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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Helfrich v. Valdez Motel Corporation (05/22/2009) sp-6375

Helfrich v. Valdez Motel Corporation (05/22/2009) sp-6375

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

            THE SUPREME COURT OF THE STATE OF ALASKA


RICHARD STEVE HELFRICH, ) Supreme Court No. S-12776
)
Appellant, ) Superior Court No. 3VA-06-60 CI
)
v. ) O P I N I O N
)
VALDEZ MOTEL CORPORATION, ) No. 6375 May 22, 2009
)
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Valdez,
          Daniel J. Schally, Judge pro tem.

          Appearances:   Tim Cook, Cook  &  Associates,
          Anchorage,  and Paul H. Bratton, Law  Offices
          of Paul H. Bratton, Talkeetna, for Appellant.
          Paul  D.  Stockler,  Law Office  of  Paul  D.
          Stockler, Anchorage, for Appellee.

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

          EASTAUGH, Justice.
          WINFREE,   Justice,  with   whom   CARPENETI,
          Justice, joins, dissenting in part.

I.   INTRODUCTION
          The  main  issue in this appeal is whether  a  landlord
violates the anti-retaliation statute, AS 34.03.310(a)(2), of the
Uniform Residential Landlord and Tenant Act (URLTA) by evicting a
tenant who demands personal injury compensation following an  on-
premises  slip and fall.  The superior court held  that  it  does
not, and therefore granted a directed verdict to the landlord  on
the  tenants  URLTA  retaliation  claim.   Because  a  claim  for
personal injury damages resulting from an on-premises fall is not
for rights and remedies granted under URLTA,1 we affirm.
II.  FACTS AND PROCEEDINGS
          Richard Steve Helfrich was employed by the Valdez Motel
Corporation to perform general repairs and maintenance for one of
its  properties, the Pipeline Inn.2   Helfrich rented a  room  at
the Inn on a month-to-month basis at a reduced employee rate.
          After  finishing  work on March  21,  2005,  and  while
walking  in an area behind the Inn, Helfrich slipped,  fell,  and
broke his leg.  Helfrich spent four or five days in hospitals  in
Valdez and Anchorage, returning to the Inn on March 24 or 25.  He
continued  to  reside at the Inn through May 2005.  Helfrich  was
initially  unable to work, but at some point he  resumed  working
for the Inn on a part-time basis.
          Helfrich  asserts on appeal, and Valdez Motel does  not
dispute, that he did not have health insurance or other means  to
pay  his  medical bills.  Mark Lee (Lee) and James Bill  Lee  are
shareholders of the Valdez Motel Corporation.  Helfrich testified
in  his  deposition that he spoke with Bill Lee  after  returning
from  the  hospital about how he needed help with  [his]  medical
bills.   Helfrich testified that the Lees never responded whether
they  were willing to help.  Mark Lee testified in his deposition
that he paid for Helfrichs medicine and some of his trips to  the
doctor,  and  ensured  that Helfrich had  transportation  to  his
medical  appointments.   Lee testified  that  he  asked  Helfrich
whether  he was going to seek an attorney and that Helfrich  said
he  was  not.  Helfrich testified that he consulted attorney  Tim
Cook  after he never heard back from the Lees about whether  they
would cover his medical expenses.
          On  May 26, 2005, Cook sent Mark Lee a demand letter on
Helfrichs behalf, asserting that Valdez Motel was liable  for  in
excess  of  $40,000 in medical bills that Helfrich had  incurred.
Cooks letter asked the Lees to seek coverage with their insurance
provider  and  concluded that it would be in Pipeline  Inns  best
interest  to  accept responsibility and provide  for  [Helfrichs]
care  and settle this matter as expediently as possible.  On June
1,  2005,  Cook spoke with Mark Lee by telephone.  Lee told  Cook
that  Helfrich  could continue to stay at the Inn,  but  that  he
could no longer stay at the reduced rental rate.3
          Helfrich testified in his deposition that, on the  same
day  Cook called Lee, Lee and Helfrich had a conversation in  the
hallway  of  the Inn.  Helfrich testified that Lee told  Helfrich
that he wanted Helfrich off the premises as soon as possible  and
that  he did not like getting threatening letters from attorneys.
Helfrich testified that after the conversation he found a  letter
posted on the door to his room.  The letter stated:
          June 1, 2005
          
          Steve,
          
          I  guess we should have learned from the past
          and had nothing to do with you, but thats not
          how  we  do things.   Unfortunately,  it  has
          come back and bit us in the ass again and for
          that  I  thank you.  I really dont appreciate
          getting   a   threatening  letter   from   an
          attorney.  I think at this[] point Steve,  it
          is  best you move out as fast as you can.   I
          recommend perhaps moving in with whoever gave
          you such back stabbing advice.  If no one,  I
          guess it is time for a tent (on someone elses
          property).
          
