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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Greene v. Tinker (8/15/2014) sp-6941

Greene v. Tinker (8/15/2014) sp-6941

         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, email  

                                                                                    

         corrections@appellate.courts.state.ak.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



KAREN GREENE,                                         )  

                                                      )        Supreme Court No. S-14965  

                           Appellant,                 )  

                                                      )        Superior Court No. 4BE-11-00323 CI  

         v.                                           )  

                                                      )        O P I N I O N  

BEVERLY TINKER,                                       )  

                                                      )       No. 6941 - August 15, 2014  

                           Appellee.                  )  

                                                      )  



                  Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                  Fourth Judicial District, Bethel, Charles W. Ray, Jr., Judge.  



                  Appearances:      Mark   Lewis   Nunn,   Sr.,   Fairbanks,   for  

                  Appellant.  Myron Angstman, Angstman Law Office, Bethel,  

                                            

                  for Appellee.  



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

                                       

                  Justices. [Maassen, Justice, not participating.]  



                  FABE, Chief Justice.  



I.       INTRODUCTION  



                  A patient at a health clinic learned that a clinic employee, who was not  



authorized to access the patient's medical record, had discussed the patient's pregnancy  

                                                                   



with a clerical worker at the clinic.  In a complaint to the employee's supervisor, the  

                     



patient accused the clinic employee of breaching medical confidentiality.  


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

                    Shortly afterward, the clinic operator fired the employee, citing a breach of  

                                                                                                                   



confidentiality.    The  employee  then  sued  the  patient  for  defamation.    The  patient  



                                                                         

counterclaimed for invasion of privacy and abuse of process, the latter claim being based  



      

on the employee's filing and withdrawing an earlier petition for a protective order.  At  



some point the clinic investigated the patient's complaint and determined that it was  



unsubstantiated.    It  was  later  revealed  that  the  patient  herself  was  the  source  of  the  



employee's knowledge about the patient's pregnancy.  



                                                                                                              

                    At trial the patient claimed that she had an absolute privilege to accuse the  



employee  of  breaching  medical  confidentiality.    The  superior  court  rejected  that  



argument and determined that the patient had only a conditional privilege, and later  



                                                                                                                 

instructed the jury accordingly.  The superior court also denied the patient's motion for  



summary judgment and made several challenged evidentiary rulings.  



                                

                    After a three-day jury trial, the superior court granted a directed verdict on  



the  patient's  abuse-of-process  counterclaim.    The  jury  returned  a  verdict  for  the  



employee on her defamation claim, awarding one dollar in nominal damages; the jury  



                                                                                        

rejected the patient's counterclaim of invasion of privacy.  Finding the employee to be  



the prevailing party, the superior court awarded her partial attorney's fees.     



                                                                                        

                    The patient appeals the superior court's ruling on conditional privilege, its  



                                                                                                         

denial of her motion for summary judgment, and its evidentiary rulings.  She also alleges  



           

errors in the superior court's jury instructions, in its decision to grant a directed verdict  



on  her  abuse-of-process  counterclaim,  and  in  its  award  of  attorney's  fees  to  the  



employee.  She claims various violations of her state and federal constitutional rights.  



                    We  conclude  that  the  superior  court  did  not  err  in  any  of  its  legal  or  



                                                                    

evidentiary rulings or in its instructions to the jury, and we therefore affirm the superior  



court in all respects.  



                                                             -2-                                                        6941
  


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

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                    Beverly Tinker and Karen Greene are from the community of Pilot Station.  



                                                                          

The two are distantly related. There is a history of animosity between Greene and Tinker  



and between their respective families.  



                    In  2007  Tinker  improperly  accessed  Greene's  medical  file  at  the  Pilot  



Station Health Clinic, where Tinker was employed and where Greene was a patient.  



                                                                                                     

Tinker claimed she was merely looking up an appointment date for Greene and that she  



                                                                                      

shared the appointment information with Rose Zacharof, a clerical worker at the clinic.  



                                                                   

According to Greene, Tinker was looking at the file because she was trying to discover  



medical information about Greene.  



                    Greene filed a complaint about this incident with the clinic operator, the  



                                                                             

Yukon-Kuskokwim Health Corporation (YKHC). YKHC reprimanded Tinker and gave  



                                                   

her the opportunity to participate in a "performance improvement program" addressing  

confidentiality  requirements;  the  alternative  was  termination  of  her  employment.1  



                                                                                                                 

Following the incident, Greene requested that YKHC ensure that Tinker not have access  



                                                                                                                  

to  her  medical  records  in  future;  YKHC  explicitly  directed  Tinker  never  to  look  at  



Greene's records again.  



                                       

                    In  October  2009  William  Schreiner,  an  official  of  YKHC,  attended  a  



                                        

meeting of the local tribal government, the Pilot Station Traditional Council, to address  



community concerns about breaches of confidentiality that had occurred at the Pilot  



                                                                                                            

Station Health Clinic.  Greene insists that Schreiner was there to assuage concerns about  



                                                                                                        

Tinker specifically; the meeting minutes can be read as indicating this, but are somewhat  



          1  

                                    

                    It appears that at some point there was a gap in Tinker's employment with  

                                                                                  

YKHC and that Tinker was rehired in October 2009.  However, it does not appear that  

Tinker was suspended or terminated as a result of the 2007 incident.  



                                                              -3-                                                            6941  


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

ambiguous.  In any event, Schreiner promised the meeting attendees that any further  



                                                                 

breach of confidentiality would result in the termination of the staff member responsible.  



                       The events leading to this case took place in the spring of 2011.  At that  



                                      

time,  Greene  was  in  the  early  stages  of  pregnancy,  as  was  Tinker's  sister,  Candace  



                  2  

                                                                                                                         

Heckman.   Greene visited the Pilot Station Health Clinic for prenatal care.  According  



to Greene, at her first prenatal visit she asked a YKHC staff member to ensure that  



                                                            

Tinker not learn of her pregnancy, and in particular that Tinker not learn of her due date.  



                                                                                                                           

In addition to Greene's concerns about Tinker's unauthorized access to her medical file  



in  2007,  Greene  and  her  husband  were  especially  solicitous  of  keeping  Greene's  



pregnancy private because of a miscarriage that had occurred during the early stages of  



a previous pregnancy.  



                                                                                                                        

                       In March 2011, when Greene was approximately nine weeks pregnant,  



           

Rose Zacharof, the clinic clerical worker, informed Greene that on a recent day when  



                  

Zacharof and Tinker were working alone at the clinic, Tinker had told Zacharof that  



                                                                            

Greene was pregnant and had remarked that Greene's due date was the same Heckman's.  



                                                                                                                                   

Greene was troubled that Tinker apparently knew her due date, believing that Tinker had  



                                                                                   

learned the information by looking at Greene's medical file.  Greene went to the clinic  



and confronted Tinker, asking Tinker how she knew of her pregnancy and due date.  



                                                                                                                 

Tinker refused to speak with Greene about the issue and directed Greene to speak with  



her  supervisor.    According  to  Greene,  Tinker's  response  -  referring  Greene  to  a  



                                                                                                                     

supervisor rather than explaining how she had learned of Greene's pregnancy and due  



            2          Earlier in 2011, Greene and Heckman were engaged in a personal conflict     



of their own that resulted in a protective order  being   granted in favor of Heckman.  

According to Heckman's petition for the order, Greene was harassing Heckman at her                       

workplace  and  making  false  reports  to  Heckman's  employer  that  Heckman  had  a  

criminal background.  



                                                                        -4-                                                                 6941
  


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

date  -  persuaded  Greene  that  Tinker  had  learned  the  information  at  work.    On  



                                                                     

March 25, 2011, Greene filed a second complaint with the clinic; she mentioned Tinker's  



confidentiality breach in 2007 and strongly implied that Tinker had now repeated that  



misconduct.  



                   Tinker later testified that she did in fact speak with Zacharof about Greene's  



                                                          

pregnancy and due date, but she denied that she ever looked at Greene's medical file  



after the 2007 incident.  According to Tinker, the news of Greene's pregnancy and due  



                                                      

date had reached her through a gossip chain that began with Greene herself.  Tinker said  



                                                                                                               

she learned the information from her sister, Heckman, and that Heckman had heard it  



from Teresa Paukan, a mutual acquaintance of Tinker and Greene.  Tinker's account,  



                                                                                              

corroborated by Paukan at trial, was that in February 2011 Greene told Paukan that she  



                                                                                                      

was  pregnant  while  Greene  and  Paukan  were  attending  a  basketball  game  in  Pilot  



Station.  After Paukan heard the news from Greene, Paukan shared it with Heckman,  



who was also at the basketball game; Heckman then told Tinker.  The two sisters then  



                                         

discussed the possibility that Greene and Heckman might have the same due date, which  



                                                          

they thought remarkable because Greene and Heckman had apparently given birth on the  

same date in 2009.3  



                   Greene  testified  that  she  received  no  response  to  her  March  25,  2011  



complaint to YKHC and in early April 2011 decided to take the matter to the Pilot  



Station Traditional Council.  Greene attended several meetings of the tribal council,  



           

which according to Tinker was dominated by members of Greene's extended family.  



         3         It  remains  unclear  how  (or  even  whether)  Heckman  and  Tinker  knew  



Greene's due date.  Paukan did not indicate in her testimony that Greene shared that  

information with her.  Furthermore, Heckman specifically testified that when Paukan told  

her Greene was pregnant, Paukan did not tell her Greene's due date.  It appears that  

                                       

Heckman  surmised  that  because  both  she  and  Greene  were  in  the  early  stages  of  

pregnancy, their due dates would be similar.  



                                                           -5-                                                    6941
  


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

Greene  read  a  letter  at  one  meeting  in  which  she  accused  Tinker  of  breaching  



                                        

confidentiality.  Others in attendance at one of the meetings spoke of similar concerns  



about  Tinker.  On  April  26,  2011,  the  tribal  administrator  sent  a  letter  to  YKHC  



requesting a meeting with Schreiner to address these renewed allegations of breaches of  



confidentiality at the clinic.  



                    In early May 2011Tinker sought a protective order against Greene, claiming  



that  Greene  was  stalking  her.    Tinker  complained  in  her  petition  about  Greene's  



                                                                  

confronting her at the clinic, about Greene's speaking about her at the tribal council, and  



                                                                                      

about Greene's complaint to YKHC in 2007.  According to Greene, Tinker sought this  



                                                        

protective order to intimidate Greene and others in the community who might complain  



                                                                                                             

about breaches of confidentiality.  Tinker, on the other hand, claimed that the protective  



order was necessary because Greene was damaging Tinker's professional reputation.  A  

magistrate judge found probable cause that Greene had committed domestic violence4  



and granted Tinker  an  ex  parte protective order on May 10, 2011.  A hearing for a  

                                         



long-term protective order was scheduled, but Tinker withdrew her petition in early June  

                                                                               



in anticipation of filing the present lawsuit; it appears that the scheduled hearing did not  

take place.5  



                    On June 27, 2011, YKHC terminated Tinker's employment, citing violation  



of patient confidentiality.  Whether the violation of confidentiality alleged by Greene  



played a role in Tinker's termination is unclear, but it seems that the two events were  



          4         The magistrate judge apparently concluded that Greene and Tinker are  



"household members" for purposes of the domestic violence statute because they are  

third or fourth cousins.  



