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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Olivit v. City & Borough of Juneau (11/23/2007) sp-6206

Olivit v. City & Borough of Juneau (11/23/2007) sp-6206, 171 P3d 1137

     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

                              
JAKE OLIVIT, SR., )
) Supreme Court No. S- 12216
Appellant, )
) Superior Court No. 1JU-05-00573 CI
v. )
) O P I N I O N
CITY and BOROUGH OF )
JUNEAU; JOHN HARTLE; THE ) No. 6206 November 23, 2007
JUNEAU EMPIRE; and TONY )
CARROLL, )
)
Appellees. )
)

          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Larry R. Weeks, Judge.

          Appearances:   Jake D. Olivit, Sr.,  pro  se,
          Juneau.  Eric A. Kueffner, Faulkner Banfield,
          P.C.,  Juneau, for Appellees City and Borough
          of   Juneau  and  John  Hartle.   L.  Merrill
          Lowden,  Simpson,  Tillinghast,  &  Sorensen,
          Juneau, for Appellees Juneau Empire and  Tony
          Carroll.

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

          EASTAUGH, Justice.

I.   INTRODUCTION
          In  2004  the  Juneau Empire published an article  with
this  headline:   City  faces fifth lawsuit  by  man  who  claims
harassment.   The article was largely about Jake Olivit, Sr.  Six
months  later Olivit sued the Empire, reporter Tony Carroll,  the
City  and  Borough  of  Juneau, and city  attorney  John  Hartle.
Olivits  complaint, which implied that the City  and  Borough  of
Juneau  and  Hartle had arranged for the articles publication  to
retaliate  against him, included claims for defamation,  invasion
of  privacy,  and  intentional infliction of emotional  distress.
The  superior court dismissed all of his claims.  Olivit appeals,
asserting among other things that his claims should not have been
dismissed,  that  default should have been  entered  against  the
Empire,  and  that  the defendants should not have  been  awarded
attorneys  fees.   We affirm.  It was not error  to  dismiss  his
claims.  The  articles statements either were not  defamatory  or
were   privileged  because  they  concerned  matters  of   public
importance.   Olivit  was  not eligible for  a  default  judgment
because  the Empire filed its answer to Olivits complaint  before
Olivit sought a default.  We also conclude that the court did not
abuse its discretion in awarding the defendants twenty percent of
their attorneys fees as the prevailing parties.
II.  FACTS AND PROCEEDINGS
     A.   Factual History
          This  case  arises  out of a December  3,  2004  Juneau
Empire newspaper article about a lawsuit Jake Olivit, Sr.,  filed
on  December  1, 2004 against the Juneau Police Department  (JPD)
and  JPD  Officer Paul Comolli.  Olivit alleged in that  lawsuit,
Case No. 1JU-04-907 CI, that the JPD had engaged in a pattern  of
harassment against him.  Part of Olivits claim in that  case  was
that  Officer  Comolli had dropped a set of JPD keys  on  Olivits
property  while  carrying  out a late-night  harassing  visit  to
Olivits  home.  In the present case Olivit asserts  that  someone
claiming  to  be  city  attorney John  Hartle  called  Olivit  on
December  2,  the  day  after Olivit filed suit  against  Officer
Comolli  and the JPD, and threatened to discredit Olivit  on  the
front page of the Juneau Empire if Olivit did not return the  JPD
keys  in his possession.  On the following day, December  3,  the
Empire   printed  a  story  written  by  reporter  Tony   Carroll
describing  Olivits suit against Officer Comolli and other  suits
