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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kay v. Danbar, Inc. (03/31/2006) sp-5999

Kay v. Danbar, Inc. (03/31/2006) sp-5999, 132 P3d 262

     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

STEVEN D. KAY, )
) Supreme Court Nos. S- 11008/11017
Appellant/Cross-Appellee, )
) Superior Court No. 3PA-01-0159 CI
v. )
) O P I N I O N
DANBAR, INC., an Alaska )
corporation, d/b/a RE/MAX of ) No. 5999 - March 31, 2006
Wasilla, )
)
Appellee/Cross-Appellant. )
)
          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Beverly W. Cutler, Judge.

          Appearances: Benjamin I. Whipple, Palmer, for
          Appellant/Cross-Appellee.  Rod R. Sisson  and
          Craig  Wm.  Black,  Sisson &  Knutson,  P.C.,
          Anchorage, for Appellee/Cross-Appellant.

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

          BRYNER, Chief Justice.
          EASTAUGH, Justice, dissenting.

I.   INTRODUCTION
          Steven Kay sued RE/MAX of Wasilla for personal injuries
suffered  from a fall in a duplex that he rented through  RE/MAX.
Kay initially limited his claim to damages of less than $100,000,
thereby  securing the advantage of limited discovery under  Civil
Rule  26(g).  But he later attempted to claim additional  damages
and  unsuccessfully  moved to withdraw his  election  to  proceed
under  Rule 26(g).  The jury returned a verdict for Kay exceeding
$400,000, but the court reduced the judgment to conform  to  Rule
26(g)s $100,000 damages cap.  Kay appeals, challenging the courts
refusal to lift the damages cap.  RE/MAX cross-appeals, asserting
that  the case should have been dismissed on summary judgment  or
by  directed verdict because it owed no duty to protect Kay  from
physical  injury.  We reverse the superior courts order declining
to  lift the damages cap, finding no just reason to preclude  Kay
from  increasing his claim to include new damages.  But we affirm
its  orders  denying  RE/MAXs motions for  summary  judgment  and
directed  verdict.  We thus remand for a new trial on  Kays  full
damages claim.
II.  FACTS
          In  1999,  when  Steven Kay first began looking  for  a
place  to rent, he contacted his mother, Jean Kay, a real  estate
agent  at RE/MAX of Wasilla (RE/MAX). She was involved in  sales,
not  rentals,  so  she  referred her son to Kristan  Cole  (f/k/a
Tanner),  an  agent  in  RE/MAXs  property  management  division.
Kristan  Coles  stepsons,  Aaron and  Jesse  Tanner  (the  Tanner
brothers),  owned  a Wasilla duplex, which Kristan  Cole,  for  a
time, may have helped manage.  Kays mother showed Kay the duplex,
which  he  agreed to lease from the Tanner brothers.   The  lease
agreement designated RE/MAX as the agent for the Tanner Brothers.
It  instructed tenants, in the event of emergency, to immediately
notify  management; it also listed Kristan Tanner  at  RE/MAX  of
Wasilla as the only emergency contact.
          Within  a  month  after  moving into  the  duplex,  Kay
slipped and fell on a loose carpet remnant on the landing of  the
stairs  leading to the garage, badly fracturing  his  ankle.   He
sued  the Tanner brothers and RE/MAX in February 2001, twenty-two
months  after  he was injured.  Kays complaint alleged  that  the
defendants  were negligent for failing to fasten  or  remove  the
carpet  remnant and that the height of the stairs, the threshold,
and  the  swing  of the door to the garage did not  satisfy  code
requirements.   The defendants answered through their  attorneys.
In  May  2001 the superior court set the trial to begin on  April
29,  2002, and ordered discovery to close forty-five days  before
trial, March 15, 2002.
          About one week after the superior court calendared  the
trial, Kay responded to multiple interrogatories and requests for
production from RE/MAX and the Tanner brothers.  Kay objected  to
these requests on the ground that discovery should be limited  as
specified under Alaska Civil Rule 26(g) because the case involved
less than $100,000 in damages.
          The parties cross-moved for summary judgment in January
2002.  RE/MAXs motion asserted that the rental agreement did  not
give  rise  to  a  duty  by RE/MAX to ensure  the  premises  safe
condition.   Kay  sought  partial summary judgment  against  both
defendants on all issues except the nature and extent of damages.
The  superior  court denied these motions, finding  that  genuine
issues of material fact remained.
          On  March  5,  2002, fifty-five days before  trial  was
scheduled  to begin, Kay returned to his treating physician,  Dr.
Bret   Mason.   Later  that  same  day,  Kay  filed  a   pleading
withdrawing his opposition to the Tanner brothers pending  motion
to  compel  discovery,  and stated that  he  also  withdraws  his
election   to  invoke  the  $100,000  Rule  26(g)  damages   cap.
According to Kay, he took these steps because  Dr. Mason had told
him  that  he  needed  further medical care,  including  possible
surgery,  for his ankle to heal properly.  Kay asserted  that  he
hoped  to  know  by  the end of March whether  surgery  would  be
necessary.   He  also  stated  that  he  was  not  opposed  to  a
continuance   and  that  he  would  respond  to  the  outstanding
interrogatories  and production requests on or before  March  22,
seven days after discovery was to close.
          Although Kays Rule 26(g) withdrawal was not phrased  as
a  motion  and  did  not  seek any expedited  consideration,  the
defendants treated it as a motion and promptly opposed  it.   Kay
then filed a reply, indicating that he had produced the discovery
information previously requested by the defendants and was in the
process of responding to their interrogatories, but that he would
nonetheless  be willing[] to postpone trial if necessary  so  the
parties  could obtain the relevant discovery desired and  not  be
disadvantaged.
          On  April 22, seven days before the day set for  trial,
the  superior court issued an order denying Kays request to  drop
the Rule 26(g) cap.  The order noted the tardiness of Kays motion
in light of other dates set by the pretrial order.  The following
day, Kay filed expedited motions asking the court to continue the
trial  and  reconsider its order denying his attempt to  withdraw
the damages cap.  The superior court denied both motions, and the
case proceeded to trial.
          Before  submitting the case to the jury,  the  superior
court  denied RE/MAXs  motions for a directed verdict.  The  jury
found  $425,000  in total damages; determined  that  RE/MAX,  the
Tanner  brothers, and Kay had all acted negligently; and assigned
seventy-five percent of the fault to RE/MAX, fifteen  percent  to
Kay,  and  five percent to each of the Tanner brothers   who  had
settled with Kay on the eve of trial.
          Kay  then renewed his motion for reconsideration of the
courts  refusal  to allow him to drop the Rule  26(g)  cap.   The
superior  court  denied  this motion  and  ultimately  entered  a
judgment  limiting Kays award to $75,000, exclusive of  attorneys
fees,  costs,  and  interest.   Kay  later  moved  to  amend  the
judgment under Rule 60(b)(1) and (6), again arguing that the Rule
26(g) cap should not have applied.  The court issued a notice  of
intent  to deny Kays motion.  While the court later did enter  an
amended   judgment,  the  only  changes  consisted  of   awarding
attorneys  fees and costs and altering the amount of  prejudgment
interest; the $75,000 principal did not change.
          Kay  appeals, challenging the trial courts  rulings  on
the  Rule  26(g)  cap  and  its  denial  of  his  motion  for   a
continuance.1   RE/MAX  cross-appeals, challenging  the  superior
courts  denial of its motions for summary judgment and a directed
verdict.
III. DISCUSSION
     A.   Kays Motion To Withdraw the Rule 26(g) Cap on Damages
          Alaska  Civil Rule 26(g) provides for limited discovery
and  expedited calendaring in cases advancing claims for  damages
totaling less than $100,000:
          In  a  civil  action for personal  injury  or
          property  damage involving less than $100,000
          in  claims, the parties shall limit discovery
          to  that  allowed under District Court  Civil
          Rule  1(a)(1)  and shall avail themselves  of
          the  expedited calendaring procedures allowed
          under District Court Civil Rule 4.[2]
          
