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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pedersen v. Blythe (11/16/2012) sp-6723

Pedersen v. Blythe (11/16/2012) sp-6723

        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 



SIEGFRIED PEDERSEN,                            ) 

                                               )       Supreme Court No. S-14620 

                       Appellant,              ) 

                                               )       Superior Court No. 3PA-10-03154 CI 

        v.                                     ) 

                                               )      O P I N I O N 

DANIEL BLYTHE and                              ) 

BOBBIE LUXFORD,                                )      No. 6723 - November 16, 2012 

                                               ) 

                       Appellees.              ) 

                                               ) 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Palmer, Kari Kristiansen, Judge. 



                Appearances:      Siegfried Pedersen, pro se, Hudson, Colorado, 

                Appellant. Notice of nonparticipation filed by Daniel Blythe and 

                Bobbie Luxford, Willow, Appellees. 



                Before:   Fabe, Chief Justice, Winfree, Stowers, and Maassen, 

                Justices.  [Carpeneti, Justice, not participating.] 



                MAASSEN, Justice. 



I.       INTRODUCTION 



                Siegfried Pedersen was convicted of assault and weapons misconduct.  He 



brought a civil suit against the victims of those crimes, Daniel Blythe and Bobbie Luxford, 



alleging defamation and trespass.         The superior court granted the defendants' motion to 



dismiss on grounds of collateral estoppel.        Pedersen appeals. 


----------------------- Page 2-----------------------

                We conclude that the superior court erred when, in deciding the motion to 



dismiss, it considered matters outside the pleadings without advising Pedersen of its intent 



to do so and giving him a reasonable opportunity to respond.                  We hold that this error is 



harmless with regard to Pedersen's defamation claims.   We also hold, however, that it was 



plain error for the superior court to dismiss Pedersen's trespass claims, claims to which 



collateral estoppel did not apply.  We therefore affirm the superior court's judgment on the 



defamation claims and reverse and remand on the trespass claims. 



II.     FACTS AND PROCEEDINGS 



                Pedersen, Blythe, and Luxford were neighbors in Willow, where Blythe and 



Luxford share a residence.  Tension grew when Pedersen alleged that Blythe had repeatedly 



trespassed on his property.   Blythe and Luxford reported to the Alaska State Troopers that 



on September 13, 2009, Pedersen parked his car in their driveway, fired a weapon at their 



residence,   and    drove   away.    Criminal   and   civil   proceedings   arose   from   this   incident 



(hereafter "September incident"). 



                In February 2011, after a criminal trial on the September incident, a jury found 



                                                                                                 1 

Pedersen guilty of criminal misconduct involving weapons for firing at a dwelling,  criminal 

misconduct involving weapons for firing from or on a highway,2 and assault.3                   Blythe and 



Luxford were the victims.         In March 2011 Pedersen filed an appeal, now pending in the 



court of appeals. 



                Meanwhile,   in   November   2010   Pedersen   filed   a   pro   se   complaint   against 



Blythe   and   Luxford   in   the   superior   court,   seeking   "exemplary   and   punitive"   damages. 



        1       AS 11.61.195(a)(3)(B). 



        2       AS 11.61.210(a)(2). 



        3       AS 11.41.220(a)(1)(A). 



                                                  -2-                                             6723 


----------------------- Page 3-----------------------

Pedersen alleged that Blythe and Luxford defamed him with their statements to the troopers 



about the September incident.         He also claimed that Blythe trespassed on his property in 

May and November 2009.4 



                Blythe and Luxford   filed   a motion to dismiss based on collateral estoppel, 



relying   solely   on   Pedersen's   conviction.     The   court   granted   the   motion   with   a   single 



sentence:    "Considering criminal conviction in 3PA-09-2426CR the court finds that as a 



matter of law plaintiff[']s complaint should be dismissed." 



                Pedersen appeals pro se. He argues only that collateral estoppel does not apply 



and   that   he   should   succeed   on   his   defamation   claims.    Blythe   and   Luxford   have   not 



participated in this appeal. 



