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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bylers Alaska Wilderness Adventures Inc. v. The City of Kodiak (12/12/2008) sp-6327

Bylers Alaska Wilderness Adventures Inc. v. The City of Kodiak (12/12/2008) sp-6327, 197 P3d 199

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 12343
Appellants, )
) Superior Court No.
v. ) 3HO-01-00067 CI
OWEN as agent and employee of the )
OWEN personally, and LARRY )
Appellees. ) No. 6237- December 12, 2008
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:   Allen  Vacura,   Stepovich   &
          Vacura, Fairbanks, for Appellants.  Blake  H.
          Call,  Call, Hanson & Kell, P.C.,  Anchorage,
          for Appellees City of Kodiak and Martin Owen.

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

          CARPENETI, Justice.

          A  judge initially assigned to a case granted a  motion
in  limine which precluded several aspects of the plaintiffs past
from being introduced at trial.  Due to scheduling conflicts, the
trial  was reassigned to a judge who declined to follow the prior
ruling  and admitted much of the previously disallowed  evidence.
Because the evidentiary rulings were within the discretion of the
court  and,  in  any  event,   the  disputed  evidence  was   not
dispositive of the jurys ultimate finding, we affirm.
     A.   Facts
          Darren Byler (Byler)1 and his father, Jerry Byler,  own
Bylers Alaska Wilderness Adventures, Inc. (BAWA), a charter  boat
business.  Byler first began operating his business in Kodiak but
decided  to  leave Kodiak for Homer, believing he could  do  more
business in Homer, with its greater number of tourists.   In  the
spring  of 2000 Byler left Kodiak for Homer and started marketing
his business to Homers major booking agents.
          In  May  2000  North Country Charters, another  charter
company in Homer, referred a client from Nashville, Tennessee  to
BAWA.   That  client, Dr. William Kenner, arranged to  charter  a
boat  with BAWA for a fishing and sightseeing trip.  Kenners  was
the first inquiry BAWA received upon relocating to Homer.
          Kenner later learned from Homers harbormaster that BAWA
was  registered  in  Kodiak.  In May 2000 Kenner  called  Kodiaks
harbormaster,  Marty Owen, to inquire further about  the  Bylers.
Kenner  testified that Owen reported:  I cant say  anything  good
about  Darren Byler.  Upon Kenners request, Owen referred him  to
other  local  charter operators, including Larry Shaker.   Kenner
then  called Shaker.  Shaker gave Kenner two examples  of  Bylers
allegedly  questionable history.  Shaker first told  Kenner  that
Byler had left a hunting party on an island and, due to his  ill-
preparedness for bad weather, was forced to abandon  the  hunting
party.  Byler had allegedly used a skiff to drop them on a  shore
that  was exposed to the wind, a lee shore, and that the  weather
was building and . . . he was unable to go back and pick them  up
off  the island.  The hunting party was ultimately rescued by the
Coast Guard.
          As  further  evidence of Bylers unfitness, Shaker  also
told  Kenner of an incident in which Bylers boat ran out of  fuel
and  Byler  attempted to tow the larger boat with a skiff  across
open  waters  in  dangerous passages in Kodiak.  Kenner  repeated
these  stories  to Owen, who did not deny Shakers  stories  about
Byler.  Kenner testified that, although Owen did not specifically
respond  to  any  of  Shakers  accusations,  his  tone  of  voice
indicated that he affirmed Shakers statements by saying   uh-huh,
uh-huh  at  appropriate  moments.  Kenner  believed  that  Shaker
sounded  under  the influence of alcohol when he recounted  these
stories, but Owens failure to discount Shakers stories led Kenner
to  believe  that  Shakers description of the incidents  must  be
          As  a result of his conversations with Owen and Shaker,
Kenner  cancelled his twelve-day charter with Byler.  In addition
to  cancelling the trip, Kenner expressed his discontent to North
Country  Charters  for  referring him to Byler.   Following  this
incident  Byler  did  not receive any more referrals  from  local
          companies.  After several weeks Byler left Homer due to the lack
of  business.   Other charter companies in Homer appeared  to  be
doing well and did not suffer from a lack of business.
          In  November  2000  another potential customer,  Robert
Abeyta,  contacted Byler about chartering a boat  for  June  2001
when  he  planned to take his elderly mother on a trip to Alaska.
Abyeta  found Byler through internet research.  Abeyta and  Byler
negotiated an agreement for the two-week charter.  After reaching
this agreement, Abeyta contacted Owen.  Abeyta reportedly learned