          5         The   hearing   was   scheduled   for   May   23,   2011,   and   thus   should  have  



occurred by the time Tinker withdrew her petition in June, but according to Tinker the         

hearing did not occur.  



                                                              -6-                                                        6941
  


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

                                                            

unrelated.  Tinker initially claimed that Greene's complaint was the cause of her firing;  



                                                            

her discovery responses suggested that she believed she was discharged for that reason.  



But Tinker later withdrew that contention, evidently because she was actually fired for  



                                                                                     

a breach of confidentiality relating to another patient.   YKHC investigated Greene's  



                                                                           

complaint against Tinker and determined that the allegation was unsubstantiated.  Some  



time later, YKHC deemed Tinker eligible to be rehired.  Whether that change reflects  

Tinker's being cleared of any wrongdoing was disputed at trial.6  



          B.        Proceedings  



                    1.        Tinker's complaint and Greene's answer and counterclaims   



                    On August 9, 2011, approximately six weeks after Tinker's termination by  



                                                  

YKHC,  Tinker  filed  a  lawsuit  against  Greene  for  defamation  and  for  intentional  



                                                             

interference with contractual relations.  In her complaint Tinker asserted that Greene's  



                                                                                                   

statements  constituted  defamation  per  se;  Tinker  also  pleaded  special  damages  for  



                                                                                                 7  

                                                                                                    And Tinker claimed  

personal humiliation and for loss of income, among other things. 



that  Greene  intentionally  interfered  with  her  employment  at  YKHC,  alleging  that  



Greene's statements were the cause of her termination.  Tinker repeated the intentional- 



interference claim in other filings, but she later abandoned it.  



                                                                          

                    In  her  answer  Greene  made  two  counterclaims.    She  claimed  Tinker  



                                       

invaded  her  privacy  by  divulging  her  private  medical  information  and  that  Tinker  



          6         It appears that as of the time of discovery, Tinker had not been reinstated,   



although during one pretrial conference Tinker's counsel suggested that Tinker was back         

at work.  



          7         Tinker's defamation claim was based entirely on Greene's complaint to the  



clinic  operator.    We  therefore  do  not  address  Greene's  potential  liability  for  her  

comments to the tribal council.  



                                                               -7-                                                         6941
  


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

committed abuse of process by seeking and then   revoking the May 2011 protective  

order.8  



                   Both  parties  sought  damages,  including  punitive  damages.    Both  also  



sought attorney's fees.  



                            a.       Discovery  



                   Discovery  was  contentious.    Greene's  first  set  of  discovery  requests  



included numerous questions to which Tinker objected.  These included interrogatories  



                                                                                                

requesting  information  about  how  many  patients  had  died  under  Tinker's  care;  the  



                                                                          

identities of any such patients; and whether and how frequently Tinker used alcohol and  



marijuana.  Tinker refused to answer these questions.  Tinker responded to several of  



Greene's other, less inflammatory discovery requests evasively.  When asked to admit  



                             

that  she  had  made  unauthorized  disclosures  of  confidential  health  records,  Tinker  



                                                                                   

responded that she did not know the meaning of the term "unauthorized disclosures."  



                                                                                                     

When  asked  to  admit  that  Greene  was  entitled  to  voice  her  opinion  about  Tinker's  



conduct as a YKHC employee by submitting a complaint, Tinker declined to answer,  



objecting that the terms "voice," "opinion," and "complaint" were excessively vague.  



                                                                                                 

As we discuss below, Greene sought sanctions against Tinker in the superior court for  



what she viewed as inadequate discovery responses.  



                                                                      

                   In addition to this early conflict over discovery, there was question whether  



                                                                                                     

Tinker's personnel file, as released to the superior court by YKHC for in camera review,  



was missing certain documents.  Greene suggested that the file was missing her 2007  



complaint against Tinker as well as additional complaints by other patients.  



         8         At  one  stage  Greene  sought  to  re-frame  her  abuse-of-process  claim  as  



"malicious  prosecution,"  a  change  to  which  Tinker  strenuously  objected  and  which  

Greene apparently withdrew.  



                                                           -8-                                                       6941  


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

                               b.        Greene's motion for summary judgment  



                                                                                                      

                    After receiving Tinker's discovery responses, Greene moved in April 2012  



for summary judgment on Tinker's claims of defamation and intentional interference  



                                                                    

with contractual relations.  Greene  argued  to the superior court that she had a First  



                                                                                                              

Amendment right to complain about Tinker's revealing her due date on the ground that  



Tinker's alleged violations of medical confidentiality were a matter of public concern  



                                                                            

and were therefore absolutely privileged. Greene also argued that Tinker's alleged non- 



compliance  with  discovery  rules  warranted  granting  summary  judgment  in  favor  of  



                                                                      

Greene or imposing sanctions against Tinker, including fact establishment.  The superior  



                                                 

court denied Greene's motion for summary judgment, principally on the ground that  



                                                                                                                  

there was a genuine factual issue about the truth of Greene's accusations. It also rejected  



                                                                                         

Greene's  assertion  that  summary  judgment  was  proper  because  Tinker's  discovery  



                                                                                                

responses were inadequate. In its order on summary judgment, the superior court did not  



                                      

address Greene's claim that summary judgment was required because her complaint to  



YKHC was absolutely privileged.  



                                                                                        

                               c.	       The superior court's orders on conditional privilege and  

                                         defamation per se  



                    In a related order, the superior court explained its rejection of Greene's  



                                                                                             

position that the alleged disclosures by Tinker were a matter of public concern and that  



                                                                                                       

she  was  therefore  absolutely  privileged  to  complain  to  YKHC.                                  The  superior  court  



                                                                          

determined that "one, two, or three instances of discussion in an arguably public forum  



                           

such as the Pilot Station [Traditional] Council do not transmute one's complaints about  



                                                                                          

a specific individual's actions into a public concern."  But the superior court concluded  



                           

that Greene had a conditional privilege to make defamatory statements about Tinker.  



        

The superior court ruled that Greene could argue to the jury that her complaints about  



                                                                -9-	                                                        6941
  


----------------------- Page 10-----------------------

Tinker were within her conditional privilege; the jury would determine whether Greene  



had abused the privilege.  



                              

                    In an order on jury instructions, the superior court determined that it would  



not give the instruction, proposed by Tinker, that Greene's conduct could constitute  



                              

defamation per se. Tinker filed a motion for reconsideration, and the superior court later  



                                                                                                             

gave a defamation-per-se instruction, the result being that Tinker was not required to  



prove actual damages as an element of her defamation claim.  



                              d.	       The superior court's orders on alleged prior unauthorized  

                                                            

                                        disclosures  



                                                                                                                   

                    Greene sought to call as witnesses several other Pilot Station residents to  



                                                           

testify about alleged prior instances of Tinker's unauthorized disclosure of confidential  



                                                                               

medical information.  Greene also sought to present testimony from Sheila Minock, who  



                                                           

was Tinker's supervisor at the clinic.  Greene claimed that Minock would tell the court  



                                   

that she had prepared documents related to complaints about Tinker that were absent  



                                                                      

from the personnel file delivered to the court. Greene explained to the superior court that  



                                                                                           

the testimony from Minock and the other witnesses would supplement alleged written  



                                                                                                          

complaints that Greene claimed she would present relating to breaches of confidentiality  



by  Tinker.    Greene  claimed  this  testimony  would  demonstrate  that  confidentiality  



breaches were a matter of public concern, affecting the question of Greene's privilege  



to complain.  



                                                                                                 

                    Tinker filed a motion in limine to bar admission of any evidence that other  



                                                                                                  

patients at the clinic had complained about her conduct, arguing that any such evidence  



was  merely  bad-acts  evidence  and  was  thus  impermissible  under  Alaska  Evidence  



                    9                       10                         

                      and 404(b)(1).            The superior court granted Tinker's motion.  Citing its  

Rules 404(a)                                            



          9         Alaska Rule of Evidence 404(a) ("Character Evidence Generally") states  

                                                                       

                                                                                                               (continued...)  



                                                              -10-	                                                            6941  


----------------------- Page 11-----------------------

decision that Greene had a conditional privilege to complain, the superior court declared  



                                                                                

moot any argument by Greene based on the claim that Tinker's alleged misconduct was  



a matter of public concern.  



                                                                      

                    The superior court also expressed concern that if it permitted other patients  



                                                                                                   

to testify about their prior complaints against Tinker, the nature of their medical issues  



might be revealed, causing them embarrassment and making the trial unmanageable.  



                                                        

Greene, evidently attempting to allay the superior court's concern about the witnesses'  



                                                        

privacy, sought a protective order to prevent any inquiry about the witnesses' medical  



                     

information. The superior court denied the motion for a protective order, concluding that  



                                                                                                

because it had determined that Greene had a conditional privilege to complain to YKHC  



                                                                                                                             11  

                                                                                                            

about Tinker's alleged misconduct, there was no reason for the witnesses to be called. 



          9(...continued)  



that subject to enumerated exceptions, "[e]vidence of a person's character or a trait of  

character is not admissible for the purpose of proving that the person acted in conformity  

                   

therewith on a particular occasion . . . ."  



          10        Alaska Rule of Evidence 404(b)(1) ("Other Crimes, Wrongs, or Acts")  

                                                           

states:  



                    Evidence of other crimes, wrongs, or acts is not admissible if  

                    the  sole  purpose  for  offering  the  evidence  is  to  prove  the  

                    character of a person in order to show that the person acted  

                    in conformity therewith.  It is, however, admissible for other  

                                                             

                    purposes,  including,  but  not  limited  to,  proof  of  motive,  

                    opportunity, intent, preparation, plan, knowledge, identity, or  

                    absence of mistake or accident.  



          11        When the superior court examined the written complaints, it discovered that  



they did not relate at all to unauthorized disclosures of medical information by Tinker.  

                                                                                               

One  complaint  related  to  alleged  unfriendliness  by  Tinker  toward  another  parent  in  

connection with an incident of bullying between children at a school, and the other  

complaint was about Tinker's husband, not Tinker.  