III.    STANDARDS OF REVIEW 



                We review a motion to dismiss de novo, construing the complaint liberally and 

accepting   as   true   all   factual   allegations.5 In   reviewing   a   motion   to   dismiss,   we   do   not 



consider materials outside the complaint and its attachments.6 



        4       Pedersen also alleged in his complaint that the "[t]roopers failed in their due 



diligence" and violated his constitutional rights.           We do not discuss his constitutional 

claims further because no state actors were parties to the suit and Blythe and Luxford 

cannot be held liable for constitutional violations.  Belluomini v. Fred Meyer of Alaska, 

Inc. , 993 P.2d 1009, 1015 (Alaska 1999) ("[S]tate and federal courts have historically 

recognized   that   the   constitution   protects   individuals   from   state   action   but   not   from 

similar deprivations by private actors."). 



        5       Caudle v. Mendel, 994 P.2d 372, 374 (Alaska 1999) (citing Kollodge v. 



State, 757 P.2d 1024, 1026 n.4 (Alaska 1988)). 



        6       Larson v. State, Dep't of Corr. , 284 P.3d 1, 7 (Alaska 2012) (citing Adkins 



v. Stansel, 204 P.3d 1031, 1035 n.20 (Alaska 2009); Dworkin v. First Nat'l Bank of 

Fairbanks , 444 P.2d 777, 779-80 (Alaska 1968)). 



                                                   -3-                                               6723 


----------------------- Page 4-----------------------

               Whether a statement is defamatory and whether collateral estoppel applies are 

both questions of law that we review de novo.7 



               We review for plain error issues not preserved for appeal.8      Plain errors are 



obvious mistakes that create "a high likelihood that injustice has resulted."9     But we must 



disregard harmless errors that have no substantial effect on the rights of parties or on the 

outcome of the case.10 



IV.	   DISCUSSION 



       A.	     The Superior Court Must Give Notice Of Its Intent To Consider Evidence 

               Outside The Pleadings When Deciding A Motion To Dismiss. 



               If a party submits a motion to dismiss that relies on materials outside   the 



pleadings, the superior court may either exclude the evidence or convert the motion into one 

for summary judgment.11     In either event, the court must "expressly state whether [it has] in 



fact excluded or considered [outside] materials" in reaching its decision.12        If the court 



converts    the  motion  to  one  for  summary    judgment,   it  must  give  opposing  parties  a 



       7      DeNardo v. Bax , 147 P.3d 672, 677 (Alaska 2006); Rapoport v. Tesoro 



Alaska Petroleum Co ., 794 P.2d 949, 951 (Alaska 1990). 



       8      Marcia V. v. State , 201 P.3d 496, 502 (Alaska 2009) (citing In re Adoption 



of L.E.K.M., 70 P.3d 1097, 1100 (Alaska 2003)). 



       9	     Id. (quoting Miller v. Sears , 636 P.2d 1183, 1189 (Alaska 1981)). 



       10     Alaska R. Civ. P. 61; Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 



1146 (Alaska 1999) (citing Alaska R. Civ. P. 61; Veal v. Newlin, Inc., 367 P.2d 155, 157 

n.8 (Alaska 1961)). 



       11     Alaska R. Civ. P. 12(b). 



       12     Martin v. Mears , 602 P.2d 421, 426 (Alaska 1979). 



                                             -4-	                                       6723 


----------------------- Page 5-----------------------

"reasonable      opportunity    to  present   all  materials   made    pertinent."13    The    "reasonable 



opportunity" is particularly important for pro se parties, given that trial judges are obligated 



to inform pro se litigants of procedural requirements such as "the necessity of submitting 

affidavits to preclude summary judgment."14 



                We have implied in the past that courts may consider materials outside the 

pleadings on a motion to dismiss if those materials are subject to "strict judicial notice."15 



Other authorities have found "strict judicial notice" to encompass statutes and regulations, 



matters   of   public   record   (including   other   court   proceedings),   and   matters   of   common 

knowledge.16     But just as it does when converting a motion to dismiss, the court must give 



notice    to  the  opposing    party   of   its   intent   to   take   judicial   notice   and   "afford   him   an 

opportunity to dispute the facts judicially noticed."17 



        13      Alaska R. Civ. P. 12(b); Martin , 602 P.2d at 426; see also Demmert v. 



Kootznoowoo, Inc ., 960 P.2d 606, 612 (Alaska 1998) ("A party opposing a motion for 

summary judgment is entitled to conduct discovery germane to its opposition."). 