from  Owen  that Byler had a history of abandoning people  to  be
rescued  by  the Coast Guard and was known to run  out  of  fuel.
Owen  referred Abeyta to Shaker for further information.   Shaker
confirmed  Owens  negative sentiments and added  that  Byler  had
issues  with alcohol and drugs. Abeytas mother died; as a  result
Abeyta did not complete the contract with Byler.
     B.   Proceedings
          Byler filed suit against the City of Kodiak, Owen,  and
Shaker, alleging defamation and business interference.  Byler and
Shaker  reached a settlement, and in May 2002 the claims  against
Shaker  were  dismissed with prejudice.  Byler pursued  his  case
against  Owen and Kodiak (these joint defendants, now  appellees,
will  be  referred to as Owen).  Byler conceded that Mr.  Shakers
statements  may  be  relevant for purposes  of  apportionment  of
          In  March 2005 Byler moved to exclude any testimony  or
exhibits   pertaining  to  [Bylers]  Fish  and  Game  violations,
criminal arrests or convictions, or civil lawsuits.  Byler argued
that  these subjects were irrelevant to the statements  at  issue
and  were  more  prejudicial than probative.   Owen  opposed  the
motion,  arguing that Bylers past was essential  to  proving  the
truthfulness  of  Owens statements about Byler.   Superior  Court
Judge  Harold M. Brown, the judge in Kenai assigned to the  case,
granted  Bylers  motion in limine.  Judge Browns order  precluded
Owen from introducing any testimony or exhibits pertaining to any
fish  and  game  violations, criminal arrests or  convictions  as
identified  in the pleadings or civil lawsuits.  The  order  also
precluded  Owen  from  introducing  any  testimony  about   Byler
allegedly abandoning a hunting party.  The order prohibited  such
testimony because none of the members of the hunting party . .  .
are listed as witnesses by the Defendant and [because] the Harbor
Master  denies any knowledge of the incident.  Judge Brown added:
The  Court  expresses  no opinion as to whether  the  information
concerning the matters described above may later become  relevant
and  admissible  as a consequence of testimony  or  other  events
during trial.
          The  parties prepared for trial.  In August 2005  Judge
Brown  set a trial date for February 27, 2006 in Homer.  When  it
came   time   for  trial  in  February  2006,  Judge  Brown   was
unavailable.  Wanting to secure a trial date as soon as possible,
the parties agreed to a March 2006 trial date in Anchorage before
Superior Court Judge Peter A. Michalski.
          Trial  commenced  on  March 13,  2006.   The  attorneys
conducted  voir dire and selected the jury from a pool of  forty-
nine potential jurors.  During voir dire, Owens attorney asked  a
potential juror whether she had any issues associated with  folks
who may have had previous convictions for assault or any other of
a  number  of  items.  Byler immediately called for  a  mistrial,
citing  Judge  Browns  motion in limine.  After  reviewing  Judge
Browns motion in limine, Judge Michalski denied the motion for  a
mistrial.   Judge  Michalski warned Byler that, although  he  was
instructing Owen not to mention the assault during voir dire,  he
believed  the  issues related to the assault  and  these  general
areas are going to come in.  Judge Michalski warned Byler that he
has to anticipate that there will be significant . . . unpleasant
evidence  that is admissible against him.  Judge Michalski  ruled
that  Bylers  assault convictions were admissible  and  that  the
Coast  Guard  reports  may  be admissible  as  business  records.
Following this conference Byler raised a standing objection.
          During opening statements, Byler objected to statements
by  Owens  attorney.  Owens attorney argued that testimony  would
show  that Byler was one of Kodiaks known drug dealers, which  he
supported  by arguing that an anticipated witness, Larry  Shaker,
heard it from his wife, a brown shirt, a fish and wildlife person
for  the  State,  who  would know the identities  of  local  drug
dealers.    When  the  court  questioned  the  basis   for   this
accusation, defense counsel defended this attack by arguing  that
it  was  supported  by  a  cop.   Judge  Michalski  sustained  an
objection  to this reference to Bylers alleged status as  a  drug
dealer and offered a curative instruction.2
           Throughout the trial Judge Michalski allowed testimony
relating  to several of the issues previously precluded by  Judge
Browns order in limine.  In particular, the assault, which  Judge
Michalskis  modification  of  Judge  Browns  order  allowed,  was
mentioned by the defense in its opening statement.  But the court
later  struck all references to it because Owen failed  to  prove
that Byler was convicted of the assault.
          At   trial  Owen  testified  that  he  did  not  recall
