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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. DeNardo v. Corneloup (07/13/2007) sp-6140

DeNardo v. Corneloup (07/13/2007) sp-6140, 163 P3d 956

     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,


) Supreme Court No. S- 11703
Appellant, )
) Superior Court No. 3AN-02-8023 CI
v. )
) O P I N I O N
FOREMANS PROPERTIES ) No. 6140 - July 13, 2007
Appellees. )
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:    Daniel   DeNardo,   pro   se,
          Anchorage.    Peter  J.  Maassen,  Ingaldson,
          Maassen  &  Fitzgerald, P.C., Anchorage,  for
          the  Foremans  Properties.  No appearance  by
          Pat Corneloup.

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

          EASTAUGH, Justice.

          Daniel  DeNardo  sued his landlord and his  neighboring
tenant alleging that cigarette smoke emanating from the neighbors
apartment  was making DeNardo ill.  The superior court ultimately
rejected all of DeNardos claims.
          We  affirm.  There was no error in dismissing  DeNardos
claims  of  negligence and breach of the covenant of habitability
after  he  voluntarily moved for dismissal of  those  claims  and
failed  to  preserve them in the superior court.   There  was  no
error  in  rejecting  his claim that the  landlord  breached  the
covenant  of  quiet enjoyment, because there was no evidence  the
landlord substantially disturbed his use of the land.  There  was
no  error  in rejecting his battery claim, because there  was  no
contention  that  either defendant deliberately caused  smoke  to
contact  him.   There was no error in rejecting his trespass  and
nuisance  claims, because the arguments DeNardo  makes  here  for
imposing  a  duty  on  the  tenant to refrain  from  smoking  are
unpersuasive,  because he has not established that  the  landlord
should  be  liable  in  trespass for  tenant  conduct  it  cannot
control,  and  because  he  has not  established  that  cigarette
smoking  by a tenant is ultrahazardous activity.  We also  affirm
the  grant  of summary judgment on DeNardos claim of  retaliatory
eviction,  because we conclude that he has not  established  that
his  failure  to  pay  his  rent in full  was  excused.   He  was
therefore   in  default  in  rent  per  AS  34.03.310(c)(1)   and
ineligible to claim retaliatory eviction.
          Finally,  we  detect  no hint of  bias,  prejudice,  or
unfairness  in  the superior courts rulings and therefore  reject
DeNardos  appellate contention that the judge  should  have  been
          In  1991  Daniel  DeNardo began  renting  an  Anchorage
apartment  from  the Foremans Properties, a partnership  of  five
members of the Foreman family.  We sometimes refer to it  as  the
landlord.  The rental term was month-to-month, and rent was  $385
throughout the rental period.
          In  March  2002 Pat Corneloup moved into the  apartment
next  to  DeNardos in the Foremans Propertiess building.   During
the  spring of 2002 Corneloup smoked cigarettes in his apartment.
The  lease  did  not restrict smoking in the Foremans  Properties
apartments.   DeNardo  asserted that he complained  to  Corneloup
that  smoke  could be smelled in adjoining apartments.   He  also
asserted  that  he  complained to Helen Foreman  in  March  2002,
although  she  denied  this  assertion  under  oath.   One  other
resident  also  complained to Corneloup that  she  smelled  smoke
every  now  and again.  This other resident later testified  that
the  situation cleared up after she complained to Corneloup,  and
that she never complained to the landlord.
          On  June  7, 2002 DeNardo filed suit against  Corneloup
for  battery,  negligence and trespass as a result  of  cigarette
smoke invad[ing] his property.  Corneloup was the only defendant.
The  complaint  did  not  name  the Foremans  Properties  or  any
individual partners as defendants.
          As of June 12 DeNardo owed his landlord $677.73 for May
and  June  rent; on June 12 he tendered a rent payment  of  $185,
leaving  him  $492.73 in arrears.  Later that  day  the  Foremans
Properties served DeNardo with an eviction notice.  Relying on  a
superior  court affidavit signed by Helen Foreman,  the  Foremans
Properties  contended  below  and argues  here  that  it  had  no
knowledge  until  June  13 that DeNardo had  filed  suit  against
Corneloup.   DeNardo  asserts that the  Foremans  Properties  had
notice  of the lawsuit as early as June 8, and that the  eviction
notice was retaliatory.
          On  June  20 DeNardo amended his complaint to name  the
Foremans  Properties Partnership and its individual  partners  as
additional  defendants.   He  later  testified  in  the  eviction
proceeding  that at the same time he sued the landlord,  he  gave
written  notice  that he was withholding rent because  Corneloups
smoking   made   the  apartment  uninhabitable.    The   Foremans
Propertiess  brief  of  appellee  asserts  that  the   individual
partners were never served with a summons or complaint.  Although
the  record contains copies of supplemental summonses  issued  by
the  superior  court for Penny, Helen, Oliver,  Reed,  and  David
Foreman,  it  contains  no return of service  for  any  of  them.
Because  DeNardos reply brief does not argue that the  individual
Foremans were served, we assume that they were not.  As a result,
the  only defendants before the superior court were Corneloup and
the Foremans Properties.
          On  June 24 the landlord served DeNardo with a Forcible
Entry  and  Detainer  (FED)  summons and  complaint  seeking  his
eviction.   In  opposing  the  attempt  to  evict  him,   DeNardo
successfully  argued  that he should not  be  evicted  while  his
eviction  appeal  was  pending; both he and  Corneloup  therefore
continued  to reside in their apartments.  DeNardo asserted  that
he   suffered   from   anxiety,  nausea,  headaches,   dizziness,
sleeplessness, and general ill feeling in addition to humiliation
and distress caused by exposure to secondhand smoke.  DeNardo was
