress was the one fact both
parties agreed on. But there was no such agreement.35 And such
claims tend to arise from much more egregiously reprehensible
behavior by defendants than those exhibited by Wright in the
present case. Finally, a determination of the severity of a
plaintiffs emotional distress is left to the fact-finder.36
When a plaintiffs only evidence of the severity of her
emotional distress is the testimony of sympathetic witnesses, the
decision to award nothing for her IIED claim is clearly within
the fact-finders discretion.37 Fyffe has presented no evidence of
severe emotional distress beyond her testimony and that of her
immediate family members presumably sympathetic witnesses. The
superior court did not abuse its discretion by concluding that
Fyffes evidence was insufficient to support her claim for IIED.38
D. The Superior Courts Penal Damages Award Did Not
Constitute an Abuse of Discretion.
Fyffe claims that the superior court erred in its
determination of penal damages. Fyffes argument on this point
consists of two assertions: the penal damages in this case must
equal the actual damages, and the superior court awarded Fyffe
far too little in actual damages. Fyffe is wrong on both counts.
Alaska Statute 34.03.260(d) provides that a landlord
found in violation of its other provisions (as Wright was) is
liable for actual damages and penal damages . . . not to exceed
actual damages. Fyffe reads this language to mean that, under AS
34.03.260(d), penal damages are determined from the amount of
actual damage. Therefore, Fyffe claims that by awarding her only
$5,000 in penal damages an amount less than her actual damages
award the superior court erred in its interpretation of AS
34.03.260(d). Fyffes argument is basically that the words not to
exceed should be read instead as equaling. Fyffe cites no
authority or legislative history to support this interpretation.39
This reading of the statute is at odds with both the plain
meaning of the text and common sense. Under AS 34.03.260(d)
punitive damages are limited by actual damages, not calculated
according to them. In short, this argument has no merit.
Fyffe also asserts that the superior court randomly
awarded her $5,000 in punitive damages. We have held that
punitive damages awards should not be arbitrary,40 and that they
should bear some reasonable relationship to compensatory damages
awards.41 But there is no prescribed ratio between compensatory
and punitive damages.42 We cannot say that the superior courts
decision to award Fyffe $5,000 represents a clear error, abuse of
discretion, or miscarriage of justice.
F. The Superior Court Did Not Commit Reversible Error by
Refusing To Award Attorneys Fees and Costs.
Fyffe appeals the superior courts denial of her request
for fees and costs. Fyffes complaint included a general request
for fees and a request for damages for time loss in researching
this action. The superior court denied Fyffes motion for fees.43
Fyffe had an attorney at trial, but she was
unrepresented during at least part of the pre-trial period.
Fyffe has not had counsel on this appeal. Fyffe did not claim
attorneys fees for any of the hours billed by her trial attorney
in her Motion to Reconsider, and she does not do so on appeal.
Even a pro se litigant waives a claim where she does not raise it
in superior court or on appeal.44 Accordingly, the issue on
appeal is whether Fyffe can recover the fees she claims for her
own legal work. Prevailing pro se litigants who are not
attorneys may not recover legal fees in Alaska.45 Since Fyffe is
not an attorney, she cannot recover anything for her own time and
effort spent litigating this case.
Fyffe also moved for reimbursement for costs and
expenses. Citing Alaska Rule of Civil Procedure 79(b), the court
denied the motion on the ground that the motion was untimely. As
a general rule, Civil Rule 79(a) allows a prevailing party to
recover litigation costs. But it is limited by Rule 79(b), which
provides: To recover costs, the prevailing party must file and
serve an itemized and verified cost bill, showing the date costs
were incurred, within 10 days after the date [of final judgment].
The superior courts Memorandum Decision was dated April 22, 2002.
Fyffe did not file a cost bill as required by Civil Rule 79(b).
The superior court was therefore correct in its denial of Fyffes
request for costs.