confirming Shakers statements to Kenner, and that he most  likely
just  stayed quiet when Kenner repeated Shakers statements.  Owen
also  testified that, as Kodiaks harbormaster, he has a  duty  to
investigate accusations before giving an opinion.
          The jury returned a special verdict that found four  of
the five elements of defamation: It found that it was more likely
true  than  not  true that (1) Owen communicated a  statement  or
statements  orally  to  a  person other  than  [Byler],  (2)  the
statement or statements were reasonably understood by this person
to  be about [Byler], (3) the statement or statements were false,
and (4) the statement or statements were a legal cause of harm to
[Byler].   However, the jury found that there was not  clear  and
convincing  evidence  that  Owen either  knew  the  statement  or
statements  were  false or acted in reckless disregard  to  their
truth  or falsity, and that it was not more likely true than  not
true  that  Owen  knew or reasonably should have known  that  the
statement or statements were false.  As the jury found that Byler
did  not  prove all of the elements of defamation,  it  concluded
that Owen was not liable.
          Byler  moved  for  a  new trial.  He  argued  that  the
evidence could lead to only one reasonable conclusion  that  Owen
          was at least comparatively at fault.  Judge Michalski denied the
          Byler  now  appeals  on three grounds:  (1)  the  court
committed plain error in failing to declare a mistrial,  (2)  the
court  abused its discretion . . . when it allowed the  admission
of  evidence  that  was  irrelevant  and  more  prejudicial  than
probative, and (3) the court abused its discretion in denying the
motion for a new trial.
          We review the trial courts decision to grant or deny  a
mistrial  under the abuse of discretion standard.3    Under  that
standard  we will disturb the trial courts ruling only if,  after
reviewing the whole record, we are left with a definite and  firm
conviction  that  the trial court erred in its ruling.4   We  may
reverse and grant a new trial, even if a mistrial was not sought,
only  if we find there was plain error.5  In alleging plain error
the  appellant  must shoulder the heavy burden  of  demonstrating
that  the  alleged misconduct raises a substantial and  important
question and must show that the error was obviously prejudicial.6
          The  trial courts evidentiary rulings are also reviewed
under  the abuse of discretion standard.7  We leave questions  of
admissibility  to  the  sound  discretion  of  the  trial  court,
reversing only if, upon review of the record as a whole,  we  are
left  with  a  definite and firm conviction that the trial  court
erred in its ruling and the error affected the substantial rights
of a party.8
          Finally,  we have held that the grant or refusal  of  a
motion for a new trial rests in the sound discretion of the trial
court, and we will not disturb a trial courts decision on such  a
motion   except  in  exceptional  circumstances  to   prevent   a
miscarriage of justice.  We will uphold a refusal to grant a  new
trial if there is an evidentiary basis for the jurys decision.9
     A.   Despite  Defense Counsels Objectionable  References  to
          Bylers Character, the Court Did Not Err in Refusing  To
          Grant a Mistrial.
          Byler  appeals the courts denial of his mistrial motion
following  an  objectionable question during voir  dire  and  the
courts   refusal  to  grant  a  new  trial  following   similarly
prejudicial remarks during the opening statement.10  During  voir
dire,  Owens  attorney  asked  a juror  if  she  had  any  issues
associated  with  folks  who may have  previous  convictions  for
assault.   Byler immediately moved for a mistrial,  arguing  that
the  question  was  highly prejudicial, unfair,  and  this  panel
shouldnt  be  exposed to it. After excusing the  jury  panel  and
hearing  argument, the court denied the motion,  instructing  the
attorneys  to  quit trying to familiarize [the jurors]  with  the
issues  of  the  action.  During the defenses opening  statement,
counsel  stated that Byler had been convicted of assault,  stated
that  Byler  left hunters on the beach that had to be rescued  by
the  Coast Guard, and stated that Byler was one of Kodiaks  known
drug  dealers.  Byler argues that the courts failure to  order  a
mistrial   on  the  basis  of  the  defenses  opening   statement
constituted plain error and thus merits reversal even  though  he
          did not move for a mistrial.
          Plain  error is an obvious mistake that creates a  high
likelihood  that  the  jury  will  follow  an  erroneous   theory
resulting  in a miscarriage of justice.11  We have  held  that  a