never  medically evaluated for these alleged ill effects, and  he
admitted that no medical records exist associated with the claims
in this case.
          DeNardo   proceeded  pro  se  in  his  lawsuit  against
Corneloup  and  the  landlord  and claimed:  (1)  breach  of  the
covenant  of  quiet  enjoyment, (2) breach  of  the  covenant  of
habitability,  (3)  negligence, (4) trespass,  (5)  battery,  (6)
nuisance,  and  (7)  retaliatory eviction.   The  superior  court
dismissed  all  claims  against  Corneloup  and  granted  summary
judgment  to  the  landlord on all claims except  breach  of  the
covenant of habitability and negligence.
          DeNardo moved for reconsideration, and also argued that
dismissing some but not all of the causes of action was logically
inconsistent;  he therefore move[d] the court  for  an  entry  of
judgment  for defendants on all counts as the logical  result  of
the  summary  opinion.  The Foremans Properties  joined  DeNardos
motion for entry of a judgment dismissing those remaining claims.
The  superior  court granted DeNardos motion and issued  a  final
judgment  dismissing  the case, thus effectively  dismissing  all
remaining causes of action, including the claim for breach of the
covenant of habitability and the claim of negligence.
          During  litigation DeNardo moved for recusal for  cause
of  the  assigned judge, Superior Court Judge Sharon L.  Gleason.
DeNardo had filed two lawsuits against Judge Gleason in which  he
accused her of, among other things, not being fair and objective.
Judge  Gleason  declined to disqualify herself.   Superior  Court
Judge  Eric  Smith  was then assigned to consider  whether  Judge
Gleason  should  be  disqualified;  his  order  denying  DeNardos
disqualification motion found no sign of either  incompetence  or
bias.   To the contrary, the file reveals a careful and impartial
consideration of the relevant law and facts on the part of  Judge
          DeNardo appeals pro se.1
     A.   Standard of Review
          We  review  a  grant  of summary judgment  de  novo  to
determine  whether a genuine issue of material  fact  exists  and
whether the moving party was entitled to judgment as a matter  of
law,  drawing all reasonable factual inferences in favor  of  the
party against whom judgment was entered.2
          Decisions on motions for disqualification are  reviewed
for abuse of discretion.3
     B.   DeNardo Waived His Claims of Breach of the Covenant  of
          Habitability and Negligence.
          Because DeNardo asked the superior court to dismiss his
claims  of breach of the covenant of habitability and negligence,
he is precluded from asserting that it was error to dismiss those
claims  or  that he should be allowed to pursue them  on  remand.
DeNardo  seems  to  argue that it would be a  waste  of  judicial
resources  to  require plaintiffs to continue to  litigate  suits
they  know they will lose.  Some jurisdictions permit a party  to
consent  to entry of an adverse judgment to facilitate an appeal.
The  California Supreme Court has held that [i]f consent  [to  an
adverse  judgment]  was  merely given  to  facilitate  an  appeal
following  adverse determination of a critical issue,  the  party
will not lose his right to be heard on appeal.4 But this view  is
held  in  a  minority of American jurisdictions.5  In  Alaska  we
recognize a Cooksey plea by which a criminal defendant  does  not
contest  conviction conditioned upon the right  to  appeal  on  a
reserved issue.6
          We  have  never recognized a civil analogy to a Cooksey
plea  or  held that entry of a consent judgment to facilitate  an
appeal would permit such an appeal.  But even if we had, we would
not  apply  those procedures here.  DeNardo did  not  consent  to
judgment  while preserving an issue; he moved to dismiss  without
reservation.   He  apparently thought that his  habitability  and
negligence  claims against the landlord were doomed  without  his
battery,  trespass, and nuisance claims.  But those  claims  were
distinct  from his claims that the landlord failed to  provide  a
habitable  residence  or  was  negligent.   DeNardo  should  have
proceeded  to trial on the habitability and negligence claims  if
he  wanted  to litigate or preserve them; upon entry of  a  final
judgment  after  trial he could have appealed, or cross-appealed,
any  adverse  final  or interlocutory rulings.   Because  DeNardo
          instead asked the court to dismiss his habitability and
negligence  claims and did not attempt to preserve them,  he  may
not appeal from the order granting his own motion.
     C.   Breach of the Covenant of Quiet Enjoyment
          DeNardo argues that because cigarette smoke entered his
apartment,7   the  landlord  breached  the  covenant   of   quiet
enjoyment.   In  Alaska,  the  covenant  of  quiet  enjoyment  is
breached if the lessees enjoyment of the leased land is disturbed
in a substantial manner either by the lessor or by the owner of a
title paramount.8  Because DeNardo did not offer facts sufficient
to  prove that his landlord  substantially disturbed his  use  of
the land, it was not error to dismiss this cause of action.
     D.   Battery
          DeNardo  next  argues that because smoke contacted  him
there  was  a battery and that it was therefore error to  dismiss
his battery claim.  A person commits the tort of battery when the
actor intends to cause harmful or offensive contact with another;
one  need  not  intend injury but must intend to cause  contact.9
Blowing  tobacco  smoke in someones face  has  been  held  to  be
harmful  or offensive contact in other states, and DeNardo  cites
Leichtman  v.  WLW  Jacor  Communications,  Inc.,  in  which  the
defendant  intentionally  blew cigar smoke  in  [the  plaintiffs]
          DeNardo does not contend that anyone intentionally blew
smoke into his apartment or intended that the smoke contact  him.
He  argues  that the entry of smoke into his apartment should  be
deemed  intentional  because of the special relationship  between
landlord  and tenant.  DeNardo appears to base this theory  on  a