Olivit  had brought against the City and Borough of Juneau.   The
present lawsuit arises out of this December 3 article.
     B.   Procedural History
          Olivit  filed  his complaint in this case  against  the
City  and Borough of Juneau and John Hartle and the Juneau Empire
and  Tony  Carroll.1   He alleged in it that  statements  in  the
December  3 article are untrue and were written to discredit  and
attack him and his family.  His complaint claimed [d]efamation of
[c]haracter with actual malice, invasion of privacy (false light)
with   actual  negligence,  discrimination,  [and]  civil  rights
violation  of  the  First  Amendment to  the  Constitution.   His
initial  complaint also named Gloria Olivit, Olivits wife,  as  a
plaintiff.
          The  CBJ  moved for dismissal for failure  to  state  a
          claim under Alaska Civil Rule 8(a).2  The CBJ supported this
motion  with an affidavit from John Hartle.  Relying  on  Hartles
affidavit, the superior court treated the CBJs motion as one  for
summary judgment, but held it in abeyance for thirty days because
Olivit  was  proceeding pro se.  Noting the leniency extended  to
pro  se  litigants in Alaska, the courts order explained Rule  8s
pleading  rules  and  ordered Olivit to  file  a  complaint  that
satisfied  Rule  8 within ten days.  The court  also  ruled  that
Olivit  could  not represent his wife and that  she  must  either
represent herself or find outside counsel.
          On August 29 Olivit moved to dismiss Gloria Olivit as a
plaintiff and simultaneously filed an unsworn response  that  did
not  address the courts Rule 8 concerns.3  The CBJ then moved for
summary judgment, arguing that Olivit had failed to satisfy  Rule
8,  and  the Empire, joined by the CBJ, moved under Alaska  Civil
Rule 56(b) for summary judgment dismissing Olivits complaint  for
failure  to  state a claim for which relief may be granted.4   On
October  14 Olivit responded to the defendants motions.  The  CBJ
replied,  noting that Olivit had still failed to state  a  claim.
The  court  granted the defendants summary judgment  motions  and
dismissed Olivits pleadings for failure to state a claim.  Olivit
appeals.
III. DISCUSSION
     A.   Standard of Review
          We  review  a grant of summary judgment de novo.5   It
will be affirmed if there are no genuine issues of material fact
and  if the moving party is entitled to judgment as a matter  of
law.6  On review, all reasonable inferences of fact are drawn in
favor  of  the  party against whom judgment was  entered.7   The
moving  party  has  the  initial burden of  offering  admissible
evidence showing both the absence of any genuine dispute of fact
and  the  legal  right  to a judgment.8   Once  that  burden  is
satisfied, the non-moving party, to avoid summary judgment, must
produce  admissible evidence reasonably tending  to  dispute  or
contradict the movants evidence.9  The non-moving party may not,
however, rest upon mere allegations, but must set forth specific
facts  showing that there is a genuine issue of material fact.10
In  addition, [t]o create a genuine issue of material fact there
must  be  more  than  a scintilla of contrary  evidence.11   The
evidence  in  support of, or in opposition to, summary  judgment
must be admissible under the Alaska Rules of Evidence.12
          We  review for abuse of discretion the superior courts
determination  of  which  party  is  the  prevailing  party  for
purposes of awarding attorneys fees.13
     B.   Olivit Fails To Make Out a Claim for Defamation Against
the Empire          and CBJ Defendants.

