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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Maddox v. Hardy (07/11/2008) sp-6284

Maddox v. Hardy (07/11/2008) sp-6284, 187 P3d 486

     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,


R&R DOG BOARDING, ) Supreme Court Nos. S- 12243/12246
Appellant/Cross-Appellee, ) Superior Court No. 3SW-03-00064 CI
v. ) O P I N I O N
PENNY HARDY and DORENE ) No. 6284 July 11, 2008
Appellees/Cross-Appellants. )
          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Seward,
          Harold M. Brown, Judge.

          Appearances:  Peter R. Ehrhardt,  Kenai,  for
          Appellant/Cross-Appellee.  Robert  C.  Erwin,
          Robert   C.   Erwin,  LLC,   Anchorage,   for
          Appellee/Cross-Appellant     Penny     Hardy.
          Douglas  J.  Serdahely,  David  J.  Mayberry,
          Patton    Boggs    LLP,    Anchorage,     for
          Appellee/Cross-Appellant Dorene Lorenz.

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

          MATTHEWS, Justice.

          This  appeal involves a controversy surrounding a large
fire  started by Dorene Lorenz and other persons for the  purpose
of  clearing rubbish.  Russell Maddox, a next-door neighbor, sued
Lorenz and other parties he thought were involved for damages the
fire  caused  to  his home-based business and  property.   Lorenz
counterclaimed,  primarily  stating  claims  based   on   Maddoxs
behavior toward her after the fire.  The superior court dismissed
Lorenzs  counterclaims  and  all of  Maddoxs  claims  except  his
nuisance action.  At trial, the jury found in favor of Maddox and
awarded him compensatory and punitive damages.
          Maddox  appeals the superior courts refusal  to  impose
joint  and several liability on the alleged owner of the property
where the fire took place.  We affirm because this person did not
own the property during the relevant time period.  Lorenz appeals
the  jurys  findings and its award of damages.  She also  appeals
the dismissal of her counterclaims.  We affirm the jurys verdict,
but reverse the dismissal of most of her counterclaims.
          Russell Maddox owns a home in Seward.  In 2000 he began
a  home-based  dog boarding business called R & R  Dog  Boarding.
According  to  Maddox, by late 2001 business was strong  and  his
kennels were full.
          On  November 24 and 25, 2001, Dorene Lorenz decided  to
clear  debris from a piece of property neighboring Maddoxs  land.
The  ownership  of  this property at the  time  of  the  fire  is
contested  in  this appeal.1  Wilbur J.R. Thomas  Jr.,  a  family
friend of Lorenz, drove his excavator to the property.  Using the
excavator, he began pulling and crushing debris, piling it  in  a
common area about fifty feet away from Maddoxs fence.2 While  the
parties  dispute  the piles exact contents, it  likely  included,
among  other things, a Quonset hut, a trailer, a storage shed,  a
school bus, old cars, furniture, and wood.
          Concerned  by this activity, Maddox came  over  to  the
property  and asked Lorenz what was happening.  Lorenz  told  him
that  she was cleaning up the property and, according to  Maddox,
made  fun of him for his concern.  Maddox testified that,  as  he
was  leaving the property, he smelled gasoline and the pile burst
into  flame.   Thomas added more refuse to the pile as  the  fire
burned.  The wind was in the direction of Maddoxs property.
          The  parties dispute the ferocity and size of the fire,
although  there is general agreement that it was  large.   Maddox
testified  that flames came over his fence.  He further testified
that  embers  landed  on his property and that  occasional  small
explosions threw pieces of metal onto his property.  Maddox spent
much of the evening stomping out embers that fell on the straw he
used for his dogs.  The November 24th fire lasted into the night.
The  following  day,  Thomas  returned  and  continued  his  work
cleaning the property, burning debris in a second location.
          After the fires, Maddoxs property was covered with ash.
Maddox   contacted   the  Alaska  Department   of   Environmental
Conservation (ADEC) and complained about the fire.  The ADEC told
Maddox  to take samples of the ash on his property and have  them
sent for testing.  Maddox did so, paying for the testing with his
funds.   The  testing revealed elevated levels  of  lead.   After
these  results, the ADEC and the Alaska Department of Health  and
Social Services became involved, as did the federal Environmental
Protection  Agency  (EPA).   The  agencies  conducted  their  own
testing   the  parties dispute the interpretation of the  results
and recommended cleanup procedures.
          In  light of the testing results, Maddox closed his dog
boarding  business  and  began efforts  to  clean  his  property.
Maddox  reopened his business two years later, in  January  2004.
Maddox explained the delay by stating that the ADEC and EPA  told
him  to  leave  his  property alone  so  they  could  assess  the
contamination  and clean the property.  After two  years,  Maddox
tired of waiting for agency action and reopened.
          Maddox,  represented by counsel, filed a  complaint  in
March 2003 against Dorene Lorenz, Wilbur J.R. Thomas, Ethel Penny
Hardy, and others he believed were involved in the fire.3   Hardy
was  sued  as a possible owner of the property.   Maddox asserted
claims of nuisance, offensive contact, negligence, negligence per
se,  and strict liability and asked for compensatory and punitive
damages.   Lorenzs pro se answer,4 after amendments,  included  a
number  of  compulsory and permissive counterclaims:  defamation,
intentional  infliction of emotional distress, battery,  and  two
counts  of  nuisance (one for Maddoxs dog boarding business,  the
other for an alleged marijuana business).
          Maddox  moved to dismiss Lorenzs counterclaims  in  May
2004.   In  June  Superior Court Judge Harold M. Brown  issued  a
notice of intent to dismiss counterclaims for failure to state  a
claim  on  which  relief  may  be  granted  and  gave  Lorenz  an
opportunity  to  amend  her counterclaims.   After  Lorenz  filed
amended  counterclaims,  Maddox  again  moved  to  dismiss  them.
Lorenz   made  no  response  and  the  judge  dismissed   Lorenzs
counterclaims without further explanation.  Lorenz  appeals  this
dismissal,  arguing that the judge failed to  treat  her  pro  se
pleadings  charitably and failed to provide her  with  a  minimum
level  of  information  so that she could  properly  correct  her
counterclaims.   She  also argues that her  counterclaims  stated
proper claims.
          Trial was in Seward on November 15-17, 2005.  The  jury
returned a verdict in favor of Maddox, finding Lorenz and  Thomas
liable  in  nuisance.5   The  jury allocated  fault  as  follows:
Lorenz   sixty  percent;  Thomas   forty  percent;  Hardy    zero
percent.   The  jury further found that Maddox did  not  fail  to
mitigate his damages.  In total, the jury awarded Maddox  $21,000
for  lost  earnings, $72,000 for lost property value, and  $2,000
for  mitigation  expenses.  The superior  court  allocated  these
damages according to the degree of fault found by the jury.   The
jury also assessed punitive damages against Lorenz and Thomas  in
the amounts of $500 and $50,000, respectively.
          At trial, the judge only instructed the jury on Maddoxs
nuisance  claim.  Maddox appeals the superior courts  refusal  to
instruct  the jury on his claim of strict liability based  on  AS
          After  the verdict, Lorenz moved for a new trial.   The
court denied the motion.  Lorenz repeats her arguments on appeal.
Specifically, she appeals the jurys finding of causation and  its
award of damages.  Thomas has not participated on appeal.