                                                             -11-                                                       6941
  


----------------------- Page 12-----------------------

                             e.	       Greene's  motion  to  preclude  the  testimony  of  Teresa  

                                       Paukan  



                                                                                                               

                   In August 2012, shortly before trial was to begin, Greene filed a motion to  



                                       

preclude the testimony of Teresa Paukan, whom Tinker had identified as a witness who  



could explain how Tinker learned Greene was pregnant.  Greene pointed out that Tinker  



                                                                                                                12  

had identified Paukan as a witness several weeks after the close of discovery.                                      Greene  



                                  

argued  that  allowing  Paukan  as  a  witness  would  be  inequitable  and  would  create  



                                                                                                             

additional litigation costs for Greene.  Greene also repeated the argument she raised at  



                                                                                                    

the summary judgment stage that Tinker's conduct in discovery was so "egregious" that  



                                                                           

the  superior  court  should  impose  the  sanction  of  fact  establishment  or  should  grant  



summary judgment for Greene.  In her motion to preclude, Greene also sought to bar  



                                                         

evidence of Tinker's being cleared to be rehired by YKHC, including a printed email  



               

bearing a notation that seemed to indicate Tinker's renewed eligibility for employment  

there.13  



                                                                                                    

                    The superior court denied Greene's motion to preclude, concluding that the  



                                                       

prejudice to Tinker that would result from excluding Paukan's testimony and the other  



                           

evidence Greene sought to exclude "substantially outweigh[ed] the gravity of the late  



disclosure."  The superior court also observed that in the several weeks since Tinker had  



disclosed Paukan, Greene had made no effort to depose Paukan, despite the fact that  



          12       Discovery closed on June 14, 2012.  Tinker identified Paukan on July 10,  



2012. It is not clear why Tinker identified Paukan so late, as Paukan testified at trial that  

                                                                                        

Tinker's sister, Candace Heckman, contacted her as early as February 2012 to request  

that  she  write  a  letter  explaining  her  role  in  communicating  the  information  about  

Greene's pregnancy.  



          13        The  email  is  a  short  message  from  Tinker  to  a  YKHC  staff  member  



requesting reconsideration for employment.  A handwritten note on the message reads  

                                                                                                

"eligibility for rehire approved" and bears a date in 2012.  



                                                            -12-	                                                      6941
  


----------------------- Page 13-----------------------

Greene knew Paukan and the two lived in the same village.  The superior court also  



remarked on the acceptability and relatively low cost of telephonic depositions, and  



noted that Greene's counsel had declined on record to depose Paukan when he was  



offered the opportunity.  



                            f.        The trial, directed verdict, and jury instructions  



                   A jury trial of Tinker's defamation claim and Greene's counterclaims of  



                                                

invasion of privacy and abuse of process took place August 22-24, 2012.  Both parties  



were represented by counsel.  



                   During trial Greene sought to present the testimony of her aunt, Palassa  



                                                   

Beans, who served as the president of the Pilot Station Traditional Council and was also  



                                         

Greene's work supervisor.  Greene indicated that Beans would testify that Tinker was  



                                                                                                                         14  

                                                                       

harassing Greene around the time Tinker sought the protective order against Greene. 



Greene       argued      that   Beans's   testimony   was   important   evidence   for   Greene's  



                                                                                                   

abuse-of-process counterclaim because it showed that Tinker had an improper purpose  



                      

in seeking the protective order; that is, that the protective order was part of a pattern of  



harassment intended to "punish [Greene] for making the complaint with YKHC."  The  



                                                                                    

superior court, evidently persuaded by Tinker's view that Beans's testimony would be  



unjustified bad-acts evidence, did not permit Beans to testify.    



                                                                                                           

                   At the conclusion of trial, Tinker moved for a directed verdict on Greene's  



                                                                                                       

abuse-of-process  counterclaim.                 The  superior  court granted  Tinker's  motion  on  the  



                  

ground that mere withdrawal of a petition in the ordinary course of litigation could not  



be the basis for an abuse-of-process claim.  



          14       The alleged harassment included Tinker doing "staredowns" of Greene,  



following Greene in a truck, and making false complaints to Beans about Greene.  



                                                           -13-                                                        6941  


----------------------- Page 14-----------------------

                     Following the grant of a directed verdict on Greene's abuse-of-process  

                                                                                              



claim, the superior court instructed the jury on several issues.  In line with its earlier  

                                                                                                          



order on conditional privilege, the superior court instructed the jury that Greene "may  



be entitled to protection [from liability for a false statement] because an employer is  



entitled to know about a potential breach of patient confidentiality."  The instruction   



indicated Greene abused the privilege if she "published the defamatory statement for  



                                                              

some purpose other than for which the privilege is given; or . . . she knew the statement  



was false or entertained serious doubts about [its truth]."  



                                                                                           

                     In line with its decision to reverse its earlier determination on the issue of  



                                                                                                           

defamation per se, the superior court gave a defamation instruction that did not require  



                                                                                                                   

Tinker to prove actual damages.  The superior court directed the jury to award Tinker  



nominal damages of one dollar if it found that Greene had defamed her.  



                                g.        The jury verdict  



                     The jury returned a special verdict in favor of Tinker on both Tinker's  



                    

defamation claim and Greene's invasion-of-privacy counterclaim.  Specifically, the jury  



                              

found that Greene had falsely accused Tinker of accessing Greene's medical records and  



                                                                            

that Greene had abused her conditional privilege to complain to Tinker's employer about  



                                                                    

Tinker's alleged misconduct.  In line with the superior court's instruction on damages,  



the jury awarded Tinker one dollar in nominal damages.  



                                                                                                               

                     The jury found that Tinker was not liable on Greene's counterclaim of  



invasion of privacy and so awarded Greene no damages.  



                               h.         Award of attorney's fees to Tinker  



                     Both  parties  moved  for  costs  and  attorney's  fees.    Noting  that  Tinker  



prevailed on her main claim and also defeated Greene's counterclaims, the superior court  



                                                                                        

found Tinker to be the prevailing party and awarded her $12,015 in Alaska Civil Rule 82  



attorney's fees.  



                                                                 -14-                                                           6941
  


----------------------- Page 15-----------------------

                    In its order awarding fees to Tinker, the superior court rejected Greene's  



                                                                                                                

argument that attorney's fees were unwarranted because Tinker's decision to seek only  



nominal damages showed that her defamation claim was frivolous.  The superior court  



                                                                  

noted  that  the  jury's  finding  that  Greene  had  in  fact  defamed  Tinker  negated  this  



                                                                                                               

argument.  The superior court also rejected Greene's argument that Tinker should not be  



awarded attorney's fees because she had made a bad-faith decision not to pursue the  



                                                                                                   

claim  of  intentional  interference  with  contractual  relations.                                The  superior  court  



determined instead that Tinker's decision to drop that claim was a legitimate tactical trial  



decision  that  Tinker  made  after  she  concluded  that  she  faced  a  difficult  evidentiary  



                                                                                                           

challenge in proving economic damages, and after she considered the possibility that  



extending the length of trial further might alienate the jury.  



                                                 

                    The superior court accepted Tinker's counsel's accounting of the time he  



                              

had spent working on the case and rejected Greene's argument that Tinker's counsel  



                                                                                         

should have indicated more specifically how much time he had allocated to each claim.  



                                                                                          

The superior court noted that "a trial court need not make a claim-by-claim analysis in  



order to award a percentage of the total fees incurred."  



                                                          

                    The superior court took Greene's attorney to task over his motions and  



pleadings,  which  the  superior  court  viewed  as  "lack[ing]  focus"  and  "fraught  with  



                                              

assertions  and  allegations  of  fact  .  .  .  not  supported  by  admissible  evidence."    The  



                                                                                       

superior  court  noted  that  it  was  "particularly  distressed  by  the  tenor  of  remarks  by  



Greene's counsel [in his cross-motions for attorney's fees] that are of a highly personal  



                                                                  15  

nature but as to which there is no evidence."                          It criticized what it viewed as Greene's  



          15        The superior court seems to have been referring to accusations by Greene's  



counsel that Tinker's counsel had called him a "liar," told him he was "full of  bullsh-t,"  

                                                                                                        

shaken  his  finger  in  Greene's  counsel's  face,  and  suggested  Greene's  counsel  had  

                                                                                

                                                                                                             (continued...)  



                                                             -15-                                                            6941  


----------------------- Page 16-----------------------

attorney's "inapposite constitutional arguments," "disjointed and legally unsupported  



                                               

jury instructions," "repetitive, circuitous pleadings," and "trial tactics that consumed far  



                                                                                                                   

more  time  than  was  warranted  by  the  complexities  and  real  issues  in  the  case."  



                                                                                                            

Nevertheless, the superior court rejected Tinker's request for enhanced attorney's fees,  



                                                                                                   

finding itself "unable to attribute the foregoing conduct to Greene herself, as opposed to  



counsel."  



III.      STANDARDS OF REVIEW  



                    We review rulings on motions for summary judgment de novo, "reading the  



record in the light most favorable to the non-moving party and making all reasonable  



                                   16 

                                                                                               

inferences in its favor."              Summary judgment is proper "only if there is no genuine issue  



                                                                                                              17  

                                                                                                                  We review  

of material fact and if the party is entitled to judgment as a matter of law." 

questions of constitutional law de novo.18  

                                                                



                    We review the superior court's decision to admit or exclude evidence for  



                                    19  

an  abuse  of  discretion.                An  abuse  of  discretion  is  found  when  we  are  "left  with  a  



                                                                                              20  

definite  and  firm  conviction  that  an  error  has  been  made."                                 We  will  reverse  an  



erroneous decision regarding admissibility of evidence only if the decision "affected the  

                                                                                    



          15(...continued)  



committed malpractice.  



          16        Lum v. Koles , 314 P.3d 546, 552 (Alaska 2013).  



          17        ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc.                                 , 322 P.3d  



 114, 122 (Alaska 2014).  



          18        Anchorage v. Sandberg , 861 P.2d 554, 557 (Alaska 1993).  



          19  

                                                                                               

                    Barton v. N. Slope Borough Sch. Dist. , 268 P.3d 346, 349 (Alaska 2012).  



          20        Id.  



                                                              -16-                                                         6941
  


----------------------- Page 17-----------------------

substantial rights of a party."21   "The correct scope or interpretation of a rule of evidence  

                               

                                                                                                       



creates a question of law 'to which this court applies its independent judgment, adopting  

                                                                             

the rule most persuasive in light of reason, precedent and policy.' "22  



                    "An error in jury instructions will be grounds for reversal only if it caused  

prejudice."23  "[P]rejudice exists 'if it can be said that the verdict may have been different  

                                                                 

had the erroneous instruction not been given.' "24  



                                                                     

                    We review a directed verdict by inquiring "whether the evidence, and all  



reasonable inferences which may be drawn from the evidence, viewed in the light most  



                           

favorable  to  the  non-moving  party,  permits  room  for  diversity  of  opinion  among  



                             25  

                                                                                                          

reasonable  jurors."               "[S]uch  motions  should  be  scrutinized  under  a  principle  of  



                                                                               

minimum   intrusion   into   the   right   to   jury   trial   guaranteed   under   the   Alaska  



Constitution . . . .  If there is any doubt, questions of fact should be submitted to the  

jury." 26  



                    "Attorney fee awards are reviewed for abuse of discretion. We will not  



                                                                                    27  

reverse an award unless it is 'manifestly unreasonable.' "                              



          21        Id.   



          22        City of Bethel v. Peters,  97  P.3d  822, 82             5 (Alaska 2004) (citation omitted).  



          23        State, Dep't of Corr. v. Johnson, 2 P.3d 56, 59 (Alaska 2000).  



          24        Reich v. Cominco Alaska, Inc ., 56 P.3d 18, 25 (Alaska 2002) (citation  



omitted).  