          1.    Defamation,  the public interest  privilege,  and
          Olivits claims
          
          Olivit contends that because there were genuine factual
disputes,  it was error to dismiss his defamation claims  against
the Empire.
          To  make out a claim for defamation, a plaintiff has to
establish   (1)  a  false  and  defamatory  statement;   (2)   an
unprivileged publication to a third party; (3) fault amounting at
least  to  negligence on the part of the publisher; and  (4)  the
existence  of either per se actionability or special  harm.14   A
communication is defamatory if it tends to harm the reputation of
another  so  as  to  lower him or her in the  estimation  of  the
community  or to deter third persons from associating or  dealing
with him or her.15
          Under  the  Alaska Constitution, a defamatory statement
may be conditionally privileged if it concerns a matter of public
interest.   We  have  stated that there  is  a  paramount  public
interest  permitting  persons to speak or  write  freely  without
being  restrained  by  the possibility of a defamation  action.16
Therefore, speech on matters of public safety is privileged,  but
.  .  .  this  privilege is conditional and can be  lost  if  the
plaintiff  proves that the speaker uttered untruths  with  actual
malice.17  Unlike the majority of courts, we follow the rule that
the  privilege  [of public discussion] extends  to  non-malicious
misstatements of fact.18
          Thus,  to  make  out  a claim for defamation  based  on
speech  about a matter of public interest, a plaintiff must  show
that  the  false and defamatory statements were made with  actual
malice.19   Actual  malice exists when  it  is  proved  that  the
defamatory statement was made with knowledge that it was false or
with  a reckless disregard of whether it was false or not.20   We
have  applied  this standard to both publishers21 and  government
speakers.22
          Olivit asserts that three passages in the Empires story
defamed  him  and are actionable: one regarding his history  with
the  city,  another  about  an  incident  at  the  middle  school
involving his children, and another regarding his plea of  guilty
to a misdemeanor.
          History  with the city.  The article quotes  Hartle  as
saying  that  the  city was looking into Olivits accusations  but
that  it was skeptical, based on [Olivits] history with the city.
We assume Olivit is alluding, at least in part, to this statement
when  he  notes on appeal that the article states that  I  had  a
violent  criminal history with the city.  In his initial verified
complaint  Olivit  stated that he maintains no history  with  the
City of Juneau.  (Emphasis in original.)
          Olivits children.  Olivit states that his children  are
not  criminals as stated in [the] article.  Olivit is  apparently
referring  to  the articles statement that Olivits previous  suit
against the city grew out of an April 26 incident at Floyd Dryden
Middle  School involving Olivits two sons, the older  one  taking
          money for the younger one, a student there.  In his verified
complaint  in  the case now before us, Olivit stated  that  [t]he
Olivit  children were not involved with any criminal  activities.
In  his  sworn response to the CBJs motion for summary  judgment,
Olivit  stated  that  in fact his son was attacked  by  a  school
administrator while engaged in running an errand for  his  mother
by  delivery [of] money to his younger brother who attended Floyd
Dryden.
          Misdemeanor  guilty  plea.   The  article  states  that
Olivit  pleaded  guilty  to  misdemeanor  assault  following  the
incident  at Floyd Dryden Middle School.23  The Empire admits  on
appeal  that  this is incorrect because Olivit entered  a  guilty
plea  to  misdemeanor disorderly conduct rather  than  assault.24
Olivit  might be referring to this error when he objects to  what
he  describes  as the articles statement that he  had  a  violent
criminal  history with the city.  Because Olivit  stated  in  his
verified  complaint  that  he never pled  guilty  to  misdemeanor
assault,25 we assume that Olivit is arguing that he was defamed by
the  articles  misdescription  of the  misdemeanor  to  which  he
pleaded guilty.
          The article about Olivit generally concerns matters  of
public  interest.  A claim that the JPD was harassing members  of
the  public,  as  Olivit asserted in his lawsuit against  Officer
Comolli  and the JPD, is a matter of public interest  because  it