          Kay  first  invoked Rule 26(g) in May  2001,  one  week
after  the  superior court set his trial date, when his  attorney
objected  to  the  Tanner  brothers extensive  initial  discovery
requests; Kays attorney asserted that discovery should be limited
because  the  damages Kay claimed were less  than  $100,000.   In
response, the Tanner brothers and RE/MAX demanded that Kay either
sign  a  stipulation regarding the $100,000 cap  or  provide  the
requested  discovery  within ten days.   Kay  did  not  sign  the
proposed  stipulation, but served initial disclosures  suggesting
that his damages totaled less than $100,000.
          Six  months  later, at Kays November  2001  deposition,
Kays counsel confirmed that Kay had elected to invoke Rule 26(g).
He  confirmed this election twice more: in a November 2001 letter
to  the  Tanner  brothers counsel that explained  Kays  continued
refusal  to provide requested discovery and in his December  2001
opposition to the defendants motion to compel discovery.
          Kay  acknowledges on appeal that it was probably unwise
to invoke Rule 26(g), since his case was not set for an expedited
trial  and  did not fit the rule procedurally.  He also  concedes
that  he  was slow to recognize [that] the rule did not  fit  the
case factually; because his expected damages crowded so close  to
the  $100,000  cap, he should have realized that he was  cramming
the case to fit the rule.3
          RE/MAX  characterizes Kays invocation of Rule 26(g)  as
more  deliberate. It argues that Kay was attempting to manipulate
the  civil rules in an effort to delay and/or avoid discovery   a
kind  of  procedural  gamesmanship.  Yet, Kay nonetheless  argues
that the superior court erred in denying his request to drop  the
Rule 26(g) cap; he points out that he informed the court that his
expected  damages would exceed the cap immediately upon  learning
that  his ankle would require additional care, and that he agreed
to take all steps necessary to avoid prejudice to the defendants.
          We  find Kays arguments to be more persuasive.   It  is
undisputed  that Kay filed notice of his intent to  withdraw  his
election  to rely on the cap on the same day his doctor  informed
him that his ankle required further care.  At the time almost two
months remained before trial.  Rule 26(g) does not establish  any
procedure for withdrawing a Rule 26(g) election, and there is  no
prior Alaska case law addressing the issue.
          As  a  practical matter, Kays attempt to  withdraw  his
election  cap seems analogous to a claimants motion for leave  to
amend  a complaint under Alaska Civil Rule 15.  Civil Rule  15(a)
provides in part that leave shall be freely given when justice so
requires.   We have construed that provision to favor  amendments
absent  a  showing  that  the amendment would  have  resulted  in
injustice.4  In so doing, we have endorsed rulings of the  United
States Supreme Court emphasizing that, under the parallel Federal
          Rule, amendments should freely be granted
          [i]n  the absence of any apparent or declared
          reason   such  as undue delay, bad  faith  or
          dilatory  motive on the part of  the  movant,
          repeated  failure  to  cure  deficiencies  by
          amendments    previously    allowed,    undue
          prejudice to the opposing party by virtue  of
          allowance  of  the  amendment,  futility   of
          amendment, etc.[5]
          
          In our judgment, the same basic principles should apply
when  a  party moves to withdraw a prior election to rely on  the
damages  cap specified in Rule 26(g).  Although Rule  26(g)  does
not  incorporate  language expressly requiring amendments  to  be
freely  given, the policies underlying Rule 26(g) favor the  same
lenient approach counseled by Rule 15(a).
          As  already mentioned, a motion to withdraw an election
to  proceed under Rule 26(g) is functionally similar to a  motion
to  amend  a pleading: the plaintiff essentially seeks  leave  to
amend  its  previously asserted damages claim.   Thus,  both  the
denial of a Rule 15 motion to amend and the denial of a motion to
drop  the Rule 26(g) damages cap operate to deprive the plaintiff
of an opportunity to test his claim on the merits.6
          Moreover,  Rule  26(g) strives  to  encourage   if  not
require  plaintiffs to file and prosecute personal injury actions
as  minor  claims when it appears realistically likely  that  the
damages  will  actually fall within the district  courts  limited
jurisdiction.  A rigid approach to enforcing Rule 26(g) elections
would  frustrate the rules purpose by forcing cautious plaintiffs
to file their original claims based not on a realistic prediction
of   likely  recovery,  but  rather  on  the  highest  imaginable
recovery.   All but the smallest claims would then  be  filed  as
claims for damages of more than $100,000.
          Considering the totality of the circumstances  here  in
light  of the same  lenient test that applies under Rule 15,7  we
find nothing to indicate that denial of Kays motion to revise the
damages  cap  was  warranted by the need to avoid  injustice   no
showing that Kays motion reflected dilatory conduct or purposeful
delay;  that  Kay made his request in bad faith; or that  raising
the cap would have unduly prejudiced RE/MAX.
          When  Kay  first  informed the superior  court  of  his
intent  to withdraw his election, the trial date was still almost
two months away, the case was relatively young, and there was  no
history of prior delay.  Moreover, in setting the original  trial
date,  the  superior court had emphasized that its  schedule  was
meant  to  be flexible:  Im sure [that Kays attorney  is]  aware,
just  from practicing here locally, if a party makes a motion  to
extend  or to file something late for good cause shown, I  almost
always  grant  it.   Our supreme court almost  always  says  lets
litigate  on  the  merits[.]  In discussing  the  parties  expert
disclosures,   the  court added that [i]f we  were  setting  this
trial  six months from now, it would be different [than] if  were
setting  it  a  year  from  now.   But  were  really  setting  it
effectively a year from now. . . . I mean, if were setting it six
          months out, then the deadlines make more sense.
          The   promise  of  flexibility  communicated  by  these
remarks  seems  mirrored by the parties informal approach  toward
Kays  initial election invoking Rule 26(g)s damages  cap.   After
Kays  attorney  responded  to  requests  for  full  discovery  by
indicating Kays intent to invoke the cap, RE/MAXs attorney sought
confirmation  of  Kays election at his November 2001  deposition.
Kays  attorney  acknowledged that he was invoking  the  rule  for
purposes of the overall litigation, but he observed that the  cap
would  have no effect on the deposition.  At the same time,  Kays
attorney  said that if the current prediction of damages changed,
he  might  have  to withdraw this election to rely  on  the  cap.
RE/MAXs  attorney specifically asked if Kay actually was claiming
damages  totaling  less  than $100,000.  The  following  exchange
occurred:
          MR.   WHIPPLE  [Kays  attorney]:  Thats   our
          understanding of the damages at  this  point.
          If theres something that comes out that would
          change that, we would notify you immediately,
          and  we  would  stipulate to an extension  of
          discovery  for that purpose. . . . Thats  our
          understanding at this point.  But if theres a
          withdrawal of that, Ill let you know  and  we
          can stipulate to allowing more discovery.
          