          Mark
          
          Helfrich  testified that he packed his things and  left
the Inn within ten minutes of receiving the letter.  He testified
that  he never approached Lee to ask if he could stay in his room
either  for  the  night  or  until he  could  make  other  living
arrangements.
          Cook  wrote  Lee  a letter on June 2,  2005  confirming
their  June  1,  2005 conversation and urging Lee  not  to  raise
Helfrichs  rent because it would likely render Helfrich homeless.
Lee  testified  that at some point after Helfrich  received  Lees
letter  and  left the premises, Lee told Helfrich that  he  could
stay  if he paid increased rent.  Lee testified in his deposition
that  he decided to raise the rent because Helfrich was no longer
an  employee.  Lee testified that Helfrich was let go  for  lying
about  hiring an attorney and because he suspected that  Helfrich
was  also  lying  about whether his fall was actually  on  Valdez
Motels property.
          On June 8, 2005, Helfrich sued Valdez Motel in superior
court,  asserting  both  claims  of  negligence  and  claims   of
violations  of  URLTA.4  In August 2006 Helfrich  sought  partial
summary  judgment  on  the  alleged URLTA  violations.   Helfrich
argued that Valdez Motel unlawfully failed to provide him with  a
written eviction notice that met URLTAs notice requirements.
          The  superior court denied Helfrichs motion for partial
summary  judgment in early December 2006.  The court also  denied
Helfrichs  subsequent  motion  for  reconsideration.   The  court
clarified that a factual dispute barring judgment as a matter  of
law  existed  about  the  nature of the purported  June  1,  2005
eviction notice.
          A  three-day jury trial took place in May 2007.  At the
close  of  Helfrichs  case, Valdez Motel  moved  for  a  directed
verdict  on  Helfrichs  claims.  The court denied  Valdez  Motels
directed  verdict  motion on the negligence  claim,  but  granted
Valdez Motel a directed verdict on the URLTA and punitive damages
claims.   Helfrich had advanced two URLTA claims:  (1)  that  the
eviction was in retaliation for seeking remedies under URLTA, and
(2)  that  the  eviction was a wrongful ouster.   Only  Helfrichs
negligence  claim  was submitted to the jury,  which  returned  a
verdict  finding  that Valdez Motel was not  liable.   The  court
later  entered  final judgment for Valdez Motel  and  awarded  it
Alaska Civil Rule 82 attorneys fees of $13,081.83.
          Helfrich  appeals the denial of his motion for  partial
summary  judgment  and  the  grant of Valdez  Motels  motion  for
directed  verdict on the URLTA claims.  He does  not  appeal  the
          grant of directed verdict on his punitive damages claim.  He also
asks  us  to  reverse the attorneys fees award that Valdez  Motel
received as the prevailing party.
III.      DISCUSSION
     A.   Standard of Review
          We  review  a  denial  of  summary  judgment  de  novo,
affirming only if a genuine issue of material fact exists or  the
moving party was not entitled to judgment as a matter of law.5
          We  view  facts  in  the light most  favorable  to  the
nonmoving party.6
          We   review  a  grant  of  directed  verdict  de  novo,
affirming  only if reasonable jurors could not reach a  different
conclusion.7  We view the evidence in the light most favorable to
the nonmoving party.8
     B.   Helfrichs Motion for Partial Summary Judgment
          Helfrich asks us to reverse the superior courts  denial
of  his motion for partial summary judgment.  He argues that  the
letter  Lee  posted on Helfrichs door on June 1, 2005  failed  to
satisfy  the minimum provisions of URLTA9 and the forcible  entry
and  detainer (FED) statutes regarding notices to quit.  Helfrich
implicitly  contends that there was no genuine issue of  material
fact  regarding whether the notice was a notice to quit  governed
by  URLTA  and  the FED statutes, that it failed to  satisfy  the
requirements of those statutes as a matter of law,  and  that  he
therefore  was entitled to prevail as a matter of  law  on  those
claims.   He  asks  that  we remand to  the  superior  court  for
determination of actual damages and award of costs and  attorneys
fees.
          URLTA  was  adopted in Alaska to govern landlord-tenant
disputes.10  We have held that URLTA should be harmonized with the
FED statutes, which govern evictions.11
          Generally, a landlord may not evict a tenant under  the
FED  statutes unless the landlord first gives the tenant a notice
to  quit,12 otherwise known as an eviction notice.  A  notice  to
quit  is  a written demand for the tenant to vacate and surrender
the  property, thereby terminating the tenancy.13  The notice  to
quit  must meet certain requirements.  It must be in writing  and
must be delivered to the tenant, left at the premises, or sent by
registered or certified mail.14  The notice must tell the  tenant
why  the landlord is terminating the tenancy, what the tenant may
do  to  avoid  termination  if the breach  or  violation  may  be
corrected, and the date and time of termination under  the  lease
or rental agreement.15  The notice must direct the tenant to quit
no  later  than  the termination date under the lease  or  rental
agreement.16  And the notice must notify the tenant that  if  the
tenant  remains in occupation after termination the landlord  may
commence  a  civil action to remove the tenant . . . and  recover
possession.17
          URLTA also requires the landlord to give written notice
of intent to terminate a tenancy.18  A landlord may terminate any
tenancy  if rent is unpaid when due and remains unpaid for  seven
days  after the landlord provides the tenant with written  notice
that  rent  is due and that the landlord intends to terminate  if
the rent is not paid within that time.19  A landlord or tenant may
          also terminate a month to month tenancy by a written notice given
to  the  other  at  least  30 days before  the  rental  due  date
specified in the notice.20
          The  parties  disagreed in the superior  court  whether
there  was  a genuine dispute of material fact about whether  the
letter Lee posted on Helfrichs door was an eviction notice,  and,
accordingly, disagreed whether the letter had to satisfy the  FED
and  URLTA notice requirements.  Valdez Motel appeared to concede
that,  if the letter was found to be an eviction notice, it would
be  defective  under URLTA as a matter of law.   Helfrich  argued
that  there was no dispute that the letter was an eviction notice
because  it  demanded that he move out as fast as  you  can,  and
because  Lee  desired  that Helfrich comply with  that  demand.21
Valdez  Motel  responded  that the letter  was  not  an  eviction
notice,  but  an  expression of Lees thought or opinion  that  it
would  be best, given the existing animosity between the parties,
for  Helfrich  to  move out.  It argued that  Helfrich  took  the
statement  move  out  as  fast as  you  can  out  of  context  in
characterizing  it as an unequivocal demand.  In support  of  its
arguments, Valdez Motel noted that the sentence read in  full:  I
think  at this point, Steve, it is best you move out as  fast  as
you can.
          The  superior court denied Helfrichs motion for partial
summary  judgment and his motion for reconsideration.  In denying
Helfrichs motion for reconsideration,  the superior court  stated
that  there  was  a  factual dispute as  to  the  nature  of  the
purported  June  1,  2005 eviction notice,  such  that  entry  of
judgment as a matter of law was not appropriate.
          We agree with the superior courts assessment and affirm
the  denial of summary judgment.  Although a trier of fact  might
have  concluded  that  the  letter was an  eviction  notice,  the
letters  words and Lees relevant deposition testimony22 create  a
genuine  issue of material fact as to whether the letter  was  an
eviction notice that fell within the ambit of URLTA and  the  FED
statutes.   The  trial  court therefore properly  denied  summary
judgment to Helfrich on this issue.23
     C.   Valdez  Motels  Directed  Verdict  on  Helfrichs  URLTA
          Retaliation Claims
          