misreading  of  a case in which the battery of an  employee  (who
intentionally smoked his pipe around [defendant] in order to harm
her) was held potentially imputable to the employer for knowingly
acquiescing  in  a  battery.11   But  DeNardo  has  not   alleged
deliberate contact.  There was consequently no battery.
     E.   Trespass and Nuisance
          DeNardo  next  advances related theories  of  negligent
trespass   and  nuisance  against  Corneloup  and  the   Foremans
Properties.   Because  a landlord cannot be liable  for  trespass
based  on  actions  of  a tenant over whom the  landlord  has  no
control,  DeNardos trespass claim against the Foremans Properties
          Corneloup did not commit negligent trespass or create a
nuisance unless he violated  a duty of care.13  The superior court
ruled  that  one tenant in an apartment does not owe  a  duty  to
another tenant to refrain from cigarette smoking.  Whether  there
is a duty of care is a legal question which we review de novo.14
          One  state  has enacted a statute declaring that  smoke
passing  between  residences is a nuisance,15  but  there  is  no
corresponding Alaska statute or Anchorage ordinance and there  is
no recognized common law obligation in Alaska to ensure that ones
cigarette  smoke  does not drift into other residences.   DeNardo
does  not cite, nor have we found, any American precedent holding
that one tenant owes other tenants a duty to refrain from smoking
absent either a provision in the rental agreement or a statute or
municipal  ordinance  prohibiting smoking or  declaring  smoke  a
nuisance in a multi-party residence.16
          DeNardo  points  out  that  AS  18.35.300,  which  bans
smoking in some public places, states that [s]moking in any  form
is  a  nuisance and a public health hazard.  But we do  not  read
this  language  as  making  smoking a per  se  private  nuisance.
Alaska  Statute  18.35.305  prohibits  smoking  in  schools,  but
exempts  private  residences located in the same  building  as  a
school.   This  implies that smoking in a private residence  will
not  necessarily  be a nuisance as to other residents.   It  also
implies  that the legislature did not intend to prohibit  smoking
in  private  residences.  We conclude that an action for  private
nuisance  based  on the facts alleged by DeNardo  must  still  be
proved under ordinary legal principles governing nuisance.
          We  have  adopted  a multi-factor test   the  so-called
D.S.W. factors  to determine whether there is an actionable  duty
of  care  if no duty arises from recognized common law principles
or from such sources as statutes.17   But DeNardo has not briefed
the  D.S.W. factors as such and has only touched on them.  Absent
briefing on the issue  we are unwilling to consider here  whether
these  factors might give rise to a novel duty of care  requiring
tenants  to  avoid  exposing co-tenants  to  ordinary  levels  of
cigarette  smoke resulting from personal use of  cigarettes.   No
other court has ever found such a duty of care so far as we know,
and  we  decline to create one in this case based on the briefing
before us.
          DeNardo  alternatively  contends  that  there   was   a
trespass because cigarette smoking is an ultrahazardous activity.
Trespass  resulting  from an ultrahazardous activity  results  in
strict  liability.18  DeNardos original complaint did  not  plead
ultrahazardous  activity,  but he discussed  it  at  the  summary
judgment  oral  argument, so we choose  to  treat  the  issue  as
preserved for appeal.
          We  have  held that an activity or thing  can  only  be
          ultrahazardous if it is not a matter of common usage19 and
necessarily involves a risk of serious harm . . . which cannot be
eliminated by the exercise of utmost care.20  Smoking of the sort
alleged here does not satisfy that standard.  Smoking is a matter
of  common  usage.  Exposure to the limited amount of  secondhand
smoke  emanating  from a private apartment does  not  necessarily
involve  a  risk  of  serious  harm.   Even  without  taking  any
extraordinary  precautions, smokers can limit  their  smoking  to
places  where non-smokers will be exposed to little or no  smoke.
Alaska  Statute  18.35.305(1), which prohibits  smoking  in  some
public  places, by its own terms does not apply to  a  designated
smoking  area  that is properly ventilated.  Because  the  danger
from  secondhand  smoke can be eliminated by the  exercise  of  a
modicum  of  care, the proper legal standard applicable  in  such
cases  is  negligence, not the strict liability that attaches  to
ultrahazardous conduct.21
          The  Foremans Properties does not deny that  secondhand
smoke  can  be  a  health hazard, but denies that either  smoking
cigarettes  or  renting  an apartment infiltrated  by  secondhand
smoke  is  ultrahazardous activity.  We observe that  the  hazard
posed by secondhand cigarette smoke differs from the hazard posed
by   typical  ultrahazardous  activities,  such  as  blasting  or
fumigation with cyanide gas.22  Even a brief exposure to blasting
or  cyanide  gas may cause serious injury or instant  death.   No
other  court has found that exposing another to second-hand smoke
is  an ultrahazardous activity.  We do not need to consider  here
what  long-term  harm  might result from  frequent  and  extended
exposure  to secondhand smoke.  In any event, the sorts of  harms
alleged  in  this case (such as nausea and ill feeling)  are  not
akin to serious injury or death.
          In  short,  DeNardos  arguments in  this  case  do  not
convince   us   that  smoking  cigarettes  in  an  apartment   is
ultrahazardous  activity  in  Alaska  even  though  it  generates
secondhand  smoke.  His arguments in this case  likewise  do  not
convince us that renting an apartment into which secondhand smoke
migrates is ultrahazardous activity.
          We  therefore hold that it was not error to dismiss the
trespass and nuisance claims on summary judgment.
     F.   Retaliatory Eviction Claim
          DeNardo  asserted a retaliatory eviction claim  against