    A.   Statutory  Strict  Liability  Did  Not  Apply  to  Hardy
         Because She Was Not the Owner of the Property.
         Maddox  challenges the superior courts refusal to impose
joint  and  several  strict  liability  on  Hardy  based  on   AS
46.03.822.   We  review  questions of law and  the  trial  courts
application of the law to facts de novo.6
         Alaska  Statute  46.03.822 is an  environmental  statute
providing   joint  and  several  strict  liability  for   damages
resulting from a release of a hazardous substance.7  The  statute
applies  when two elements are met.  First, there must have  been
an  unpermitted  release  of a hazardous  substance  that  caused
damages.8   Second, the party being sued must own  the  hazardous
substance at the time of the release.9
          Maddoxs  argument rests solely on the statute, but  the
parties briefs occasionally refer to common law strict liability.
This  reliance  is misplaced.  The elements of  the  statute  are
distinct  from  tort  laws  ultrahazardous  activity  analysis.10
Moreover,  the  goal of Maddoxs appeal is to impos[e]  joint  and
several  strict liability on Penny Hardy for the full  amount  of
the  compensatory  damages awarded by  the  jury  below.   Strict
liability in tort, as modified by AS 09.17.080(d), only  provides
several  liability.   Because the jury allocated  zero  fault  to
Hardy,  Maddoxs legal theory cannot be based on common law strict
          We  assume  arguendo that the fire released a hazardous
substance within the meaning of AS 46.03.826(5).  Accordingly  we
only discuss the second element of the statute.
          For  the second element, Maddox invokes the portion  of
the  statute  that imposes liability on the owner of a  hazardous
substance at the time of its release.12 Maddox argues that  Hardy
was the owner of the property at the time of the fires release of
lead-tainted  ash.   Hardy responds that  she  did  not  own  the
property at the time of the fire.13  The trial court did not reach
the  issue  of  property ownership because the court  erroneously
applied  the common law strict liability test and concluded  that
the fire was not ultrahazardous.
          When  applying AS 46.03.822 this court follows a  title
theory of ownership.14  Accordingly, an owner of property is  the
person holding title.15  The issue of property ownership turns on
the  August 8, 2001 bill of sale that Hardy delivered to  Lorenz.
Maddox did not object to the admission of this document at  trial
and  on appeal the parties do not dispute the genuineness of this
document.  Maddox argues that the controlling fact is that  Hardy
and  Lorenz  did  not execute and record a quitclaim  deed  until
after the fire in 2002.  Hardy responds that the pre-fire bill of
sale transferred title.
          Maddox  first argues, citing the recording  statute  AS
40.17.090,  that the 2002 (post-fire) quitclaim deed should  have
been  conclusive on this issue [of ownership].  Maddox is  wrong.
The   recording  statute  provides  that  properly   acknowledged
documents  are  admissible as evidence of the conveyance  without
further  proof16  and  that  properly acknowledged  and  recorded
documents  create  presumptions with  respect  to  title.17   His
          argument that the recorded chain of title creates a conclusive
finding  of  ownership for the relevant time periods misconstrues
the  statute.   Maddoxs  argument is also contrary  to  case  law
holding  that the presumptions of a recorded deed can be overcome
by  clear  and  convincing evidence.18  Here, the  bill  of  sale
provides   clear   and  convincing  evidence  to   overcome   the
presumption  that  title transferred on the date  listed  in  the
recorded deed.
          Maddox next argues, relying on the recording act,  that
he  was an innocent third party to the conveyance and, thus, that
the  transfer of title was not effective as to him until the deed
was  recorded.  Maddoxs recording argument finds some support  in
case  language.  For example, when upholding the validity  of  an
unacknowledged  deed,  we have added the qualification  that  the
unacknowledged deed is only valid as between the parties.19   But
Hardys interpretation of the recording act is superior.  Even  if
a  deed is not recorded, title transfers upon execution of a bill
of  sale.20   Thus, ownership for the purposes  of  AS  46.03.822
transfers  upon execution of a bill of sale.21  Importantly,  the
policy  behind  the recording act is not at issue in  this  case.
The  recording  act  is meant to protect a subsequent  purchasers
reliance  on  a sellers title by providing a means for  resolving
competing  claims  to title.22  Maddox was  not  a  purchaser  of
property.   He never relied on ownership records.  The events  at
issue would have occurred regardless of recording.
     B.   The Superior Court Properly Denied Lorenzs Motion for a
          New  Trial.
          Lorenz  moved for a new trial after the jurys  verdict.
The   superior  court  denied  the  motion.   On  appeal   Lorenz
challenges  the  jurys  finding of causation  and  its  award  of
compensatory and punitive damages.
          The question of whether to grant or deny a motion for a
new trial rests in the sound discretion of the trial court.23  In
reviewing  an  order denying a new trial, this  court  views  the
evidence  in the light most favorable to the non-moving  party.24
[W]e  will reject a jurys award of damages and order a new  trial
only  when  the  evidence supporting the jurys conclusion  is  so
completely  lacking or slight and unconvincing  as  to  make  the
verdict plainly unreasonable and unjust. 25
          1.   Sufficient evidence supports the jurys finding  of
          Lorenz  argues that there was insufficient evidence  to
