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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alexander v. State, Dept. of Corrections (12/18/2009) sp-6442

Alexander v. State, Dept. of Corrections (12/18/2009) sp-6442

       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


KENNETH S. ALEXANDER, )
) Supreme Court No. S- 13264
Appellant, )
) Superior Court No. 3AN-07-5151 CI
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF CORRECTIONS, ) No. 6442 December 18, 2009
)
Appellee. )
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:  Kenneth S. Alexander,  pro  se,
          Anchorage.    Stephanie   Galbraith    Moore,
          Assistant  Attorney General,  Anchorage,  and
          Richard A. Svobodny, Acting Attorney General,
          Juneau, for Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION
          I.   Kenneth Alexander is a former federal prisoner who had
been  temporarily housed at an Alaska Department  of  Corrections
(DOC) facility.  He sued DOC, alleging that it negligently failed
to  provide  him with proper medical care for his  injured  hand.
After  a jury trial, he prevailed against the state.  He contends
on  appeal  that  the  trial court erred in granting  the  states
request  for a directed verdict on his economic loss claims,  and
in  denying  him  prejudgment interest, costs,  and  damages  for
future  pain and suffering without a written ruling.  We conclude
that  the trial court correctly granted the directed verdict  and
that the court did not deny Alexander damages for future pain and
suffering.   But we also conclude that it was error to  deny  him
prejudgment interest and costs on past non-economic damages,  and
remand for further proceedings as to those issues.  We affirm  as
to all other issues.
II.  FACTS AND PROCEEDINGS
          In March and April 2005, while Kenneth Alexander was  a
federal  prisoner temporarily housed in a DOC facility, he  filed
with  DOC at least seven requests for medical care for his  right
hand.   In  response, DOC employees examined his hand, prescribed
medication,  applied a splint, and ordered x-rays.   The  x-rays,
taken  on March 23, revealed a bone fracture.  Alexander asserted
that  he  hurt his hand when it was caught or slammed in a  steel
cell  door while he was in DOC custody; the state contended  that
he injured it by punching something, possibly before entering DOC
custody.   Alexander received no further medical care  before  he
was transferred out of DOC custody in early April.
          Alexander  sued the State of Alaska, alleging  that  it
negligently  failed to provide him with proper medical  care  for
his  hand.   During a three-day jury trial in August  2008   both
sides  presented medical witnesses who testified about the  cause
and  effects  of  Alexanders injury, the  recommended  course  of
treatment, and the treatment he received from DOC.  Alexander did
not testify.
          After Alexander presented his case, the state moved for
a  directed verdict on his economic loss claims.  The trial court
granted the motion, stating that there ha[d] been no testimony of
any  economic loss.  After the state rested, the court instructed
the  jury  that  it could award Alexander damages  for  past  and
future non-economic losses if it found that the states negligence
caused the losses.
          The jury, using a special verdict form submitted by the
state  and  edited by the court, found that both  the  state  and
Alexander  were  negligent,  that the  states  negligence  caused
$75,000 of non-economic damages to Alexander, and that the  state
was  at  fault  for  sixty percent of the damages.   The  special
verdict form did not include instructions or spaces for the  jury
to  distinguish between past and future losses.  Upon  return  of
the  verdict, the state filed a proposed final judgment that  did
not  award Alexander prejudgment interest or attorneys  fees  and
included  a  blank line for award of allowable costs.   Alexander
objected  to  the proposed final judgment, arguing  that  he  was
entitled to prejudgment interest, paralegal fees, and costs.  The
trial  court  signed the states proposed final  judgment  without
making  any  changes,  and entered a final judgment  against  the
state for $45,000 (sixty percent of the $75,000 damages found  by
the jury).
          Alexander appeals the directed verdict on his  economic
loss  claims and the  denial of prejudgment interest  and  costs.
He  also  seeks  damages for future pain and suffering.   He  has
appeared pro se throughout these proceedings.
III. DISCUSSION
     A.   Standard of Review
          We  review de novo the grant of a directed verdict1  to
determine  whether the evidence, when viewed in  the  light  most
