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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Haines v. Comfort Keepers, Inc. (3/24/2017) sp-7163

Haines v. Comfort Keepers, Inc. (3/24/2017) sp-7163

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



PETER  HAINES,  as  the  personal                            )
  

representative  of  the  Probate  Estate  of   )                       Supreme  Court  No.  S-16034
  

Verna  Haines  (Deceased),                                   )
  

                                                             )         Superior  Court  No.  3AN-11-12882  CI  

                               Appellant,                    )  

                                                                                           

                                                             )         O P I N I O N  

                    v.                                       )  

                                                                                                           

                                                             )         No. 7163 - March 24, 2017  

                                               

COMFORT KEEPERS, INC. and                                    )  

                   

LUWANA WITZLEBEN,                                            )  

                                                             )
  

                               Appellees.                    )
  

                                                             )
  



                                                                                                        

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

                                                                                         

                    Judicial District, Anchorage, Paul E. Olson, Judge.  



                                                                                                             

                    Appearances:            Yale  H.  Metzger,  Law  Offices  of  Yale  H.  

                                                                                               

                    Metzger,  Anchorage,  for  Appellant.                        John  J.  Tiemessen,  

                                                                                                       

                    Clapp  Peterson  Tiemessen  Thorsness  &  Johnson,  LLC,  

                                                                                                          

                    Fairbanks,   for   Appellee   Comfort   Keepers,   Inc.                                No  

                                                                        

                    appearance by Appellee Luwana Witzleben.  



                                                                                                     

                    Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                                        

                    and Carney, Justices.  



                                          

                    MAASSEN, Justice.  



I.        INTRODUCTION  



                                                                                                                          

                    An elderly woman hired an in-home care company to assist her with day-to- 



                                                                                                                                  

day living.  The company provided an in-home assistant who was later discovered to  


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

have stolen the woman's jewelry and prescription medication. The woman sued both the  

                                                                                                                               



company and the assistant for conversion and assault, among other causes of action, and  

                                                                                                                              



accepted an offer of judgment from the company.  The assistant did not appear in the  

                                                                                                                               



superior court.  

                        



                    Eventually the woman applied for entry of default against the assistant "on  

                                                                                                                               



the condition that once default is entered[,] . . . damages are to be determined by a jury."  

                                                                                                                                     



The superior court granted a default but ruled that trial on damages would take place  

                                                                                                                            



without a jury. After a bench trial, the court found that the assistant's actions had caused  

                                                                                                                          



the woman no additional suffering and therefore awarded her no damages.  

                                                                                                                    



                     The woman appeals.   We affirm the superior court's decisions on the  

                                                                                                                               



measure of damages for conversion and discovery sanctions. But we conclude it was an  

                                                                                                                                



abuse of discretion to grant the woman's application for default while denying the  

                                                                                                                               



condition on which it was based - retaining her right to a jury trial.  We also conclude  

                                                                                                                      



that it was error to award no damages or attorney's fees after entry of default when the  

                                                                                                                               



allegations of the complaint and the evidence at trial put causation and harm at issue, and  

                                                                                                                              



that the allegations of the complaint could have supported an award of punitive damages.  

                                                                                                                                     



We therefore vacate the superior court's judgment and remand for further proceedings.  

                                                                                                                                     



II.       FACTS AND PROCEEDINGS  

                                  



                    Because of her advanced age and declining health, Verna Haines hired  

                                                                                                                            



Comfort Keepers, Inc. to provide in-home care. Comfort Keepers assigned its employee  

                                                                                                                     



Luwana Witzleben to work as Verna's personal assistant.   Witzleben stole Verna's  

                                                                                                                       



jewelry and prescription pain medication and, to conceal her theft of the medication,  

                                                                                                                  



substituted pills that looked similar but had not been prescribed.  

                                                                                                   



                    In December 2011 Verna filed a complaint against Comfort Keepers and  

                                                                                                                 



Witzleben in superior court, alleging claims for negligent hiring, conversion, assault and  

                                                                                                                              



                                                                -2-                                                        7163
  


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

battery, breach of contract, and unjust enrichment. Along with her complaint Verna filed  

                                                                                                                              



a timely demand for a jury trial.  