support  the  jurys finding that the fire was the source  of  the
lead   that   contaminated  Maddoxs  property.   She  makes   two
arguments.   First, she argues that testing revealed  that  there
was  no  contamination.  Second, she argues that no evidence  was
presented to actually demonstrate that the fire was the source of
any lead particles found on Maddoxs property.
          Construing the evidence in the light most favorable  to
Maddox, we find that the trial court did not abuse its discretion
when  it  denied  Lorenzs  motion for a  new  trial.   The  jurys
determination that Maddoxs property was contaminated by  lead  is
adequately  supported by the evidence.  The sample  of  ash  that
Maddox  sent  out for testing contained in excess of ten  percent
          lead by weight.  Initial testing by the Alaska Department of
Health  and Social Services caused the EPA to conclude  that  the
ash  on Maddoxs property contained lead in levels exceeding state
and  federal  environmental standards.  Maddoxs expert  testified
that  many samples taken from Maddoxs property contained lead  in
amounts  exceeding  state  and federal standards.   While  Lorenz
argues  that  later testing by the EPA found  that  lead  was  no
longer present in levels exceeding the cleanup standards, Maddoxs
expert  directly addressed this later testing and  both  disputed
Lorenzs interpretation of the results and criticized the EPA  for
using improper testing procedures.  Lorenz also argues that blood
tests  conducted on Maddox and the dogs on his property  revealed
no  elevated levels of lead.  But this argument does not  address
Maddoxs  argument  that  his property was  contaminated.   Maddox
never claimed and received no damages for personal injury.
          Lorenzs  second  argument  that there was  insufficient
evidence  linking  the  lead  on Maddoxs  property  to  the  fire
involves a similar inquiry.  Many of the samples taken by  Maddox
and  the  environmental agencies were of ash.   Lorenz  does  not
argue  that  this  ash came from a non-fire source.   The  states
environmental  report  suggested  that  the  ash  from  the  fire
contained  high levels of lead.  The states report also explained
that  the  prevailing  wind would have  blown  this  ash  in  the
direction  of Maddoxs property.  Moreover the EPA found  elevated
levels  of lead in soil samples taken from the burn site of  each
fire.  Lorenz argues that Maddoxs expert could not rule out other
sources  of  the lead on Maddoxs property (she does  not  suggest
what  those  sources might be) and did not know if  Sewards  soil
naturally contained elevated levels of lead.  She also points out
that  no one conducted a forensic investigation to determine  the
source  of  the lead.  But these arguments ignore the  applicable
burden  of  proof and standard of review and are insufficient  to
warrant a new trial.
          2.   Sufficient  evidence supports the jurys  award  of
               compensatory damages.
          Lorenz  argues that there was insufficient evidence  to
support  the jurys award of compensatory damages.  She challenges
the  jurys award of lost earnings for Maddoxs dog kennel business
on  mitigation  of  damages grounds and the lost  property  value
determination on sufficiency of evidence grounds.
               a.   Sufficient   evidence  supports   the   jurys
                    finding that Maddox mitigated his damages.
          Lorenz  argues  that  Maddoxs  lost  business  earnings
should  be  reduced because Maddox did not mitigate his  damages.
As  a  result of the fire Maddox closed his dog boarding business
for  two years, reopening it in January 2004.  Lorenz argues that
Maddox  could  have reopened his business less than  four  months
after the fire.  Maddox responds that he kept his business closed
because the ADEC and EPA told him to leave his property alone  so
they could assess it and clean it up if it was contaminated.
          A  wronged  partys  damages award is  reduced  by  that
partys  failure to mitigate.26  The reasonableness  of  a  partys
          mitigation is a question of fact.27  The jury found that Maddox
did not fail to mitigate his damages.
          Because the jurys mitigation determination is supported
by  the evidence, we find that the trial court did not abuse  its
discretion when denying Lorenzs motion for a new trial.   Lorenzs
expert  testified that the cleanup procedures recommended by  the
agencies  would take two days to implement.  But Maddox testified
that  the ADEC and EPA told him to leave his property alone until
they finished their assessments and any necessary cleanup.  Given
that  the  EPA was conducting on-site assessments in  June  2002,
potentially  conducted  additional assessments  after  June,  and
issued  its final preliminary assessment report in January  2004,
there   is   evidence  that  the  agencies  were  conducting   an
investigation  during  the  two  years  that  Maddox  closed  his
business.  The contamination that the agencies were investigating
could  have reasonably informed Maddoxs decision to keep his  dog
boarding business closed.
               b.   Sufficient   evidence  supports   the   jurys
                    finding   that   Maddoxs  property   is   now
          Lorenz  challenges the jurys assessment of damages  for
lost  property  value.  The jury awarded Maddox the  fair  market
value  of  his property  $72,000.  Lorenz argues that Maddox  did
not  prove  that  his  property was worthless.   Maddoxs  primary
evidence  was  from  an  appraisers post-fire  valuation  of  the
property  at $72,000.  The appraiser worked under the  assumption
that  the property was not contaminated.   But the appraiser  did
state  that  he thought that if the property was contaminated  it