raises  questions about the propriety of official  or  ostensibly
official  conduct of JPD officers.  Furthermore, Olivits repeated
lawsuits  adversely affected the city, especially  fiscally,  and
the  financial  effect of defense costs is  a  matter  of  public
interest.  And the city attorneys description of lawsuits against
the city and his description of the plaintiff in those suits is a
matter of public interest.  Events at a local middle school  that
lead to criminal charges and a civil lawsuit are also matters  of
public  interest,  as  are  criminal  charges  and  guilty  pleas
relating to local events.  Therefore, each of the articles  three
challenged  statements  is  conditionally  privileged   and   not
actionable  unless it was false and defamatory and  uttered  with
actual malice.26
          2.    Defamation  claims against Tony Carroll  and  the
Juneau Empire
          We  therefore  consider whether there  is  a  potential
factual  dispute about whether Carroll and the Empire acted  with
actual  malice.  Although Olivit asserts that the Empire profited
from  publishing the allegedly defamatory article,  he  does  not
explain  how.   And even if the Empire did profit,  that  is  not
evidence  that permissibly implies that the article was published
with  actual  malice.  In his verified complaint,  Olivit  stated
that  the fact that Tony Carroll and the Juneau Empire failed  to
confirm anything stated as fact was pure negligence and compounds
the  malicious  act because they were used by the  City  and  its
representatives.   In his verified response to the  CBJs  request
for  summary judgment, Olivit stated that we can only  guess  the
motivation  behind Tony Carrolls actions, they were negligent  to
say the least.
          Olivit  frequently  used the word malicious  below  and
          uses the same word in his appellants brief, but he produced no
evidence  that Carroll or the Empire acted maliciously.   Carroll
swore in his affidavit that he believed everything in the article
to  be  true.   Carroll also explained in his affidavit  that  he
relied  on  Alaska Court System records and interviews with  four
city  officials,  including Hartle, in writing the  article,  and
that  he unsuccessfully attempted to contact Olivit.  No evidence
rebuts  any of these assertions.  The record contains no evidence
permitting  an inference that Carroll knew or should  have  known
before  publication that any statement in the article was untrue.
We  therefore hold that Olivit has not demonstrated that there is
a  genuine  factual dispute about whether Carroll and the  Empire
acted with actual malice as to the article generally or as to the
three passages Olivit discusses on appeal.
          Olivit  seems to assert on appeal that Hartle conspired
with  Carroll to publish false information about Olivit,  but  he
has  pointed to no evidence permitting a reasonable inference  of
any  such  conspiracy. We therefore affirm the  summary  judgment
entered in favor of Carroll and the Empire.
          3.   Defamation claims against Hartle and the CBJ
          Olivit  argues  that  it  was  error  to  dismiss   the
defamation  claim against Hartle and the CBJ.  He  contends  that
the  CBJ  defendants  deliberately made  false  statements  about
Olivit  to interfere with Olivits pending suit against  the  city
and  to cause him economic loss.  Olivit made a similar claim  in
his  initial  verified complaint, where he seemed to  imply  that
Hartle  was  retaliating against him because Olivit  refused,  in
response  to Hartles demands and threats, to return JPD  keys  to
the  city.   He claims that Hartle and the CBJ acted with  actual
malice.
          We  choose  to take a different analytical approach  in
considering whether, as Olivit contends, it was error to  dismiss
the  defamation  claims against the CBJ and Hartle.   Instead  of
focusing  on the malice issue, we consider whether the challenged
statements  were  false and defamatory as to Olivit  and  whether
Hartle was the source of the published information.
          Olivits  history.  In reference to Olivits suit against
Officer Comolli and the JPD, the article quotes Hartle as  saying
[w]e are looking into it, but were  skeptical, based on [Olivits]
history with the city.  Olivit reads the statement as implying he
has a violent criminal history with the city.  The context of the
article  strongly  implies that Hartle was referring  to  Olivits
history  of  suing  the city, not to any criminal  history.   The
headline of the article was City faces fifth lawsuit by  man  who