          25        Taylor v. Wells Fargo Home Mortg., 301 P.3d 182, 191 (Alaska 2013).  



          26        Id. (omission in original).  



          27        Gold Dust  Mines,  Inc.  v. Little Squaw Gold Mining Co., 299 P.3d 148, 157  



(Alaska 2012) (citation omitted).  



                                                             -17-                                                       6941
  


----------------------- Page 18-----------------------

IV.       DISCUSSION  



                                                                                                   

                    Before we address the merits of Greene's arguments, we make a procedural  



                                                                                              

note made necessary by the way Greene framed her arguments to the superior court, the  



                                                                                                                

organization of the superior court's orders responding to those arguments, and the way  



Greene now frames her arguments on appeal.   



                                                                                                                 

                    Greene argued to the superior court that summary judgment was proper  



because her constitutional rights to free speech provided an absolute defense to Tinker's  



                                                                                                       

defamation  claim;  because  of  the  absence  of  disputed  facts;  and  because  Tinker's  



                                                                                                                   

discovery  responses  were  inadequate.    The  superior  court  addressed  the  latter  two  



arguments in its order denying summary judgment, but it addressed the constitutional  



                                                                               

argument in a separate order on jury instructions and in another on conditional privilege.  



                                                                                                    

Greene structures her arguments on appeal in the same way she did at trial, including all  



of  them  in  a  generalized  challenge  to  the  superior  court's  denial  of  her  motion  for  



summary judgment.  



                                                                                    

                    Because the superior court did not address Greene's privilege argument in  



its order denying summary judgment, we understand her argument as challenging the  



                                                                                                       

merits of the superior court's separate orders on privilege and on jury instructions; as we  



discuss below, there was no error in these orders.  



                    Orders  denying  summary  judgment  on  factual  grounds  are  generally  



                                                                                

unreviewable on appeal after a trial on the merits; on the other hand, we have reviewed  



                                                                                                                  

denials of summary judgment after a trial on the merits "when the order was entered on  



                                                                            28  

                                                                                                              

a  legal ground that affected the subsequent trial."                             Here the superior court  denied  



Greene's  motion  for  summary  judgment  principally  on  the  ground  that  there  were  



          28  

                           

                    See  ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322  

                

P.3d 114, 133 n.66 (Alaska 2014) (citing Larson v. Benediktsson , 152 P.3d 1159, 1169  

(Alaska 2007)).  



                                                             -18-                                                            6941  


----------------------- Page 19-----------------------

disputed issues of fact relating to the truth of Greene's accusation.  Greene challenges  

                                                                                                     



that ruling on the basis that there were no such issues, repeating her claim that summary  

                                                 



judgment was proper "because all [Tinker] had were conclusory allegations."  But this  

                                                                               



is precisely the type of challenge to a denial of summary judgment that we do not address  

                   

after a trial on the merits,29 and thus we do not address it here.    



                    The superior court's other basis for denying summary judgment was purely  

                                                                        



legal.  Addressing Greene's argument that summary judgment was proper because of  



                                                               

Tinker's alleged discovery violations, the superior court ruled that summary judgment  



was simply not the proper mechanism to address perceived inadequacies in discovery  



responses.    Greene  repeats  the  same  argument  on  appeal,  and  because  the  superior  



                                                                                         

court's denial of summary judgment on this ground did not depend on the existence of  

                                                                  30  As we explain below, the superior court  

disputed facts, we address that argument here. 



also properly denied summary judgment on this basis.  



          A.	       The  Superior  Did  Not  Err  In  Concluding  That  Greene  Had  No  

                    Absolute Defense To Defamation But Instead Had Only A Conditional  

                                                                               

                    Privilege To Complain to YKHC.  



                    Greene argues on appeal that the superior court erred in concluding that she  

                                                                                         



had only a conditional privilege to complain about Tinker to YKHC, claiming that the  

                                                                                                       



guarantees  of  freedom  of  speech  in  the  federal  and  Alaska  constitutions  provide  a  



                                                                          31  

complete  defense  to  Tinker's  defamation  claim.                             As  we  explain  below,  the  U.S.  



          29	       Id.  



          30	       Id.  



          31        The elements of defamation are:  "(1) a false and defamatory statement;   



(2) unprivileged publication to a third party; (3) fault amounting at least to negligence;  

and (4) either per se actionability or special damages."  State v. Carpenter, 171 P.3d 41,  

                                                                 

51 (Alaska 2007).  



                                                             -19-	                                                      6941
  


----------------------- Page 20-----------------------

Constitution privileges defamatory statements in certain contexts, and our precedents  



establish a similar privilege under Alaska defamation law.  But on the facts before us  



                                                                                              32  

                                                                                                  There was no error in the  

here, Greene's privilege is only conditional - not absolute.  



                                                                            

superior court's ruling on conditional privilege, nor was there in the superior court's jury  



instructions.  



                                                                          

                     1.	        On the facts of this case, the First Amendment provides at most  

                                a conditional privilege to complain to YKHC.  



                                                                                                             

                     Greene argues that her complaint to YKHC related to a matter of public  



                                                                                                         33 

                                                                                                             provides  absolute  

concern,  and  that  the  First  Amendment  to  the  U.S.  Constitution 



                                                                   

constitutional protection for such speech. But Greene's argument finds no support in the  



               34  

case law.           



                                                                                                                       

                     We begin our discussion of this issue with a brief summary of the evolving  



relationship between common-law defamation actions and the relevant constitutional  



                                                                                          

protections of free speech.  At common law a defamatory statement was made at the peril  



           32        Absolute privileges to defame do exist in a variety of contexts, but this is                  



not   one   of  them.    See  RESTATEMENT   (SECOND)   OF   TORTS    585-592A  (1977)  

                                                                       

(describing privileges generally accorded to parties to judicial proceedings, legislators,  

and executive and administrative officers, among others).  



           33  

                                        

                     "Congress shall make no law respecting an establishment of religion, or  

                                                                                                                   

prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;  

or the right of the people peaceably to assemble, and to petition the Government for a  

redress of grievances."  U.S. CONST . amend. I.  



           34        In connection with the defamation claim, Greene at one stage took the  



                                                                                                                           

position  that  the  Pilot  Station  Traditional  Council  was  a  public  forum,  and  that  

                                                                                          

accordingly any sanction imposed on Greene because  of her comments to the tribal  

                                                                                      

council would be subject to strict scrutiny.  We  do  not address that argument here;  

                                                                        

Greene appears to have abandoned it at some point, and in any event the argument is ill- 

founded, given that Tinker's defamation claim was based entirely on Greene's complaint  

to YKHC.  



                                                                 -20-	                                                           6941
  


----------------------- Page 21-----------------------

                                                                                         

of the person making it; although a conditional privilege protected defendants in some  



                                                                           

circumstances, a defendant could be liable for a defamatory publication even if without  



                                                                                                                     35  

fault with regard to the falsity of the publication or its defamatory character.                                          



                                                                  

                     The U.S. Supreme Court has substantially modified this common-law rule  



in decisions in which the Court has sought to balance two competing concerns: on the  



                                                               

one hand, First Amendment freedom of expression, which would suffer if defamation  



                                                                                           

liability were too easily imposed; and on the other hand, a state's interest in permitting  



                                                                                                                36  

those harmed by falsehoods to seek compensation from their detractors.                                               In a major  



departure from the common-law rule, the Court concluded in New York Times Co. v.  



Sullivan that the First Amendment bars public officials from recovering damages for  



defamatory statements relating to their official conduct "unless [the defamed official]  



                                                                           

proves that the statement was made with 'actual malice' - that is, with knowledge that  



                                                                                                       37  

                                                                                                           A few years later,  

it was false or with reckless disregard of whether it was false or not." 



a plurality of the Court extended a version of this constitutionally derived conditional  



          35        See  RESTATEMENT (SECOND) OF TORTS  580B cmt. b (1977) (noting that   



while the defendant had to be at least negligent with regard to the act of publishing the                   

statement, no fault was required with regard to the falsity and defamatory character of  

the  statement);  see  also  id.  ch.  25,  topic  3,  spec.  note  (describing  the  common-law  

                                        

conditional privilege that permitted a defendant to make a defamatory statement as long  

                                                                                          

as the statement was made to protect certain defined interests and the defendant did not  

                                          

abuse the privilege); id.  593 cmt. c (explaining that the common-law privilege was  

abused if the defendant did not believe the statement to be true or lacked reasonable  

                                                                                                          

grounds for so believing, and further explaining the U.S. Supreme Court's modification  

                                                          

of this rule).  



          36  

                                    

                    See, e.g., New York Times Co. v. Sullivan , 376 U.S. 254, 270 (1964); see  

                                 

also Gertz v. Robert Welch, Inc., 418 U.S. 323, 340-42 (1974) (explaining the tension  

between the need for a free press and the interest in redressing injury to reputation).  



          37        New York Times , 376 U.S. at 279-80.  



                                                               -21-                                                          6941
  


----------------------- Page 22-----------------------

                                                                                          38  

privilege to defamation actions involving "public figures."                                   In both cases, the Court  



                          

prioritized  First  Amendment freedom of expression over the individual's interest in  



compensation for harm to reputation, at least where public officials or public figures  



were concerned.   



                    But the conditional privilege derived from the U.S. Constitution, and the  



                                                                                                                           

attendant actual-malice standard enunciated in New York Times and its progeny, do not  

necessarily protect defendants in defamation actions brought by private individuals.39  



                                                                                                             40  

                                                                                                                 

The U.S. Supreme Court made this clear in Gertz v. Robert Welch, Inc.,                                          in which the  



                                                                                                      

Court held that the First Amendment imposes only the most minimal restrictions on state- 



                                                                                                           41  

law  liability  in  defamation  actions  brought  by  private  individuals.                                      Rather  than  



                                                                                                          

extending the stringent actual-malice test from New York Times  to  the private-party  



                                                                                                                

context, the Court concluded that "so long as they do not impose liability without fault,  



the States may define for themselves the appropriate standard of liability for a publisher  



                                                                                                               42  

or broadcaster of defamatory falsehood injurious to a private individual."                                         



          38        See Curtis Publ'g Co. v. Butts, 388 U.S. 130, 155 (1967) (indicating that  



a public figure could recover damages by proving that the defamatory statement resulted  

                                                                                  

from "highly unreasonable conduct constituting an extreme departure from the standards  

                                                                                                         

of investigation and reporting ordinarily adhered to by responsible publishers").  