his landlord on the theory it evicted him for engaging in conduct
complaining about Corneloups smoking and suing Corneloup and  the
landlord   protected  by  the Uniform  Residential  Landlord  and
Tenant  Act  (URLTA).23  He argues that he should be  allowed  to
proceed with that claim on remand.24
          The  landlord  urges us to affirm the summary  judgment
rejecting DeNardos retaliatory eviction claim, and contends  that
it lawfully evicted DeNardo because he failed to pay rent.
          Retaliatory  eviction is prohibited  by  AS  34.03.310.
That  statute  is part of the URLTA,25 which is to  be  liberally
construed  and  applied  to promote its underlying  purposes  and
policies.26  Per AS 34.03.310(a), a residential landlord may  not
retaliate  against a tenant for engaging in conduct protected  by
the   URLTA.    Subsection  .310(a)  describes   retaliation   as
          increasing rent or decreasing services or . . . bringing or
threatening  to  bring an action for possession.  Tenant  conduct
specifically  protected  by subsection .310(a)  from  retaliation
includes  complaining to landlords about AS 34.03.100 violations,
seeking  enforcement of URLTA rights and remedies, organizing  or
joining  a tenants union or similar organization, and complaining
to  a governmental agency that enforces housing, wage, price,  or
rent controls.27
          Subsection   .310(c)(1)(7)  sets  out  seven   specific
circumstances  in  which  landlords, notwithstanding  subsections
.310(a) and (b), may bring actions for possession.28  Relevant to
this   case,   subsection  .310(c)(1)  permits  an   action   for
possession if the tenant is in default in rent.29  Thus,  if  the
tenant  is  in default in rent, subsection .310(c)(1)  permits  a
landlord  to  seek possession even if the tenant has  engaged  in
conduct otherwise protected by subsection .310(a).
          The   superior  court  granted  the  landlord   summary
judgment  on  DeNardos  retaliatory  eviction  claim  because  it
concluded  that retaliatory eviction is only a defense  and  does
not  confer a right or remedy to the tenant.  This conclusion  is
not  entirely  correct.  Certainly tenants  who  are  victims  of
retaliation  have,  by  statute,  a  defense  in  an  action  for
possession.30  But subsection .310(b) also gives them the remedies
provided  in  AS 34.03.210: tenants subjected to retaliation  may
terminate  the lease, sue for possession, and recover up  to  one
and one-half times any actual damages.31
          Even   though   it  was  incorrect  to  conclude   that
retaliatory  eviction  may not be the basis  for  an  affirmative
remedy,  we may still affirm the superior courts summary judgment
grant  if  an alternative ground to do so exists.32  The landlord
argues  that it was entitled to evict DeNardo because, it claims,
DeNardo was indisputably in default in rent.  If DeNardo  was  in
default in rent, the landlord could seek possession regardless of
whether DeNardo engaged in protected conduct.
          DeNardos  appellate briefs seem to imply,  but  do  not
expressly  contend, that there is a genuine factual dispute  that
precludes  summary judgment for the landlord on  his  retaliation
claim.  DeNardo is pro se, so we judge his performance by a  less
demanding  standard.33  By arguing that the  Foremans  Properties
retaliated against him for engaging in protected conduct  and  by
requesting  a  remand  for  a jury trial,  DeNardo  has  made  it
sufficiently  clear that he believes there is a  genuine  factual
dispute about whether he was in default in rent.
          The phrase in default in rent is not defined by statute
or  case  law in Alaska.  We assume here that it means  that  the
tenant is not current on rent, i.e., has not paid the full amount
due on the due date, and has no legally cognizable excuse for not
being  current.  On June 12, 2002, when DeNardo was given  notice
to quit, he owed $492.73 in rent.  On June 24, when he was served
with  the FED summons and complaint, he still owed at least  that
amount.   Thus,  unless there is a genuine factual dispute  about
whether DeNardo was excused from having to pay the full amount of
his rent, he was in default in rent.
          DeNardo advances two theories why he was not in default
          in rent, i.e., why he was excused from having to pay the full
amount  of  rent due.  First he asserts that he was  entitled  to
withhold rent because secondhand smoke rendered the apartment not
habitable.  Second, he asserts in his reply brief that he had  an
oral  agreement  with  Helen Foreman that allowed  him  to  delay
paying his rent.
          The  viability of his first theory turns  on  statutory
interpretation, and requires us to determine whether DeNardo  had
a right to withhold rent under the circumstances alleged here.
          1.   Rent withholding
          The  URLTA gives tenants the self-help remedy  of  rent
withholding  in  specific,  limited  circumstances.    The   most
prominent  example  is  found in AS  34.03.180.   If  a  landlord
deliberately  or  negligently  fails  to  provide  an   essential
service,  AS 34.03.180(a) authorizes the tenant to withhold  rent
and  use the withheld rent to obtain those services or substitute
housing.34  But the tenants rights under subsection .180(a) do not
arise  .  .  . until the tenant has given written notice  to  the
landlord.35  DeNardo does not rely on section .180, and  he  does
not  claim  that  he  used withheld rent  to  obtain  replacement
services or substitute housing.
          The  URLTA  also  excuses tenants from paying  rent  or
permits   them  to  reduce  rent  payments  for  various  reasons
associated with a landlords failure to deliver possession or with
a  termination at the tenants option, or upon constructive  total
or  partial  eviction following fire or casualty.  Thus,  per  AS
34.03.160(a), if the landlord fails to materially comply with the
rental agreement or AS 34.03.100 in a way that materially affects
health  and safety, the tenant may choose to terminate the rental