claims  harassment, and Hartles expression of his skepticism  was
made in the context of whether Olivits harassment claims in this,
his fifth lawsuit, might be legitimate.  Olivit does in fact have
a  history  of  bringing suits against the city,  so  the  quoted
statement  is  essentially  true  and  is  not  defamatory.   The
statement cannot plausibly be read as implying that the cause  of
Hartles  expressed  skepticism was any violent  criminal  history
Olivit might have had with the city.
          Olivits  children.   Olivit also seems  to  imply  that
Hartle  provided  Carroll  with false information  regarding  the
incident  with  Olivits children at Floyd Dryden  Middle  School.
Olivit states that the article defamed his family name, and  that
the defamation was a malicious act perpetrated by John Hartle and
Tony  Carroll.   His  brief  declares,  [m]y  children  are   not
criminals  as  stated in [the] article.  He thus seems  to  imply
that  Hartle was the source of allegedly false information  about
his children.  In a verified pleading he filed in superior court,
Olivit  stated  that  John  Hartle was  well  aware  Mr.  Olivits
children were not involved in criminal activities at Floyd Dryden
Middle School.
          We  doubt that the passage is defamatory.  The articles
statement  that  the older one [took] money for the  younger  one
does  not  state  or  necessarily imply that the  older  boy  was
stealing.   By Olivits own account, his older son was  delivering
money to the younger one.  That is the most plausible way to read
the articles words.  The article does not suggest that the act of
taking the money caused the older boy to be subject to discipline
or treated as a juvenile offender or that either boy did anything
wrong.   The focus of the article was on Olivits own conduct  and
the criminal consequences to him.
          In  any  event, the reference to his children  did  not
defame  Olivit  himself.27   Olivit  himself  does  not  have   a
defamation claim based on any alleged defamation of his children,28
and  he  has not attempted to assert a defamation claim on  their
behalf.
          Misdemeanor plea.  Olivit seems to base his  defamation
claim  against  Hartle  and  the CBJ  relating  to  the  articles
discussion  of  the  guilty  plea  on  his  theory  that   Hartle
intentionally  gave  erroneous  information  about  the  plea  to
Carroll,  who  then published it.  Olivit stated in his  verified
response  to  Hartle and the CBJs summary judgment  motions  that
Hartle  knew beyond any doubt Mr. Olivit did not plead guilty  to
misdemeanor assault.  Olivits statement in his verified  response
does not say, but may imply, that Olivit believes Hartle colluded
with  Carroll  to  publish  false information  regarding  Olivits
misdemeanor  charge,  or  at  least  intentionally  gave  Carroll
erroneous information about the plea.
          But  Carroll swore in an affidavit that he believed  he
utilized the Alaska Court System records system to learn  of  the
2002  criminal misdemeanor case . . . in which Mr. Olivit pleaded
guilty  to  a misdemeanor.  Olivit does not rebut Carrolls  sworn
statement  or assert that Hartle was the source of the  erroneous
information;  he merely asserts that Hartle knew the  information
was   false.   Olivits  statement  is  consistent  with  Carrolls
assertion that his information came from the public record, which
lists  the  crime charged as Assault  Physical Menace.  Moreover,
Hartle  stated  in  his  affidavit that he  made  the  statements
attributed  to  [him]  in  the  article.   The  article  did  not
attribute to Hartle any information about the misdemeanor plea.
          Olivits  evidence  was insufficient to  rebut  Carrolls
affidavit and preserve a genuine factual dispute material to  his
defamation  claim  against Hartle based on the  misdemeanor  plea
passage.   Absent any evidence permitting a reasonable  inference
that  Hartle was a source of the incorrect information  published
          about the guilty plea, the articles discussion of the plea cannot
be the basis of a defamation claim against Hartle and the CBJ.
          In  short,  even assuming Olivits sworn  pleadings  are
true,  none  of  the  allegedly false and defamatory  information
Olivit  attributes to Hartle can be the basis for the  defamation
claim.  We therefore affirm the summary judgment entered in favor
of Hartle and the CBJ.
     C.    Olivit  Failed To Preserve His Claim for  False  Light
Invasion of         Privacy.