would  be  worth nothing, and may be less.  Lorenz contends  that
this  was  an  unfair method of valuing the property because  the
appraiser in his appraisal did not treat Maddoxs property  as  if
it  were  contaminated and was hesitant to assume  that  it  was.
Maddox  responds that there was sufficient evidence for the  jury
to  determine that the property was contaminated and that,  given
this  contamination, the jury could have found that the  property
was worth nothing.
          The  jury  could  have reasonably  found  that  Maddoxs
property  is  now  contaminated.28   The  testimony  of   Maddoxs
appraiser suggests that the property would be worthless if it was
contaminated.   The  jury is entitled to  combine  evidence  from
multiple  sources  to reach its determination.   Nothing  in  the
record  suggests that it was unfair for Maddox to  establish  the
lost value of his property in this manner.
          Lorenz  also  argues  that Maddox  failed  to  properly
establish the value of his property.29  Maddox testified that his
property  was  worth  $72,000 before the fire.   Lorenz  did  not
object  to  this  testimony at trial.  Maddox and  the  appraiser
provided testimony suggesting the value of Maddoxs property after
the fire.  Alaska allows lay testimony from the owner of property
as  to  the  value  of the property before and after  a  damaging
event.30   Maddox has provided enough evidence for this court  to
determine  that  the jurys damages award was not so  unreasonable
and unjust as to require a new trial.
          3.   Sufficient evidence supports the award of punitive
          Lorenz  argues  that  her behavior  was  not  egregious
enough  to  trigger  the jurys assessment  of  $500  in  punitive
damages  against  her.  She notes that the jury  found  that  her
actions were not motivated by financial gain and that she did not
know of the adverse consequences of the fire.
          Alaska  Statute  09.17.020 governs awards  of  punitive
damages.   The statute provides that the plaintiff must establish
by  clear and convincing evidence that the defendants conduct (1)
was  outrageous, including acts done with malice or bad  motives;
or (2) evidenced reckless indifference to the interest of another
person.31  A showing of malice is not required.  It is sufficient
to   show  that  the  defendants  conduct  amounted  to  reckless
indifference  to  the rights of others, and conscious  action  in
deliberate  disregard of [those rights]. 32  We  will  reverse  a
punitive damages award only if consideration of the record  as  a
whole  leaves us with a firm conviction of error and the need  to
intervene to prevent a miscarriage of justice.33
          The  jury reasonably could have determined that  Lorenz
acted  with reckless indifference to Maddoxs interests.34  Maddox
testified  at  trial that Lorenz mocked him for raising  concerns
before she started the first fire.  Maddox further testified that
the  two  fires  were sizable, that the wind was blowing  in  the
direction  of  his  property,  that the  fires  consumed  objects
containing  lead, that the fires deposited a great deal  of  ash,
and  that explosions within the fires threw pieces of metal  onto
his  property.   The jury reasonably could have credited  Maddoxs
testimony.  Lorenzs arguments are insufficient to upset the jurys
     C.   The  Superior  Court Erred when It Awarded  Prejudgment
          Interest on Maddoxs Punitive Damages Against Lorenz.
          The  superior court awarded Maddox prejudgment interest
on  the  jurys award of punitive damages of $500 against  Lorenz.
Lorenz  argues  that  this  award  violates  the  prohibition  on
prejudgment  interest  for  punitive  awards  set  forth  in   AS
09.30.070(c).  Maddox, correctly, conceded the point.
     D.   The  Superior  Court Erred in Part in Its Dismissal  of
          Lorenzs Counterclaims.
          After   Lorenz  filed  an  amended  statement  of   her
counterclaims,   Maddox   moved  to   strike   all   of   Lorenzs
counterclaims.  In response, the superior court issued  a  notice
of  intent  to dismiss counterclaims in which the court suggested
that  Lorenz  failed to state any claim on which  relief  may  be
granted   and   provided  Lorenz  twenty  days   to   amend   her
counterclaims.   After Lorenz filed an amended  pleading,  Maddox
again moved for dismissal on Civil Rule 12(b)(6) grounds.  Lorenz
did  not  file an opposition to this motion.  The superior  court
granted  Maddoxs  motion to dismiss all of Lorenzs  counterclaims
without further explanation.
          Lorenz  makes two challenges.  First, she  argues  that
the  superior  court erred by not treating her pro  se  pleadings
          charitably and by not providing her sufficient information so
that  she  could properly amend her counterclaims.   Second,  she
argues  that  the  superior court erred  in  its  denial  of  her
counterclaims  because  each counterclaim sufficiently  stated  a
claim for relief.
          Because we independently review and charitably construe
Lorenzs  counterclaims, we do not address Lorenzs first argument.
We  treat  Lorenzs final pro se pleading of counterclaims  as  an
opposition to Maddoxs Rule 12(b)(6) motion. Accordingly we reject
Maddoxs  argument that Lorenz defaulted by failing to respond  to
his final Rule 12(b)(6) motion.35
          We  review  the  superior courts dismissal  of  Lorenzs
counterclaims for failure to state a claim upon which relief  can
be  granted de novo, presum[ing] all factual allegations  of  the
complaint to be true and [making] all reasonable inferences . . .
in favor of the non-moving party.36
          1.   The superior court erred when it dismissed Lorenzs
               defamation counterclaims.