          39  

                                             

                    See  Gertz, 418 U.S. at 342-47.  As we discuss below, even if the actual- 

                                                                

malice standard applied here, Greene has suffered no prejudice, as the superior court's  

rulings and jury instructions were consistent with that standard.  



          40        Id.  



          41        Id.  



          42  

                                                                   

                    Id.  at 347.  There was a brief period during which a plurality of the U.S.  

Supreme  Court  thought  the  actual-malice  standard  should  apply  in  private-party  

defamation actions so long as the defamatory statements related to a matter of public  

                   

                                                                                                               (continued...)  



                                                              -22-                                                         6941
  


----------------------- Page 23-----------------------

                    We have never directly addressed the appropriate standard of liability in the  



                                                  43  

                                                                          

private-party defamation context,                    and we need not do so here.  The superior court's  



                                                                                 

ruling on conditional privilege and its corresponding instructions to the jury properly  



stated the First Amendment-based privilege that the U.S. Supreme Court has said applies  



when public officials or public figures are the target of defamation.  Even if Tinker were  



                                                        

a public official or public figure -  and Greene does not claim Tinker is - Greene  



                                                             

would be entitled to no greater privilege than that which the superior court recognized.  



                                                                                                                              44  

                                                                                                      

The First Amendment requires no more, and under Gertz a state may require even less. 



                    Greene argues at length that the U.S. Supreme Court has recently changed  



                                                                                  

course and has held that the First Amendment provides an absolute privilege even in the  

                                                                                                   45 in which the U.S.  

private-party context.  She draws our attention to Snyder v. Phelps,  



                                                                                             

Supreme Court rejected the state-law tort claims brought by the father of a deceased  



                                                                   

military service member against members of a religious group who staged a protest near  



                                                    

his son's funeral.  The Court, after closely examining the "content, form, and context of  

[the  protestors']  speech,"46  determined  that  the  speech  related  to  a  matter  of  public  



          42(...continued)  



concern.  See Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 43 (1971).  But the Court  

                                            

disavowed that view in Gertz, 418 U.S. at 342-45, and even if Rosenbloom had survived  

                                                                                           

Greene would enjoy at most a conditional privilege.  



          43  

                           

                    See Schneider v. Pay 'N Save Corp., 723 P.2d 619, 625 (Alaska 1986); see  

                                                                                                            

also DeNardo v. Bax, 147 P.3d 672, 683 n.3 (Alaska 2006) (Eastaugh, J., dissenting)  

(noting that our precedents "have not been entirely clear" on whether actual malice is  

required or whether instead mere negligence is sufficient).  



          44        Gertz, 418 U.S. at 342-45.  



          45        131 S. Ct. 1207 (2011).  



          46        Id. at 1216 (citation and internal quotation marks omitted).  



                                                             -23-                                                        6941
  


----------------------- Page 24-----------------------

                                                                                                        

concern and concluded that in light of the circumstances of the protest, the speech was  



                                                                                                  47  

                                                                                                                         

entitled to special protection under the First Amendment.                                             The Court set aside the jury  



verdict awarding the father damages under his state-law tort theories (which did not  

include defamation).48  



                                                                       

                       Greene cites Snyder for the proposition that "speech involving a matter of  



                                                      49  

                                                                      

public concern is inactionable."                           But it requires some hard squinting to read Snyder as  



                                                                                                          

creating such a sweeping rule.  Snyder contains no indication that the Court intended to  



                                                                                                

depart at all - much less depart dramatically - from its carefully drawn defamation  



                                                                                                            

precedents, which provide only a conditional privilege even in the public official/public  



                            

figure context, and allow states to set a fairly low bar for liability in the private-party  



              50  

context.          The Court makes clear when it intends to disavow its precedents, and if the  



                                    

Court had meant to extend blanket First Amendment protection to defendants in any  



                                                                                                                                              51  

defamation suit relating to a matter of public concern, it would have said as much.                                                                



            47         Id. at 1219.  



            48         Id. at 1219-20.  



            49         We do not address Greene's argument that the phrase "of public concern"                            



must be interpreted broadly.                      The superior court concluded that medical confidentiality     

was not such an issue, and it is not clear whether Greene appeals that conclusion.                                                             For  

the purposes of this appeal we assume, without so deciding, that confidentiality was a  

matter of public concern.  But because the First Amendment and Alaska law provide at  

                                                     

most a conditional privilege to make defamatory statements under the circumstances of  

                                                                                                                         

this  case,  it  makes  no  difference  here  whether  the  issue  was  of  public  concern;  the  

superior court recognized a conditional privilege, and the jury found Greene abused it.  

                                                                                                                        



            50         See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974); New York Times  



v. Sullivan, 376 U.S. 254, 279 (1964).  



            51  

                                                                                                        

                       See Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 18  

                                                                                                       

(2000)  ("This  Court  does  not  normally  overturn,  or  so  dramatically  limit,  earlier  

                                                                                                                              (continued...)  



                                                                       -24-                                                                 6941
  


----------------------- Page 25-----------------------

                  Furthermore, the Court explicitly limited its holding in Snyder to the facts  



            52 

                                          

before it.      We do not need to detail the many ways in which the facts of the present case  



are different, but we do note that the Snyder  Court placed particular emphasis on the  



public nature of the demonstration at issue in that case, noting that a public street is "[a]  

space [that] occupies a 'special position in terms of First Amendment protection.' "53  



That factor is clearly not present in the lawsuit before us here, as Tinker's defamation  



claim  was  based  entirely  on  Greene's  complaint  to  Tinker's  supervisor  at  YKHC.  



                                                                            

Contrary to Greene's assertions, the First Amendment is not an all-purpose tort shield,  

and Snyder did not change this.54  



         51(...continued)  



authority sub silentio ." (italics in original)).  That principle is especially pertinent here  

                                                                      

because there was no defamation claim in Snyder; it is implausible that the Court would  

                                                                                            

casually change an entire area of law under those circumstances.  



         52       The Court wrote:  



                  Our  holding  today  is  narrow.    We  are  required  in  First  

                                                               

                  Amendment  cases  to  carefully  review  the  record,  and  the  

                                                            

                  reach of our opinion here is limited by the particular facts  

                  before   us.      As   we   have   noted,   "the   sensitivity   and  

                  significance  of  the  interests  presented  in  clashes  between  

                  First Amendment and [state law] rights counsel relying on  

                  limited  principles  that  sweep  no  more  broadly  than  the  

                  appropriate context of the instant case."   



Snyder, 131 S. Ct. at 1220 (alteration in original).  



         53       Id.  at 1218 (citation omitted).  As the Court noted, " '[t]ime out of mind'  



public  streets  and  sidewalks  have  been  used  for  public  assembly  and  debate."    Id.  

(alteration in original) (citation omitted).  



         54       We may also dispense briefly with Greene's argument that the Court's  



passing reference in Snyder to Hustler Magazine, Inc. v. Falwell , 485 U.S. 46 (1988)  

created an absolute bar to defamation liability.  See Snyder, 131 S. Ct. at 1211.  Hustler  

                                                                                                    (continued...)  



                                                        -25-                                                   6941
  


----------------------- Page 26-----------------------

                    2.	       On  the  facts  of  this  case,  Alaska  law  provides  at  most  a  

                              conditional privilege to complain to YKHC.  



                    Greene's argument based on the freedom-of-speech guarantee in the Alaska  



                             

Constitution fares no better than her First Amendment-based claim.  As the text of our  



state constitutional provision makes clear, the right to speak freely is not an absolute  



                                                                             55  

one - speech in abuse of the right is not protected.                             Furthermore, Greene points us to  



                              

no  Alaska  case  in  which  we  have  based  any  privilege  to  defame  -  conditional  or  



                                                                                                         

absolute - on our state constitution's free-speech provision. And for good reason:  Our  



jurisprudence  in  this  area  is  based  not  on  state  constitutional  concerns  but  on  



                                                 56  

common-law privilege doctrine.                       



          54(...continued)  



involved both a defamation claim and a claim for intentional infliction of emotional  

distress, and the Court cited Hustler in  Snyder  merely to say that the reach of First  

               

Amendment protection includes the latter, and only under the circumstances before it in  

                                                                                             

Snyder.  Id.  at 1215, 1220.  Indeed, to the extent that Hustler deals with defamation at  

                                                           

all, it is to recognize that even public figures - whose sensitivities are typically less  

                                                                            

protected - may sometimes have viable defamation claims without offense to the First  

                            

Amendment.  Hustler , 485 U.S. at 52.  



          55        "Every person may freely speak, write, and publish on all subjects, being  



responsible for the abuse of that right."  Alaska Const. art. I,  5.  



          56        We may have suggested in Doe v. Alaska Superior Court, Third Judicial  



                                     

District , 721 P.2d 617, 627 (Alaska 1986), that the conditional privilege under Alaska  

                                                                      

law derives from the free-speech provision of our state Constitution when we noted that  

                                                                              

neither  that  provision  nor  the  free-press  clause  provides  an  absolute  defense  to  

                                                                                           

defamation.  However, in a more recent decision in which we discussed in depth the  

                                                                       

origins of the conditional privilege in Alaska, we clearly indicated that the free-speech  

                 

provision is not the source of the privilege.  See Taranto v. N. Slope Borough, 992 P.2d  

                                                                       

 1111, 1114-15 (Alaska 1999) (citing Pearson v. Fairbanks Publ'g Co. , 413 P.2d 711,  

714  (Alaska  1966))  (noting  that  in  Pearson ,  the  case  in  which  we  recognized  a  

                   

conditional privilege for speech about matters of public interest, we "carefully avoided  

                                                                                                              (continued...)  



                                                              -26-	                                                        6941
  


----------------------- Page 27-----------------------

                                                                                                        

                   On  the  basis  of  common-law  privilege,  and  consistent  with  the  U.S.  



Supreme  Court's  First  Amendment  jurisprudence,  we  have  recognized  a  state-law  



                                                                                                            57 

                                                                                                                We have  

conditional privilege to make defamatory statements in a variety of contexts. 



                                                      

afforded only a conditional privilege even when speech relates to concerns as important  



                                       58                                                                    59 

                               

as public health and safety               and the safety of employees in the workplace.                          And we  



          56(...continued)  



grounding [our] opinion in any constitutional rights to free speech, focusing instead on  

                         

the common law conditional privilege.").  