          Helfrich argues that Valdez Motel violated URLTAs anti-
retaliation provision and that the superior court therefore erred
in  granting  Valdez Motels motion for directed  verdict  on  his
URLTA retaliation claim.
           Alaska Statute 34.03.310(a) prohibits a landlord  from
retaliating  against a tenant by increasing  rent  or  decreasing
services  or  by bringing or threatening to bring an  action  for
possession  after  the  tenant has . . . (2)  sought  to  enforce
rights  and  remedies  granted the tenant under  this  chapter.24
Whether  Helfrichs eviction violated the anti-retaliation statute
depends on whether his lawyers May 26, 2005 demand letter was  an
attempt  to enforce rights and remedies granted the tenant  under
[URLTA].25
          URLTA  requires that landlords maintain fit premises.26
Maintaining fit premises includes making all repairs and  keeping
          the premises in a fit and habitable condition;27 keeping common
areas  clean and safe;28 keeping the electric, plumbing, heating,
and  like systems in good and safe working order and condition;29
providing  appropriate trash receptacles;30  providing  essential
services  such as running water, hot water, and heat;31 providing
locks and keys when requested by the tenant;32 and providing smoke
and  carbon monoxide detectors.33  Tenants remedies for landlords
noncompliance  with  AS  34.03.100(a)  include  terminating   the
tenancy and suing for damages or injunctive relief.34
          Helfrich  essentially argues that his  personal  injury
lawsuit asserts the right to safe common areas granted him by  AS
34.03.100(a)(2) through the remedy of damages granted him  by  AS
34.03.160(b).   He contends that either threatening  to  file  or
filing  a lawsuit is therefore conduct protected from retaliation
by  AS 34.03.310(a)(2).  Valdez Motel appears to respond that the
right  to  be free of the landlords negligence and the remedy  of
personal  injury  damages are granted not by URLTA,  but  by  the
states  general  tort  law,  and that because  Helfrich  was  not
enforcing  rights and remedies granted by URLTA, his conduct  was
not protected from retaliation by AS 34.03.310(a)(2).
          We have said that the public policy behind AS 34.03.310
is to encourage tenants to assert their rights under their leases
and  under  the law.35  But we have not determined the  scope  of
conduct the statute protects.
          We  have  emphasized  that Alaskas  adoption  of  URLTA
accord[ed]  tenants previously unrecognized rights by recognizing
the  contractual  nature  of the landlord-tenant  relationship.36
URLTA  grants  the  tenant  a right to require  the  landlord  to
maintain fit premises37 and provides a remedy for damages if  the
landlord fails to do so.38  But URLTA does not expressly grant the
tenant  a  right  to be free from the landlords negligence  or  a
remedy  to  recover  consequential damages for personal  injuries
resulting  from  such negligence if fitness and habitability  are
not  in issue.  Nor does it do so implicitly.  Alaskas tort  law,
not URLTA, confers this right and this remedy.
          We conclude that tenants personal injury claims seeking
recovery for injuries resulting from landlords alleged negligence
do  not  [seek] to enforce rights and remedies granted the tenant
under  [URLTA].39  Alaska Statute 34.03.310(a)(2) therefore  does
not  protect  tenants  from eviction if  they  threaten  or  file
personal injury lawsuits.
          There  may be good policy reasons supporting a  broader
interpretation  of  subsection  .310(a)(2).   Tenants  who   file
personal injury lawsuits seek damages for injuries resulting from
past  conditions, not for ongoing noncompliance with URLTAs  duty
to  maintain  premises safe and fit for habitation.  Nonetheless,
personal  injury  lawsuits or claims may  motivate  landlords  to
comply  with URLTA  by maintaining safe premises  to avoid future
litigation or even to mitigate dangerous conditions identified in
the   claim   or   lawsuit.   Moreover,  URLTAs  anti-retaliation
provision  reflects our policy of encouraging tenants  to  assert
their  rights  under their leases and under the law.40   Lawsuits
under  URLTA and lawsuits under state tort law both further  that
policy.  Tenants who have not yet been injured are protected from
          retaliation if they threaten to sue or sue for rent abatement
under  AS  34.03.160(b) for landlords ongoing noncompliance  with
URLTAs duty to maintain the premises.  But tenants who have  been
injured  and  who choose to sue under tort law instead  of  URLTA
also  assert their rights under their leases and under the law.41
As  a  matter  of  policy, those tenants are no  less  worthy  of
protection from retaliation.
          Despite  these  considerations,  we  conclude  that   a
narrower  reading is more consistent with the text and  structure
of AS 34.03.310(a)(2).  That subsections plain text protects from
retaliation only a tenants actions to enforce rights and remedies
under URLTA.  URLTAs remedy for breach of the landlords statutory
duties  under AS 34.03.100(a) and the common law tort remedy  for
personal  injury  damages are not the same.   Other  states  have
enacted  versions  of  URLTA with broader  protections.   Oregons
statute   prohibits  retaliation  against  any  tenant  who   has
performed  or expressed intent to perform any other act  for  the
purpose  of  asserting, protecting or invoking the protection  of
any  right secured to tenants under any federal, state  or  local
law.42   The  Alaska  legislature could have  adopted  a  similar
protection   but  did  not.   We  will  not  second  guess   that
determination.
          Our  analysis  is confirmed by our review of  statutory
schemes elsewhere.  Several other states adopting URLTA have also
adopted  provisions  similar to AS 34.03.310(a)(2).43   But  none
appears to have decided whether seeking compensation for personal
injuries sustained as a result of a prior dangerous condition  on
the  premises is protected conduct under the retaliatory eviction
provision.   New  Yorks anti-retaliation statute,  which  is  not
based  on URLTA, resembles AS 34.03.310 in specifying that tenant
actions  must vindicate legal rights protected by landlord-tenant
laws  to  be protected from retaliation.44  A New York  municipal
court  has held that this statute protects from retaliation  only
conduct  related  to tenants contract actions to  enforce  rights
related to the warranty of habitability, not tort actions seeking
compensation for personal injury.45  New Yorks landlord-tenant law
requires the landlord to keep the premises safe and fit for human
habitation and entitles the tenant to damages for breach of  this
duty.46  In Pezzolanella v. Galloway, a tenant threatened to  sue
in  tort for damages after her child was injured when her kitchen
ceiling  collapsed.47   The  tenant  alleged  that  her  landlord
breached  his  duty under the landlord-tenant  law  to  keep  the
premises  safe  and  fit  for human habitation.48   The  landlord
subsequently commenced a summary eviction proceeding in which the
tenant raised retaliation as an affirmative defense.49  The court
rejected  the tenants argument that the lawsuit was an action  to
secure  her rights under housing laws.50  It therefore held  that
threatening  to  file the lawsuit was not conduct protected  from
retaliation and that the landlord did not violate the statute  by
evicting the tenant.51
          Helfrichs   purported  eviction   occurred   after   he
requested  compensation for personal injuries allegedly  suffered
as  a  result of Valdez Motels negligence.  Because we have  held
that  claims  for  compensation for  personal  injuries  are  not
          protected by URLTAs anti-retaliation statute, we must next
determine  whether  Helfrichs pre-eviction demands  asserted  any
other rights and remedies granted by URLTA.52
          On  appeal Helfrich alleges that Valdez Motel failed to
comply with the requirement that it keep all common areas of  the
premises in a clean and safe condition.53  But the demand  letter
Helfrichs attorney sent did not explicitly or implicitly threaten
to  sue for noncompliance with the requirements contained  in  AS
34.03.100(a).  The letter did refer to common law tort duties  by
stating  that  liability in this case is fairly  straightforward.
An  innkeeper has a clear duty under Alaska law to maintain  safe
conditions for their lodgers.  The letter also urged Valdez Motel
to  seek  coverage  for Helfrichs expenses and damages  from  its
insurance  provider, and Helfrichs subsequent complaint  referred
to the request for reimburse[ment] for damages from Valdez Motels
insurance  carrier.   In context the demand letter  refers  to  a
liability  insurer  covering tort claims for  negligently  caused
damages.
          Likewise, the letter refers to typical personal  injury
remedies for an on-premises slip and fall: out-of-pocket  medical
expenses  plus  unspecified damages.  The demand letter  did  not
explicitly  refer  to  or implicitly invoke any  statutory  URLTA
remedy.   Its  exclusive focus was on recovery of what  would  be
considered common law tort damages.  A tenant may sue under URLTA
to   recover  damages  and  obtain  injunctive  relief  for   any
noncompliance by the landlord with . . . AS 34.03.100  .  .  .  .
But  remedies for a landlords noncompliance with URLTA  generally
relate  to  habitability  or  fitness  disputes.   URLTA  damages
compensate  tenants  who  live  with  conditions  that  render  a
dwelling   unfit,   uninhabitable,  or   unsafe,   or   who   are
constructively evicted by those conditions.54  Fault is irrelevant
to  such  URLTA  claims.55  Common law tort  remedies  compensate
plaintiffs  for  consequential damages  resulting  from  personal
injury, including medical expenses, loss of employment or lack of
income,  and  pain  and  suffering.  Helfrichs  attorneys  demand
letter  did  not seek any URLTA-specific remedies, such  as  rent
abatement   or   injunctive   relief.    Instead   it   requested
compensation  for Helfrichs medical expenses and damages,  noting
that as a result of the accident Helfrich was unable to work  and
continued to suffer pain and interference with normal activities.
Likewise,  it asserted that Helfrich fell on an icy pathway  that
was  clearly dangerous.  It therefore made out a claim of  fault,
implying that the landlord was negligent.
          Helfrich  could have threatened to sue under both  tort
law  and  URLTA, but only invoked rights granted by Alaskas  tort
law  and only sought typical common law tort remedies.  Helfrichs
attorneys   demand  letter  did  not,  in   the   words   of   AS
34.03.310(a)(2),  seek  to enforce rights  and  remedies  granted
under URLTA.56
          We  conclude that subsection .310(a)(2) is inapplicable
as  a matter of law, and that no reasonable juror could find  any
facts   that  would  support  a  verdict  for  Helfrich  on   his
retaliation  claim.57  We therefore hold that the superior  court
did not err in granting Valdez Motels motion for directed verdict
          on Helfrichs URLTA claims.58
     D.   Rule 82 Attorneys Fees
          