favorable  to  the  non-moving party,  is  such  that  reasonable
persons could not differ in their judgment as to the facts.2
          Whether a prevailing party recovering a money award  is
entitled  to  prejudgment interest is a question of law  that  we
review using our independent judgment, keeping in mind that  such
awards should be denied only to avoid an injustice. 3
          We  review  a  trial  courts cost award  for  abuse  of
discretion.4
     B.   Whether It Was Error To Deny Alexander Economic Damages
          In   his  complaint  Alexander  requested  damages  for
economic loss from past, present and future medical expenses  and
loss  of work.  At the close of Alexanders case, the state  moved
for  a  directed verdict on his economic loss claims.  The  trial
court  granted the motion, stating: [T]here has been no testimony
of  any  economic loss . . . . [W]ithout . . . testimony  .  .  .
providing  .  . . data as to what economic loss is, there  is  no
basis  for a fact finder, the jury, the Court, anyone, concluding
what it cost you in terms of wages, what it cost you in terms  of
anything.
          We  have held that [t]he law does not permit a recovery
of  damages which is merely speculative or conjectural  and  that
the plaintiff bears the burden of providing some reasonable basis
upon  which  a jury may estimate with a fair degree of  certainty
the probable loss which plaintiff will sustain in order to enable
it  to  make an intelligent determination of the extent  of  this
loss.5  A plaintiff must produce some tangible evidence of future
loss,  although it does not have to be fixed with the same degree
of  certainty as [is] possible in the case of past earnings6  and
other damages.
          Alexander presented no evidence as to the amount of his
past medical expenses or wages lost before trial.  The state  did
not either.  Alexander did not testify. As a result, there was no
evidence  on those damages claims and Alexander was not  entitled
to recover for those alleged losses.
          To  recover for future medical expenses, the  plaintiff
must   prove (1) to a reasonable probability that [the  expenses]
will  occur, and (2) the amount of such damages . . . to  such  a
degree as to allow the finder of fact to reasonably estimate  the
amount. 7  [T]he jury cannot be allowed to speculate or guess  in
making allowance for future medical expenses; there must be  some
data  furnished the jury upon which it might reasonably  estimate
the  amount  to  be  allowed for this item.8   Several  witnesses
testified   about  Alexanders  future  pain  and  suffering   and
discussed  residual pain, weakness of grip and loss of  range  of
motion  and  some impairment of function in activities  of  daily
living.   But  no  witness  testified about  the  amount  of  his
possible  future medical expenses or otherwise provided the  jury
some  means  of  putting a value on that  claim.   As  a  result,
Alexander  was  not entitled to recover damages  on  his  medical
expense claim.
          To  recover for lost earning capacity, a plaintiff must
offer some evidence of loss of earnings in the future as a result
of  his  permanent injury and, if possible, the nature and extent
of  his  loss.9   There should be more evidence than  that  which
merely shows the nature of plaintiffs injuries and his vocation.10
Alexander did not offer any evidence regarding his vocation,  his
past  earnings, or his likely future earnings, nor did the state.
Alexander was therefore not entitled to recovery for lost earning
capacity.
          Alexander  did  not testify, and he did  not  call  any
witnesses to testify about past or future losses, either  medical
or  work-related.  The state offered no evidence on these topics.
Considering the dearth of evidence, even viewing the evidence  in
the light most favorable to Alexander, no reasonable person could
disagree with the trial courts ruling.  As a result, the directed
verdict was appropriate.
          Alexanders brief quotes Alaska Rule of Civil  Procedure
94,  which  provides  that the civil rules may  be  relaxed  when
strict  adherence  to them will work injustice.11   He  makes  no
argument  related  to  the  rule.  Even  if  we  take  Alexanders
quotation of Rule 94 as an argument that the procedural rules  of
court  should have been relaxed for him, the trial court was  not
required  to  relax  Alexanders  substantive  burden  of  proving
economic loss.12  In any event, Alexander did not ask the court to
rely  on  Rule  94 at trial; he therefore cannot now  demonstrate
that  it  was  an abuse of discretion not to relax  the  rules.13
Failing to relax the rules was certainly not plain error.
     C.   Whether It Was Error To Deny Alexander Prejudgment Interest
          