agreement,  but  only  after giving  written  notice.36   Per  AS
34.03.170, if the landlord at commencement of the term  fails  to
deliver possession to the tenant, rent abates until possession is
delivered.37   Per AS 34.03.200(b), the tenant may, after  giving
notice,  terminate  the  lease if the  premises  are  damaged  or
destroyed  by  fire  or  casualty. But these  provisions  do  not
expressly  or impliedly allow a tenant in possession to  withhold
rent and several contemplate or require prior written notice.
          Alaska  Statute  34.03.200(a)(2) is an exception.   Per
that  subsection,   if the premises are so  damaged  by  fire  or
casualty  that  enjoyment of the dwelling unit  is  substantially
impaired  but continued occupancy of part of the unit is  lawful,
the  tenants rent is proportionally reduced by the diminution  in
the  units  rental value as of the date of the  casualty.    That
subsection  arguably allows a tenant in possession to reduce  the
rent  without giving prior written notice, but there seems to  be
little  danger in that circumstance that the landlord  would  not
have  ample prior notice of the event that proportionally excuses
          DeNardo   generally  asserts  that  he  made  an   oral
habitability complaint under AS 34.03.100 on March 8 and that the
landlord  retaliated  against  him  for  making  that  complaint.
Alaska  Statute  34.03.160(b) allows a tenant to recover  damages
and  injunctive relief for a landlords noncompliance with section
.100.38  But those remedies do not include the self-help remedy of
          rent withholding, even though they may result in the tenant
defeating  a possession claim or obtaining compensatory  damages.
The   only   URLTA   provision  that  expressly  addresses   rent
withholding, section .180, requires prior written notice.
          There is no dispute that DeNardo did not, before he was
given  the notice to quit, give his landlord prior written notice
that  there  was  any  defect  or  condition  that  affected  the
apartments habitability.  It is also undisputed that he gave  his
landlord  no  prior  notice,  oral  or  written,  that   he   was
withholding rent for any purpose.
          DeNardo  contends on appeal that he gave  the  landlord
prior  oral  notice of secondhand smoke before he was  given  the
quit  notice  and before he was served with the FED  summons  and
complaint.   We  assume,  for purposes of reviewing  the  summary
judgment, that he did so.  We must therefore decide whether prior
oral  notice  would  suffice to excuse a  tenant  from  being  in
default in rent for purposes of section .310 if the tenant claims
that defects or conditions render his apartment uninhabitable.
          No provision in the URLTA states that prior oral notice
is  sufficient  to  allow  the tenant to exercise  the  self-help
remedy of rent withholding.  As noted above, the only passage  in
the  URLTA  that allows rent reduction without written notice  is
for  a  tenant who remains in possession after fire  or  casualty
damage.39   The  only URLTA section specifically permitting  rent
withholding   is  AS  34.03.180(a),  and  per  AS   34.03.180(c),
subsection  .180(a)  relief requires prior  written  notice.   We
think it is significant that the legislature chose to require the
tenant  to  provide  the  landlord prior written  notice  of  its
failure  to  provide  essential services  before  the  tenant  is
entitled to relief under AS 34.03.180.
          Based on the briefing in this case, we are unwilling to
conclude that oral notice of infiltration of secondhand cigarette
smoke from a neighbors apartment is sufficient to excuse a tenant
from  being  in  default in rent for the purposes  of  subsection
.310(c).   As we have seen, the URLTA only grants the  remedy  of
rent   withholding  for  a  tenant  in  possession   in   limited
circumstances, and then only after prior written notice.40  We are
reluctant   to   read   URLTA   more  expansively   absent   more
comprehensive briefing on the respective rights of landlords  and
          Moreover,  DeNardo  only contends  that  he  gave  oral
notice  that  the premises were uninhabitable, not that  he  gave
notice  that  he was withholding rent as a result of the  alleged
uninhabitability.  We decline here, on the basis of the  briefing
in  this  case, to hold that a landlord may be liable for damages
on  a retaliatory eviction claim if the tenant gives the landlord
no  notice  that  rent  is being withheld  as  a  result  of  the
premisess condition.
          Potentially  distinguishable  from  the  section   .310
rights  and remedies are the rights and remedies provided tenants
by AS 34.03.190(a).  Under that provision, a tenant responding in
a landlords action for possession based on nonpayment of rent may
counterclaim  for amounts recoverable under the rental  agreement
or  the  URLTA, and a court may order the rent reduced to reflect
          the units diminution in value during the period of noncompliance.41
Those   are  not  self-help  remedies.   The  URLTA  appears   to
distinguish between a claim of retaliatory eviction under section
.310  (which gives a tenant section .210 enhanced remedies beyond
possession)  and a counterclaim under section .190.   The  latter
section  permits the tenant to counterclaim for any amount  under
the rental agreement or the URLTA and to offset this counterclaim
against rent owed.  That section also permits the court to  award
possession  to the tenant if the tenant pays back rent  into  the
court  such  that  he  or she is no longer in  arrears.   We  are
reluctant based on the briefing in this case to expose a landlord
to  the  enhanced  remedies  of section  .210  on  a  retaliatory
eviction  claim simply for evicting a tenant who was undisputedly
not  current  on  rent,  absent notice  that  the  tenant  has  a
statutory right to reduced rent (e.g., per subsection .200(a)(2))
or  is  entitled to reduced rent if the tenant makes  repairs  or
obtains substitute housing (e.g., per subsection .180(a)).
          In short, we decline in this case to interpret the term