                                                   



                     Verna served discovery  requests on Witzleben, and after receiving no  

                                                                                                                                



response filed a motion to compel.  She also asked the court to hold that Witzleben's  

                                                                                                                  



failure to timely respond to the discovery requests waived any objection to them.  The  

                                        



court  granted  Verna's  motion  to  compel  but  declined  to  impose  sanctions,  citing  

                                                                                                                           



Witzleben's self-represented status and some doubt as to whether she "fully understood  

                                                                                                                    



her [discovery] obligation."  

                                              



                     Another year passed without any response from Witzleben.  Verna died in  

                                                                                                                                  



the meantime, and Peter Haines (Haines), the personal representative of her estate, was  

                                                                                                                               



substituted as plaintiff. In April 2014 the superior court invited Haines to apply for entry  

                                                                                                                             



of default against Witzleben under Alaska Civil Rule 55(c).  In another order issued the  

                                                                                                                                



same  day,  the  court  granted  Comfort  Keepers'  motion  to  strike  Haines's  unjust  

                                                                                                                          



enrichment claim, which was based on the theory that the damages for conversion of  

                                                                                                                                 



Verna's medication should be calculated by reference to its "street value." Rejecting this  

                                                                                                                                



theory, the court stated that "[t]here is no basis for permitting a party to recover the value  

                                                                                                                             



realized by a defendant through illegal activity" and held that any damages for the  

                                                                                                                                



medication's conversion were limited to "the fair market value or value to [Verna] at the  

                                                                                                                                



time it was taken."  

                   



                     In  August  2014  Haines  accepted  an  offer  of  judgment  from  Comfort  

                                                                                                                       



Keepers, notified the superior court, and filed a proposed final judgment against Comfort  

                                                                                                                        



Keepers.         The  court  responded  that  "pursuant  to  Alaska  Civil  Rule  54(b),  a  final  

                                                                                                                             



judgment will not be entered against one defendant until all the claims in the case are  

                                                                                                                                



resolved as to all the defendants," and it asked Haines for "an update . . . regarding  

                                                                                                                     



whether  he  intends  to  pursue  default  judgment  against  Ms.  Witzleben."                                           Haines  

                                                                                                                         



                                                                -3-                                                         7163
  


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

accordingly applied for entry of default against Witzleben "on the condition that once  

                                                                                                                             



default is entered . . . damages are to be determined by a jury." The superior court signed  

                                                                                                                           



the entry of default against Witzleben in November 2014, set a default judgment hearing  

                                                                                                                          



for a few weeks later, and expressly stated that "[a] jury trial will not occur." (Emphasis  

                                                                                                                     



in original.)  

     



                    The default judgment hearing took place in December 2014, and the only  

                                                                                                                              



issue  was  damages.               The  court  heard  testimony  from  several  witnesses,  including  

                                                                                                                      



Verna's children, on the extent of her non-economic harm, but Haines did not attempt  

                                                 



to prove economic damages.  The court's subsequent written decision awarded Haines  

                                                                                                                          



no damages at all, finding that Witzleben's tortious conduct, though "callous," caused  

      



Verna no pain or suffering beyond what she was already undergoing.  The court later  

                                                                                                                              



entered final judgment against Witzleben as well as a satisfaction of judgment against  

                                                                                                                          



Comfort Keepers -though no final judgment against Comfort Keepers hadbeen entered  

                                                                                                                          



on the accepted Alaska Civil Rule 68 offer of judgment.  

                                                                                       



                    Haines appeals.  He argues that the superior court erred when it (1) struck  

                                                                                                                           



Haines's claim for unjust enrichment; (2) denied oral argument on the motion to strike;  

                                                                                                                           



(3)  "improperly  denied  [his]  request  for  an  order  [stating]  that  any  objections  to  

                                                                                                                                 



discovery  requests  .  .  .  were  waived";  (4)  denied  Haines  a  jury  trial  on  damages;  

                                                                                                                      



(5) entered its damages award without considering the legal effect of the default against  

                                                                                                                          



Witzleben; (6) failed to award punitive damages; (7) failed to award Haines attorney's  

                                                                                                                     



fees; and (8) entered asatisfaction ofjudgment against ComfortKeepers "without having  

                                                                                                                           



ever entered final judgment."  