          Lorenzs   first  and  second  counterclaims  were   for
defamation.  Lorenz alleged that Maddox made false statements  to
the  government,  the  press,  and local  citizens  about  issues
related to the lawsuit and her cleanup efforts.  She alleged that
Maddoxs words placed an unfortunate shadow on her vocation as  an
interior  designer  and  her role as one  of  Sewards  Historical
Preservation Commissioners.
          In his motion for dismissal, Maddox argued that Lorenzs
pleadings  did  not set forth the allegedly false statements  and
that  Lorenz failed to properly allege damages.  On appeal Lorenz
argues   that  a  complete  reading  of  her  complaint  provided
sufficient information about Maddoxs statements.  She also argues
that  she  adequately  alleged damages by claiming  harm  to  her
standing  in  the community.  In response, Maddox  contends  that
Lorenz never set forth the allegedly defamatory statements,  made
no  claim  that the statements were false, and inadequately  pled
          The  elements  of  defamation  are:  (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.37
          A  charitable  reading of Lorenzs pro  se  counterclaim
leads  us to conclude that Lorenz included sufficient allegations
of  the  statements that Maddox made.  Lorenz alleged that Maddox
wrote  disparaging  letters to the editor in the  Seward  Phoenix
Log, that Maddox sought news coverage of the effects of the burn,
that Maddox contacted state and federal agencies alleging illegal
activities  in  connection with Lorenzs  fire,  and  that  Maddox
distributed flyers disparaging Lorenzs cleanup activities.  While
these  allegations did little to suggest the substance of Maddoxs
statements,  they  generally  put Maddox  on  notice  of  Lorenzs
          Lorenzs   complaint  sufficiently  alleged   that   the
statements Maddox made were false by making the general assertion
          that Maddox made wholly and in-part false statements.  While the
lack  of  specific statements in her pleadings makes this falsity
allegation broad, this assertion was sufficient to put Maddox  on
notice of Lorenzs position.
          Lorenzs  complaint insufficiently alleged  damages  for
some of her potential defamation claims.  Lorenzs complaint could
be  read  to state causes of action in libel and slander per  se.
These  claims do not require an allegation of special  damages.38
However,  to  the  extent that Lorenz attempted  to  recover  for
slander  requiring proof of special damages (slander  per  quod),
she  failed  to  plead damages with any specificity.39  But  this
failure  might be attributable to insufficient guidance from  the
trial court.
          On  remand, Lorenz should replead all of her defamation
claims.   The  trial  court  can then  consider  a  renewed  Rule
12(b)(6)  motion or a motion for a more definite statement  under
Rule 12(e).  Maddox can also utilize discovery to distill Lorenzs
claim  and may choose to file a motion for summary judgment.   We
note  that  some  of Maddoxs statements may be  privileged.   For
example,  Maddoxs communications with state and federal officials
alleging   illegal  activities  likely  warranted   a   qualified
privilege  and,  if so, the only question would  be  whether  the
privilege  was abused.40  We further note that the jurys  special
verdict  in  favor of Maddox might provide him with a defense  of
truth  as to most of Lorenzs defamation claims.  But we  take  no
conclusive  position on the validity of Lorenzs  claims  as  they
relate to Maddoxs ability to assert privileges or other defenses.
          2.   The superior court erred when it dismissed Lorenzs
               claims for the intentional infliction of emotional
          Lorenzs  third,  fourth,  sixth,  seventh,  and  eighth
claims   for  relief  involved  the  intentional  infliction   of
emotional  distress (IIED).  Maddox argued that Lorenz failed  to
allege   extreme  or  outrageous  conduct  and  that   she   made
insufficient  and  improper allegations of damages.   On  appeal,
Lorenz groups her claims together into a more general argument of
          Lorenzs  pleadings  can be read to  state  a  cause  of
action  for IIED.  An action for IIED lies where: (1) the conduct
is  extreme  and  outrageous, (2) the conduct is  intentional  or
reckless, (3) the conduct causes emotional distress, and (4)  the
distress  is  severe.41  Lorenz claimed at least one instance  of
arguably  outrageous conduct: Maddox allegedly  stated  that  the
next  time he caught [Lorenz] alone he would shoot her.  However,
some  of  Lorenzs other allegations do not appear  to  amount  to
outrageous  conduct for the purposes of IIED.  For  example,  she
alleged  that Maddox verbally harassed and taunted  her  and  her
          Lorenz  sufficiently alleged that Maddoxs  conduct  was
intentional  and that it caused her emotional distress.   Lorenzs
allegations suggested that the distress was severe, resulting  in
anxiety, depression, and migraine headaches.
          On  remand,  Lorenz  should replead  all  of  her  IIED
          claims.43  Maddox will have the same options as outlined above
concerning  Lorenzs  defamation claims.  We make  no  comment  on
collateral  estoppel  or  mootness that  might  result  from  our
decision in this appeal.
          3.   The superior court erred when it dismissed Lorenzs
               claim for battery.
          Lorenzs   fifth  claim  for  relief  was  for  battery.
Maddox, basing his response on Lorenzs three-paragraph claim  for
relief, moved for dismissal because the paragraphs did not  state
a  cause  of  action.  On appeal, Lorenz argues that  an  earlier
paragraph  in her answer alleged that Maddox threw a  five-gallon
bucket of dirty water on her.