in  default  in  rent to contain an exception for a  tenant  who,
without giving prior written notice, withholds rent because he is
bothered by migration of a neighbors secondhand cigarette smoke.
          2.   Oral agreement
          DeNardo  asserts in his reply brief that he  and  Helen
Foreman had an oral agreement regarding payment of back rent.  He
did  not advance this contention in his opening appellate  brief.
In  his superior court motion for reconsideration, he argued that
he  had  an oral contract with Helen Foreman that gave him  until
September  of  2002 to pay the back rent he owed,  but  he  later
waived  that  contention in the lower court.  We  assume  that  a
tenant  who,  by  agreement with his landlord,  is  excused  from
paying rent would not be in default in rent.  But because DeNardo
waived  the  issue below and did not raise the  issue  on  appeal
until his reply brief, it is waived for the purposes of appeal.
          We   therefore  affirm  the  summary  judgment  on  his
retaliatory eviction claim.
     G.   Damages
          DeNardo challenges a superior court ruling that limited
his  damages to the period between March 2002 and June 2002.  The
superior  court reasoned that because the tenancy  was  month-to-
month,  and  the landlord was entitled to evict DeNardo  in  June
2002  for nonpayment of rent, DeNardo was not entitled to damages
after the landlord began trying to evict him in June 2002.
          We affirm because we have affirmed the dismissal of all
of  DeNardos liability claims, including his retaliatory eviction
claim, and because DeNardos waiver of his habitability claim  had
the  effect  of  waiving  any claim for  any  additional  damages
resulting from the allegedly uninhabitable apartment.
     H.   Judicial Disqualification
          DeNardo  argues  that Judge Gleason  should  have  been
disqualified.  He advances various reasons.  He cites a discovery
ruling  in  which  the  court declined to  require  the  Foremans
Properties to provide DeNardo with the home address of a witness.
But  DeNardo was provided with the information about the witnesss
workplace, allowing DeNardo to contact the witness.  DeNardo also
          argues that Judge Gleason failed to cite precedent for her
rulings.  Trial judges are not obliged to cite authority in their
rulings,  especially procedural rulings, and our  review  of  the
record in this case does not reveal any deficiency on the part of
Judge Gleason to cite precedent where appropriate.
          Shortly before appellate oral argument DeNardo asked to
supplement the record with a partial transcript of the October 8,
2002  hearing before Judge Gleason, on the theory it would reveal
partiality.   He  asserted that the transcript  would  show  that
Judge  Gleason  had  sua  sponte  broached  the  subject  how  to
terminate  DeNardos tenancy and had given the Foremans Properties
advice  on how to proceed with its suit. The transcript  reflects
that  the  attorney  for  the Foremans  Properties,  without  any
suggestion from the court, asked the court to clarify whether the
courts stay of the FED action would preclude eviction for reasons
other than nonpayment.  DeNardo was then given an opportunity  to
respond,  and  Judge  Gleason declared that this  order  was  not
intended  to  foreclose for all time either  party  from  seeking
whatever  remedies are available . . . under the  Landlord/Tenant
Code.  The transcript does not reveal any improper action or bias
on the part of Judge Gleason.
          Statutory reasons for disqualification are set  out  in
AS  22.20.020(a).   The  statute  includes  a  general  provision
requiring  disqualification  if  for  any  reason,  a  fair   and
impartial   decision  cannot  be  given.  Judges  should   recuse
themselves  if  there  is  the  appearance  of  bias,  but   [b]y
themselves,  interpretations of the law  are  not  sufficient  to
demonstrate  the  existence of bias.42  We have  recognized  that
[d]isqualification  was never intended to enable  a  discontented
litigant to oust a judge because of adverse rulings made. 43
          The  record reveals no basis for claiming an appearance
of  bias  or conflict of interest.  Judge Gleason was  more  than
fair  to  DeNardo.   Judge Gleason granted a number  of  DeNardos
motions  that she could have reasonably denied at her discretion.
Superior    Court   Judge   Eric   Smith,   who   reviewed    the
disqualification decision in 2003, found that  a  review  of  the
actions   of  Judge  Gleason  reveals  a  careful  and  impartial
consideration of the relevant law and facts.  We agree  with  the
          DeNardo  made  a  number  of  remarkably  inappropriate
personal  attacks on Judge Gleason.  For example, he accused  her
of  having  a  Satanically possessed mind and a  self-destructive
compulsive disorder.  DeNardo also filed two civil suits  against
Judge  Gleason  accusing  her  of a variety  of  alleged  abuses.
Unfounded personal attacks of this sort against a jurist  detract
from  a  clear  discussion of the merits of a case.   Unsupported
personal  attacks on a jurist only distract the  reviewing  court
from  potentially  meritorious issues.  The record  here  totally
fails  to  support any notion that Judge Gleason  did  not  treat
DeNardo  fairly  and impartially in this matter.   His  appellate
arguments  to  the  contrary are completely  unsupported  by  the
          Because  DeNardo  has waived his right  to  appeal  the
          habitability and negligence claims, and because the superior
court properly granted summary judgment to the defendants on  all
other causes of action, we AFFIRM the superior courts judgment.
     1     Corneloup  has  not entered an appearance  on  appeal.
Although  the  appellate caption used during briefing  lists  the
individual Foremans Properties partners as appellees, it  appears
that  they  were never served and never appeared in the  superior
court.  The individual Foremans Properties partners therefore are
not properly appellees and are not listed in our caption.