          MR. SISSON [RE/MAXs attorney]: Okay.
          
          In  opposing  Kays argument, RE/MAX now  portrays  Kays
attempt  to  relax  the Rule 26(g) cap as a last-minute  tactical
procedural choice[], emphasizing that Kay enjoyed thirteen months
of  being  able  to avoid nearly all of the defendants  discovery
attempts.   But  as  the  quoted conversation  demonstrates,  Kay
informed  RE/MAX of the possibility that he might need  to  claim
additional  damages.   And  he later  kept  his  word  to  notify
[RE/MAX] immediately of any changes.  Kay sought to withdraw  his
election  on  the same day he learned that his ankle  would  need
additional  care; and he offered to stipulate to an extension  of
the  discovery period as well as a continuance, if RE/MAX  deemed
these  steps  necessary to protect its procedural rights.   These
circumstances do not reveal manipulative conduct, bad  faith,  or
dilatory practice.
          Nor  did  the  superior  court find  any  manipulation,
misconduct, or danger of actual prejudice.  To the contrary,  the
court  expressly declined to fault Kay for the last-minute nature
of  his  request.  In denying Kays motion to continue the  trial,
the  court  observed that it doesnt appear that this is  counsels
fault  or  plaintiffs  fault, its just  the  way  things  happen.
Because  RE/MAX  fails  to  show that  this  finding  is  clearly
erroneous,  the  finding defeats RE/MAXs attempt to  depict  Kays
motion as a mere tactical ploy.
          The  only reasons identified by the superior court  for
denying Kays motion were the lateness of the motion and the  need
to  enforce  the  original schedule in the  general  interest  of
avoiding   delay.   Yet  in  analogous  circumstances   we   have
previously emphasized that [d]elay alone is an insufficient basis
upon which to deny a motion to amend.8
          Similarly,  we hold that delay alone could not  justify
denying Kays request to change his election here.  Absent a case-
specific  showing of dilatory conduct, bad faith, or  unavoidable
prejudice that might cause actual injustice, we conclude that  it
was  an  abuse  of discretion to deny Kays motions  to  drop  the
damages cap.
          This  conclusion requires us to consider how the  error
can  be cured.  Kay suggests that we should simply disregard  the
cap  and order judgment entered in his favor based on the damages
actually  awarded  by the jury.  But this approach  is  untenable
because it would result in obvious injustice to RE/MAX.  Had Kays
motions  to  withdraw his election and for a continuance  of  the
trial   been  properly  granted,  RE/MAX  would  have   had   the
opportunity to conduct the full discovery that it sought from the
outset.   More importantly, with the damages claim uncapped  from
the  outset  of  trial, RE/MAX might have chosen to  conduct  its
defense  much  differently on disputed issues  of  liability  and
damages.
          Because  the  error  in denying  Kays  motions  had  an
obvious yet incalculable impact on RE/MAXs efforts to prepare and
defend  its case, we conclude that it is necessary to vacate  the
jurys  verdict  and remand for a new trial after  affording  both
parties the opportunity to conduct full discovery.9
     B.    RE/MAXs  Motions for Summary Judgment and  a  Directed
Verdict
          RE/MAX   contends  on  cross-appeal  that  Kays  claims
against it should never have reached the jury.10  RE/MAX moved for
summary  judgment before trial and for directed verdicts  at  the
close of Kays evidence and at the end of the case.  RE/MAX argues
that Kays claims against it should have been dismissed at each of
these junctures because there was no evidence that RE/MAX owed or
breached any legal duty to ensure Kays safety or protect him from
dangerous  conditions at the duplex.  RE/MAX first contends  that
it undertook no contractual duty toward Kay.  It then argues that
even  if  it owed Kay certain contractual duties as a manager  of
the  property, these duties did not extend to protecting him from
personal  injury caused by dangerous conditions on the  premises.
Kay  responds that (1) the lease agreement imposed a duty of care
on  RE/MAX, and (2) RE/MAX assumed a duty as a result of  Kristan
Cole and RE/MAXs undertaking of management responsibilities.
          1.   Standard of review
          In  reviewing a denial of a summary judgment motion, we
apply  de novo review and draw reasonable inferences of  fact  in
favor  of  the non-moving party to determine whether any  genuine
issues  of  material fact exist and whether the moving party  was
entitled  to judgment as a matter of law.11  Summary judgment  is
appropriate if the only reasonable inference from the  undisputed
facts  is  that  one party owed another no duty or  owed  a  duty
clearly  and vastly narrower in scope than that asserted  by  the
non-moving  party.12  Questions about the scope  of  a  duty  are
generally not susceptible to summary judgment if the scope of the
duty   poses  a  fact-specific  question  involving  policy   and
          circumstantial judgments better reserved for the jury.13
          When  reviewing the denial of a motion for  a  directed
verdict,  we must determine whether the evidence, when viewed  in
the  light most favorable to the non-moving party,  is sufficient
to allow reasonable jurors to  differ in their judgment as to the
facts.  14   If  there  is room for diversity  of  opinion  among
reasonable people, the question is one for the jury.15
          2.   Evidence that RE/MAX undertook a contractual  duty
               toward Kay
               