                                               



                    Comfort Keepers does not address most of the issues raised on Haines's  

                                                                                                                       



appeal because they involve only Witzleben.  It does address the court's grant of its  

                                                                                                                                 



motion to strike Haines's unjust enrichment claim, Haines's request for oral argument  

             



                                                                -4-                                                         7163
  


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

on the motion, and the satisfaction of judgment.                                        Witzleben does not appear in this                      



appeal.  



III.        STANDARDS OF REVIEW  

                                               



                       "We decide constitutional issues of law" such as a party's right to a jury  

                                                                                                                                              

                                                                               1   In doing so we will adopt "a reasonable  

trial "by applying our independent judgment."                                                                                      

                                                             



and practical interpretation in accordance with common sense based upon 'the plain  

                                                                                                                                            

meaning and purpose of the provision and the intent of the framers.' "2  

                                                                                                                           "A trial court's  

                                                                                                                                         



determination  of  damages  is  a  finding  of  fact  which  we  affirm unless  it  is  clearly  

                                                                                                                                         



erroneous. But we apply our independent judgment in deciding whether the trial court's  

                                                                                                                                          

award of damages is based on an erroneous application of law."3  

                                                                                                                 



                                                                                                                                      

                       We review denials of oral argument on non-dispositive motions, sanctions  



                                                                                                                                  4  

                                                                                                                 

for discovery violations, and awards of attorney's fees for abuse of discretion.                                                               

                                                                                                                                    "The trial  



                                                                                               5  

                                                                                                                                            

court has broad discretion" in awarding attorney's fees,  and we "will not find an abuse  



                                                                                                                                   

of that discretion absent a showing that the award was arbitrary, capricious, manifestly  



            1  

                       See Simpson v. Murkowski                     , 129 P.3d       435, 440 (Alaska 2006) (citing                      Alaska  

Legislative Council v. Knowles                        , 21 P.3d 367, 370 (Alaska 2001)).             



            2          Id. (quoting Alaska Legislative Council , 21 P.3d at 370).  

                                                                                                                



            3          Beaux v. Jacob, 30 P.3d 90, 97 (Alaska 2001) (citing Curt's Trucking Co.  

                                                                                                                                               

v. City of Anchorage, 578 P.2d 975, 977 (Alaska 1978)).  

                                                                                      



            4          See Alaska R. Civ. P. 77(e)(2); Nautilus Marine Enters., Inc. v. Exxon  

                                                                                                              

Mobil Corp., 332 P.3d 554, 557 (Alaska 2014) (first citing Wooten v. Hinton, 202 P.3d  

                                                                                                                                              

 1148, 1151 (Alaska 2009); then citing Khalsa v. Chose, 261 P.3d 367, 372 (Alaska  

                                                                                                                                        

2011)).  



            5          Nautilus Marine, 332 P.3d at 560 (citing  Valdez Fisheries Dev. Ass'n v.  

                                                                                                                                                  

Froines, 217 P.3d 830, 833 (Alaska 2009)).  

                                                                



                                                                        -5-                                                                 7163
  


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

                                                                                                    6  

unreasonable, or stemmed from an improper motive."                                                      We also review for abuse of                       

discretion the superior court's decision to grant or deny an application for default.                                                                7  



IV.	        DISCUSSION  



                                                                                                                                                        

                        In the discussion that follows we conclude that the superior court did not  



                                                                                                                                                          

err in striking Haines's claim for unjust enrichment, nor did it abuse its discretion in  



                                                                                                                                                        

declining to award him sanctions and attorney's fees during the course of discovery. But  



                                                                                                                                                       

we conclude it was an abuse of discretion to enter a default while denying Haines a jury  



                                                                                                                                                          

trial on damages when Haines had expressly conditioned his application for default on  



                                                                                                                                               

retaining the jury trial right. We also conclude that the superior court erred in its findings  



                                                                                                                                                        

on damages and attorney's fees in the proceedings that followed.  Although these last  



                                                                                                                                          

issues might not arise again on remand given the procedural options, they are significant,  



                                                                                                   

and we address them now for the sake of efficiency.  



                                                                                                                                                      

            A.	         The  Superior  Court  Did  Not  Err  In  Striking  Haines's  Claim  For  

                                       

                        Unjust Enrichment.  