     2     Hammond  v. State, Dept of Transp. & Pub.  Facilities,
107 P.3d 871, 874 (Alaska 2005).

     3    Hanson v. Hanson, 36 P.3d 1181, 1183 (Alaska 2001).

     4    Bldg. Indus. Assn v. City of Camarillo, 718 P.2d 68, 71
(Cal. 1986).

     5    See 4 Am. Jur. 2d, Appellate Review  175 (1997).

     6    Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).

     7     For  purposes  of  this  discussion,  we  assume  that
DeNardos factual allegations are true.

     8     Berrey  v.  Jeffcoat, 785 P.2d 20,  23  (Alaska  1990)
(involving commercial lease).

     9     Taylor  v. Johnston, 985 P.2d 460, 464 (Alaska  1999);
Restatement (Second) of Torts  13 (1965).

     10     Leichtman v. WLW Jacor Commcns, Inc., 634 N.E.2d 697,
699  (Ohio  1994).   Other  cases of  battery  cited  by  DeNardo
regarding  smoke  involved intentional  contact.   DeNardo  cites
passages  from  three federal cases to support his argument  that
mere  exposure  to smoke is a battery.  See Serv. Employees  Intl
Union Health & Welfare Fund v. Philip Morris Inc., 83 F. Supp. 2d
70,  92  (D.D.C. 1999), revd in part on other grounds,  249  F.3d
1068  (D.C. Cir. 2001); Barnes v. Am. Tobacco Co., 984  F.  Supp.
842, 869 (E.D. Pa. 1997), affd, 161 F.3d 127 (3d Cir. 1998); Shaw
v.  Brown  &  Williamson Tobacco Co., 973 F. Supp.  539  (D.  Md.
1997).   They  are not on point or they actually  contradict  his

     11     Richardson v. Hennly, 434 S.E.2d 772, 775,  777  (Ga.
App. 1993), revd on other grounds, 444 S.E.2d 317 (Ga. 1994).

     12    Parks Hiway Enters. v. CEM Leasing, Inc., 995 P.2d 657,
664  (Alaska  2000)  (noting that ownership  or  control  of  the
intruding instrumentality is required to be liable for trespass).

     13    Negligence requires duty, breach, causation, and harm.
Id.; see also Pruitt v. Douglas County, 66 P.3d 1111, 1115 (Wash.
App.  Div. 3 2003) (noting that negligent trespass requires duty,
breach,  injury, and proximate cause).  Nuisance also requires  a
breach of a duty. 58 Am. Jur. 2d, Nuisance  9 (2002).

     14     See Schumacher v. City & Borough of Yakutat, 946 P.2d
1255, 1256 n.1 (Alaska 1997) (the existence and extent of a  duty
to act is a question of law).

     15     Utah  Code Ann.  78-38-1(3) (2006) provides that  [a]
nuisance  under this section includes tobacco smoke  that  drifts
into  any residential unit a person rents, leases, or owns,  from
another residential or commercial unit.

     16    The most comprehensive article on this issue (David P.
Ezra,  Get Your Ashes Out of My Living Room!: Controlling Tobacco
Smoke  in Multi-Unit Residential Housing, 54 Rutgers L. Rev.  135
(2001))  discusses theories of how cigarette smoke could  qualify
as  a  nuisance but cites no cases so holding.  The  cases  cited
discussing  smoke  nuisances  involved  wood-burning  stoves   or
garbage  incineration.  Id. at 156-59.  DeNardo cites Dworkin  v.
Paley, 638 N.E.2d 636 (Ohio App. 1994), but that case involved  a
suit  by  a  tenant  to nullify his lease based  on  a  claim  of
uninhabitability.  The suit was not against a co-tenant  and  the
plaintiff did not claim damages.

     17     D.S.W.  v. Fairbanks N. Star Borough Sch. Dist.,  628
P.2d 554, 555 (Alaska 1981).

     18     Parks,  995  P.2d  at 665.  Whether  an  activity  is
ultrahazardous is a legal question; whether there was damage is a
factual question.  Id.

     19     State  Farm  Fire  &  Cas.  Co.  v.  Municipality  of
Anchorage,  788 P.2d 726, 729 (Alaska 1990) (quoting  Restatement
of  Torts   520  (1939)) (holding operation of  water  lines  not
ultrahazardous because such systems are common indeed).

