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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
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 firstname.lastname@example.org. THE SUPREME COURT OF THE STATE OF ALASKA
|RUSSELL MADDOX, dba||)|
|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|
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. I. INTRODUCTION 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. II. FACTS 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. III. PROCEEDINGS 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 46.03.822. 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. IV. DISCUSSION 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 liability.11 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 causation. 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 worthless. 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 damages. 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 determination. 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 damages. 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 claims. 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 distress. 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 IIED. 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 daughter.42 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 counterclaim. 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 nuisance. 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). V. CONCLUSION 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 2007). 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, 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, 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 title). 22 14 Powell, supra note 20, 82.01[a], at 82-9, 82.01, 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 statute). 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 duties). 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).
Statutes, Regs & Rules