          The trial court awarded Valdez Motel, as the prevailing
party, attorneys fees under Alaska Rule of Civil Procedure  82.59
Helfrich  appears  to  argue that we should  reverse  that  award
because  Valdez  Motel  should not have prevailed.   Because  the
superior  court  did  not  err in denying  Helfrichs  motion  for
summary  judgment and granting Valdez Motels motion for  directed
verdict, Valdez Motel was the prevailing party.  Valdez Motel was
therefore entitled to recover Rule 82 attorneys fees.60
IV.  CONCLUSION
          The  superior court orders denying Helfrichs motion for
partial  summary  judgment, granting  Valdez  Motels  motion  for
directed verdict, and awarding attorneys fees are AFFIRMED.
WINFREE, Justice, with whom CARPENETI, Justice, joins, dissenting
in part.
          I  respectfully  dissent from the  courts  decision  to
affirm the trial courts directed verdict dismissing Richard Steve
Helfrichs  statutory  retaliation  claim  under  Alaskas  Uniform
Residential Landlord and Tenant Act.1
           One of the purposes and policies underlying the Act is
to  encourage  landlords to properly maintain  rental  premises.2
Under AS 34.03.100 a landlord is required to make all repairs and
do  whatever is necessary to put and keep the premises in  a  fit
and  habitable  condition3 and to keep all common  areas  of  the
premises  in  a clean and safe condition.4  Premises  is  defined
broadly  to  include a dwelling unit and related  structures,  as
well  as grounds, areas, and facilities held out for the  use  of
tenants generally.5
          Prior  to  the  Act  landlords had some  immunity  from
liability for personal injuries caused by dangerous conditions of
a rental premises.6  But in Newton v. Magill we held that because
of  the  legislatures adoption of the Act7 and our  own  previous
approval  of  the trend toward a more general duty  of  care  for
landowners,8  the common law rules of landlord immunity  were  in
conflict with modern public policy.9  We held that landlords  are
not  strictly  liable as insurers of the fitness  of  the  rental
premises,  but  rather  have a duty to  use  reasonable  care  to
discover and remedy conditions which present an unreasonable risk
of harm under the circumstances.10  We reached that holding:
          because  it  would  be  inconsistent  with  a
          landlords continuing duty to repair  premises
          imposed  under the [Act] to exempt from  tort
          liability a landlord who fails in this  duty.
          The  legislature by adopting  the  [Act]  has
          accepted  the  policy reasons  on  which  the
          warranty of habitability is based.  These are
          the  need  for  safe  and  adequate  housing,
          recognition of the inability of many  tenants
          to  make  repairs,  and  of  their  financial
          disincentives for doing so, since  the  value
          of   permanent  repairs  will  not  be  fully
          realized by a short-term occupant.[11]
          