          When  interpreting a contract, we give  effect  to  the
parties  intentions by looking to the words of the  contract  and
any  extrinsic  evidence regarding intentions when  they  entered
into  the  contract, including evidence of the parties subsequent
conduct.16   But  the  words  of the  contract  remain  the  most
important evidence of intention17 and, unless otherwise  defined,
are   given   their  ordinary,  contemporary,  common  meaning.18
Although contract interpretation is usually a question of law, it
becomes a question for the trier of fact when the parties present
extrinsic  evidence  to clarify a contracts  meaning,  when  this
evidence  points towards conflicting interpretations .  .  .  and
when  the  contract  itself is reasonably susceptible  of  either
meaning.19
          RE/MAX  contends that it was not a party to  the  lease
agreement  drafted  by  the  Tanner  brothers;  it  insists  that
affidavits  filed  by  the Tanner brothers and  Kristan  Cole  in
support of its summary judgment motion establish that the  leases
references   to   RE/MAX  resulted  from  the   Tanner   brothers
inadvertent failure to edit them out of a form agreement given to
them  by  Cole.   Coles affidavit states that she  had  a  Re/Max
agency  relationship  with Danbar, Inc., an  Alaska  Corporation,
d/b/a/ Re/Max of Wasilla, and that she supplied her stepsons with
a RE/MAX rental agreement form on a floppy disk, instructing them
to  delete the references to RE/MAX.  Cole testified to the  same
effect at trial.
          But  it  is  undisputed that the  lease  agreement  was
executed with references to RE/MAX remaining intact.  And  RE/MAX
presented no evidence that the Tanner brothers ever informed  Kay
of their subjective intent to exclude RE/MAX from the lease.20
          Moreover, many of the leases references to RE/MAX could
reasonably  be  read as deliberate.  The most  significant  items
include:
               the  heading  of  the  rental  agreement
               which  states in large font,  RE/MAX  of
               Wasilla;
               
               the  first page which identifies  RE/MAX
               of Wasilla (hereinafter called agent for
               Aaron     &     Jesse     Tanner     the
               Owner/Landlord);
               
               the provision which states rent will  be
               payable   to  Owner/Landlords   agent[]s
               address:  RE/MAX  of  Wasilla  1590   E.
               Financial   Dr.   Suite  200,   Wasilla,
          Alaska;
               
               the  reference  to  Kristan  [Cole]   at
               RE/MAX  as  the  emergency  contact  for
               tenants; and
               
               the  signatory page which shows  Kristan
               Coles  initials above the byline, RE/MAX
               of    Wasilla   and   Agent/Broker   for
               Landlord.21
               
The lease agreement itself thus raised triable issues of fact  as
to the parties reasonable expectations upon executing the lease.
          Furthermore,   Kay   presented   additional    evidence
regarding the circumstances of contract formation.  Kay testified
that  a  RE/MAX  agent (his mother) showed him the property;  the
duplex  was listed as property managed by RE/MAX; and Kay applied
and was accepted as a tenant through RE/MAX.
          As  we explained in Sea Lion Corp. v. Air Logistics  of
Alaska,  Inc., when written or spoken words or any other  conduct
of  the principal, if reasonably interpreted, cause third persons
to  believe the principal consents to having the act done on  his
behalf  by  the  person purported to act for  him,  we  recognize
apparent authority sufficient to bind a principal.22
          Drawing all permissible inferences in favor of Kay, the
superior  court  correctly  determined  that  genuine  issues  of
material  fact  existed as to Kays contractual relationship  with
RE/MAX.   Similarly, there was sufficient evidence  at  trial  to
allow a reasonable juror to conclude that the Tanner brothers had
chosen  to  retain  the  lease agreements  references  to  RE/MAX
because  RE/MAX, through Kristan Cole, actually undertook  to  be
the property manager of the duplex and intended to bind itself as
a party to the contract.
          The  superior  court  did not err  in  denying  RE/MAXs
motion for summary judgment or its motions for a directed verdict
on this issue.


          3.   Scope of RE/MAXs duty toward Kay
          RE/MAX further argues that even if it became a party to
the  rental agreement by contractually undertaking to manage  the
rental, there was no basis for the jury to find that it owed  and
breached  a duty to protect Kay from personal injuries caused  by
dangerous conditions on the rental property.
          We  have long recognized that duties may be voluntarily
assumed.23  For example, we held in Adams v. State that when  the
state  undertakes a fire inspection, it has the further  duty  to
exercise  reasonable  care in conducting  the  inspection.24   In
LaMoureaux v. Totem Ocean Trailer Express, Inc. the question  was
whether  a  union  owed a duty of care to a  victim  of  a  truck
collision  to ensure that union members dispatched to drive  were
qualified drivers.25  The agreement between a trucking company and
the union provided only that the union would dispatch regular and
experienced longshoremen.26  Based on testimony that the union had
actually  undertaken the responsibility to supply  competent  and
          licensed drivers, we concluded that a genuine issue of fact
existed about whether the union had voluntarily assumed a duty of
care  to ensure that members dispatched as drivers could lawfully
drive  even  though the contract did not explicitly  require  the
union to check its members driving qualifications.27
          Here,  the rental agreement seemingly designated RE/MAX
as   the   property   manager  and  assigned   several   specific
responsibilities to the management.
          First,  the section entitled Rules specified  that  the
rules  for  the  premises  are set by  management.   Second,  the
subsection entitled Cleanliness and Trash required the tenant  to
assist  management  in  keeping outside areas  and  common  areas
clean.   Third, a subsection entitled Maintenance,  Repairs,  and
Alterations required the tenant to assist management  in  keeping
walkways  clear  and  salted in winter  months   a  duty  usually
belonging to the owner or occupier of the land.28  This subsection
also  prohibited any alterations without the written  consent  of
management, and required the tenant to inform the management, not
the  owners,  in  writing of any items needing repair   including
electrical  and  plumbing fixtures and smoke detectors.   In  the
event  of  an emergency, the lease demanded immediate notice  and
insisted  that all service requests be made only to the  property
manager.   The lease further identified Kristan Tanner at  RE/MAX
as the emergency contact.
          Additional evidence at trial suggested that RE/MAX  had
undertaken  an  even broader range of duties than the  management
responsibilities  explicitly mentioned in the  rental  agreement.
Kay  testified  at  his deposition that RE/MAXs  responsibilities
included  listing  the  duplex  in  RE/MAXs  property  management
division,  providing one of its agents the keys for  showing  the
duplex  to Kay, providing a standard RE/MAX residential agreement
form  to  Kristan  Cole  for  her  use,  processing  Kays  rental
application  in RE/MAXs office, giving Kay his set of  keys,  and
accepting  Kays rent at RE/MAXs office.  Kay also testified  that
he  notified  RE/MAX of a sewer system problem and  that  Kristan
relayed  this information to the Tanner brothers.  Moreover,  the
rental  agreement identified RE/MAX as agent for  Aaron  &  Jesse
Tanner the Owner/ Landlord.
          Finally,  Daniel Crozier, the owner of RE/MAXs  Wasilla
branch,  testified that RE/MAX acted as landlord on this property
and  that it would be correct to say that as far as Mr. Kay [was]
concerned  .  . . Re/Max stood in the shoes of the  Tanners   the
property  owners.  In closing arguments RE/MAX acknowledged  that
it  is  not a huge leap to come to a conclusion about whether  an
owner  of a premises has a duty to take care of the premises,  to
inspect it and so forth. (Emphasis added.)
          In  sending  the  case to the jury, the superior  court
submitted  numerous  jury instructions  on  the  issue  of  duty,
including the following instruction based on Restatement (Second)
of  Torts  324A (1965), which allowed RE/MAX to be held liable if
the  jury found that it undertook and breached a duty to  protect
Kay from physical harm:
          One   who  undertakes,  gratuitously  or  for
          consideration, to render services to  another
          which  he  should recognize as necessary  for
          the  protection  of  the  others  person   or
          things, is subject to liability to the  other
          for  physical harm resulting from his failure
          to  exercise  reasonable care to perform  his
          undertaking, if
          