                                                                                                                                              

                        On Comfort Keepers' pretrial motion the superior court struck Haines's  



                                                                                                                                                  

claim for "unjust enrichment," which sought to measure damages by the "street value"  



                                                                                                                                                    

of the medication Witzleben converted rather than fair market value or some other  



                                                                                                                                                   

traditional measure of Verna's actual loss. The court concluded that "[t]here is no basis"  



                                                                                                                                                

in Alaska law "for permitting a party to recover the value realized by a defendant through  



                                                         

illegal activity."  This was not error.  



            6  

                         United Servs. Auto. Ass'n v. Pruitt ex rel. Pruitt                                   , 38 P.3d 528, 531 (Alaska           

2001) (quoting              Power Constructors, Inc. v. Taylor & Hintze                                        , 960 P.2d 20, 44 (Alaska           

 1998)).  



            7           See Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378 (Alaska 1982)  

                                                                                                                                                    

("When an application for default is made to the court under Alaska Civil Rule 55(c), the  

                                                                                                                                                         

trial court is required to exercise its discretion in determining whether the judgment  

                                                                                                                                            

should be entered.").  

                    



                                                                            -6-	                                                                    7163
  


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

                            "Unjust enrichment" is not a cause of action but a prerequisite to recovery                                                            



                                                                  8  

under the doctrine of restitution.                                                                                                                                   

                                                                      Restitution, an equitable remedy based on the concept  

                                                                                                                                                                       9     For  

                                                                                                                                                                            

                                                                                                                                                               

 of quasi-contract, is available only when there is no adequate remedy at law. 



 conversion claims, such remedies generally exist.  We have noted that courts use "three  

                                                                                                                                                                        



 different standards" to "measur[e] damages for loss of personal property":   (1) fair  

                                                                                                                                                                             



market value; (2) value to the owner "based upon actual monetary loss resulting from the  

                                                                                                                                                                               



 owner being deprived of the property"; and (3) "where the property has its primary value  

                                                                                                                                                                          

 in sentiment," "value to the owner including sentimental and emotional value."10  Under  

                                                                                                                                                                        



these standards Haines could have sought damages based on the converted medication's  

                                                                                                                                                          



 fair market value, what Verna actually spent for it, or what she would have had to spend  

                                                                                                                                                                         



to replace it.  

                             



                            But Haines did not attempt to prove economic damages at trial under these  

                                                                                                                                                                          



 or any other measures.  Instead he focused entirely on noneconomic damages, and the  

                                                                                                                                                                              



 superior court, finding no proof of noneconomic harm, therefore awarded no damages  

                                                                    



 at all.  But the lack of a damage award does not mean that Haines lacked an adequate  

                                                                                                                                                                  



              8  

                            Alaska Sales & Serv., Inc. v. Millet                                     , 735 P.2d 743, 746 (Alaska 1987).                                         



              9  

                            See Knaebel v. Heiner                         , 663 P.2d 551, 553 (Alaska 1983) ("One who seeks                                               

the interposition of equity must generally show that he either has no remedy at law or  

                                                                                                                                                                                

that no legal remedy is adequate." (citing                                            Coffman v. Breeze Corps.                              , 323 U.S. 316, 322              

 (1945))).    We have defined "quasi-contracts" as "judicially created obligations to do                                                                                       

justice."   Millet, 735 P.2d at 746 (citing 1 A. C                                             ORBIN, C          ORBIN ON             CONTRACTS   18-19,   

 at 39-50 (1963); 1 S. W                          ILLISTON, W               ILLISTON ON                CONTRACTS    3-3A, at 8-13 (3d ed.                                   

 1957)).   



              10            Landers v. Municipalityof Anchorage, 915 P.2d 614,618-19(Alaska 1996)  

                                                                                                                                                                         

 (citations  omitted);  see  also  Dressel  v.  Weeks,  779  P.2d  324,  328  (Alaska  1989)  

                                                                                                                                                                       

 ("Damages in an action of conversion generally are measured by the value of the item  

                                                                                                                                          

 at the time it was converted plus interest." (quoting Rollins v. Leibold, 512 P.2d 937, 944  

                                                                                                                                                                             

 (Alaska 1973))).  