party  alleging plain error has a heavy burden to show  that  the
error was both obvious and very likely consequential.12  We  have
found  plain  error where the superior court  failed  to  give  a
comparative  fault instruction to the jury in a negligence  case,
despite clear law mandating courts to give such an instruction.13
          Byler  argues that the improper voir dire question,  in
which  Owens  attorney implied that Byler had committed  assault,
set  a  prejudicial tone that continued throughout  the  defenses
opening  statement.  But Judge Michalski promptly gave a curative
instruction14  and warned defense counsel that any  reference  to
Bylers   alleged   drug-dealing  would  be  inadmissible   unless
supported by evidence more credible than hearsay statements  from
a  witnesss  spouse or defense counsels contention  that  [e]very
person [defense counsel] called in Kodiak has said [Byler]  is  a
coke  head.  In light of Judge Michalskis ruling in Bylers  favor
and  the courts curative instruction, we conclude that Byler  has
not met his heavy burden of demonstrating an obvious mistake that
erroneously influenced the jury in a consequential manner.15
     B.   The  Court  Did  Not  Err in Declining  To  Follow  the
          Previous Motion in Limine.
           Prior  to trial Judge Brown ruled that fish  and  game
violations, criminal arrests or convictions, and defense evidence
regarding  the hunting trip accusations would be excluded,  while
leaving open the possibility that trial testimony or other  trial
events may render the evidence relevant and therefore admissible.
During the trial Judge Michalski allowed the admission of some of
that evidence.
          Byler  contests  the admission of  this  evidence.   He
contends that the evidence is irrelevant and unfairly prejudicial
and  Judge Michalski erred in effectively overruling Judge Browns
previous order.  There are essentially two facets to this  claim:
(1)  Judge  Michalski violated the law of the  case  doctrine  by
overruling  a previous motion in limine and (2) the admission  of
this evidence was erroneous.  Neither has merit.
          1.   A superior court judges failure to follow an order
               of  a  prior superior court judge does not violate
               the law of the case doctrine.
          The  law  of  the  case  doctrine in  Alaska  generally
requires  adherence  by  a lower court  to  an  appellate  courts
decision and generally prohibits reconsideration of issues  which
have  been adjudicated in an appeal of the case.16  But when  one
superior court judge makes a ruling, that superior court judge is
succeeded  by another superior court judge on the same case,  and
the subsequent judge declines to follow a previous order from the
prior judge  we have held that the doctrine does not apply.17
          In  Stepanov  v.  Gavrilovich,18 we  upheld   a  judges
decision  not  to follow his  colleagues earlier  decision  in  a
case.19   We  relied on federal case law, both  from  the  United
States Supreme Court and the Ninth Circuit Court of Appeals,  and
held that one judge may decline to follow the earlier decision of
          a colleague where the later judge is convinced that [the
previous] ruling was erroneous.20  We noted in Stepanov that  the
parties  were  not involved in forum shopping and the  change  of
judges was necessary due to the earlier judges illness.21  In West
v. Buchanan,22 we reiterated that it is entirely reasonable for a
judge whose responsibility it is to try a case to reconsider  and
reverse an earlier ruling if the judge believes the prior  ruling
was erroneous.23  In Hayes v. Xerox Corp.24 we similarly found that
the  doctrine  of law of the case is inapplicable  in  situations
where one superior court judge reverses a prior judges order.25
          Here,  Judge Michalski admitted evidence the  exclusion
of  which  he  believed to be improper.  He notified the  parties
that  the  previously  excluded evidence would  come  in  because
assuming  that it relates to the defamation, . . . it,  in  fact,
shows  the  truth  of  the statement made,  and,  therefore,  its
relevant  as  the  defense  to defamation,  being  truth  of  the
statement  made.   Judge Michalski also noted that  he  may  have
properly gone further in his ruling:  I think it may very well be
that  by limiting, for example, references and proofs of criminal
behaviors  to  convictions[,] that actually may be going  farther
than  defamation  requires of the Court.   Thus,  although  Judge
Michalski reversed what he believed to be an erroneous ruling, he
respected  the spirit of the ruling by limiting the  evidence  of
bad  acts  to  convictions.  Judge Michalskis reconsideration  of
Judge  Browns earlier ruling in no way violated the  law  of  the