          (a)   his failure to exercise reasonable care
          increases the risk of such harm, or
          
          (b)   the  harm  is suffered because  of  the
          others reliance upon the undertaking.
          
          RE/MAX does not challenge this instruction as such;  it
argues  only  that  the  evidence  was  insufficient  to  justify
submitting it to the jury.  But we think that a reasonable  juror
viewing  the totality of evidence in the light most favorable  to
Kay could logically find, under this instruction, that RE/MAX had
assumed  significant  property  management  responsibilities   on
behalf of the Tanner brothers.
          We  note  that other jurisdictions applying Restatement
 324A in analogous cases have found that property managers assume
at  least a limited duty to protect tenants, even if the managers
have  not  taken  over  the entire charge  of  the  land  or  the
building.   For  example, in Kirschbaum v.  WRGSB  Associates,  a
property  management  agreement obliged the property  manager  to
maintain  the  building in good condition and to make  repairs.29
Applying Pennsylvania laws similar to the Restatement, the  court
affirmed  a  judgment  holding  that  the  property  manager  was
responsible  for injuries stemming from its failure to  repair  a
defective handrail, but had no duty to fix structural defects  in
the staircase.30
          In  the present case, we think that a reasonable  juror
could  similarly  conclude  that the management  responsibilities
RE/MAX assumed encompassed a duty of due care to inform itself of
the  condition  of the premises and to take reasonable  steps  to
protect  the  tenants  against  non-obvious  dangers,  either  by
arranging for repairs of non-structural problems or by giving the
tenants adequate warnings.
          We  recognize  that  section  387  of  the  Restatement
(Second) of Torts limits the circumstances under which a property
managers duties would be as broad as a landlords:
          An  independent contractor or servant to whom
          the owner or possessor of land turns over the
          entire  charge of the land is subject to  the
          same  liability  for harm caused  to  others,
          upon  or  outside of the land, by his failure
          to  exercise reasonable care to maintain  the
          land  in  safe repair as though he  were  the
          possessor of the land.[31]
          
Comment a to this section goes on to say that
          the  contractor  must  have  taken  over  the
          entire charge of the land or building.  It is
          not  enough to create liability. . . that  he
          has  undertaken to make specific repairs,  or
          even to inspect the land or building and from
          time  to  time  to make such  repairs  as  he
          should discover to be necessary.[32]
          
          Here,  we  doubt  that  the evidence  could  reasonably
support  a  finding  that RE/MAX undertook complete  control  and
responsibility for the Tanner brothers duplex, so as to  make  it
responsible for curing major structural defects.  But we need not
resolve that issue.  For present purposes, it suffices to observe
that  the  evidence in this case would have allowed the  jury  to
find  that  RE/MAX  undertook and breached the considerably  more
modest  duty  to  exercise due care by using its expertise  as  a
property  manager  to  take reasonable steps  in  inspecting  the
premises and warning Kay about dangers that might not be  obvious
to an ordinary tenant.
          As  noted  above,  comment a to  the  Restatement   387
states that liability to remedy structural defects should not  be
imposed against a property manager unless the manager takes  over
the  entire charge of the property, even if it has undertaken  to
. . . inspect the land or building.33  The comment thus implicitly
recognizes  that a property manager who undertakes  broad  duties
without  taking over the entire charge might be held  liable  for
assuming, and then breaching, more modest duties to inspect, make
minor repairs, and warn tenants of non-obvious dangers.
          Because  the  evidence at trial was at least  minimally
sufficient to allow a jury to find that RE/MAX undertook  limited
responsibilities  to protect Kay from personal  injury  and  thus
owed and violated a duty to take reasonable steps to protect  Kay
from  unobvious  dangers on the premises, we  conclude  that  the
superior court did not err in submitting the case to the jury.
IV.  CONCLUSION
          For  these  reasons,  we  AFFIRM  the  superior  courts
rulings  on  RE/MAXs  motions for summary judgment  and  directed
verdicts.   But we REVERSE its ruling on Kays motion to  withdraw
his  Rule 26(g) election; we thus VACATE the judgment, and REMAND
for a new trial unrestricted by Rule 26(g)s damages cap.
EASTAUGH, Justice, dissenting.
I.   Introduction
            I  respectfully dissent from that part of the opinion
that  reverses  on the Alaska Civil Rule 26(g)  issue.   A  trial
court faced with these sorts of procedural problems on the eve of
trial  is  entitled to exercise its discretion in  resolving  the
problems  and  is  entitled to deference upon appellate  review.1
Kay  consistently  invoked Rule 26(g) to prevent  the  defendants
from  engaging in rigorous discovery, and in exchange,  chose  to
subject himself to the rules $100,000 damages cap.  Only ten days
before  discovery  was  to  close, and  having  successfully  and
repeatedly   limited   the  defendants  discovery   efforts,   he
unilaterally (without asking the courts permission) tried to give
notice  that he was withdrawing his reliance on the  rule.   This
attempt, only fifty-five days before trial, would have freed  him
from the rules $100,000 damages cap.  Although it also would have
exposed him to additional discovery efforts, they would have been
last-minute, eve-of-trial, efforts.  They were unlikely  to  have
been  as productive as defendants timely discovery efforts  would
have  been  had  Kay not avoided them by electing to  invoke  the
rule.    Only  a  week before trial was to begin  did  Kay  first
request  a  continuance.  Two days before trial began, the  trial
court rejected Kays efforts to disavow the rule and lift the cap.
That  was  a  permissible  judicial  decision,  well  within  the
discretion  a trial court must have.  By reversing, we  interfere
with a valid exercise of discretion and fail to give deference to
the trial court.
II.  There Was No Abuse of Discretion.
     