                   



                                                                                       -7-                                                                                7163
  


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

remedy at law.                        He could have presented evidence of economic damages but chose not                                                                                                  



to once the court had ruled against him on his favored measure of damages.                                                                                                             And as for          



noneconomic   harm,   he   was   awarded   no   damages   because   the   court   found   that   the  



evidence was insufficient, not because damages were not legally available if proven.                                                                                                                                



Because Haines had an adequate remedy at law, restitution was not available as an                                                                                                                          



equitable alternative.                               



                                Haines also argues that Comfort Keepers' motion to strike the damages                                                                                       



remedy was, in effect if not in form, an Alaska Civil Rule 12(b)(6) motion to dismiss on                                                                                                                    



which   the   court   was   obliged   to   accept   as   true   all   well-pleaded   allegations   of   his  



complaint, including hisallegation                                                 that Witzleben was unjustly                                        enriched by her wrongful              

                     11    But the motion was directed at a measure of damages, not a cause of action;  

conduct.                                                                                                                                                                                         

                                                                                                           12  And even on a motion to dismiss, a court  

it was not a Rule 12(b)(6) motion to dismiss.                                                                                                                                                       

                                                                                       



is not obliged to accept as true "unwarranted factual inferences and conclusions of  

                                                                                                                                                                                                            

             13   Thus, even if the court was bound to accept the factual allegation that Witzleben  

law."                                                                                                                                                                                    



unjustly enriched herself by converting Verna's jewelry and medication, it did not have  

                                                                                                                                                                                                       



to accept Haines's preferred legal conclusion:   that Haines was therefore entitled to  

                                                                                                                                                                                                             



restitution as a remedy.  

                                                           



                11  

                                See Dworkin v. First Nat'l Bank of Fairbanks                                                                  , 444 P.2d 777, 779 (Alaska                      

 1968).  



                12              Because we reject Haines's argument that the motion to strike his unjust  

                                                                                                                                                                                                   

enrichment claimwas a Rule 12(b)(6) motion to dismiss, we also reject his argument that  

                                                                                                                                                                                                         

the  court  was  obliged  to  schedule  oral  argument  on  the  motion  under  Rule  77(e).  

                                                                                                                                                                                                                    

Rule77(e)(2) explains that except for "dispositivemotions,""oral argumentshall beheld  

                                                                                                                                                                                                        

only in the discretion of the judge."  Haines alleges no specific prejudice caused by the  

                                                                                                                                                                                                          

lack of oral argument nor does he identify any other basis on which we could conclude  

                                                                                                                                                                                            

that the denial of oral argument was an abuse of discretion.  

                                                                                                                                                   



                13              Dworkin, 444 P.2d at 779.  

                                                                                      



                                                                                                      -8-                                                                                             7163
  


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

                         Finally, Haines argues that public policy supports his theory that damages                                               



in this context should be measured by the amount of the defendant's gain rather than the                                                                    

                                                                                                                   14  He argues that limiting  

amount of the plaintiff's loss -                           the usual measure in tort cases.                                                         



the plaintiff's recovery to what the plaintiff lost rewards the thief who steals something  

                                                                                                                                              



for which the victim paid very little and sells it on the black market for a great deal more.  

                                                                                                                                                                    



But "[t]he primary purpose of tort law is to provide just compensation to the tort victim,"  

                                                                                                                                                   

and "[c]ompensatory damage awards are designed to achieve this purpose."15  Punishing  

                                                                                                                                                



the wrongdoer, when appropriate in the civil law, is accomplished through punitive or  

                              

other exemplary damages.16  And the consequences for wrongdoing may extend beyond  

                                                                                                                                                    

civil damages.  Criminal statutes require thieves to pay fines and restitution.17                                                                    In this  

                                                                                                                                                           



case, Witzleben did not escape the public consequences of her crimes; she was convicted  

                                                                                                                                                



of misconduct involving a controlled substance and theft.  We are not convinced that  

                                                                                                                                                           



either public policy or the facts of this case require the dramatic change in the measure  

                                                                                                                                                   



             14          See   1 D. D        OBBS, L        AW OF        REMEDIES    1.1, at 4 (2d ed. 1993) ("[T]he aim  



                                                                                                                                                            

of damages  is  compensation  for  the plaintiff's  loss,  or  at  least  some  substitute  for  

                                                                                                                                                               

compensation.  In particular, damages [are] not measured by defendant's gain, which is  

                                                        

the province of restitutionary remedies.").  