          The  Act  provides some protections  to  a  tenant  who
complains about the condition of the rental premises.  A landlord
may  not  retaliate  .  . . by bringing or threatening  to  bring
eviction  proceedings  after the tenant  has  complained  to  the
landlord  of a violation of AS 34.03.100.12  For an example  with
some  relevance  to this case, a landlord should  be  statutorily
prohibited from giving a tenant an eviction notice in retaliation
for  the tenants complaint of an unsafe accumulation of ice on  a
common  area  pathway  outside a fire-door exit  of  the  tenants
apartment  building.  In Vinson v. Hamilton we  stated  that  the
anti-retaliation  provisions of AS  34.03.310  reflect  a  public
policy  of  encouraging tenants to assert their rights under  the
Act without fear of eviction.13
          A  tenant  has two separate, but cumulative,  statutory
          remedies for a landlords failure to comply with AS 34.03.100.14
Faced with a noncompliance with AS 34.03.100 materially affecting
health  and  safety, the tenant may give notice that the  tenancy
will  terminate unless the breach is remedied.15  If the landlord
does  not remedy the breach by repairs or the payment of  damages
or  otherwise, the tenancy terminates pursuant to the notice  and
the  tenant  may  vacate  the  premises  without  further  rental
obligations.16   In  addition a tenant may  recover  damages  and
obtain  injunctive relief for any noncompliance by  the  landlord
with AS 34.03.100.17
          The   Act  also  provides  some  protections  for   the
assertion  of  these  rights and remedies.  A  landlord  may  not
retaliate  .  .  . by bringing or threatening to  bring  eviction
proceedings  after the tenant has . . . sought to enforce  rights
and  remedies granted the tenant under [the Act].18   If  in  the
earlier  example the tenant actually sued the landlord  over  the
unsafe  ice  accumulations, the landlord  should  be  statutorily
prohibited  from  giving  the  tenant  an  eviction   notice   in
retaliation  for  the  attempt to seek compensation  for  damages
caused  by,  or  injunctive  relief  to  ameliorate,  the  unsafe
condition of the premises.19
          In  this  case  Helfrich asserted a claim  that  Valdez
Motel  Corporation  illegally  retaliated  against  him  with  an
eviction  notice  after his attorney made  contact  to  seek  the
payment of medical bills and related damages incurred as a result
of  Valdez Motels alleged failure to maintain a common area in  a
safe  condition.   The  trial court found that   Helfrich  was  a
tenant  of Valdez Motel and that his tenancy was covered  by  the
Act, and Valdez Motel does not contest that finding.
           In  his  letter  to  Valdez Motel, Helfrichs  attorney
stated  that on March 21, 2005, Helfrich slipped and fell  on  an
ice  accumulation on the path outside the back (fire-exit)  door,
which he noted to be a well-used access route [that] has been the
scene  of  other  accidental falls during the  past  winter.   He
advised Valdez Motel that Helfrichs medical bills were in  excess
of  $40,000.   He  asked  Valdez Motel  to  assume  its  rightful
responsibility and make every effort to obtain from  its  insurer
full coverage for all expenses and damages that Mr. Helfrich  has
suffered.
          After    receipt   of   the   letter   Valdez    Motels
representative  placed  what  Valdez  Motel  later  admitted  was
intended to be an eviction notice on Helfrichs room door, stating
in  part:  I really dont appreciate getting a threatening  letter
from  an attorney.  I think . . . it is best you move out as fast
as  you can.  I recommend perhaps moving in with whoever gave you
such  back stabbing [sic] advice.  If no one, I guess it is  time
for  a  tent  (on someone elses property).  Helfrich vacated  the
premises immediately after finding the eviction notice.
          The  trial  court granted Valdez Motels  motion  for  a
directed  verdict on Helfrichs retaliation claim at the close  of
his   case-in-chief.   The  trial  court  conceded  Helfrich  had
presented  evidence  that  he  sought  to  enforce  rights,   but
concluded the rights Helfrich was attempting to enforce were  not
rights  related to his tenancy.  The trial court  stated  that  a
          negligence action stands on its own without any connection to a
landlord-tenant  relationship  and  that  seeking   damages   for
personal  injuries caused by unsafe conditions on  the  landlords
property is not encompassed within AS 34.03.160(b).
          By  affirming  the  trial courts  decision,  the  court
ignores or repudiates Newton v. Magill and Vinson v. Hamilton and
the  policies  underlying  those  cases,  and  also  ignores  the
legislatures statement of the Acts purposes and policies and  its
mandate  that  the  Act be liberally construed to  promote  those
purposes and policies.
          The  court  proceeds as if a landlords tort  duties  to
tenants  rest only on the evolution of the common law  duties  of
property  owners and have nothing whatsoever to do with  the  Act
and  its  modification  of the tenancy relationship  between  the
landlord  and tenant.  Newton v. Magill dispels that  notion:   a
landlords tort duties to tenants are what they are today  because
of  the Act.20  The landlords duty under AS 34.03.100 is the tort
duty   of   reasonable   care   under   all   of   the   relevant
circumstances.21  Failure to comply with that duty is both a tort
and a breach of AS 34.03.100.
          The  court ably details the reasons this interpretation
of  the  Act would promote its purposes and policies, but instead
adopts a narrower reading of the Act.  This narrow reading of the
Act is in direct conflict with:  (1) the legislatures mandate for
liberal application of the Act; (2) the liberal effect given  the
Act  in  Newton  v.  Magill; and (3) Vinson v. Hamiltons  liberal
interpretation  and construction of the public policy  underlying
the   anti-retaliation  provisions  of  AS  34.03.310.   From   a
practical  standpoint,  the  courts narrow  reading  of  the  Act
produces a perverse framework of anti-retaliation protection.
          The  tenant who complains about unsafe conditions of  a
stairway  cannot be threatened with eviction for  her  complaints
but  when  her  child is injured on the unsafe stairway  and  she
seeks to have the landlord take responsibility and pay the childs
medical bills, she can be evicted with impunity.  The tenant  who
complains  about  plumbing  problems cannot  be  threatened  with
eviction for his complaints  but when the plumbing explodes,  raw
sewage  covers his basement apartment, and he seeks to  have  the
landlord  take responsibility and pay for cleaning  or  replacing
his  personal property, or for precautionary inoculations against
disease, he can be evicted with impunity.  This should not be the
law of Alaska.
          We  should promote the statutory purpose of encouraging
landlords  to  maintain rental premises.  We should  promote  the
public policy of encouraging tenants to assert their rights under
the  Act without fear of eviction threats.  We should acknowledge
Newton v. Magill and liberally construe the phrase damages . .  .
for any noncompliance by the landlord with . . . AS 34.03.100, to
include tort and contract damages.22  A liberal interpretation of
AS  34.03.100(a)  and  (b) cannot lead to the  result  the  court
reaches today.23
          The   court   seems   to  fear  that  acknowledging   a
retaliation   claim   under   Helfrichs   circumstances   is   an
acknowledgment   of  some  kind  of  strict  liability   standard
          accompanying the landlords repair and maintenance obligations
under  AS  34.03.100.  But we expressly rejected that possibility
in  Newton  v. Magill.24  Acknowledging the validity of Helfrichs
claim simply means that whether a tenant is complaining about  or
suing  about   the  landlords  failure  to  maintain  the  rental
premises  as  required  by  AS  34.03.100,  the  landlord  cannot
threaten  eviction of the tenant in retaliation for  the  tenants
assertion of rights under AS 34.03.160 and AS 34.03.100.25
          I  would  reverse the trial courts directed verdict  on
Helfrichs  statutory retaliation claim and remand  for  trial  of
that claim.
_______________________________
     1    AS 34.03.310(a)(2).