          Alexanders  original  complaint  requested  prejudgment
interest  on his damage award.  Alexander argues that  the  trial
court erred by failing to grant prejudgment interest.  He asserts
that  prejudgment interest should have been granted on the entire
award or, alternatively, that the case should be remanded for  an
explanation  of the trial courts denial of prejudgment  interest.
The  state argues that prejudgment interest should not be granted
on  the entire award, but agrees that the case should be remanded
to  the  trial  court for determination of what  portion  of  the
verdict  compensates Alexander for past losses, and for award  of
prejudgment interest on that amount.
          Prejudgment interest  should be denied only to avoid an
injustice,   such  as  a  double  recovery.14    Alaska   Statute
09.30.070(c)  provides that [p]rejudgment  interest  may  not  be
awarded  for  .  . . future noneconomic damages.   The  jury  was
instructed  that it could award both past and future non-economic
damages.   The  special verdict form prepared by  the  state  and
submitted  to the jury did not distinguish between separate  past
and  future  non-economic damages or permit the  jury  to  return
separate awards on those two claims.
          As   the  state  requests,  we  remand  for  award   of
prejudgment interest on the portion of the jury verdict that  can
be attributed to past non-economic damages.15  We leave it to the
trial  court on remand to decide how to separate past and  future
losses, and whether additional evidence is needed.16
     D.   Whether It Was Error To Deny Litigation Costs to Alexander
          
          The  trial  court  did  not grant litigation  costs  to
Alexander.   Alexander  argues  that  he  is  entitled  to  costs
incurred  in  suing, including postage, transportation,  copying,
and paralegal costs.  The state argues that even though Alexander
might  have  been entitled to recover costs, he did not  properly
request them.
          Alaska  Rule of Civil Procedure 79 allows a  prevailing
party  to  recover  costs by filing a cost bill  with  supporting
documents  within ten days of judgment.  If the  party  does  not
meet the deadline, the right to costs is waived.17  Alexander, in
his  Notice  of  Objection to Proposed Final Judgment,  requested
costs  and  expenses incurred in connection with this  case.   He
filed  this  notice six days after the state filed  its  proposed
judgment  and  four  days  before  the  court  issued  the  final
judgment.   Alexander did not file an itemized and verified  cost
bill as Civil Rule 79(b) requires.
          Alexanders   request  for  an  award   of   costs   was
procedurally defective, but he nonetheless requested an award  of
costs.   The  trial court must inform a pro se  litigant  of  the
proper procedure for the action he or she is obviously attempting
to  accomplish  when  he  or she submits  procedurally  defective
motions or requests.18  The defective request therefore triggered
a need to tell Alexander how to proceed.  Failing to do so was an
abuse of discretion.19
          Alexanders request for paralegal costs, if considered a
request  for  paralegal fees, is covered by Rule 82(b)(2).   That
rule allows recovery of actual fees for legal work performed by a
paralegal,  but only in cases in which the prevailing  party  did
not recover a money judgment.20  Because Alexander recovered money
damages, he is not entitled to recover actual paralegal fees.
     E.   Whether the Court Denied Alexander Damages for Future Pain
          and Suffering
          
          Alexander argues that the trial court erred by  denying
him  damages  for future pain and suffering.  The  state  asserts
that the trial court did not deny him damages for future pain and
suffering.
          The  court  instructed the jury that it could  consider
both past and future non-economic losses:
          You may award the plaintiff a fair amount  to
          compensate   the  plaintiff  for   pain   and
          suffering  . . . from harm legally caused  by
          defendants negligence.  Such an award  should
          fairly compensate the plaintiff for the  non-
          economic  losses he has experienced from  the
          date  of  the  injury until the date  of  the
          trial and for non-economic losses that he  is
          reasonably  probable  to  experience  in  the
          future.
          