             15          Anderson v. State ex rel. Cent. Bering Sea Fishermen's Ass'n , 78 P.3d 710,  

                                                                                                                                                          

717 (Alaska 2003) (citing State Farm Mut. Auto. Ins. Co. v. Weiford, 831 P.2d 1254,  

                                                                                                                                                       

 1266 (Alaska 1992)).  

                                          



             16          Id.  ("Punitive  damages  have  different  objectives  [from  compensatory  

                                                                                                                                       

damages].  They are intended 'to punish the wrongdoer and to deter the wrongdoer and  

                                                                                                                                                           

others like him from repeating the offensive act.'  As such, they are like fines imposed  

                                                                                                                                                  

in criminal and civil cases." (citing Weiford, 831 P.2d at 1264)).  

                                                                                                           



             17          See,  e.g.,  AS  11.46.120-.150  (defining  the  four  degrees  of theft);  

                                                                                                                                                       

AS 12.55.045 (authorizing trial courts to "order a defendant convicted of an offense to  

                                                                                                                                                              

make restitution . . . to the victim or other person[s] injured by the offense").  

                                                                                                                                                   



                                                                              -9-                                                                       7163
  


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

of compensatory damages that Haines advocates.                                                                                      The superior court did not err in                                                 



striking Haines's unjust enrichment claim.                                                                    



                 B.	              The Superior Court Did Not Abuse Its Discretion In Its Discovery                                                                                              

                                  Rulings.  



                                  Haines   contends   that   the   superior   court   abused   its   discretion   in  two  



discovery rulings, but we find no abuse of discretion in either.                                                                                                    In the first, the court                   



declined to hold that Witzleben waived any objections to written discovery by her failure                                                                                                                   



to timely respond.  Haines argues that this was error because Witzleben never showed  



                                                                                                                                         18  

the "good cause" required to excuse her nonresponse.                                                                                          



                                                                                                                                                                                              

                                  But  the  superior  court  enjoys  broad  discretion  in  deciding  whether  to  



                                                                                           19  

                                                                                                                                                                                                       

impose discovery-related sanctions.                                                               Here, in determining that the requested sanction  



                                                                                                                                                                                           

was "inappropriate at this time," the court expressly noted the governing standard that  



                                                                                                                                         

"[a]ny grounds not stated in a timely objection [to an interrogatory] are waived unless  



                                                                                                                                                                                           20  

                                                                                                                                                                                                              

a party's failure to object is excused by the court for good cause shown."                                                                                                                         The court  



                                                                                                                                                                                                             

concluded that Witzleben, who was not represented by an attorney, may not have "fully  



                                                                                                                                                                                                                       

understood her obligation" and accordingly allowed her another 20 days to respond.  A  



                                                                                                                                                                                                

superior court's ruling is not an abuse of discretion unless it is "arbitrary, capricious,  



                 18  

                                  See   Alaska   R.  Civ.  P.  33(b)(4)  (providing   that   any   objection   to an  

interrogatory "not [timely] stated . . . is waived unless the party's failure to object is                                                                                                           

excused by the court for good cause shown.");                                                                           see also  Alaska R. Civ. P. 37(a)(2)(A)                        

(providing for "appropriate sanctions" if a party does not respond to discovery requests).                                                                                                                                    



                 19               Khalsa  v.  Chose,  261  P.3d  367,  372  (Alaska  2011)  (noting  that this  

                                                                                                                                                              

discretion  becomes  more  limited  if  the  superior  court's  sanction  imposes  liability;  

                                                                                                                                                                                                     

establishes the outcome of or precludes evidence on a central issue; or ends the litigation  

                                                                                                                                                                                                     

entirely).  