          57       See, e.g., DeNardo v. Bax , 147 P.3d 672, 678 (Alaska 2006) (recognizing  

                                                                                                  

a conditional privilege with respect to statements among co-workers about personal  

safety in the workplace, and affirming superior court's determination that defendant had  

                                                                                                   

not abused the privilege when she told co-workers she was worried plaintiff was stalking  

                                                 

her); Taranto, 992 P.2d at 1114-15 (indicating that speech addressing matters of public  

                                                                                                                 

health and safety is conditionally privileged, and affirming superior court's determination  

that  city  employee  had  not  abused  the  privilege  when  she  posted  petition  accusing  

                                                                                         

taxicab operator of selling alcohol and illegal drugs); Schneider v. Pay 'N Save Corp.,  

723  P.2d  619,  623-26  (1986)  (recognizing  a  conditional  privilege  based  on  an  

                                                                    

employer-employee relationship and affirming superior court's determination that store's  

loss-prevention manager had not abused the privilege when he reported to management  

that a cashier had failed to enter sales into her cash register); Doe , 721  P.2d at 627  

                                                                                                            

(noting that we have repeatedly declined to interpret the free-speech provision of the  

Alaska Constitution as providing absolute immunity against defamation liability, and  

observing that "[w]e have [instead] afforded defendants only a qualified privilege");  

Fairbanks Publ'g Co. v. Francisco , 390 P.2d 784, 793 (Alaska 1964) (remarking that  

"[i]f the conditional privilege is abused by the writer or speaker[,] it is lost and he must  

answer for the legal consequences of his publication").  See also MacDonald v. Riggs,  

166  P.3d  12,  16  n.8  (Alaska  2007)  (declining,  over  dissent's  objection,  to  address  

whether the defamatory statements were conditionally privileged, noting that the jury's  

finding that the defendant knew the statements were false showed that the defendant had  

                                               

abused the privilege if it applied).  



          58       Taranto, 992 P.2d at 1114-15.  



          59       DeNardo , 147 P.3d at 679.  



                                                           -27-                                                      6941
  


----------------------- Page 28-----------------------

have  recognized  only  a  conditional  privilege  even  in  the  context  of  a  newspaper's  



                                                                     60  

publishing articles on matters of public concern.                          



                   Again,  the  superior  court  determined  that  Greene  had  a  conditional  



privilege,  the  highest  protection  Greene's  defamatory  statement  to  YKHC  could  



conceivably  be  afforded  under  Alaska  law.    The  superior  court's  jury  instruction  



                                                                                 

indicated that the privilege would not protect Greene if she "published the defamatory  



statement for some purpose other than for which the privilege is given . . . or she knew  



                                                                                                      

the statement was false or entertained serious doubts about [its truth]."  This instruction  



                                                                                      61  

is consistent with our precedents on conditional privilege,                               and does not violate the  



minimal restriction, imposed by Gertz, on state-law defamation liability in the private- 



                    62  

party context.          The jury found that Greene abused the privilege, and Greene does not  



appeal the jury's verdict.  



          60       See  Briggs  v.  Newton,  984  P.2d  1113,  1121  (Alaska  1999)  (citing  



Schneider, 723 P.2d at 623-24); see also Green v. N. Publ'g Co., 655 P.2d 736 (Alaska  

1982).  



          61       See MacDonald, 166 P.3d at 16 n.8 (quoting R                       ESTATEMENT (SECOND) OF  



                               

TORTS  600 (1977) (indicating that abuse of the privilege occurs if a defendant knows  

                                                                               

the statement is false or acts with reckless disregard as to its truth or falsity)); Moffatt v.  

                                                                            

Brown , 751 P.2d 939, 941 (Alaska 1988) (quoting St. Amant v. Thompson, 390 U.S. 727,  

731  (1968)  (distinguishing  reckless  conduct  from  merely  negligent  conduct  and  

explaining that reckless disregard for truth or falsity is proven if there is "sufficient  

evidence to permit the conclusion that the defendant in fact entertained serious doubts  

as to the truth of his publication")) (emphasis omitted); Schneider, 723 P.2d at 624-25  

                          

(quoting R                                                                           

                ESTATEMENT (SECOND) OF TORTS  599 (1977) (explaining that a defendant  

            

abuses the privilege if "the defamatory matter is published for some purpose other than  

that for which the particular privilege is given")).  



          62  

                                                                                           

                   Gertz v. Robert Welch, Inc., 418 U.S. 323, 342-45 (1974) (prohibiting only  

strict liability in the private-party defamation context).  



                                                           -28-                                                      6941
  


----------------------- Page 29-----------------------

          B.	       The  Superior  Court  Properly  Rejected  Greene's  Argument  That  

                    Tinker's Alleged Discovery Violations Warranted Granting Summary  

                    Judgment Or Fact Establishment.  



                                                                                                    

                    Greene argues that Tinker's discovery responses were so evasive that the  



superior court should have granted Greene's motion for summary judgment or should  



have  sanctioned  Tinker  with  fact  establishment.    Greene  details  several  of  Tinker's  



                                                                                         

allegedly inadequate responses, including Tinker's response to a request for admission  



               

in  which  Tinker  objected  that  the  terms  "voice,"  "opinion,"  and  "complaint"  were  



excessively vague.  But as the superior court observed when it considered (and rejected)  



these  arguments,  remedies  for  failures  to  make  a  proper  disclosure  or  cooperate  in  



                                                                                                               63 

                                                                                                                   Simply  

discovery are governed not by summary judgment but by Alaska Civil Rule 37. 



put,  a  motion  for  summary  judgment  was  not  the  proper  avenue  to  address  alleged  



                

discovery  violations,  and  Greene  never  sought  discovery  sanctions  by  the  proper  



          64  

means.         The superior court therefore properly denied Greene's motion for summary  



judgment.  



          63       Alaska Rule of Civil Procedure 37 provides that the court may issue an  



order to compel disclosure or discovery under certain conditions, one of which is that the  

                                           

party subject to the order must have acted "willfully" in impeding discovery.  Rule 37  

also provides for sanctions, including fact establishment, if a party fails to obey an order  

                                                                                   

to compel.  



          64        Furthermore, even if Greene had filed a Rule 37 motion, fact establishment  

                                                                                                     

likely  would  have  been  improper.    As  the  superior  court  correctly  noted,  fact  

establishment is a draconian measure that is typically granted only when a party seeks  

an order to compel, the court issues the order, and a party subject to the order refuses to  

                                                                                                        

obey it.  See Stephanie W. v. Maxwell V., 319 P.3d 219, 227 (Alaska 2014) (rejecting  

                                                                                    

argument  that  Rule  37(d)  motion  for  fact  establishment  was  proper  to  address  

                                                             

unanswered interrogatories, because party seeking fact establishment did not first seek  

                                                                                                                 

order to compel "or other, less-draconian options," and noting that the superior court  

                                                                                   

"would have abused its discretion had it granted such litigation-ending sanctions without  

                                                          

first exploring alternative remedies").  



                                                            -29-	                                                     6941
  


----------------------- Page 30-----------------------

           C.	        The Superior Court Did Not Abuse Its Discretion In Permitting The  

                      Testimony Of Teresa Paukan.  



                                                                                                                         

                      Greene argues that the superior court erred when it denied her motion to  



                      

preclude the testimony of Teresa Paukan, whom Tinker identified as a witness who could  



explain how Tinker learned Greene was pregnant without looking at Greene's medical  



                                                                                                 

file. Greene argues that the superior court should not have admitted Paukan's testimony  



                                                                                                          

because Tinker identified her nearly a month after the close of discovery even though  



Tinker must have known that Paukan would be her key witness.  



                      As  noted  above,  decisions  by  the  superior  court  to  admit  or  exclude  



                                                                            65  

evidence are reviewed for abuse of discretion.    Although the superior court generally  



has broad discretion in determining appropriate sanctions for discovery violations, "the  



                                                             

trial  court's  discretion  is  limited   when  the  effect  of  the  sanction  it  selects  is  



                                                                           66  

                                                                                                                    

to . . . preclude evidence on a central issue."                                  For preclusion to be justified in such  



                                                                                              

cases, "Rule 37(b)(3) requires a finding of 'willfulness,' as well as the consideration of  



several factors, including whether lesser sanctions would adequately protect the opposing  



           67  

                                                                                                     

party."         Indeed, we have concluded that it was not an abuse of discretion for a court to  



                                                                                

permit the testimony of a witness disclosed after the close of discovery, even where there  



                                                                                                                           68  

was a pretrial order specifically requiring advance disclosure of witnesses.                                                     



           65	        Barton v. N. Slope Borough Sch. Dist.                          , 268 P.3d 346, 349 (Alaska 2012).   



           66  

                                                                                  

                      Stephanie  W.,  319  P.3d  at  224-25  (internal  quotation  marks  omitted).  

Although  Greene  did  not  seek  a  Rule  37(b)  sanction,  we  treat  orders  relating  to  

preclusion of witnesses as such sanctions if their effect is to determine a central issue in  

                                                                                                   

the case.  Maines v. Kenworth Alaska, Inc., 155 P.3d 318, 325 (Alaska 2007).  We  

                                                                                                                            

therefore analyze the superior court's decision under the Rule 37(b) rubric.  



           67         Maines , 155 P.3d at 325 (citation omitted).  



           68         See City of Kotzebue v. McLean, 702 P.2d 1309, 1315 (Alaska 1985).  



                                                                    -30-	                                                              6941
  


----------------------- Page 31-----------------------

                                                                                                 

                    Paukan's testimony was central to Tinker's case:  As Tinker explained to  



                                                                                                                 

the superior court when she sought to identify Paukan as a witness, Paukan would testify  



                                                                                            

as to how the news of Greene's pregnancy reached Tinker.  This testimony would (and  



                                                             

did) undermine Greene's version of the relevant facts, and it was therefore "evidence on  



                                                                                                                   

a central issue."  At the time the superior court denied Greene's motion to preclude, it  



                                

pointed out several specific facts in support of its conclusion:  that after learning of  



                                                                            

Paukan's likely testimony, Greene had let several weeks pass before seeking to exclude  



                          

it; that Greene's counsel had declined on the record to depose Paukan when offered the  



                                                                                                

opportunity, despite the acceptability and low cost of telephonic depositions; that Greene  



                                                                                               

could easily have located Paukan as they knew each other and lived in the same village;  



and that Greene had not demonstrated that Tinker's late disclosure was willful.  The  



                                                                                

superior court carefully considered all of these facts and concluded that the prejudice to  



Tinker that would result from excluding Paukan's testimony and the other evidence  



                                                                                                   

Greene sought to exclude "substantially outweigh[ed] the gravity of the late disclosure."  



                  

In light of the superior court's careful analysis, we see no basis to conclude that the  



superior court abused its discretion in permitting Paukan to testify.  



          D.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Excluding  

                    Evidence Of Alleged Prior Bad Acts By Tinker.  