     2     Because the superior court resolved the issues  raised
in  this  appeal  on summary judgment and directed  verdict,  the
superior   court  did  not  make  factual  findings.   Our   fact
description  relies  on  the  superior  court  record,  including
exhibits,  depositions taken after Helfrich filed his  complaint,
and transcripts of the relevant trial proceedings.  In describing
the  facts,  we  take  permissible inferences  in  favor  of  the
nonmovant.   We  are  not  finding  facts  or  resolving  factual
disputes.

     3     The  amount of the resulting rent increase is  unclear
from  the record.  The new total appears to have been either $900
per month or $106 per day.

     4    AS 34.03.010 et seq.

     5     Ondrusek v. Murphy, 120 P.3d 1053, 1055 (Alaska  2005)
(citing  City of Kodiak v. Samaniego, 83 P.3d 1077, 1082  (Alaska
2004)) (affirming denial of summary judgment on negligence  claim
because genuine issue of material fact existed).

     6    Id. at 1056.

     7     D.P.  v. Wrangell Gen. Hosp., 5 P.3d 225, 228  (Alaska
2000)  (citing  Fairbanks N. Star Borough  v.  Lakeview  Enters.,
Inc.,  897  P.2d  47, 53 n.5 (Alaska 1995)) (reversing  grant  of
directed  verdict  in  favor of hospital in  medical  malpractice
action).

     8    Id.

     9     As  a preliminary matter, it is unclear whether  URLTA
applies  to  this  case.  AS  34.03.330(b)  exempts  from  URLTAs
requirements (4) transient occupancy in a hotel, motel, lodgings,
or other transient facility and (5) occupancy by an employee of a
landlord  whose right to occupancy is conditioned upon employment
substantially  for  services,  maintenance,  or  repair  to   the
premises.   Neither party argues here that URLTA does not  apply,
and  we therefore assume that it does.  We express no opinion  as
to whether the exceptions would apply in this case.

     10    AS 34.03.010.

     11    AS 09.45.060-.160; McCall v. Fickes, 556 P.2d 535, 539
(Alaska 1976).

     12    AS 09.45.100(a).

     13    Blacks Law Dictionary 1093 (8th ed. 2004).

     14    AS 09.45.100(c).

     15    AS 09.45.105(1).

     16    AS 09.45.105(2).

     17    AS 09.45.105(3).

     18    AS 34.03.220(b), .290(b).

     19    AS 34.03.220(b).

     20    AS 34.03.290(b).

     21    Helfrichs brief on appeal raises for the first time an
argument  based on Valdez Motels response to one of his  requests
for  admission.   In  Request for Admission Number  28,  Helfrich
stated  , Please admit that [Lees letter] was intended  to  be  a
notice  of eviction. Valdez Motel responded, Admit.  The superior
court  has  a  duty to go outside the pleadings to  consider  the
entire  setting of the case to the extent that the  material  was
brought  to  the courts attention by the parties on  the  motion.
Prentzel v. State, Dept of Pub. Safety, 169 P.3d 573, 582 (Alaska
2007)  (quoting  Jennings v. State, 566 P.2d 1304,  1310  (Alaska
1977)) (emphasis added).