case doctrine.
          2.   The   superior  courts  evidentiary  rulings  were
               within its discretion.
          Having  concluded  that  it was  not  error  for  Judge
Michalski  to reverse the previous ruling in this case,  we  turn
now  to  whether the subsequent rulings admitting  evidence  were
erroneous.   Byler specifically contests the courts admission  of
evidence  of  the assault, the Coast Guard letter of  concern,  a
conviction for failing to comply with reporting requirements, and
the  insinuation that Byler was a drug dealer.  The admission  of
this evidence, Byler contends, deprived Byler of a fair trial and
improperly influenced the jury.
          To place this dispute in context, it must be remembered
that  Bylers suit listed three statements and one failure to deny
that he claimed were defamatory:  (1) Owens statement I cant  say
anything  good about Darren Byler; (2) Owens statement to  Abeyta
that  Byler  abandoned hunters to be rescued by the Coast  Guard;
(3) Owens statement to Abeyta that Byler was known to run out  of
fuel;  and (4) Owens failure to deny or refute Shakers statements
about Byler to Kenner.
          In defense of Bylers claims, Owen offered evidence that
his   statements  were  true.   Alaska,  like  the  majority   of
jurisdictions,  follows the Restatement of Torts which  considers
truth to be a defense to defamation.26  In response, Byler argued
principally that the evidence was irrelevant and prejudicial.
          As  to  relevancy, evidence is relevant if it tends  to
make the existence of a material fact more or less likely.27   In
general,  all relevant evidence is admissible.  The Alaska  Rules
of  Evidence  set  out several exceptions to  that  rule.   Byler
          contends that the admission of the contested evidence violated
two exceptions in particular: (1) character evidence is generally
inadmissible and never admissible to prove specific conduct (Rule
404), and (2) the evidence at issue here is more prejudicial than
probative (Rule 403).  We consider each of these claims in turn.
          In  Alaska  the  admission  of  character  evidence  is
governed by Evidence Rule 404.  Rule 404 provides generally  that
[e]vidence  of a persons character or trait of character  is  not
admissible  for the purpose of proving that the person  acted  in
conformity therewith on a particular occasion, but it then  lists
several   exceptions.   Judge  Michalski  justified  his   ruling
allowing  some  character evidence  the two  pieces  of  evidence
concerning Bylers conviction for violating reporting requirements
and  the  Coast  Guard  letter of concern  by  finding  that  the
evidence  was  relevant, noting that it was an integral  part  of
this  case.  The character evidence that Owen introduced was  not
introduced to show that Byler acted in a certain way, but  rather
that  Owen  may  have had reason to believe Byler was  an  unsafe
fisherman   and  therefore  Owen  may  have  had  a  defense   to
          Reasonable  minds  could disagree  as  to  whether  the
evidence that Owen presented to support his defense of truth  was
more prejudicial than probative (and therefore excludable on Rule
403 grounds).  In order for the evidence to be relevant, and thus
probative, to this action, it must go to the question of  whether
Owen  had  reason  to  believe that  Byler  was  an  unsafe  boat
operator.   We examine each of Owens four pieces of evidence  (or
allegations) concerning Byler with this question in mind.
          The  suggestion  that  Byler was a  drug  dealer  bears
little  direct  relevance on the question of whether  he  was  an
unsafe  sailor.  At the same time, it does have the potential  to
improperly  bias  the  jury  against him.   This  insinuation  is
clearly  more prejudicial than probative. But there was no  error
here:  The court did not admit this evidence.  Byler argues  that
the  court  erred  in  its  decision to allow  reference  to  the
allegation.  Judge Michalski did not, however, allow reference to
the  allegation; as soon as the allegation was raised, the  court
sustained Bylers objection to the comment and offered a  curative
          Byler  next  contests the courts admission of  evidence
regarding Bylers allegedly assaultive behavior.  During the cross-
examination  of Kenner, Owens attorney asked if Kenner  would  be
wary  to  charter a boat with someone convicted  of  assault  for
running  his  skiff up against other folks.  Byler  objected  and
asked  Owen  to  produce proof of convictions for  any  assaults.
When  Owen was unable to produce proof of a conviction, the court
sustained Bylers objection and struck all references to assaults.
Like  the  insinuation that Byler was a drug dealer, the question
of  the  admissibility  of  evidence of  assaultive  behavior  is