          The  legislature included Rule 26(g) in its  1997  tort
reform  legislation.2   The  legislature  intended  the  act   to
encourage   the  efficiency  of  the  civil  justice  system   by
discouraging frivolous litigation and by decreasing  the  amount,
cost,  and  complexity  of  litigation  without  diminishing  the
protection  of  innocent Alaskans rights to reasonable,  but  not
excessive, compensation for tortious injuries caused by  others.3
The  rule patently assumes that a moderate damages cap is a  fair
quid pro quo for a significant limit on discovery.  As with other
fair bargains, unilateral disavowal of the bargain after one side
has  performed is potentially unfair.  Given Kays early  election
and  his repeated invocations of the rule to limit discovery, his
late  filing of the unilateral withdrawal notice would have  been
inherently  unfair had withdrawal been allowed.  The trial  court
must  have  concluded  that Kays attempted  withdrawal  would  be
unfair.   Likewise, the court must have concluded  that  granting
Kays last-minute continuance motion would be unfair.
          We  review discovery orders and denials of motions  for
reconsideration, continuance, and relief from judgment under  the
abuse of discretion standard.4  This is, or is supposed to be,  a
deferential  standard  of  review.  We  will  find  an  abuse  of
discretion  only  when  we  are left with  a  definite  and  firm
conviction  after  reviewing  the record  that  the  trial  court
erred.5  Given the circumstances facing the trial court, I do not
have a definite and firm conviction that the trial court erred.6
     A.   A motion to amend a complaint is not analogous to an attempt
          to withdraw from a Rule 26(g) election.
          
          The  courts opinion states that an attempt to  withdraw
an  election  of  the Rule 26(g) damages cap is  analogous  to  a
claimants  motion  for  leave to amend a complaint  under  Alaska
Civil  Rule 15.7  It also contends that a motion to withdraw  the
Rule  26(g)  cap is functionally similar to a motion to  amend  a
pleading  because the plaintiff essentially seeks leave to  amend
its previously asserted damages claim.8
          I  think the court is mistaken in both regards: no such
attempt  to amend was made here, and Rule 15 provides no analogy.
Kay  did  not seek judicial permission to amend his complaint  or
his  previously asserted damages claim.  He simply filed a notice
with  the  court that he was withdrawing from Rule  26(g).   Only
later,  after  another three weeks had passed, did he  implicitly
seek  court  approval of his withdrawal from his  election.   The
court  suggests  that prohibiting Kay from withdrawing  from  the
rule  would deprive him of the opportunity to test his  claim  on
the merits.9  I agree that a plaintiff should be able to test his
claims  on  the merits.10  But a damages cap does  not  affect  a
plaintiffs  ability  to test his claim on the  merits.   Kay  was
still  able  to bring all applicable legal claims to trial;  only
his recoverable damages were limited by the affirmative choice he
made  early  in  the litigation in exchange for  the  benefit  of
limited discovery.
          Nor was the procedure Kay followed at all analogous  to
          a motion to amend a complaint.  A Rule 15 motion to add a new
claim  or  amend the damages prayer is not typically inconsistent
with  the plaintiffs affirmative representations and the  parties
mutual understandings.  An attempt to withdraw from a Rule  26(g)
election fundamentally differs from a motion to amend because the
election  consists of an affirmative representation that  damages
will  not exceed $100,000, and results in significant limitations
on  discovery.  The election, per the rule, results in  a  mutual
understanding  by  the parties.  The resulting  expectations  are
reasonable   and  enforceable.  Moreover,  in  this   case,   Kay
repeatedly  invoked  the cap to limit defense discovery  efforts.
As  an  example of a valid analogy, consider instead a plaintiffs
affirmative statement that he is forgoing a particular  claim  in
exchange for some bargain with the defendant.  In that situation,
a trial court ruling on whether to rescind the agreement would be
entitled  to  the  same deference we should be giving  the  trial
court here.  Our usual expressions of the liberal policy favoring
amendment of pleadings would be irrelevant to a valid analogy.
     B.   Withdrawal  of the Rule 26(g) cap would have prejudiced
          RE/MAX.
          