Fyffe argues that the superior courts decision was
insufficiently clear and explicit to meet the standards of Alaska
Civil Rule 52(a), which requires the trial court to make findings
of fact and state conclusions of law in cases tried without a
jury. But Rule 52(a) makes clear that findings of fact and
conclusions of law are unnecessary on decisions of motions under
Rules 12 or 56 or any other motion except as provided in Rule
41(b) [dealing with dismissal of causes of action]. (Emphasis
added.) Since a prevailing party can recover costs only after
trial, the superior court was not required to address the request
for costs in Fyffes complaint. Fyffe failed to file the required
cost bill. Therefore, the superior court was not required to
issue findings of fact or conclusions of law when it denied
Fyffes request for costs.
In sum, the superior court did not err in denying both
attorneys fees and costs to Fyffe.
V. CONCLUSION
For the reasons above, we AFFIRM the superior courts
decision in all respects.
_______________________________
1 The parties argued strenuously about whether Fickle was
acting at the behest of Wright or was motivated by his own
disdain for Fyffe. Because the dispute is irrelevant to the
outcome of the case, we do not attempt to resolve it.
2 Fyffe also sued Fickle in small claims court over
related property claims. The cases were consolidated in superior
court. Upon making preliminary findings of fact at the
conclusion of the trial, the court found that the only property
Fickle owed to Fyffe was a large world globe and its stand.
Fickle agreed to return this item, and proclaimed that he only
wanted the other parties in the case to leave him alone in the
future. There is no indication that Fickle played any further
role in this case.
3 The court apparently made an insignificant mathematical
error; the sum of Fyffes actual damages should have been
$9,451.30, based on the valuation of each specific item of Fyffes
property.
4 The court stated that it based this award on AS
34.03.270. This was a typographical or scriveners error. That
statute deals with awards to landlords for past rent due and
damages. The court apparently meant to cite (as it did earlier
in its decision) AS 34.03.260, which allows a court to award
penal damages to a tenant not in excess of actual damages.
5 The court also found that the $10-per-day fee for each
additional day rent was tendered beyond the 15th of the month was
unreasonable and should be ignored.
6 The ten dollar error in the courts calculation of
Fyffes actual damages was carried over to the final judgment; in
fact, Fyffe and Pierce should only have been awarded $5,975.30.
7 Luedtke v. Nabors Alaska Drilling, Inc., 834 P.2d 1220,
1223 (Alaska 1992).
8 Id.
9 Vezey v. Green, 35 P.3d 14, 19-20 (Alaska 2001).
10 In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska
2001).
11 Vezey, 35 P.3d at 19-20.
12 Breck v. Moore, 910 P.2d 599, 606 (Alaska 1996).
13 Sherbahn v. Kerkove, 987 P.2d 195, 199 (Alaska 1999).
14 Alaska R. of Evid. 103(d).
15 Carman v. State, 658 P.2d 131, 137 (Alaska App. 1983).
16 Adams v. State, 718 P.2d 164, 166 (Alaska App. 1986).
17 We hold the pleadings of pro se litigants to a less
stringent standard than those of lawyers. Pieper v. Musarra, 956
P.2d 444, 446 (Alaska 1998).
18 AS 34.03.070(b) states in relevant part:
Upon termination of the tenancy,
property or money held by the landlord as
prepaid rent or as a security deposit may be
applied to the payment of accrued rent and
the amount of damages that the landlord has
suffered by reason of the tenants
noncompliance with AS 34.03.120. The accrued
rent and damages must be itemized by the
landlord in a written notice mailed to the
tenants last known address within the time
limit prescribed by (g) of this section,
together with the amount due the tenant.
19 These consisted of Barbie dolls and accessories, a set
of horse farrier tools, and a set of winter tires; Fyffe
estimated these items were worth $750.
20 These consisted of Lego sets, baseball and other sports
card collections, and two sports memorabilia pictures; Fyffe
estimated these items were worth at least $1,500.