          Battery  occurs when an actor intends to cause  harmful
or  offensive  contact  with another  and  an  offensive  contact
results.44  Lorenzs allegation that Maddox threw a bucket of water
on  her  would  constitute  an intentional,  offensive  touching.
Accordingly   the   superior  court  erred  in  dismissing   this
          4.   The superior court erred when it dismissed Lorenzs
               nuisance claims.
          Lorenzs  ninth  and  tenth counterclaims  alleged  that
Maddox operated a dog boarding business and a drug business  from
his  property  and  that both of these activities  constituted  a
          A   nuisance   is   a   substantial  and   unreasonable
interference with the use or enjoyment of real property.45  Lorenz
correctly  argues  that Maddoxs briefing never suggests  why  her
nuisance  claims should fail on Rule 12(b)(6) grounds.  A  kennel
of  barking  dogs  can constitute a nuisance.46  Maddoxs  alleged
marijuana business might constitute a private nuisance.47
          Maddox  argued  in  his  motion  to  dismiss  that  the
counterclaims were not part of the same transaction or occurrence
as  his  claims.   But  Maddox based his entire  motion  on  Rule
12(b)(6).    As  is  the  case  with  Lorenzs  other   permissive
counterclaims, the superior court erred when it failed to  accept
Lorenzs permissive nuisance counterclaim in accordance with Civil
Rule 13(b).
          For  the  reasons stated, we conclude that the superior
court  correctly  denied  a  strict  liability  instruction  with
respect  to  Maddoxs  claim against Hardy; correctly  refused  to
grant  Lorenzs  motion for a new trial; and  correctly  dismissed
what  Lorenz  now argues is a negligent infliction  of  emotional
distress  claim.  But it was error to award prejudgment  interest
on   Maddoxs  punitive  damage  award  and  to  dismiss   Lorenzs
defamation,   intentional  infliction  of   emotional   distress,
battery,  and  nuisance claims.  Accordingly the  final  judgment
entered by the court is AFFIRMED in part and VACATED in part  and
this  case is REMANDED for further proceedings in accordance with
this opinion.
     1     Maddox contends that Ethel Penny Hardy was the  owner.
Hardy responds that she sold the lot to Dorene Lorenz before  the
fire, executing a bill of sale on August 8, 2001.  Maddox replies
that  a quitclaim deed was not executed and recorded until  2002,
after the fire.