          The  superior court denied Helfrichs motion for partial
summary  judgment on December 4, 2006 and denied his  motion  for
reconsideration on January 10, 2007.  The trial began on May  14,
2007.   It appears that Helfrich did not file the admission  with
the  superior court or otherwise bring it to the courts attention
before it was admitted as an exhibit at trial.  Although Helfrich
attached  other  exhibits  to  his  motion  for  partial  summary
judgment,  he did not attach the admission to that motion  or  to
his  motion  for reconsideration.  Nor did Helfrich  mention  the
admission in either motion or his reply to Valdez Motels  summary
judgment  opposition.  Helfrich does not appear to  have  renewed
his  motion for partial summary judgment at any point  after  the
admission  was  filed with the court.  Because Helfrich  did  not
bring  the  admission to the courts attention when he  moved  for
summary judgment or before the court denied the motion, we do not
consider this argument on appeal.

          Even  if  the admission had been submitted  before  the
court  ruled,  it would not have compelled a grant  of  Helfrichs
summary  judgment  motion  given our conclusion  below  that  the
superior court did not err in concluding that there was a factual
dispute about the nature of the notice.

     22     Lee testified that as a friend he did not wish to see
Helfrich  again  and  that as a landlord he probably  would  have
preferred  that [Helfrich] would have moved out.  In response  to
Cooks  question whether the letter was tantamount to an  eviction
notice, Lee responded that [i]n my mind it was a note from -- you
know, more of a friends reaction than it was an employee/employer
reaction.

     23      Helfrich  asks us to grant him summary judgment  and
remand  for  determination of actual damages for  FED  and  URLTA
violations.  In his amended complaint, Helfrich alleged that  the
failure   to  comply  with  FED  and  URLTAs  mandatory  eviction
procedures  was  an  unfair  practice  under  the  Alaska  Unfair
Practices  and  Consumer Protection Act, AS 45.50.471-.561.   But
Cook  waived  the unfair practices claim at trial,  and  did  not
assert any other claims for damages based on deficiencies in  the
alleged notice to quit.  Although Helfrich argues on appeal  that
the alleged notice to quit violates URLTA and FED as a matter  of
law,  he  does  not  specify how he was damaged  by  the  alleged
deficiencies.  He also does not argue in the alternative that  we
remand for determination as a matter of fact  whether the alleged
notice  was  actually an eviction notice and, therefore,  whether
Helfrich suffered damages based on the alleged deficiencies.  Any
claim  of  damages  resulting from deficiencies  in  the  alleged
notice is therefore waived.

     24     AS  34.03.310(a)(2) (emphasis added).  [T]his chapter
refers to Chapter 03, the Uniform Residential Landlord and Tenant
Act.   URLTA  also  protects other types of tenant  conduct  from
retaliation  by  landlords, AS 34.03.310(a), but  enforcement  of
rights  and  remedies granted under URLTA is  the  only  type  of
tenant conduct at issue in this case.

     25    AS 34.03.310(a)(2).

     26    AS 34.03.100(a).

     27    AS 34.03.100(a)(1).

     28    AS 34.03.100(a)(2).

     29    AS 34.03.100(a)(3).

     30    AS 34.03.100(a)(4).

     31    AS 34.03.100(a)(5).

     32    AS 34.03.100(a)(6).

     33    AS 34.03.100(a)(7).

     34     AS  34.03.160(a)  & (b).  That provision  states  (b)
Except  as  provided  in  this chapter, the  tenant  may  recover
damages and obtain injunctive relief for any noncompliance by the
landlord with the rental agreement or AS 34.03.100, 34.03.210, or
34.03.280.

          Tenants  have additional URLTA remedies for  violations
of  URLTA rights not implicated in this case.  For example, if  a
landlord  fails  to deliver possession, a tenant is  entitled  to
rent  abatement, may terminate the tenancy, and may  maintain  an
action  for  possession.  AS 34.03.170.  If a landlord wrongfully
fails to supply heat, water, hot water, or essential services,  a
tenant  may  deduct from the rent reasonable cost of  replacement
services, diminution in fair rental value, and substitute housing
if necessary.  AS 34.03.180.  In case of fire or casualty damage,
a  tenant  may terminate the tenancy or deduct from the rent  for
diminution  in  fair  rental value.   AS  34.03.200.   And  if  a
landlord  wrongfully ousts, excludes, or diminishes  services,  a
tenant  may terminate the tenancy or recover possession  and  sue
for up to one and a half times actual damages.  AS 34.03.210.

     35     Vinson  v. Hamilton, 854 P.2d 733, 736 (Alaska  1993)
(holding litigant was entitled to continuance to prepare  defense
of  retaliatory eviction because even month-to-month tenants  may
raise this defense).

     36    McCall v. Fickes, 556 P.2d 535, 537-38 (Alaska 1976).

     37    AS 34.03.100.

     38    AS 34.03.160(b).

     39    AS 34.03.310(a)(2).

     40    Vinson, 854 P.2d at 736.

     41    Id.

     42    Or. Rev. Stat.  90.385 (2003).

     43     E.g., N.M. Stat.  47-8-39 (1978) (providing an  owner
may  not  retaliate against a tenant because she, in the previous
six  months,  prevailed  in  a lawsuit  as  either  plaintiff  or
defendant or has a lawsuit pending against the owner relating  to
the  residency);  Tenn. Code Ann.  66-28-514 (1999)  (prohibiting
retaliation  if  tenant has made use of remedies  provided  under
this  chapter);  Wash. Rev. Code  59.18.240  (2004)  (prohibiting
retaliation for [a]ssertions or enforcement by the tenant of  his
rights and remedies under this chapter).

     44     The statute prohibits retaliation for [a]ctions taken
in  good  faith,  by  or in behalf of the tenant,  to  secure  or
enforce any rights under the lease or rental agreement . .  .  or
under  any  other  law  of  the state of  New  York,  or  of  its
governmental subdivisions, or of the United States which  has  as
its objective the regulation of premises used for dwelling . .  .
.  N.Y. Real Prop. Law  223-b(1)(b) (McKinney 2006).