21 While Pierce testified that he left some of Tims
belongings in the shed, he also stated that he brought as much
of the childrens personal property as possible to Anchorage.
Pierce also admitted that he did not personally see every item
that was left in the shed, and made no list of the sheds
contents.
22 The furnishings and appliances allegedly stored in the
shed included a washing machine and dryer, a space heater, a love
seat, a curio cabinet, a sewing machine and sewing table, two
medium size metal desks, several lamps, a glass top display
table, three portable tables, a tent, a microwave oven and
microwave cart, two typewriters, four captains chairs, an octagon
end table, a 24" x 48" kitchen hutch, a wooden coffee table, a
computer, a large wood cutting block, dishes, glasses,
Tupperware, pots and pans, [and] other kitchen supplies, and
framed and unframed pictures.
23 Wasserman v. Bartholomew, 38 P.3d 1162, 1166-67 (Alaska
2002).
24 Fyffe also complains that the Court did not apply the
same standard when it awarded damages to Wright, who failed to
state a claim for relief in her Answer. Fyffe misreads the basis
of the superior courts decision. The court based its judgment on
the credibility of the evidence presented at trial and not on
the virtues of the parties pleadings. To the extent Fyffe is
raising the issue of Wrights inadequate pleadings, she is too
late. There is no indication in the case files that Wright
actually filed a counterclaim for the relief she was awarded by
the superior court. But the court heard Wrights claims for back
rent and damages without objection from Fyffe or her attorney.
Alaska Rule of Civil Procedure 15(b) provides in part that [w]hen
issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings.
Accordingly, Fyffe has waived any right to appeal Wrights failure
to file a formal counterclaim.
25 Because the superior court awarded Fyffe the total
amount claimed in Exhibit 4, she does not appeal this portion of
the courts decision.
26 K.T.E. v. State, 689 P.2d 472, 477 (Alaska 1984).
27 Id. at 477 n.8 (quoting City of Anchorage v. Steward,
374 P.2d 737, 739 (Alaska 1962)).
28 Teamsters Local 959 v. Wells, 749 P.2d 349, 357 (Alaska
1988).
29 Richardson v. Fairbanks N. Star Borough, 705 P.2d 454,
456 (Alaska 1985).
30 AS 34.03.260(d).
31 Lybrand v. Trask, 31 P.3d 801, 803 (Alaska 2001).
32 Fyffe suggests that the superior courts decision is
contrary to this courts decisions in Landers, Richardson, and
Murray, which allowed plaintiffs alleging only personal property
loss to recover for IIED. Fyffe misunderstands the meaning of
these cases and the superior courts legal reasoning. All three
cases did allow IIED based on the loss of personal property. But
all three cases also demanded that the claimant prove each
required element of IIED. See Landers v. Municipality of
Anchorage, 915 P.2d 614, 619, n.15 (Alaska 1996) (plaintiff did
not claim IIED, lacking proof of defendants intent); Murray v.
Feight, 741 P.2d 1148, 1158 (Alaska 1987) (plaintiff showed
severe emotional distress resulted from defendants forcible entry
onto and confiscation of plaintiffs property following recent
sudden death of plaintiffs daughter); and Richardson v. Fairbanks
N. Star Borough, 705 P.2d at 456-57 (plaintiffs failed to prove
severity of emotional distress). Here, the superior court did
not deny Fyffes claim because it was based on the loss of
personal property. It denied the claim because Fyffe failed to
prove the severity of her emotional distress.
33 Teamsters Local 959, 749 P.2d at 359 n.14.
34 Chizmar v. Mackie, 896 P.2d 196, 204-05 (Alaska 1995)
(quoting Lejeune v. Rayne Branch Hosp., 556 So. 2d 559, 570 (La.
1990)). Serious emotional distress and severe emotional distress
have been used interchangeably by this court. See Cameron v.