          A.   Kay first invoked Rule 26(g) in May 2001, three months after
filing  his  complaint, when he responded to the Tanners  initial
discovery  requests.11  Kay continued to  invoke  Rule  26(g)  in
response  to  further  defense discovery requests  until  shortly
before  he filed his notice of withdrawal in March 2002.  Despite
the text of Rule 26(g),12 Kay knowingly took affirmative steps to
invoke  the rule throughout the pre-trial period.  Kay used  Rule
26(g)  to  shield himself from defendants discovery  efforts  for
nearly  ten  of  the  fifteen months between the  filing  of  the
complaint and the scheduled trial date and for nearly all of  the
time when discovery was open.
          Kay  argues that he gained no advantage from trying  to
withdraw  from  Rule 26(g), but his unilateral efforts  to  avoid
discovery  forced  his  opponents to file  a  motion  to  compel,
requiring them to spend additional resources to obtain discovery.
His  efforts  also  limited and delayed the allowable  discovery.
Defendants prepared their defense believing that, per  the  rule,
their damages exposure could not exceed $100,000.  Defendants who
are  sued  for personal injury guide their litigation efforts  by
the  risks  the lawsuit poses.  It is often the damages exposure,
more  than  the liability exposure, that drives how a lawsuit  is
litigated.   A defendant may choose not to litigate as vigorously
in a case that can be defended through trial at relatively modest
cost  if the damage exposure is limited.  In contrast, if damages
might  be  much  greater and uncapped, a defendant  will  usually
litigate  more  aggressively to discover all  facts  relevant  to
liability  (including  allocation of  fault  and  causation)  and
damages, may engage in motion practice to limit its exposure, may
prepare  for trial far more thoroughly, and may finally chose  to
avoid   trial  with  a  favorable  settlement  after  appropriate
discovery and investigation.
          It  is  impossible  to imagine how  RE/MAX  would  have
defended the case had Kay not invoked the Rule 26(g) cap.  If Kay
had  given timely indication he would claim much greater  losses,
RE/MAX  would  have  had time to reassess its defensive  efforts.
Indeed,  it is precisely because the late effort to withdraw  was
prejudicial  to RE/MAX that this court has fashioned  its  remedy
and its remand instructions so carefully.13
          A   short  continuance  would  not  have  remedied  the
prejudice,  given  the lost discovery opportunity.   And  a  long
continuance  would not have avoided prejudice because  defendants
would  have  needed  to  prepare for  trial  a  second  time,  at
additional cost, and witness memories would have faded.
          It  is hard to be very sympathetic to Kay.  His lack of
diligence  caused  the problem.  Had he been reasonably  diligent
about  his medical treatment, his doctor would have informed  him
of the likelihood of further surgery early enough that withdrawal
of  the  election would not have prejudiced RE/MAX.  Had he  been
reasonably  diligent about his trial preparation, he  would  have
included  a knowledgeable estimate of future medical expenses  in
his damage estimate.  Kay also could have moved for a continuance
          immediately after visiting his doctor for the first time since
filing suit, on March 5, 2002, rather than allowing nearly  fifty
more  days to pass before moving for a continuance.  The lateness
of Kays visit to his doctor, coupled with his delay in requesting
a  continuance, reflects either a lack of diligence or a tactical
choice.   In  any event, Kay asked for an open-ended  continuance
pending the resolution of his medical condition.  His request  as
made was patently without merit.  An indefinite delay of trial is
undue and is not a proper use of a trial continuance.14
     C.   The record supports the trial courts decision.
          The court suggests that the trial court promised at the
May   2001  trial  setting  conference  to  be  flexible  in  its
scheduling decisions,15 and implicitly concludes that it was  not
flexible after Kay belatedly tried to change the ground rules for
the  lawsuit.16   I  do not read the trial courts  statements  as
amounting  to an enforceable promise of flexibility.17   Although
the  trial  court stated that it would usually grant  motions  to
extend  or  file  late for good cause shown, it  also  repeatedly
emphasized that it did not want pre-trial deadlines crowding  too
close to the trial date and potentially delaying the trial.   The
trial  courts  decision not to allow Kay to  withdraw  from  Rule
26(g)  is  consistent  with  its previous  statements  expressing
concern about late filings and delay of trial.  The courts  trial
setting comments could not have misled Kay, and reliance on  them
to  justify  the  late  withdrawal and  eve-of-trial  continuance
efforts would have been unreasonable.  Kay had to understand that
such efforts are addressed to the trial courts discretion.
III. Conclusion

          The  trial court was in the best position to assess how
Kays invocation of Rule 26(g) affected the course of the lawsuit.
It  exercised  its  discretion  in  dealing  with  the  potential
prejudice  created by Kays last minute attempts to withdraw  from
the damages cap and continue the trial.  Because I do not have  a
definite and firm conviction that the trial court erred, I cannot
conclude that it abused its discretion here.
_______________________________
     1     Kay  also appeals the denial of his motion for partial
summary  judgment.  Because Kays brief  merely  incorporates  his
superior court arguments on the summary judgment issues, we  deem
these  issues  to  be inadequately briefed,  and  we  decline  to
consider  them.  Anchorage Nissan, Inc. v. State, 941 P.2d  1229,
1240 (Alaska 1997) (citing Tenala, Ltd. v. Fowler, 921 P.2d 1114,
1124  (Alaska  1996)); Bidwell v. Scheele, 355 P.2d  584,  587-88
(Alaska 1960).

     2      Under  Alaska  District  Court  Civil  Rule  1(a)(1),
discovery  is  limited to disclosures required under  Civil  Rule
26(a), party depositions, and one additional deposition of a non-
party.   District Court Civil Rule 4(b) sets out  procedures  for
expediting cases for trial, providing in relevant part:

          In  a  civil  action for personal  injury  or
          property  damage, unless otherwise  permitted
          by  order  of the court in exceptional  cases
          and  for good cause shown, all parties  shall
          file  a memorandum to set the case for  trial
          . . . no later than 180 days after service of
          the   complaint   on  all  parties   to   the
          case.  . . . After the court satisfies itself
          that  the information described in Civil Rule
          26(a) has been disclosed, the court shall set
          the  case  for  trial as soon as practicable,
          but  no  sooner than 30 days after the  court
          makes the determination regarding disclosure.
          
     3     Kays  initial  demand letter, sent to  the  defendants
before  Kay  filed suit, demanded $104,657.33, while his  initial
discovery   disclosures   in  May   2001   alleged   damages   of
approximately $98,937.33.

     4     Ruckle  v.  Anchorage Sch. Dist., 85 P.3d  1030,  1039
(Alaska 2004).

     5     Betz  v. Chena Hot Springs Group, 742 P.2d 1346,  1348
(Alaska  1987)  (quoting Foman v. Davis,  371  U.S.  178,  182-83
(1962));  see also Miller v. Safeway, 102 P.3d 282,  294  (Alaska
2004).

     6     Foman, 371 U.S. at 182 (quoted with approval in  Betz,
742 P.2d at 1350).

     7     We review lower courts rulings on Rule 15 motions  for
abuse of discretion.  See, e.g., Betz, 742 P.2d at 1348.

     8     Miller,  102 P.3d at 294 (quoting Betz,  742  P.2d  at
1348).

     9     Because RE/MAX proceeded to trial on the understanding
that  it  faced a potential liability of $100,000, we  also  hold
that  Kay  may  alternatively elect remittitur in the  amount  of
$100,000 and forgo the option of a new trial.

     10     We  must  address this issue despite our decision  to
vacate  the original verdict, and remand the case for a  retrial,
because  outright dismissal of Kays claim would be  warranted  if
RE/MAX prevailed on its cross-appeal.

     11    Botelho v. Griffin, 25 P.3d 689, 692 (Alaska 2001).

     12     Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250,  257
(Alaska 2000).

     13    Lynden Inc. v. Walker, 30 P.3d 609, 613 (Alaska 2001).
In Estate of Breitenfeld v. Air-Tek, Inc., we explained:

               Whether  a party voluntarily assumed  to
          perform  a  particular act is a  question  of
          fact.   By  its assumption to act, the  party
          may   become  subject  to  a  duty   to   act
          carefully.   Although the precise nature  and
          extent of that duty is a question of law,  it
          depends  on the nature and extent of the  act
          undertaken, a question of fact.
          