                    Greene argues that the superior court also erred in granting Tinker's motion  

                                                                                              69  At trial Greene sought  

in limine regarding evidence of Tinker's alleged prior bad acts. 



          69        Greene  frames  the  argument  in  various  ways,  including  in  terms  of  



violations  of  her  state  and  federal  constitutional  rights.                           But  because  the  issue  is  

                                                                                                   

essentially  one  of  admissibility  of  evidence,  the  standard  of  review  is  whether  the  

                                                   

superior  court  abused  its  discretion.    Barton ,  268  P.3d  at  349.    Among  Greene's  

constitutional claims is that the superior court violated her right to a jury trial under the  

                                                                                                                      

Seventh Amendment to the U.S. Constitution.  But as we have previously observed, the  

                                                                              

Seventh Amendment does not apply to state court proceedings, and thus we do not  

                                                                                 

                                                                                                               (continued...)  



                                                              -31-	                                                        6941
  


----------------------- Page 32-----------------------

                                                                                                      

to call as witnesses several other Pilot Station residents to testify about alleged prior  



                                                                                                     

breaches of medical confidentiality by Tinker; Greene also sought to present testimony  



from Tinker's supervisor, Sheila Minock, regarding alleged documentation of complaints  



                                                                                         

absent from Tinker's personnel file.  The superior court barred these witnesses from  



testifying  when  it  granted  Tinker's  motion  in  limine,  confirming  this  ruling  in  its  



                                                                                                                   

simultaneous order denying Greene's motion for a protective order.  Greene also briefly  



                                                                                                                   

challenges the superior court's decision to exclude the testimony of Palassa Beans, who  



                                                          

Greene says would have testified to Tinker's harassment of Greene around the time  

                                                                          70  Greene contends on appeal that "the  

                                                                                                         

Tinker sought the protective order against Greene. 



trial court's rulings, when taken in their totality, eviscerated her case."  



                                 

                    Greene provides little substantive argument that the trial court abused its  



                                                                                                           

discretion in excluding the above-mentioned bad-acts testimony.  But to the extent that  



                                                                    

she makes the argument, it is unpersuasive.  The testimony Greene sought to introduce  



                                                                                

might have supported her argument that disclosures at the clinic were a matter of public  



                                                                                                                       

concern.  But the superior court concluded that the bad-acts testimony would be moot  



              

in  light  of  the  determination  that  Greene  enjoyed  only  a  conditional  privilege  to  



complain.    And  in  light  of  our  conclusion  that  Greene  had,  at  most,  a  conditional  



          69(...continued)  



address Greene's argument on this point.  See  Vinson v. Hamilton, 854 P.2d 733, 736  

                                                                        

(Alaska 1993).  



          70        Greene addresses the superior court's exclusion of Beans's testimony in  

                                 

another section of her brief, which ostensibly focuses on the superior court's supposed  

error  in  granting  a  directed  verdict  for  Tinker  on  Greene's  abuse-of-process  claim.  

          

However, because Greene makes a general challenge to the superior court's evidentiary  

rulings, we address her complaint about the exclusion of Beans's testimony at the same  

                                                                   

time as we address Greene's other arguments relating to the exclusion of evidence of  

                                                                                                                  

alleged prior bad acts by Tinker.  



                                                              -32-                                                         6941
  


----------------------- Page 33-----------------------

                                                                                                      

privilege, the bad-acts testimony would be irrelevant, and we cannot conclude that the  

superior court abused its discretion when it excluded irrelevant evidence.71  



                                                                                                                

          E.	       The  Superior  Court  Did  Not  Err  In  Instructing  The  Jury  On  

                   Defamation Per Se.  



                    Greene argues that the superior court also erred when it instructed the jury  



                                                                                                         

on defamation per se rather than defamation per quod, thereby making it unnecessary for  



                                                72  

                                                     Greene's legal argument is somewhat difficult to  

Tinker to prove actual damages. 



                                                         

discern, but the implication seems to be that Tinker could not have prevailed on her  



defamation  claim  if  she  had  been  required  to  prove  actual  damages,  given  that  she  



eventually  conceded  that  Greene's  complaint  was  not  the  cause  of  her  termination.  



Greene  argues  that  the  superior  court's  instruction  on  defamation  per  se  resulted  in  



                                                                                                    

"substantial  prejudice"  to  Greene,  presumably  because  Tinker's  prevailing  on  her  



                                                              

defamation claim contributed to her being the prevailing party for purposes of attorney's  



fees.  



          71       Alaska Rule of Evidence 401 defines relevant evidence as "evidence having  



any  tendency  to  make  the  existence  of  any  fact  that  is  of  consequence  to  the  

determination of the action more probable or less probable than it would be without the  

                                                                         

evidence."   



          72       A statement is defamatory per se "[if] the words used [are] so unambiguous  

                                          

as to be reasonably susceptible of only one interpretation - that is, one which has a  

                                                                  

natural tendency to injure another's reputation . . . .  But if the language used is capable  

                                       

of two interpretations, one of which would be defamatory and the other not, then it is for  

                                                                                                                        

the jury to determine which meaning would be given the words by those who read them.  

                                

If the latter alternative is applicable, the statement is defamatory per quod."  Alaska  

Statebank  v.  Fairco,  674  P.2d  288,  295  n.15  (Alaska  1983)  (omission  in  original)  

(citation omitted).  See also R 

                                             ESTATEMENT  (SECOND) OF  TORTS  569 cmt. b  (1977)  

                                                                                         

(noting that a defendant may be liable for a publication that is actionable per se "although  

                                                                                   

no special harm results from it"); id. at  575 (defining "special harm" as "the loss of  

something having economic or pecuniary value").  



                                                            -33-	                                                      6941
  


----------------------- Page 34-----------------------

                                                                                                        

                    We see no error in the superior court's instruction on defamation per se.  



Among the categories of publications that are defamatory per se are statements that  



                                                      

impute to the plaintiff  "conduct . . . that would adversely affect his fitness for the proper  



                                                                               73  

                                                                                   Here, Greene alleged to Tinker's  

conduct of his lawful business, trade or profession." 



employer  that  Tinker  had  violated  patient  confidentiality  -  conduct  that  would  



                                                                                               

adversely affect a person's fitness to be employed at a medical clinic, where a reputation  



                                                                    

for trustworthiness in handling confidential records is extremely important.  Tinker was  



               

thus not required to prove special harm, and it was not error for the superior court to  



instruct the jury on defamation per se.  



                                                                           

          F.	        The Superior Court Did Not Err In Granting A Directed Verdict On  

                     Greene's Counterclaim Of Abuse Of Process.  



                                                                                                            

                     Greene argues that the superior court also erred when it granted Tinker's  



                                                               

motion for a directed verdict on Greene's abuse-of-process counterclaim.  Greene claims  



that in granting the directed verdict, the superior court created "absolute immunity for  



          73        RESTATEMENT   (SECOND)  OF   TORTS    570,  573  (1977).    The  other  



traditionally recognized categories are publications that "impute[] to the [plaintiff] . . . a  

                                                            

criminal  offense,  .  .  .  a  loathsome  disease,  .  .  .  or  .  .  .  serious  sexual  misconduct."  

Id.   570.  The defamatory-per-se categories are ordinarily described with reference to  

                                                                           

slander - the publication of defamatory matter by spoken words.  See id.  568, 570.  

They might thus be thought inapplicable to the present case because Tinker's claim was  

                                            

based not on spoken remarks but rather on the written complaint to YKHC.  But courts  

                                                                                                        

in other jurisdictions have not hesitated to apply these categories even where the alleged  

                                                                                   

defamation was written.  See, e.g.,  Tuite v. Corbitt, 866 N.E.2d 114, 129 (Ill. 2006)  

                                                                                  

(applying the defamation-per-se categories where plaintiff alleged that statements about  

                                                                                                            

him in a book were defamatory per se because they imputed to him criminal wrongdoing  

                                                          

and an inability to perform his professional duties as an attorney); Hancock v. Variyam ,  

                                                                             

400 S.W.3d 59, 63-64 (Tex. 2013) (rejecting claim that statements about a doctor in a  

                                                                                                                     

letter were defamatory per se on ground that the alleged statements did not relate to his  

                                                                                                              

fitness as a doctor, but not remarking on the written, rather than oral, nature of the  

                                

statements).  



                                                               -34-	                                                        6941
  


----------------------- Page 35-----------------------

Tinker  .  .  .  [and]  for  any  individual  who  misuses  the  domestic  violence  protective  



                74  

 scheme."            (Emphasis in original.)  



                                                                                                                        

                       We review a directed verdict by inquiring "whether the evidence, and all  



                                                                                     

reasonable inferences which may be drawn from the evidence, viewed in the light most  



favorable  to  the  non-moving  party,  permits  room  for  diversity  of  opinion  among  

reasonable jurors."75  In making this inquiry, we bear in mind that a motion for a directed  



                                                                                                                                        

verdict "should be scrutinized under a principle of minimum intrusion into the right to  

jury trial guaranteed under the Alaska Constitution." 76  



                                                                                                                         

                       Abuse of process consists of two elements: (1) an ulterior purpose, and (2)  



                                                    

a  "willful  act  in  the  use  of  the  process  not  proper  in  the  regular  conduct  of  the  



                      77  

proceeding."               We have previously explained that "the mere filing or maintenance of a  



                                                                                                                         

lawsuit - even for an improper purpose - is not a proper basis for an abuse of process  



              78  

action."          Rather, "[t]he second element of the tort of abuse of process contemplates  



            74         Tinker argues that Greene impermissibly changed her theory for the abuse-    



of-process claim the day before trial began.                               Tinker argues that initially Greene's theory     

was that Tinker committed abuse of process by using the domestic violence petition  

process to label Greene a "stalker," but that Greene's theory later became that Tinker  

committed abuse of process by making and then strategically withdrawing the domestic  

                                                                                   

violence petition.  Although Greene did frame the claim slightly differently at different  

                                                               

 stages, the substance of it seems to have remained consistent:  that Tinker used domestic  

                    

violence proceedings for an improper purpose.  



            75         Taylor v. Wells Fargo Home Mortg., 301 P.3d 182, 191 (Alaska 2013).  



            76         Id.  



            77         Kollodge v. State , 757 P.2d 1024, 1026 (Alaska 1988).  



            78         Id.  (quoting Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss &  



Karma, Inc. , 728 P.2d 1202, 1209 (Cal. 1986)) (internal quotation marks omitted).  



                                                                       -35-                                                                6941
  


----------------------- Page 36-----------------------

                                                                                                79  

some overt act done in addition to the initiating of the suit."                                     Therefore, to avoid a  



                                       

directed verdict, Greene needed to demonstrate that there could be diversity of opinion  



             

among reasonable jurors not only with respect to the propriety of Tinker's purpose in  



                                                                                                     

bringing the domestic violence proceedings, but also with respect to whether Tinker then  



took some additional overt act.  Greene satisfies the first element but not the second.  



