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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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,


PIERCE,                                           )
                              )    Supreme Court No. S-10726
             Appellants,           )
                              )    Superior Court No.
     v.                       )    3AN-00-11303 CI
FICKEL, and KELLY FICKEL,          )    O P I N I O N
             Appellees.                 )    [No. 5819 - June 25,

          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

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.


          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.


     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


          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  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.


          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


     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


          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


          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
          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


     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.


          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

     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

     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

     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

     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

     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

     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

     41     Clary Ins. Agency v. Doyle, 620 P.2d 194, 204 (Alaska

     42    Norcon, Inc. v. Kotowski, 971 P.2d 158, 175-77 (Alaska

     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).