        14      Genaro v. Municipality of Anchorage, 76 P.3d 844, 846 (Alaska 2003) 



(quoting Coffland v. Coffland, 4 P.3d 317, 321 (Alaska 2000); Breck v. Ulmer , 745 P.2d 

66, 75 (Alaska 1987)). 



        15      Martin , 602 P.2d at 426 n.6 (quoting Schwartz v. Commonwealth Land Title 



Ins. Co. , 374 F. Supp. 564, 578 (E.D. Pa. 1974)). 



        16      Buck v. Thomas M. Cooley Law Sch. , 597 F.3d 812, 816 (6th Cir. 2010); 



Schwartz, 374 F. Supp. at 578; 61A AM . JUR . 2D Pleading   529 (2012) ("In addition, 

the court may consider matters which are properly the subject of strict judicial notice, 

such as state statutes or regulations, matters of public record, and matters of common 

knowledge."). 



        17      Schwartz, 374 F. Supp. at 579 (citing 9 J. WIGMORE ON EVIDENCE 2568 (3d 



ed. 1940); Soley v. Star & Herald Co., 390 F.2d 364 (5th Cir. 1968)). 



                                                  -5-                                               6723 


----------------------- Page 6-----------------------

                 The   motion   to   dismiss   submitted   by   Blythe   and   Luxford   relied   solely   on 



Pedersen's criminal conviction, and the superior court relied solely on the conviction in its 



order of dismissal.      However, the superior court did not give Pedersen notice that it was 



converting the motion to dismiss to a motion for summary judgment, nor did it notify him 



that it intended to take judicial notice of the conviction.  Assuming that Pedersen's criminal 



conviction was the type of public record of which the court could take strict judicial notice 



without converting the motion to dismiss into one for summary judgment, the court was still 



required to give Pedersen express notice of its intent to rely on the conviction, which it failed 



to do.   This was error. 



        B.	      The   Court's   Failure   To   Give   The   Required   Notice   Before   Dismissing 

                Pedersen's Defamation Claims Was Harmless Error. 



                We   find   the   lack   of   notice   to   be   harmless   error,   however,   with   regard   to 



Pedersen's   defamation   claims.        Pedersen   alleged   to   be   defamatory   (1)   the   defendants' 



statements that he had fired shots at their dwelling, and (2) Blythe's statement that he had 



seen Pedersen's vehicle in the defendants' driveway. 



                A criminal conviction prevents a person from relitigating in a civil suit "any 

element of a criminal charge of which he stands convicted."18                   A pending appeal of the 



criminal conviction "is irrelevant for the purposes of res judicata and collateral estoppel."19 



A   successful   defamation   claim   must   establish   the   existence   of   "a   false   and   defamatory 



        18      Haynes v. McComb , 147 P.3d 700, 701 (Alaska 2006) (citing Burcina v. 



City of Ketchikan, 902 P.2d 817, 822 (Alaska 1995)). 



        19       Wyatt v. Wyatt, 65 P.3d 825, 831 (Alaska 2003) (citing Lyman v. State, 824 



P.2d 703, 705 (Alaska 1992)) (applying rule to collateral estoppel).                 We also observed 

in  Wyatt that a "motion to vacate any judgment resting on the preclusive effect of the 

earlier judgment following its reversal would provide adequate relief" if an appeal were 

later successful.  Id. 