Beard, 864 P.2d 538, 549 (Alaska 1994).
35 Fyffe apparently mistakes allegations by Wright and
others that Fyffe was explosive and agitated on certain occasions
for a concession that she suffered from severe emotional
distress. We have refused to find the requisite severity of
emotional distress where a plaintiff asserted that the defendants
actions had made him aggravated, angry, upset, red in the face,
or bothered, and caused him emotional distress and mental
anguish. Nelson v. Progressive Corp., 976 P.2d 859, 868 (Alaska
1999).
36 Chizmar v. Mackie, 896 P.2d at 205.
37 See Nelson v. Progressive Corp., 976 P.2d at 868
(plaintiffs evidence of emotional distress consisted only of
testimony by plaintiff and his father). We note that in cases
tried before a jury, as a threshold matter, the court must
determine whether the severity of the emotional distress and the
conduct of the offending party warrant an instruction on
intentional infliction of emotional distress. Chizmar, 896 P.2d
at 208 (citations omitted).
38 Fyffe also claims that the superior court violated
Alaska Rule of Civil Procedure 52(a), by failing to clearly and
explicitly explain the findings of fact and conclusions of law
underlying its refusal to award IIED. This court has held that a
superior courts findings are sufficiently clear and explicit to
satisfy Rule 52(a) if they resolve all critical areas of dispute
in the case, and are sufficiently detailed to allow for
meaningful appellate review. Mapco Express, Inc. v. Faulk, 24
P.3d 531, 537 (Alaska 2001). In this case the superior courts
discussion of Landers v. Municipality of Anchorage, 915 P.2d 614,
619 (Alaska 1996) (party claiming IIED must demonstrate both
severity of emotional distress and bad conduct of offending
party), while brief, suffices to explain its relevant conclusion
of law and finding of fact.
39 We interpret Alaskas statutes according to reason,
practicality, and common sense, Native Vill. of Elim v. State,
990 P.2d 1, 5 (Alaska 1999), and we normally give unambiguous
language its plain meaning. We may also rely on legislative
history as a guide to interpretation, but the plainer the
language of a statute, the more convincing legislative history
must be to interpret the statute in a manner contrary to its
plain language. Evans ex rel. Kutch v. State, 56 P.3d 1046, 1065
(Alaska 2002).
40 Dena Nena Henash v. Ipalook, 985 P.2d 442, 448 (Alaska
1999).
41 Clary Ins. Agency v. Doyle, 620 P.2d 194, 204 (Alaska
1980).
42 Norcon, Inc. v. Kotowski, 971 P.2d 158, 175-77 (Alaska
1999).
43 The superior court denied fees based on its reading of
Alaska Rule of Civil Procedure 82. Civil Rule 82(c) states that
[a] motion [for attorneys fees] is required for an award of
attorneys fees under this rule . . . [which] must be filed within
10 days after the date shown in the clerks certificate of
distribution on the judgment. The court held that Fyffe failed
to meet the ten-day deadline. However, Alaskas Uniform
Residential Landlord and Tenant Act forms the basis for Fyffes
suit, and for the courts decision to award her actual and
punitive damages. Fyffe notes correctly that attorneys fees for
claims arising out of Alaskas URLTA should be governed by AS
34.03.350, not Civil Rule 82. Alaska Statute 34.03.350 provides
that [a]ttorney fees shall be allowed to the prevailing party in
any proceeding arising out of this chapter, or a rental
agreement. It has no time limit. Because a pro se litigant is
not entitled to attorneys fees for her own legal work (as
discussed infra), the superior courts error in relying on Rule
82(c) to reject Fyffes request for fees was harmless.
44 Pieper v. Musarra, 956 P.2d 444, 446 (Alaska 1998);
A.H. v. W.P., 896 P.2d 240, 243-44 (Alaska 1995).
45 Shearer v. Mundt, 36 P.3d 1196, 1198 (Alaska 2001).