Having  submitted the claim to the jury, the trial court did  not
deny  Alexander  damages  for  future  pain  and  suffering.   If
Alexander  believed that the jury was not adequately informed  of
his  request  for damages for pain and suffering, he should  have
objected to the special verdict form for its lack of itemization.
But  he  did  not object, and there was nothing inherently  wrong
with  permitting  the jury to make a lump sum award.21   We  must
assume either that the jury did award damages for future pain and
suffering22 or chose not to do so.23  Either way, it appears  the
jury  addressed this damages item, and Alexanders  argument  that
the court erred is without merit.24
     F.   Whether It Was Error Not To Issue Written Rulings
          Alexander argues that the trial court erred by  failing
to  give  [a]  written  ruling  for  its  denial  of  prejudgment
interest,  future  economic damages, costs and  compensation  for
future  pain  and  suffering.   The  trial  court  is  under   no
obligation  to issue a written ruling for its decision  to  grant
the  states motion for a directed verdict on Alexanders  economic
loss  claims,25  or  for its denial of prejudgment  interest  and
costs.
IV.  CONCLUSION
          We  AFFIRM  in  part and REMAND in part  for  award  of
prejudgment interest and costs.
_______________________________
     1     L.D.G.,  Inc.  v. Brown, 211 P.3d 1110,  1117  (Alaska
2009).

     2     Cummins,  Inc.  v. Nelson, 115 P.3d 536,  541  (Alaska
2005) (quoting K & K Recycling, Inc. v. Alaska Gold Co., 80  P.3d
702, 722 (Alaska 2003)).

     3     Sidney v. Allstate Ins. Co., 187 P.3d 443, 448 (Alaska
2008) (quoting Cole v. Bartels, 4 P.3d 956, 958 (Alaska 2000)).

     4     Sever  v.  Alaska Pulp Corp., 931 P.2d 354,  362  n.13
(Alaska  1996) (citing Kaps Transp., Inc. v. Henry, 572 P.2d  72,
77 (Alaska 1977)).

     5    City of Fairbanks v. Nesbett, 432 P.2d 607, 616 (Alaska
1967)  (discussing  proof required to recover  for  lost  earning
capacity).

     6    Id.

     7    Pluid v. B.K., 948 P.2d 981, 984 (Alaska 1997) (quoting
Blumenshine  v.  Baptiste,  869  P.2d  470,  473  (Alaska  1994))
(emphasis in original); see also Nesbett, 432 P.2d at 618.

     8     Nesbett,  432 P.2d at 618 n.31 (quoting  Henderson  v.
Breesman,  269  P.2d 1059, 1061-62 (Ariz. 1954))  (alteration  in
original).

     9    Id. at 616.

     10    Id.

     11     Civil  Rule 94 states [t]hese rules are  designed  to
facilitate business and advance justice.  They may be relaxed  or
dispensed  with  by  the  court in any case  where  it  shall  be
manifest  to the court that a strict adherence to them will  work
injustice.

     12     See  Pieper v. Musarra, 956 P.2d 444, 446-47  (Alaska
1998)  (not  relaxing pro se litigants burden of  demonstrat[ing]
the existence of evidence); cf. Ghete v. Anchorage, 948 P.2d 973,
975-76  (Alaska 1997) (explaining that we have relaxed procedural
rules for pro se litigants but have never relaxed the substantive
requirements of Civil Rule 60(b)).