                                                    -6-	                                               6723 


----------------------- Page 7-----------------------

statement,"   among   other   factors.20     A   statement   "is   defamatory   if   it   tends   to   harm   the 



reputation of another."21 



                After a full criminal trial, a jury found beyond a reasonable doubt that Pedersen 



"discharged [a] firearm at or in the direction of a dwelling."             Pedersen does not raise any 



colorable argument on appeal as to why the superior court in this case was not obliged to 



accept that finding as true for purposes of collateral estoppel, nor can we discern any from 

our own review of the record.22        As for Blythe's statement about seeing Pedersen's vehicle 



in his driveway, it is not defamatory on its face, as it does not on its own tend to harm 



Pedersen's reputation; the statement is defamatory only if taken to impute a serious crime 

to Pedersen.23     This is in fact how Pedersen construes it.            But a jury already convicted 



        20      State v. Carpenter, 171 P.3d 41, 51 (Alaska 2007) (citing French v. Jadon 



Inc. , 911 P.2d 20, 32 (Alaska 1996)). 



        21      MacDonald v. Riggs , 166 P.3d 12, 16 (Alaska 2007) (quoting Green v. N. 



Publ'g Co. , 655 P.2d 736, 739 (Alaska 1982)). 



        22      See Lamb v. Anderson, 147 P.3d 736, 739 (Alaska 2006) (quoting Scott v. 



Robertson , 583 P.2d 188, 193 & n.27 (Alaska 1978)) ("[W]e adopted the rule that a 

criminal conviction resulting from a jury trial could be introduced as 'conclusive proof' 

(rather than merely persuasive evidence) 'of the facts necessarily determined.' "). 



        23      Defamation damages are appropriate where "words impute a serious crime 



to the plaintiff."   French , 911 P.2d at 33.  See also RESTATEMENT (SECOND) OF TORTS 

 571 (1977) ("One who publishes a slander that imputes to another conduct constituting 

a criminal offense is subject to liability . . . if the offense imputed is of a type which . . . 

would be (a) punishable by imprisonment . . . or (b) regarded by public opinion as 

involving moral turpitude."). 



                                                  -7-                                               6723 


----------------------- Page 8-----------------------

Pedersen of that serious   crime, so it is not a false statement.              Accordingly, Pedersen is 



collaterally estopped from litigating the "false and defamatory" element of his defamation 



claims, and the superior court's procedural error, in failing to expressly notify him of its 



intent to rely on his conviction, cannot have affected this result. 



        C.       The Dismissal Of Pedersen's Trespass Claims Requires Remand. 



                 Pedersen's complaint also alleged that Blythe committed trespass in May and 



November   2009.        Construing   the   complaint   liberally,   and   accepting   as   true   all   factual 

allegations,24     we   find   that   these   claims   are   sufficient   to   survive   a   motion   to   dismiss. 



Furthermore, these tort claims could not have been subject to collateral estoppel - the sole 



basis for the superior court's order of dismissal - as they were apparently unrelated to 



Pedersen's criminal convictions based on the September incident. 



                 Pedersen argues that the "trial [c]ourt abused any discretion it may have had 



by dismissing the case in error, given [that] [c]ollateral [e]stoppel does not apply," but his 



brief   does   not   specifically   address    dismissal   of   his   trespass   claims.   We   nonetheless 



consider them because he is proceeding pro se and because it appears that it was plain error 

for the court to implicitly dismiss those claims on the basis of collateral estoppel.25                    We 



reverse the superior court's dismissal of the trespass claims and remand to the superior court 



for consideration of those claims. 



        24      Larson   v.   State,   Dep't   of   Corr .,   284  P.3d   1,   4   (Alaska   2012)   (citing 



Clemensen   v.   Providence   Alaska   Med.   Ctr.,   203   P.3d   1148,   1151   (Alaska   2009); 

Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 253 (Alaska 2000)). 



        25      See Tracy v. State, Dep't of Health & Soc. Servs., Office of Children Servs. , 



279 P.3d 613, 618 (Alaska 2012) (considering a   claim   and finding plain error even 

though pro se litigants failed to develop the argument). 



                                                    -8-                                              6723 


----------------------- Page 9-----------------------

V.     CONCLUSION 



              For the foregoing reasons, the judgment in this case is AFFIRMED in part and 



REVERSED in part.      The matter is REMANDED for further proceedings consistent with 



this opinion. 



                                           -9-                                      6723
 

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