misplaced  because  the  court  struck  all  references  to  such
          Byler  next takes issue with Judge Michalskis admission
of  the  Coast Guard letter of concern into evidence.  The  court
ruled  that  the letter of concern  which the Coast Guard  issued
after  fuel  problems aboard Bylers boat were not  reported   was
admissible  for the purpose of cross-examining Bylers  witnesses.
After  the  court  allowed hypothetical questions  based  on  the
letter,  Owen then questioned another witness about  the  letter,
characterizing the situation by noting that 25% of  Bylers  trips
had  been  referred to the Coast Guard.  A letter from the  Coast
Guard  that details Bylers boating misdeeds, unlike the  comments
about  drugs  and  assault, relates directly to the  question  of
whether  Owen  had  reason to believe that Byler  was  an  unsafe
charter operator.  In fact, this letter was issued in response to
the  incident involving the allegedly abandoned hunters, the very
incident  about which Owen had warned Abeyta. There was no  error
in admitting the evidence.
          Finally,  Byler contests Judge Michalskis admission  of
Bylers conviction for violation of reporting requirements.  Byler
contends  that  the conviction is stale, thereby making  it  more
prejudicial  than  probative for its  impeachment  value.   Judge
Michalski allowed evidence of the conviction, reasoning that  the
evidence  was  admissible as a basis for the knowledge  that  led
Shaker  to  his  beliefs about Bylers reputation.  The  admission
went  to the issue of Bylers reputation, not to impeach Byler  as
Bylers appeal suggests.  Judge Michalski supported his ruling  by
reasoning  that this conviction bears on the question of  whether
one  would do business with him and the basis for [Shaker] having
thought  this of [Byler].  Although this appears to us  to  be  a
close  question since the conviction for false reporting occurred
twenty  years earlier, it is arguable that it had some continuing
effect  on  Bylers reputation.  Accordingly, we are not convinced
the court abused its discretion in admitting the evidence.
          Further  leading  to  our  decision  to  uphold   Judge
Michalskis  evidentiary rulings is our conclusion that,  even  if
error,  the  rulings were harmless to Byler.  Byler  argues  that
Owen engaged in character assassination and that the admission of
these  pieces of evidence biased the jury against him.   But  the
jury concluded that Owens statements suggesting that Byler was an
unsafe operator were false.  And the jurys finding that Owen  did
not  know the statements to be false, the only question that  the
jury  found  against  Byler, is sufficiently supported  by  other
evidence  introduced at trial:  Owen believed Shakers  statements
to be true because Shaker himself believed they were true.
          We  accordingly find that the court did not  abuse  its
discretion  in  admitting  evidence that was  relevant  to  Owens
     C.   The Superior Court Did Not Err in Denying Bylers Motion
          for a New Trial.
          After  the jury returned its verdict that Owen did  not
know  the  statements  were false and did  not  act  in  reckless
disregard  of their falsity, Byler moved for a new trial.   Byler
sought  a new trial under Alaska Civil Rule 59(a) because [g]iven
the  evidence presented, reasonable jurors would have found  that
Mr.  Owen  was at least comparatively at fault.  The trial  court
denied the motion.
          On   appeal,  Byler  must  show  that  there   was   no
evidentiary  basis  for  the  jurys  finding.28   But  there   is
          substantial support for the finding that Owen believed Shakers
statements  were true.  First, Shaker testified that he  believed
his  statements  about  Bylers past to  be  true.   Second,  Owen
testified that he did not contest Shakers story although  he  did
not  form  an  opinion on its truth or falsity.  If Owen  had  no
opinion  on  the  falsity of the statement  and  trusted  Shakers
assessment,  which  Shaker himself believed to  be  true,  it  is
reasonable  to  conclude that he repeated the statements  without
believing  them  to be false.  Because there was  an  evidentiary
basis for the jurys finding, the court did not err in failing  to
grant a new trial.
          The  superior  court  did not  commit  plain  error  in
failing  to  declare a mistrial sua sponte during  Owens  opening
statement,  was  within its discretion to deem certain  types  of
evidence admissible, and did not abuse its discretion in  failing
to  grant a new trial.  We therefore AFFIRM the decision  of  the
superior court in all respects.
     1     Because most of the evidence in this case concerns the
actions  of  Darren Byler, he is referred to  as  Byler  in  this