                 20               Alaska R. Civ. P. 33(b)(4).  

                                                                                



                                                                                                         -10-	                                                                                                 7163
  


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

                                                                                                                                                                                     21  

manifestly unreasonable, or . . . stems from an improper motive."                                                                                                                          The court clearly             



considered the good-cause standard when it decided to give Witzleben more time to                                                                                                                                                     



respond before considering sanctions; this was not an abuse of discretion.                                                                                                                                  



                                     Second, Haines asserts that he was wrongly denied an award of attorney's                                                                                                    



fees after the court granted his motion to compel discovery from Witzleben.                                                                                                                                             Alaska  



Civil Rule 37(a)(4)(A) directs the court to award "reasonable expenses . . . .                                                                                                                             including  



attorney's fees" to the successful proponent of a such a motion. But the rule also allows                                                                                                                                  



a court to decline to award fees if it "finds . . . the opposing party's nondisclosure . . .                                                                                                                                              



                                                                                                                                                                                                                                        22  

substantially justified, or [if] other circumstances make an award of expenses unjust."                                                                                                                                                        



The court noted these aspects of the rule in its order and determined not to award  

                                                                                                                                                                                                      



attorney's  fees  because  "Witzleben  [was]  a  self-represented  litigant"  and  "it  [was]  

                                                                                                                                                                                                                            



unclear  whether  she  ever  received"  Haines's  discovery  requests  or  understood  the  

                                                                                                                                                                                                                                   



procedures for response.  It was not an abuse of discretion for the court to take these  

                                                                                                                                                                                                                              



matters into account and decide that under the circumstances it would be unjust to award  

                                                                                                                                                                                                                            



fees.  



                  C.	               It Was An Abuse Of Discretion To Enter Default But Deny Haines A  

                                                                                                                                                                                                                                       

                                    Jury  Trial  On  Damages  When  His  Request  For  Default  Was  

                                                                                                                                                                                                                             

                                     Conditioned On Retaining His Right To A Jury Trial.  

                                                                                                                                                                                                      



                                     The next issue we address involves Haines's right to a jury trial on damages  

                                                                                                                                                                                                                     



following entry of default against Witzleben.  When Haines applied for entry of default,  

                                                                                                                                                                                                                        



his application was made expressly "on the condition that once default is entered . . .  

                                                                                                                                                                                                                                       



damages are to be determined by a jury."  The superior court granted the application for  

                                                                                                                                                                                                                                    



                  21  

                                    Roderer v. Dash                             ,233          P.3d 1101, 1107 (Alaska2010)(alteration                                                                         in original)   

(quoting  Shea v. State, Dep't of Admin., Div. of Ret. & Benefits                                                                                                              , 204 P.3d 1023, 1026                          

(Alaska 2009)).                              



                  22                Alaska R. Civ. P. 37(a)(4)(A).  

                                                                                      



                                                                                                                 -11-	                                                                                                         7163
  


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

 default but ruled that a damages hearing would occur without a jury. Haines argues that                                                                                                                                           



 article I, section 16 of the Alaska Constitution granted him a right to a jury trial which                                                                                                                                 



he did not waive by seeking the entry of default. We disagree that he had a right to a jury                                                                                                                                     



trial following default. But                                              because his application for default was expresslyconditioned   



 on keeping a jury trial, we agree it was an abuse of discretion to grant the default while                                                                                                                                   



rejecting the condition.            



                                     The Alaska Constitution guarantees the                                                                    right to trialby jury "[i]n civil cases                                         



where the amount in controversy exceeds two hundred fifty dollars . . . to the same extent                                                                                                                                   

                                                                                23      "That this right is to be jealously guarded by the courts  

 as it existed at common law."                                                                                                                                                                                               



 of this state is made clear by Alaska Civil Rule 38(a), which charges the courts with  

                                                                                                                                                                                                                                 



 insuring that the right to trial by jury in civil cases 'shall be preserved to the parties  

                                                                                                                                                                                                                          

                                 24     Rule 38(b) provides that "[a]ny party may demand a trial by jury of any  

 inviolate.' "                                                                                                                                                                                                                     

                              



 issue triable of right by a jury by serving upon the other parties a demand therefor." And  

                                                                                                                                                                                                                                 



under Alaska Civil Rule 39(a),  

                                                                                       



                                     [w]hen a trial by jury has been demanded and not waived as  

                                                                                                                                                                                                   

                                     provided in Rule 38, the trial of all issues so demanded shall  

                                                                                                                                                                                            

                                     be by jury, unless (1) the parties or their attorneys of record  

                                                                                                                                                                                       

                                     . . . consent to trial by the court siting without a jury or (2) the  

                                                                                                                                                                                                 

                                     court upon motion by a party or upon its own motion finds  

                                                                                                                                                                     

                                     that a right of trial by jury of some or all of those issues does  

                                                                                                                                                                                            

                                     not exist under the state constitution or statutes of the state.  