     2     Maddox  testified  that  Thomas  Walker  operated  the
excavator.   Thomas  Walker  denied  Maddoxs  assertion.   Wilbur
Thomas  Jr.  testified  that he was  the  sole  operator  of  the
excavator.  The jury, in its special verdict, found Wilbur Thomas
Jr.  liable  and it found that Thomas Walker was not  responsible
for the nuisance that harmed Maddox.

     3     The  complaint  also named Thomas  Development,  Inc.,
Thomas  Walker  (Dorene  Lorenzs stepfather),  and  Marty  Lorenz
(Dorenes  father) as defendants.   Maddox dismissed Marty  Lorenz
prior  to trial.  It is unclear when Thomas Development, Inc.,was
dismissed.  The jury found that Thomas Walker was not responsible
for the nuisance that harmed Maddox.

     4    Lorenz is represented by counsel on this appeal.

     5     The jury also listed Hardy as a liable party, but  did
not allocate any fault to her.

     6     Petrolane Inc. v. Robles, 154 P.3d 1014, 1018  (Alaska

     7     The  statute creates a private cause of action.   Fed.
Deposit  Ins.  Corp. v. Laidlaw Transit, Inc., 21 P.3d  344,  356
(Alaska 2001).

     8    AS 46.03.822(a).

     9    AS 46.03.822(a)(1).

     10     Compare  AS  46.03.822 (environmental statute),  with
Parks Hiway Enters., LLC v. CEM Leasing, Inc., 995 P.2d 657,  665
(Alaska 2000) (common law).

     11     Maddox  does  not  argue that  a  common  law  strict
liability  finding  could provide a way to  allocate  damages  to
Hardy.  Such a reallocation is not allowed.  AS 09.17.080(a);  AS
09.17.900 (defining fault to include strict liability); see  also
Borg-Warner Corp. v. Avco Corp., 850 P.2d 628, 633 (Alaska 1993).

     12    AS 46.03.822(a)(1).

     13    Both parties implicitly assume that the property owner
also owned the hazardous substance at the time of the release.

     14    Parks Hiway Enters., 995 P.2d at 661.

     15    Id.

     16    AS 40.17.090(a).

     17    AS 40.17.090(b).

     18     See  Rausch  v. Devine, 80 P.3d 733,  738-39  (Alaska
2003).   As explained below, title transfers on the execution  of
a  bill  of  sale even if the sale is not recorded.  Because  the
purposes  of the recording act are not implicated in  this  case,
the presumptions of the act do not conclusively control.

     19     Smalley v. Juneau Clinic Bldg. Corp., 493 P.2d  1296,
1301 (Alaska 1972).

     20      14  Richard  R.  Powell,  Powell  on  Real  Property
  82.01[3],  at 82-13 (Michael Allan Wolf ed., rev. 2005).   Even
if  one  characterizes the bill of sale as a contract  for  sale,
equitable  title  transfers upon the execution of  the  contract.
Id.   81.03[1],  at  81-82 to -83.  [A] person  is  an  owner  of
property although he or she holds only the equitable title.   63C
Am. Jur. 2d Property  26 (1997) (citation omitted).

     21    Lacking equitable title and possessing almost no other
indicia  of  ownership, we conclude that  Hardy  cannot  be  held
liable  under  AS 46.03.822.  See United States v.  Newmont  USA,
Ltd.,  504 F. Supp. 2d 1050, 1061 (E.D. Wash. 2007) (In instances
where  a party is deemed to hold bare legal title, courts .  .  .
have  looked  for  other indicia of ownership to determine  owner
liability  under CERCLA.); cf. Casperson v. Meech, 583 P.2d  218,
222  (Alaska  1978)  (noting that beneficial ownership  transfers
upon  execution of a bill of sale and holding that the  owner  of
legal  title was relieved of his obligation to assure  a  lessees
quiet  enjoyment of the property upon the transfer  of  equitable

     22     14  Powell,  supra  note 20,  82.01[2][a],  at  82-9,
 82.01[3], at 82-11 to -12.