     2     Judge Michalski admonished Owens attorney and gave the
following instruction:  Ladies and gentlemen, the Court  sustains
the  objection  to  the  reference to Mr. Shaker  and  his  wifes
employment  and  the  references  to  information  through   that
process.   Youre  to disregard that reference and  to  the   that
statement at this time.

     3    Walker v. State, 652 P.2d 88, 92 (Alaska 1982).

     4    Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005).

     5    Randall v. State, 583 P.2d 196, 200 (Alaska 1978).

     6    Id. (internal citations omitted).

     7    Dobos v. Ingersoll, 9 P.3d 1020, 1023 (Alaska 2000).

     8    Id.

     9     Reeves v. Alyeska Pipeline Serv. Co., 56 P.3d 660, 668
(Alaska 2002) (internal citations omitted).

     10     Owen  argues that Byler waived this claim because  he
failed  to  raise it in his Statement of Points  on  Appeal.   He
further contends that Byler additionally waived his second claim,
in  which  he  argues the superior court erred in its evidentiary
rulings.  Although Bylers Statement of Points on Appeal does  not
explicitly list these issues, these claims are not waived because
they  are subsumed under his second point on appeal:  [t]he trial
court  erred  in not granting Plaintiffs Motion for  a  Mistrial.
Furthermore,  we  will  consider claims  even  if  they  are  not
explicitly stated in the points on appeal if the appellant raised
the  issue  before the lower court and both parties have  briefed
the  issue.   Native Village of Eklutna v. Bd. of Adjustment  for
the  Mun.  of Anchorage, 995 P.2d 641, 646 (Alaska 2000).   Byler
clearly  raised these issues before the lower court by frequently
objecting to the courts admission of the contested evidence,  and
both  parties  briefs  treat these issues.   Therefore,  we  will
consider all three of Bylers claims on appeal.

     11     Shields v. Cape Fox Corp., 42 P.3d 1083, 1087 (Alaska
2002) (internal citation omitted).

     12    Id.

     13    Id.

     14    See supra n.2.

     15      Although   we  hold  that  the  trial  judge   acted
appropriately  in denying Bylers motion for a mistrial,  we  note
our   strong  disapproval  of  defense  counsels  trial  tactics.
Counsel repeatedly referred, in the jurys presence, to irrelevant
and  unsubstantiated allegations of wrongdoing by Byler, to which
Byler  properly  objected, requiring the court to issue  multiple
cautionary instructions to the jury.  In our opinion,  there  was
no  excuse or justification for counsels actions, which  bordered
on sharp practice.

     16    Mogg v. Natl Bank of Alaska, 846 P.2d 806, 810 (Alaska

     17    See id. at 810 n.8; Hayes v. Xerox Corp., 718 P.2d 929,
934 (Alaska 1986).

     18    594 P.2d 30, 36 (Alaska 1979).

     19    Id.

     20    Id.

     21    Id.

     22    981 P.2d 1065 (Alaska 1999).

     23    Id. at 1067 (internal citations omitted).

     24    718 P.2d 929 (Alaska 1986).

     25    Id. at 934.

     26     Fairbanks  Pub. Co. v. Pitka, 376  P.2d  190,  192-93
(Alaska 1962) (The truth of a defamatory statement of fact  is  a
complete  defense  to  an  action  for  defamation.);  see   also
Restatement (Second) of Torts  581A (1977).

     27    Alaska R. Evid. 402.

     28    Reeves v. Alyeska Pipeline Serv. Co., 56 P.3d 660, 668
(Alaska 2002).

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