          The  article  stated that [d]ocuments show  the  family
settled  [a  2002 lawsuit] for $25,000.  In his initial  verified
complaint  Olivit  asserted  that [t]he  Olivit  family  did  not
receive  $25,000 for all lawsuits filed.  Later, in  his  unsworn
response  to  the  Empires  motion for summary  judgment,  Olivit
stated that Carroll violate[d] the rights of privacy afforded  to
the  Olivit  family  when  he printed,  disclosed,  and  divulged
privileged information regarding financial settlements gained  on
behalf  of  Mr.  Olivits children.  In his brief to  this  court,
Olivit   states  that  [r]epresentatives  of  the  City  promised
explicit  confidentiality in the settlement of previous  lawsuits
regarding  monies received on behalf of our children.   (Emphasis
in original.)
          In arguing that representatives of the city broke their
promise  and  they broke a contractual agreement, Olivit  implies
that  Hartle was the source of the information.  The article does
not  attribute  the  statement to Hartle,  but  rather  to  court
documents.   But assuming Olivit is correct that Hartle  divulged
the  details of the lawsuit, Olivit has produced no evidence that
the  settlement  was private or that the CBJ or Hartle  owed  any
duty  to keep it confidential.  Additionally, Olivits brief  does
not refer to the right to privacy, aside from a passing reference
in  a  confusing  list  of  issues that  includes  defamation  of
character  with actual malice, invasion of privacy (false  light)
with actual negligence, discrimination, civil rights violation of
First Amendment and liable per se, IIED, and economic loss.  Even
considering  the  leniency that we grant to pro  se  litigants,29
Olivits  passing  reference to privacy  in  his  brief  does  not
preserve any claim of invasion of privacy or false light invasion
of privacy.30
     D.   Olivit Did Not Preserve His NIED or IIED Claims.
          Olivits  list of appellate issues mentions  intentional
infliction   of  emotional  distress  (IIED).   Olivits   initial
complaint  did not allege IIED, and he did not move to amend  the
complaint  to  add  that claim.  He first referred  to  emotional
distress  in  his  October 2005 Plaintiffs  Response  to  Defense
Motion  for Summary Dismissal of Tony Carroll and Juneau  Empire;
he  there stated that Carroll and the Empire were guilty of  both
IIED  and  negligent  infliction of  emotional  distress  (NIED).
Olivit advanced a similar argument against Hartle and the CBJ  in
his  Plaintiffs Response to Defense Motion for Summary  Dismissal
of  John  Hartle and CBJ.  In neither document did Olivit attempt
to   show   how  Carrolls  or  Hartles  behavior  satisfied   the
requirements of either IIED or NIED.  The superior court did  not
          address IIED or NIED beyond naming them as new theories of
liability  that  Olivit had belatedly set out without  presenting
claims  for  which he is entitled to relief.  Because Olivit  did
not  raise  his  IIED and NIED claims in a timely manner  in  the
superior court, and because he does no more than mention  IIED in
his appellants brief,31 he has not preserved these claims.
     E.   Other Issues
          1.   The superior court was not biased against Olivit.
          Olivit  asserts that the superior courts dismissal  and
judgment  were  prejudiced, discriminative, and unconstitutional.
Our  review  of the record reveals no indication whatsoever  that
Superior  Court Judge Larry R. Weeks treated Olivit  in  anything
less  than a fair and impartial manner.  The superior court  made
exemplary efforts in instructing and advising Olivit,  a  pro  se
litigant,  on  how  to  proceed.  That the superior  court  ruled
against  Olivit  on  matters  properly  before  the  court,   and
ultimately  granted summary judgment dismissing his claims,  does
not imply partiality or bias.32
          2.    The  superior court did not err  in  refusing  to
enter default            judgment against the Empire.