     13     See  Pieper,  956  P.2d at 447  (considering  pro  se
litigants arguments not raised at trial level waived).

     14    Cole v. Bartels, 4 P.3d 956, 958 (Alaska 2000) (quoting
Tookalook  Sales  & Serv. v. McGahan, 846 P.2d 127,  129  (Alaska
1993)).

     15     See  Johns Heating Serv. v. Lamb, 46 P.3d 1024,  1041
(Alaska 2002) (remanding to trial court for recalculation without
awarding prejudgment interest on the portion of the jury  verdict
attributed to future damages).

     16     A  second problem arises if the special verdict forms
fail to differentiate between past and future money damages;  the
court  is  then  unable to comply with Alaska  Civil  Rule  58.2.
Among  other things, Civil Rule 58.2 requires that judgments  for
payments  of money itemize the principal amount of the  judgment,
the  portion of the principal that accrues prejudgment  interest,
the  prejudgment  interest rate, and  the  date  from  which  the
prejudgment  interest is to be calculated.  Money judgments  must
conform  with the sample judgment form published at  the  end  of
Civil Rule 58.2.

     17    Civil Rule 79(b) provides in part:

               To  recover costs, the prevailing  party
          must  file and serve an itemized and verified
          cost   bill,  showing  the  date  costs  were
          incurred, within 10 days after the date shown
          in  the clerks certificate of distribution on
          the judgment.  Failure of a party to file and
          serve  a  cost bill within 10 days,  or  such
          additional time as the court may allow,  will
          be  construed as a waiver of the partys right
          to  recover costs.  The prevailing party must
          have  receipts, invoices, or other supporting
          documentation for each item claimed.
          
     18     Bauman  v. State, Div. of Family & Youth Servs.,  768
P.2d  1097, 1099 (Alaska 1989) (holding that motion in opposition
to   motion   for  summary  judgment  filed  without   supporting
affidavits triggers need for instructions from court, but failure
to file even a defective motion does not trigger same duty).

     19    Genaro v. Municipality of Anchorage, 76 P.3d 844, 845-
47  (Alaska 2003) (holding that it was abuse of discretion not to
inform  pro  se  litigant of proper procedure for action  he  was
attempting to accomplish).

     20    Civil Rule 82(b)(2) provides in part:

          In   cases  in  which  the  prevailing  party
          recovers  no money judgment, the court  shall
          award  the  prevailing party in a case  which
          goes  to  trial 30 percent of the  prevailing
          partys reasonable actual attorneys fees which
          . . . shall include fees for legal work . . .
          performed by a . . . paralegal . . . .
          
     21     See  Hayes  v. Xerox Corp., 718 P.2d  929,  931,  933
(Alaska   1986)   (concluding  that  lump  sum  award   was   not
unreasonable  even though it did not specify amount  awarded  for
pain and suffering).

     22     See  Irving v. Bullock, 549 P.2d 1184,  1188  (Alaska
1976)  (upholding  jury verdict where there was  nothing  in  the
amount of the verdict or on its face which indicate[d] that . . .
damages [for pain and suffering] were omitted).

     23     The jury must award damages for pain and suffering if
[t]he  record  contains  substantial and uncontradicted  evidence
that [plaintiff] did experience pain [and] suffering.  Walker  v.
Alaska Rd. Commn, 388 P.2d 406, 407 (Alaska 1964).  At trial, DOC
challenged Alexanders pain and suffering claim sufficiently  that
Walker does not apply.

     24    Alexander does not argue that no reasonable jury could
have  awarded only $75,000 for future pain and suffering, and  he
did  not move for a judgment notwithstanding the verdict.  We  do
not consider whether the $75,000 was inadequate.  See Irving, 549
P.2d at 1189.

     25    Cf. L.D.G., Inc. v. Brown, 211 P.3d 1110, 1124 (Alaska
2009)  (presuming without stating that oral grant of  motion  for
directed verdict was proper).

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