755 P.2d 1099, 1102 (Alaska 1988) (citations omitted).

     14    K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702,
722 (Alaska 2003) (quoting Ben Lomond, Inc. v. Schwartz, 915 P.2d
632, 635 (Alaska 1996)).

     15     Sherbahn v. Kerkove, 987 P.2d 195, 198 (Alaska  1999)
(quoting  Petersen  v. Mutual Life Ins. Co., 803  P.2d  406,  410
(Alaska 1990)).

     16     Sourdough  Dev. Servs. v. Riley,  85  P.3d  463,  468
(Alaska  2004);  Municipality of Anchorage v. Gentile,  922  P.2d
248, 256 (Alaska 1996).

     17    K & K Recycling, Inc., 80 P.3d at 712.

     18    Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1001
n.3 (Alaska  2004).

     19    Id. at 1004 (quoting Little Susitna Constr. Co. v. Soil
Processing, Inc., 944 P.2d 20, 23 (Alaska 1997)).

     20     Cf.  id.  at  1003 (Testimony of a party  as  to  his
subjective  intentions  concerning the meaning  of  a  particular
clause  in a contract is not probative unless the party  in  some
way  expressed  or manifested his understanding at  the  time  of
contract  formation.);  Peterson v.  Wirum,  625  P.2d  866,  870
(Alaska 1981).

     21     The last page of the agreement also states, Tenant is
aware the property manager is related to the owners.

     22     Sea Lion Corp. v. Air Logistics of Alaska, Inc.,  787
P.2d 109, 117 n.3 (Alaska 1990) (citing City of Delta Junction v.
Mack Trucks, Inc., 670 P.2d 1128, 1130 (Alaska 1983)).

     23    LaMoureaux v. Totem Ocean Trailer Exp., Inc., 651 P.2d
839,  841  n.4 (Alaska 1982); Adams v. State, 555 P.2d  235,  240
(Alaska  1976)  (It is ancient learning that one who  assumes  to
act, even though gratuitously, may thereby become subject to  the
duty  of  acting carefully . . . .) (quoting Glanzer v.  Shepard,
135 N.E. 275, 276 (N.Y. 1922)).

     24    Adams, 555 P.2d at 240.

     25    LaMoureaux, 651 P.2d at 840.

     26    Id. at 841.

     27    Id. at 840-41.

     28     Coburn  v. Burton, 790 P.2d 1355, 1357 (Alaska  1990)
(Under [the Uniform Residential Landlord and Tenant Act] as under
the common law, the primary obligation to remove snow and ice  in
common areas falls upon the landlord[.]).

     29    243 F.3d 145, 153 (3d Cir. 2001).

     30    Id. at 154.

     31     Restatement  (Second) of Torts  387 (1965)  (emphasis
added).

     32    Restatement (Second) of Torts  387, cmt. a (1965).

     33     Restatement  (Second) of Torts  387,  cmt.  a  (1965)
(emphasis added).

     1    See Willoya v. State, Dept of Corr., 53 P.3d 1115, 1119
(Alaska  2002);  Dougan v. Aurora Elec. Inc., 50  P.3d  789,  793
(Alaska 2002).

2    Ch. 26,  1, 48, SLA 1997.

     3    Id. at  1(1).

     4     Manelick  v. Manelick, 59 P.3d 259, 262 (Alaska  2002)
(reviewing  denial  of  motion for reconsideration);  Fleegel  v.
Estate of Boyles, 61 P.3d 1267, 1278 n.51 (Alaska 2002) (applying
abuse  of discretion standard to review of relief from judgment);
Tesoro  Petroleum Corp. v. State, 42 P.3d 531, 535 (Alaska  2002)
(reviewing   generally  rulings  on  discovery   for   abuse   of
discretion).

     5    Rockstad v. Erikson, 113 P.3d 1215, 1220 (Alaska 2005).

     6     Finding,  as  the  court  does,  that  the  appellants
arguments  are more persuasive than the appellees seems  at  odds
with  the deferential standard of review that applies here.   See
Slip Op. at 7.

     7    Id.

     8    Id. at 8.

     9    Id.

     10    See Alaska R. Civ. P. 15(a); Miller v. Safeway,  Inc.,
102 P.3d 282, 295 (Alaska 2004).

11    The  court  states  that  Kay  served  initial  disclosures
suggesting that his damages totaled less than $100,000.  Slip Op.
at  6.   That characterization minimizes the specificity of  Kays
disclosure.  His disclosure stated:

          G.   Categories of damage.
               Past medicals:      $  21,937.33
               Future    medical:             $5-10,000
          approx.
               Past   wages:               $    17,000,
          minus taxes
               Reduced   abilities:         $    15,000
          approx.
               Pain   &   suffering:         $   35,000
          approx.
          
The disclosed total was less than $99,000.  To read approx. as an
indication Kay either was uncertain or wanted defendants to think
he  was  uncertain  about his damages is  inconsistent  with  his
explicit  invocations  of  the  discovery  limitation  in   first
responding   to  discovery  and  then  repeatedly   fending   off
defendants  discovery  attempts.   The  disclosed  total  closely
approached $100,000.  We must assume Kays counsel was  acting  in
good  faith  and  understood  the  rules  unambiguous  effect  on
damages.   [A]pprox. must therefore be read  to  imply  that  the
actual  damages  were less than the disclosed total.   Any  other
reading would be inconsistent with candor and good faith.

     12   The text of Rule 26(g) suggests that the damages cap is
self-executing:   In  a  civil  action  for  personal  injury  or
property  damage  involving less than  $100,000  in  claims,  the
parties  shall  limit discovery.  (Emphasis added.)   The  courts
opinion  does not address the difficulties created by this  text.
Regardless  of  whether he needed to invoke Rule  26(g)s  limited
discovery shield (or whether it was appropriate to do so in  this
context),  Kay did so repeatedly and as such chose to  bring  his
case within the rules ambit.

     13    See Slip Op. at 11-12.  Thus, this court approves  the
alternative  remedy  of remittitur because it  acknowledges  that
RE/MAX  proceeded to trial on the understanding that it  faced  a
potential liability of $100,000.  Slip Op. at 12 n.9.

     14    In the complaint amendment context, we have repeatedly
stated that undue delay is a sufficient basis to deny a motion to
amend.   See  Miller, 102 P.3d at 294; Betz v. Chena Hot  Springs
Group, 742 P.2d 1346, 1348-49 (Alaska 1987).

     15   Slip Op. at 9.

     16   See id. at 10-11.

     17   See id. at 9.

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