          Olivit argues that the superior court erred in refusing
to  enter  default judgment against the Empire.  Olivit requested
an  entry of default after the Empire answered its complaint four
days late.
          Per Alaska Civil Rule 55, [w]hen a party against whom a
judgment  for affirmative relief is sought has failed  to  appear
and  answer  .  .  .  and  that fact is  shown  by  affidavit  or
otherwise, the clerk shall enter a default.33  After the defendant
has  thus been defaulted, the plaintiff may apply for entry of  a
default judgment.34  A party may respond to any pleading  at  any
time  before  a default is entered.35  Olivit first  requested  a
default  after  the  Empire answered his complaint.   The  Empire
filed  its  answer for itself and Carroll on July 8,  2005,  five
days before Olivit requested a default.  The Empire therefore did
not  fail to appear, and the clerk could not have entered default
against  it  after it filed its answer.  There  is  no  automatic
default, and because the Empire responded to Olivits claim before
a default was even sought, no default was possible.
          3.    The  superior  court  did  not  err  in  granting
attorneys fees                to the CBJ and the Empire per  Rule
82(b).

          The  superior  court,  per  Alaska  Civil  Rule  82(b),
awarded  attorneys fees of $2,110.10 to the Empire and  attorneys
fees of $1,403.70 to the CBJ.  Olivit contests these awards.   He
claims  that  (1) the Empires fees were inflated and  fraudulent;
(2)  the CBJ did not request fees in a timely manner; (3) the CBJ
and  the Empire did not prevail at trial; and (4) fees awards  to
the  CBJ  and  the  Empire violate the Alaska  Constitutions  due
process clause.
          Alaska Civil Rule 82 provides that the prevailing party
in  a  civil case shall be awarded attorneys fees.36  If the case
does not go to trial the prevailing party receives 20 percent  of
its actual attorneys fees which were necessarily incurred.37  The
          defendants are the prevailing parties in this case because the
superior court granted summary judgment in their favor.38  Because
the CBJ and the Empire defendants were the prevailing parties and
because  there  is  no  reason  to  think  the  total  fees  they
respectively    incurred   ($7,018.50   and    $10,555.50)    are
unreasonable,  the superior court did not err  in  awarding  them
twenty percent of the fees they each incurred.
          There is likewise no colorable basis for thinking  that
awarding the attorneys fees denied Olivit due process of law.
               4.   Olivit waived any other issues.
          Olivits brief also asserts discrimination, civil rights
violation of First Amendment . . . and economic loss against  the
CBJ  and  the  Empire.   Because Olivit does  not  support  these
contentions factually or legally, they are deemed waived.39
IV.  CONCLUSION
          We therefore AFFIRM on all issues.
_______________________________
     1     Unless context requires greater specificity, we  refer
collectively to the City and Borough of Juneau and Hartle as  the
CBJ  or  the CBJ defendants, and to the Juneau Empire and Carroll
as the Empire.

     2     Alaska  Civil  Rule 8 explains the  general  rules  of
pleading  and requires a plaintiff to set forth claims for  which
he is entitled to relief against each named defendant.

     3     Olivits  appeal does not contend that he  should  have
been  allowed to represent Gloria Olivit or that she should  have
been allowed to proceed as a plaintiff.  Jake Olivit, Sr., is the
only appellant.

     4     The  Empires motion sought summary judgment dismissing
Olivits action for failure to state a claim for which relief  may
be  granted.   This  is the standard for dismissal  under  Alaska
Civil  Rule 12(b)(6).  Because the superior court granted summary
judgment  against  Olivit,  we  apply  our  usual  standard   for
reviewing a grant of summary judgment.  See Part III.A.

    5     Alaska Action Ctr., Inc. v. Municipality of Anchorage,
84 P.3d 989, 991 (Alaska 2004).

    6     Norville  v. Carr-Gottstein Foods, Co., 84  P.3d  996,
1000 n.1 (Alaska 2004).

    7    Crawford v. Kemp, 139 P.3d 1249, 1253 (Alaska 2006).

    8     Cikan  v. ARCO Alaska, Inc., 125 P.3d 335, 339 (Alaska
2005).

    9    Id. (citation omitted).

    10    Id. (citation omitted).

    11    Id. (citation omitted).

    12    Alaska R. Civ. P. 56(e); Murat v. F/V Shelikof Strait,
793 P.2d 69, 74-75 (Alaska 1990).

    13     Meidinger  v. Koniag, Inc., 31 P.3d  77,  88  (Alaska
2001).

    14     French v. Jadon, Inc., 911 P.2d 20, 32 (Alaska  1996).
See also Restatement (Second) of Torts  558 (1977).

    15     Briggs v. Newton, 984 P.2d 1113, 1120-21 (Alaska 1999)
(citation   and  punctuation  omitted).   See  also   Restatement
(Second) of Torts  559 (1977).