     20     Parks, 995 P.2d at 665 (holding that gasoline storage
is not ultrahazardous).

     21     The  baseline common law regime of tort liability  is
negligence. When it is a workable regime, because the hazards  of
an  activity can be avoided by being careful (which  is  to  say,
nonnegligent),  there is no need to switch to  strict  liability.
Ind.  Harbor  Belt R.R. Co. v. Am. Cyanamid Co., 916  F.2d  1174,
1177 (7th Cir. 1990).

     22     See Yukon Equip., Inc. v. Firemans Fund Ins. Co., 585
P.2d 1206, 1211 (Alaska 1978) (rejecting Restatement approach  to
ultrahazardous activity and holding instead that storage  or  use
of  explosives leads to absolute liability); Luthringer v. Moore,
190 P.2d 1, 8 (Cal. 1948) (holding fumigation with cyanide gas to
be  ultrahazardous); Williams v. Amoco Prod. Co., 734 P.2d  1113,
1123  (Kan.  1987)  (holding that although natural  gas  is  both
poisonous and highly flammable, operating natural gas well is not

     23    AS 34.03.

     24    He also asserts that the superior court did not rule on
or  mention  the retaliation claim.  This assertion is incorrect:
the  superior  court  granted summary judgment  to  the  Foremans
Properties on DeNardos retaliatory eviction claim.

     25    AS 34.03.380.

     26    AS 34.03.010.

     27    AS 34.03.310(a) provides:

          Except  as  provided in (c) and (d)  of  this
          section,  a  landlord may  not  retaliate  by
          increasing rent or decreasing services or  by
          bringing  or threatening to bring  an  action
          for possession after the tenant has
               (1)  complained  to  the landlord  of  a
                    violation of AS 34.03.100;
               (2)  sought   to   enforce  rights   and
                    remedies  granted the tenant  under
                    this chapter;
               (3)  organized or become a member  of  a
                    tenants     union    or     similar
                    organization; or
               (4)  complained to a governmental agency
                    responsible   for  enforcement   of
                    governmental housing, wage,  price,
                    or rent controls.
     28    AS 34.03.310(c)(1)(7).

     29    AS 34.03.310 states in part:

          (c)  Notwithstanding  (a)  and  (b)  of  this
               section, after serving a notice to  quit
               to   the   tenant  under  AS   09.45.100
               09.45.105,  a  landlord  may  bring   an
               action for possession if
               (1)  the tenant is in default in rent;
               . . . .

     30    AS 34.03.310(b).

     31    AS 34.03.310(b); AS 34.03.210.

     32    Spindle v. Sisters of Providence in Wash., 61 P.3d 431,
436  (Alaska  2002)  (We  are  not  bound  by  the  trial  courts
articulated reasoning and can affirm a grant of summary  judgment
on  alternative grounds, considering any matter appearing in  the
record,  even  if  not considered by the trial court.)  (citation

     33     Peterson  v. Ek, 93 P.3d 458, 464 n.9  (Alaska  2004)
(citation omitted).

     34    AS 34.03.180(a) provides:

          (a)  If, contrary to the rental agreement  or
          AS  34.03.100,  the landlord deliberately  or
          negligently  fails to supply  running  water,
          hot  water,  heat,  sanitary  facilities,  or
          other essential services, the tenant may give
          written notice to the landlord specifying the
          breach and may immediately
               (1)  procure reasonable amounts  of  hot
                    water,    running   water,    heat,
                    sanitary  facilities, and essential
                    services during the period  of  the
                    landlords noncompliance and  deduct
                    their  actual  and reasonable  cost
                    from the rent;
               (2)  recover   damages  based   on   the
                    diminution in the fair rental value
                    of the dwelling unit; or
               (3)  procure    reasonable    substitute
                    housing  during the period  of  the
                    landlords noncompliance,  in  which
                    case  the  tenant is  excused  from
                    paying  rent for the period of  the
                    landlord's  noncompliance  and,  in
                    addition, may recover the amount by
                    which  the  actual  and  reasonable
                    cost exceeds rent.
     35    AS 34.03.180(c).

     36     AS  34.03.160(a)  (stating that  if  landlord  is  in
material  noncompliance with rental agreement or AS 34.03.100  in
way  that  materially  affects  health  and  safety,  tenant  may
terminate  rental  agreement  with twenty  days  advance  written
notice,  unless  landlord cures within ten  days  of  receipt  of

     37     AS  34.03.170(a) (stating that if landlord  fails  to
deliver possession, tenant need not pay rent until possession  is
delivered, and may terminate lease with ten days written notice).

     38     AS 34.03.160(b) provides: Except as provided in  this
chapter,  the  tenant may recover damages and  obtain  injunctive
relief  for  any  noncompliance by the landlord with  the  rental
agreement  or AS 34.03.100, 34.03.210, or 34.03.280.   Subsection
.160(b) does not require prior written notice.

     39    AS 34.03.200.

     40    AS 34.03.180.

     41    AS 34.03.190(a)(1).

     42     Jourdan v. Nationsbanc Mortgage Corp., 42 P.3d  1072,
1082 (Alaska 2002).

     43     Wasserman v. Bartholomew, 38 P.3d 1162, 1171  (Alaska
2002) (quoting Pride v. Harris, 882 P.2d 381, 385 (Alaska 1994)).

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