                     Reasonable  jurors  might  have  differed  as  to  whether  Tinker  had  an  



improper purpose in seeking the protective order.  There might have been disagreement  



                         

with respect to Tinker's purpose when she mentioned in her petition for a protective  



                                                                                                            

order that Greene had filed a complaint with YKHC against Tinker in 2007.  YKHC  



                                                            

substantiated the 2007 complaint and disciplined Tinker for the privacy violation, so it  



is difficult to see what proper purpose Tinker could have in later describing the 2007  



                                                                                                              

complaint as harassment.  Viewing the facts in the light most favorable to Greene as the  



non-moving  party,  we  conclude  that  reasonable  jurors  could  have  disagreed  about  



whether Tinker had a proper purpose in mentioning the 2007 complaint in her petition  

for a protective order.80  



                     We have not previously addressed what additional overt act satisfies the  



second element in abuse-of-process claims arising from domestic violence proceedings,  

                                                                                       

                                                     81 we set a high bar for the overt act in a different  

but in  Meidinger v. Koniag, Inc. ,  



                                                                                          

context.  It is plain that Greene does not clear that high bar; the directed verdict was  



therefore proper.   



          79        Id.  



          80         Tinker's references in her petition to the other alleged acts of harassment         



by Greene - the 2011 complaint and Greene's public complaints at the tribal council     

meeting - seem more innocuous, given that Tinker knew that Greene's 2011 accusation             

was false.  



          81         31 P.3d 77 (Alaska 2001).  



                                                                -36-                                                          6941
  


----------------------- Page 37-----------------------

                   In Meidinger we affirmed the dismissal of an abuse-of-process counterclaim  



brought  by  a  group  of  shareholders  in  a  corporation  after  the  corporation  sued  the  



shareholders over allegedly false and misleading proxy statements made in connection  

                                            82   The shareholders argued that various actions by the  

                                                                                                        

with the election of the board.  



corporation following the initial suit constituted the additional overt act required for  

                                                                                                           

                         83   These acts included the corporation's requesting injunctive relief  

abuse of process.     



denying  a  shareholder  her  seat  on  the  board;  threats  by  the  corporation  that  the  

                                                 



shareholders would face a large attorney's fee award; publicizing the lawsuit to gain an  

                                                                                                               



advantage  over  the  shareholders  in  future  elections;  and  sending  a  flyer  to  other  



                                                                                                                  84  

shareholders accusing the group in question of violating federal securities laws.                                     



                   We concluded that the first and second actions (in addition to others not  

                                                



listed here) were actions taken in the regular course of litigation and thus could not be  



                                                         85  

                                                             More significantly for the present case, we  

the basis of an abuse-of-process claim.                                



concluded that the last two listed acts also did not constitute requisite willful acts, even  



though  those  acts  had  little  conceivable  connection  to  the  initial  lawsuit  and  were  

oriented toward discrediting the shareholders.86  



          82       Id. at 81.  



          83       Id. at 86.  



          84       Id.  



          85       Id.  



          86       Id. ; see  also  Weber  v.  State,  166  P.3d  899,  903  (Alaska  2007)  (citing  



Meidinger  and rejecting a claim of abuse of process on the ground that there was no  

additional overt act where an assistant attorney general filed a motion to dismiss in the  

                                                                                 

ordinary course of litigation).   



                                                           -37-                                                      6941
  


----------------------- Page 38-----------------------

                    Here,  the  only  act  Tinker  took  after  she  began  the  domestic  violence  



process was to withdraw her petition in anticipation of filing the present case.  We set a  



                                                                                                      

high  bar  in  Meidinger   for  what  constitutes  an  additional  overt  act,  and  merely  



withdrawing a previously filed petition cannot meet that standard.  The superior court  



committed no error in granting a directed verdict in favor of Tinker on her abuse-of- 



process claim.  



          G.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Awarding  

                    Attorney's Fees To Tinker.  



                                                                                       

                    Greene argues that the superior court erred in awarding Tinker $12,015 in  



                                    87  

                                                                                         

Rule 82 attorney's fees.                This award represented 30% of Tinker's actual reasonable  



attorney's fees.  



                                                                                                

                    We review an award of attorney's fees for abuse of discretion and will not  



                                                                   88 

                                                                       Greene does not argue that the superior  

reverse it unless it is manifestly unreasonable. 



                                                                                                               

court's award of attorney's fees was manifestly unreasonable.  Rather, her argument is  



                                                         

that because Rule 82(b)(3) permits a court to vary an award on the basis of equitable  



           89 

                                                                                               

factors,      it was an abuse of discretion for the superior court not to vary the award here.  



          87	       Alaska Rule of Civil Procedure 82(b)(2) states:  



                                                                      

                    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  party's  

                                                                                   

                    reasonable  actual  attorney's  fees  which  were  necessarily  

                    incurred,  and  shall  award  the  prevailing  party  in  a  case  

                    resolved without trial 20 percent of its actual attorney's fees  

                                                                         

                    which were necessarily incurred.  



          88  

                                                                                                      

                    Gold Dust Mines, Inc. v. Little Squaw Gold Mining Co., 299 P.3d 148, 157  

(Alaska 2012).  



          89        These factors include:  



                                                                                                           (continued...)  



                                                             -38-	                                                      6941
  


----------------------- Page 39-----------------------

                                                                                                   

                    We are not persuaded that the superior court abused its discretion in making  



                                                                                            

this award.   As we have previously noted, "[a]pplication of Rule 82(b)(3) factors is  



          89(...continued)  



                             (A)       the complexity of the litigation;  

                                    



                             (B)       the length of trial;  

                                    



                             (C)        the reasonableness of the attorneys' hourly rates and  

                    the number of hours expended;  



                             (D)       the reasonableness of the number of attorneys  

                                                                                           

                    used;  



                             (E)       the attorneys' efforts to minimize fees;  

                                    



                             (F)        the reasonableness of the claims and defenses  

                    pursued by each side;  



                             (G)       vexatious or bad faith conduct;  

                                    



                             (H)       the  relationship  between  the  amount  of work  

                                                                                                     

                    performed and the significance of the matters at stake;  



                             (I)       the extent to which a given fee award may be so  

                                                       

                    onerous  to  the  non-prevailing  party  that  it  would  deter  

                    similarly  situated  litigants  from  the  voluntary  use  of  the  

                    courts;  



                             (J)       the  extent  to  which  the  fees  incurred  by the  

                                                                                     

                    prevailing  party  suggest  that  they  had  been  influenced  by  

                    considerations apart from the case at bar, such as a desire to  

                                                                

                    discourage claims by others against the prevailing party or its  

                                                                                                      

                    insurer; and  



                             (K)       other equitable factors deemed relevant. If the  

                                                                                                     

                    court varies an award, the court shall explain the reasons for  

                                                                           

                    the variation.  



Alaska R. Civ. P. 82(b)(3).  



                                                             -39-                                                       6941
  


----------------------- Page 40-----------------------

                                               90  

                             

discretionary, not mandatory."                      Thus awards of attorney's fees made pursuant to the  



                                                                        

schedule set out in Rule 82 are presumptively correct, and the superior court need not  



                                                                 91  

make any findings in support of the award.    There are several factors that indicate that  



                                                                                   

the award was reasonable here.  As the superior court explained, pleadings and motion  



work in this case were extensive, and included "repetitive [and] circuitous" pleadings and  



motions filed by Greene that "lacked focus."  There were multiple pretrial conferences  



                                                                                            

and a jury trial lasting three days, during which the superior court heard testimony from  



at least nine witnesses.  Furthermore, the superior court determined that Greene's trial  



                                                                                      

tactics "consumed far more time than was warranted by the complexities and real issues  



                                                                                      

in the case."  Greene's argument that the superior court abused its discretion in making  



                                                    

this award is not supported by the case law, which indicates that a court may depart from  



                                 

the Rule 82 schedule by considering the enumerated equitable factors but is by no means  



                           92  

required to do so.             



          90        Rhodes v. Erion , 189 P.3d 1051, 1055 (Alaska 2008).  As Rule 82(b)(3)  



explains, "[t]he court may vary an attorney's fee award . . . if, upon consideration of the  

                                  

factors listed below, the court determines a variation is warranted."   



          91        Babinec v. Yabuki, 799 P.2d 1325, 1337 (Alaska 1990).  



          92  

                                          

                    See  Rhodes,  189  P.3d  at  1055.    Greene  cites  one  case  in  which  we  

                                                                                                              

concluded that the superior court had abused its discretion in its award of attorney's fees,  

                                                                                                               

but  in  that  case  the  superior  court  had  awarded  one  party  the  entire  amount  of  its  

                                                                     

attorney's fees even though the losing party had not acted in bad faith.  See Cont'l Ins.  

                                                              

Co. v. U.S. Fid. & Guar. Co., 552 P.2d 1122 (Alaska 1976).  We concluded that there  

                                              

was  an  abuse  of  discretion  because  the  purpose  of  Rule  82  is  to  provide  partial  

compensation  to  a  prevailing  party  and  a  full  award  is  appropriate  only  in  rare  

circumstances.  Id. at 1129.  In the present case there was only a partial award.   



                     Greene's reliance on  Crook v. Mortenson-Neal and  Gold Dust Mines v.  

Little Squaw Gold Mining Co.  is equally misplaced.   In both cases, we affirmed  an  

                                                                                                                  

enhanced attorney's fee award because of the litigation tactics of the losing party.  See  

                                                              

                                                                                                                (continued...)  



                                                               -40-                                                         6941
  


----------------------- Page 41-----------------------

                   Greene   draws   attention   to   various   factors   that   she   argues   require  



reconsideration  of  the  attorney's  fee  award;  she  asserts  that  Tinker's  intentional- 

                        



interference claim was brought in bad faith and that Tinker's claim for actual damages  

                                              



for defamation was "fabricated."  But the superior court  was in the best position to  



                                                                             

evaluate Tinker's motivations, and the superior court concluded that Tinker's decision  



                            

to avoid litigating  these issues was a legitimate tactical trial decision.  The superior  



court's award of $12,015 in attorney's fees to Tinker was not an abuse of discretion.  



V.       CONCLUSION  



                                                              

                   For   the   foregoing   reasons,   the   judgment   of   the   superior   court   is  



AFFIRMED.  



         92(...continued)  



Crook v. Mortenson-Neal, 727 P.2d 297, 306 (Alaska 1986); Gold Dust Mines, 299 P.3d  

at 170.  But here Greene is asking us to overturn not an enhanced award but an award  

                                                                                               

calculated strictly according to the formula that Rule 82 indicates should be used when  

the prevailing party recovers no money judgment.  The superior court had discretion to  

                                                                                                          

depart from that formula; it was not an abuse of discretion for it to decline to do so.  



                                                          -41-                                                        6941  

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