     45    Pezzolanella  v. Galloway, 503 N.Y.S.2d 990 (N.Y. City
Ct. 1986).

     46     N.Y. Real Prop. Law  235-b (McKinney 2006), quoted in
Pezzolanella,  503 N.Y.S.2d at 991.

     47    Pezzolanella  v. Galloway, 503 N.Y.S.2d 990, 991 (N.Y.
City Ct. 1986).

     48    Id.

     49    Id.

     50    Id. at 992-93.

     51    Id.

     52    AS 34.03.310(a)(2).

     53    AS 34.03.100(a)(2).

     54    AS 34.03.160-.210.

     55    See, e.g., AS 34.03.200 (providing tenant remedies for
fire or casualty damages).

     56    AS 34.03.310(a)(2).

     57    Any claim Helfrich may have made in the superior court
regarding  unlawful  ouster is waived.  Helfrich  states  in  his
brief  to this court that [w]hile Helfrich believes that  he  was
wrongfully  ousted by both the unlawful eviction notice  and  the
retaliatory  demand for enhanced rent . . . , his  argument  here
does not rely here upon Alaskas wrongful ouster statute.  See  AS
34.03.210.

          Any  claim  of ouster in this case would be problematic
in  any  event.  Unlawful ouster involves the landlords  physical
interference  with the tenants ability to inhabit  the  premises.
Shaefer v. Murphey, 640 P.2d 857, 860 (Ariz. 1982) (holding  that
service  of unlawful notice to quit, followed by tenants vacating
premises,  was  not unlawful ouster); see also  49  Am.  Jur.  2d
Landlord   and  Tenant   515  (2006)  (contrasting  ouster   with
constructive  eviction  so  as to suggest  that  ouster  involves
physical   dispossession).   Valdez  Motel  did  not   physically
interfere with Helfrichs possession.

     58     Helfrich also states that [e]ven if, arguendo,  these
actions were not within Alaskas specific statutory prohibition on
retaliatory  conduct, they are certainly a breach  of  the  URLTA
duty of good faith contained in AS 34.02.320.  Helfrich does  not
elaborate  on  this argument.  The argument is  therefore  waived
because  it is inadequately briefed.   Shearer v. Mundt, 36  P.3d
1196,  1199  (Alaska  2001) (stating that  generally  issues  not
briefed or only cursorily briefed are considered waived).

     59    Alaska Rule of Civil Procedure 82 provides for award of
attorneys  fees to the prevailing party in civil litigation.   If
the  prevailing party recovers no money judgment, attorneys  fees
are calculated according to Rule 82(b)(2).

     60     Helfrich raises no objection to the award of Rule  82
attorneys fees beyond his argument that he should have prevailed.

1    AS 34.03.

     2     AS 34.03.010(b)(2).  The legislature has directed that
the  Act  be  liberally  construed and  applied  to  promote  its
underlying purposes and policies.  AS 34.03.010(a).

     3    AS 34.03.100(a)(1).

     4    AS 34.03.100(a)(2).

     5    AS 34.03.360(14).

     6     Newton  v.  Magill, 872 P.2d 1213, 1216 (Alaska  1994)
(identifying Alaskas  common law rules of landlord liability).

     7    Id. at 1214, 1217 (citing AS 34.03.100).

     8     Id.  at 1217 (citing Webb v. City & Borough of  Sitka,
561 P.2d 731, 733 (Alaska 1977)).

     9    Id. at 1217-18.

     10   Id. at 1218.

     11   Id. at 1217.

     12    AS 34.03.310(a)(1).  Complained is not defined in  the
Act,  but  the  relevant Websters definition of  complain  is  to
express  discontent  [or] dissatisfaction.   Websters  Third  New
International   Dictionary  464  (2002).   See  AS   01.10.040(a)
(instructing   that  [w]ords  and  phrases  shall  be   construed
according  to the rules of grammar and according to their  common
and approved usage).

     13   854 P.2d 733, 736 (Alaska 1993).

14   AS 34.03.160(a)-(c).

     15   AS 34.03.160(a).

     16   Id. (emphasis added).

     17   AS 34.03.160(b)-(c) (emphasis added).

     18   AS 34.03.310(a).

     19    The  statutory  remedy afforded a  victim  of  illegal
retaliation  is  limited.   Under AS 34.03.310(b)  a  tenant  may
assert  retaliation  as a defense to an eviction  action  and  is
entitled  to  the same statutory remedies afforded  to  a  tenant
expressly or constructively evicted in violation of law;  in  the
latter  event the tenant may recover possession or terminate  the
rental  agreement and, in either case, recover an amount  not  to
exceed one and one-half times the actual damages.  AS 34.03.210.
20   Newton, 872 P.2d at 1217-18.

     21   Id. at 1218.

     22    The  Act  does not define damages, nor  does  the  Act
expressly  limit damages, but common usage of the term  certainly
favors  Helfrich  and  supports my  view  of  Newton  v.  Magill.
Websters  defines damages as compensation imposed by  law  for  a
wrong or injury caused by a violation of a legal right.  Websters
Third  New  International Dictionary 571 (2002).  Blacks  defines
damages as monetary compensation for loss or injury.  Blacks  Law
Dictionary 416 (8th ed. 2004).

     23    The  court  also seems to hold that  unless  a  tenant
expressly  refers  to  a  specific provision  of  the  Act  in  a
communication  to  a  landlord, the  communication  will  not  be
interpreted  to refer to rights under the Act at  all.   This  is
form  over  substance and clearly inconsistent with the  purposes
and   policies   of  the  Act,  especially  the  anti-retaliation
provisions  of  AS  34.03.310.  The relevant  inquiry  should  be
whether  the rights asserted by the tenant are protected  by  the
Act, not whether the tenant is conscious of the specifics of  the
Act.   The  fact  that  Helfrichs attorney  sought  medical  bill
reimbursement  and damages for injuries alleged  from  an  unsafe
condition  on  the rental premises is sufficient  to  invoke  the
protections of AS 34.03.100(b) and AS 34.03.310(a).

     24   872 P.2d at 1218.

     25    I  also  note  my  view that  a  demand  or  suit  for
compensation made in the context of a continuing tenancy  can  be
easily   construed   as   an   expression   of   discontent    or
dissatisfaction  with  the landlords performance  of  obligations
under AS 34.03.100,  i.e., a complaint protected from retaliation
by AS 34.03.310.  See Newton, 872 P.2d at 1216.

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