     23     Kava  v.  Am.  Honda Motor Co., 48  P.3d  1170,  1173
(Alaska   2002)   (citation  omitted);  accord  Hogg   v.   Raven
Contractors, Inc., 134 P.3d 349, 352 (Alaska 2006).

     24    Kava, 48 P.3d at 1173.

     25    Domke v. Alyeska Pipeline Serv. Co., 137 P.3d 295, 299
(Alaska  2006)  (quoting Pugliese v. Perdue, 988  P.2d  577,  581
(Alaska 1999)).

     26     See  Gates v. City of Tenakee Springs, 822 P.2d  455,
460  (Alaska 1991) (quoting Univ. of Alaska v. Chauvin, 521  P.2d
1234, 1239 (Alaska 1974)).

     27    Id.

     28    See supra Part IV.B.1.

     29     Lorenz  also  claims error because Maddoxs  appraisal
took  place three years after the fire.  Lorenz does not  suggest
that  the propertys value changed over the three years and  shows
no prejudice from this delay.

     30    Osborne v. Hurst, 947 P.2d 1356, 1361 (Alaska 1997).

     31    AS 09.17.020(b).

     32     Chizmar  v.  Mackie, 896 P.2d 196, 210 (Alaska  1995)
(quoting State v. Haley, 687 P.2d 305, 320 (Alaska 1984)).

     33     Wal-Mart, Inc. v. Stewart, 990 P.2d 626, 638  (Alaska
1999)  (quoting Johnson & Higgins of Alaska, Inc.  v.  Blomfield,
907 P.2d 1371, 1376 (Alaska 1995)).

     34    AS 09.17.020(b)(2).  Lorenz confuses the jurys finding
that  she did not know the adverse results of the fire beforehand
by  suggesting  that  this finding would prevent  the  jury  from
determining that she acted with reckless indifference.   However,
knowledge  of  a  result is a higher state of mental  culpability
than   reckless  indifference.   Cf.  AS  11.81.610(c)  (criminal

     35     We note that the trial courts ultimate dismissal  was
on  Rule 12(b)(6) grounds and was not based on failure to file  a
responsive pleading.

     36     J  &  S  Servs., Inc. v. Tomter, 139  P.3d  544,  547
(Alaska  2006)  (quoting Kollodge v. State, 757 P.2d  1024,  1026
(Alaska 1988)).

     37     MacDonald  v.  Riggs, 166 P.3d 12, 15  (Alaska  2007)
(quoting  French  v. Jadon, Inc., 911 P.2d 20, 32  (Alaska  1996)
and citing Restatement (Second) of Torts  558 (1977)).

     38     Restatement (Second) of Torts  568(1),  569  (libel);
id.  570(c), 573 (slander per se) (1977).

     39    See Alaska R. Civ. P. 9(h).

     40     See, e.g., Fairbanks Publg Co. v. Francisco, 390 P.2d
784,  793  (Alaska 1964); Restatement (Second) of  Torts   598  &
cmt.  e  (conditional  privilege  for  communications  to  public
officials concerning matters that affect the discharge  of  their

     41    McGrew v. State, Dept of Health & Soc. Servs., Div. of
Family  &  Youth Servs., 106 P.3d 319, 324 (Alaska 2005) (quoting
Lincoln  v.  Interior Regl Hous. Auth., 30 P.3d 582, 589  (Alaska
2001)).    Alaska  has  adopted  the  definition  of   outrageous
behavior  found  in  Restatement (Second) of  Torts   46  cmt.  d
(1965).  Lybrand v. Trask, 31 P.3d 801, 803 n.4 (Alaska 2001).

     42     The Restatement (Second) of Torts  46 cmt. d explains
that  [t]he  liability clearly does not extend to  mere  insults,
indignities,  threats,  annoyances, petty oppressions,  or  other
trivialities.  The rough edges of our society are still  in  need
of a good filing down . . . .

     43    Lorenz, in her brief, suggests that she stated a claim
for  negligent infliction of emotional distress (NIED)  and  this
claim  was  erroneously dismissed.  But none of Lorenzs emotional
distress   claims  used  the  word  negligent.    Instead,   they
consistently  alleged intentional or knowing actions  by  Maddox.
We  therefore  conclude that Lorenz did not allege  counterclaims
for  negligent  infliction of emotional distress and  the  courts
general  dismissal  of her counterclaims was not  in  error  with
respect to the NIED tort.

     44    Restatement (Second) of Torts  18 (1965).

     45    AS 09.45.255.

     46     See,  e.g.,  Van Deusen v. Seavey, 53 P.3d  596,  599
(Alaska 2002).

     47    Regardless of the type of business involved, noise and
traffic  associated  with a business could  be  actionable  as  a
nuisance.   See,  e.g., Wade v. Fuller, 365 P.2d 802,  804  (Utah
1961).   A  nuisance requires more than the mere  consumption  of
drugs on the premises.  See, e.g., Davis v. State, 641 A.2d  941,
951 (Md. App. 1994).

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