    16     Fairbanks  Pub. Co. v. Francisco, 390  P.2d  784,  793
(Alaska 1964).

    17     Taranto  v.  N.  Slope Borough, 992  P.2d  1111,  1115
(Alaska 1999).

    18     Pearson  v.  Fairbanks Pub. Co.,  413  P.2d  711,  714
(Alaska 1966).

    19    Id.

    20    Id. at 715.

    21     See  Pearson, 413 P.2d at 714; Francisco, 390 P.2d  at
793.

    22    See Taranto, 992 P.2d at 1115.

    23     Regarding the incident at Floyd Dryden Middle  School,
the  article states that Olivit said that after he complained  to
police  about  it, he was arrested . . . .  Olivit later  pleaded
guilty  to  misdemeanor assault in an agreement that imposed  one
year on probation without any jail time or fine.

    24    The criminal judgment states, [t]he defendant was found
and  adjudged:  GUILTY  OF:  Disorderly  Conduct   Challenge   To
Fight/Fight.

    25     Olivit  also  asserted in his verified complaint  that
[l]awsuits  filed  in  Federal Court were not  dismissed  in  the
fashion  printed.  The article attributes to Hartle the statement
that  [o]ther  suits Olivit has filed have gone to federal  court
and have been dismissed.  Olivit does not mention this discussion
of  federal suits in his brief to this court.  We therefore  deem
any possible claim concerning them waived.

    26    Pearson, 413 P.2d at 714.

    27     W.  Page  Keeton et al., Prosser and Keeton  on  Torts
111,  at 778 (5th ed. 1984); see also James D. Ghiardi & John  J.
Kircher,  Punitive Damages: Law and Practice  13:02, at 13-6  (2d
ed.  2006) (noting that [a]s a general rule, only the person  who
is defamed may maintain an action for defamation).

    28     Wilson  v.  Retail Credit Co., 325 F. Supp.  460,  463
(S.D. Miss. 1971) (holding that plaintiff did not have defamation
claim  against  mercantile agency for reporting  that  plaintiffs
wife  was  neurotic, in part because claim was personal  to  wife
herself).

    29     Casciola v. F.S. Air Serv., Inc., 120 P.3d 1059, 1062-
63  (Alaska  2005) (stating that this court applies more  lenient
standard to pro se litigants).

    30     Wright  v.  Black,  856 P.2d 477,  480  (Alaska  1993)
(stating  that  pro se litigant must make good faith  efforts  to
comply  with judicial standards), overruled on other  grounds  by
B.E.B. v. R.L.B., 979 P.2d 514, 520 n.47 (Alaska 1999).

    31    Olivit makes no mention of NIED on appeal.

    32     See  Wasserman v. Bartholomew, 38 P.3d  1162,  1170-71
(Alaska  2002),  cert. denied, 536 U.S. 929 (2002)  (noting  that
[m]ere   evidence  that  a  judge  has  exercised  his   judicial
discretion  in  a  particular way is not  sufficient  to  require
disqualification).

    33    Alaska R. Civ. P. 55(a)(1).

    34    Alaska R. Civ. P. 55(b), (c).

    35    Alaska R. Civ. P. 55(d).

    36    Alaska R. Civ. P. 82(a).

    37    Alaska R. Civ. P. 82(b)(2).

    38     See  Meidinger v. Koniag, Inc., 31 P.3d 77, 88 (Alaska
2001)  (holding that [t]he prevailing party is the  one  who  has
successfully prosecuted or defended against the action,  the  one
who  is  successful on the main issue of the action and in  whose
favor  the  decision  or  verdict is rendered  and  the  judgment
entered (citation and internal quotation marks omitted)).

    39     See  Gilbert v. Sperbeck, 126 P.3d 1057, 1062  (Alaska
2005)  (noting that even when a pro se litigant is  involved,  an
argument  is considered waived when the party cites no  authority
and  fails  to  provide a legal theory for his  or  her  argument
(citation and internal quotation marks omitted)).

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