                                                                                                                                                                                         



                   23  

                                     Alaska Const. art. I,  16.                                             We noted in                         Glover v. State, Dep't of Transp.,                                   

Alaska Marine Highway Sys. that "the constitutional convention considered proposals  

 extending the right to a jury trial to all suits brought in the superior court and rejected                                                                                                                           

those proposals."                                  175 P.3d 1240, 1256 (Alaska 2008) (citing 2 Proceedings of the                                                                                                                   

                                                                                                                                                                                          

 Constitutional Convention (PACC) 1351-52, 1355 (Jan. 6, 1956)).  



                   24                Frank v. Golden Valley Elec. Ass'n, 748 P.2d 752, 754 (Alaska 1988).  

                                                                                                                                                                                                                    



                                                                                                                 -12-                                                                                                           7163
  


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

                        Accordingly, because the parties in this case did not consent to proceed                                            



without a jury, the first issue we address is whether Haines had a right to a jury trial on                                                           

damages following default "under the state constitution or statutes of the state,"                                                            25 with  



                                                                                                                                                       26  

the constitutional inquiry focusing on whether such a right "existed at common law."                                                                        

                                                                                                                                              



                        1.	         A jury trial on damages following default is not required by  

                                                                                                                                                            

                                    Alaska statutes or the Alaska Constitution.  

                                                                                             



                        We first observe that there are no "statutes of the state" that grant a right to  

                                                                                                                                                       



a jury trial in these circumstances.  The legislature, by statute, has provided for juries in  

                                                                                                                                                       

various types of special proceedings,27  

                                                                                                                                                      

                                                                    but it has not found it necessary to supplement by  



                                                                                                                                                   

 statute the constitution's reservation of the right to a jury trial for the general run of civil  



                                                        28  

                                                             

cases like the one at issue here. 



                                                                                                                                            

                        In defining the reach of the constitutional right, we must determine whether  



                                                                                                                                                  

the right to a jury following default "existed at common law."  We have noted that "[a]t  



                                                                                                                                                

common law, the existence of a right to trial by jury depended upon whether the claim  



            25          Alaska  R.  Civ.  P.  39(a).  



            26          Alaska  Const.  art.  I,      16.  



            27          See, e.g., AS 09.50.030 (granting a right to jury trial for persons charged  



with  certain  types  of  contempt of court); AS  09.55.320  (granting  a  right  to  jury  trial  in  

 eminent  domain  proceedings  "on  the  question  of  the  amount  of  damages  and  the  value  

of  the  property");  AS  13.06.085(a)  (granting  a  right  to  jury  trial  in  certain  probate  cases  

"in   which   any   controverted   question   of   fact   arises   as   to   which  any   party   has   a  

constitutional  right  to  trial  by  jury").  



            28          There is federal authority for the proposition that the only statutes relevant  

                                                                                                                                            

to whether the jury trial right survives default are those few that "specifically provide[]  

                                                                                                                                          

 for jury trial  after default."  See Benz v. Skiba, Skiba & Glomski, 164 F.R.D. 115,  116  

                                                                                                                                                    

 (D. Me.  1995).  Having identified no state statutes relevant to the preservation of the  

                                                                                                                                                     

jury-trial right, we find it unnecessary to address this issue further.  

                                                                                                                         



                                                                         -13-	                                                                   7163
  


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

                                                                               29  

 asserted was legal or equitable in nature."                                          But we have also recognized that the                            

 common law itself made exceptions to this general rule.                                             30  



                        Courts have disagreed on whether a jury demand survives the entry of  

                                                                                                                                                        



 default. Onefederal courtsurveyed therelevant precedentand concluded that "[c]aselaw  

                                                                                                                                         



 dating back to the eighteenth century . . . makes clear that the constitutional right to jury  

                                                                                                                                                     

trial does not survive the entry of default."31  A close reading of the early cases, however,  

                                                                                                                                            



 shows that the common law on this issue developed differently in different states, and  

                                                                                                                    



 federal courts opted early to follow state practice, whatever that might be.   Thus in  

                                                                                                                                                        



Raymond v. Danbury & N.R. Co., the federal court for the District of Connecticut made  

                                                                                                                                                   

perhaps the most extensive review of early authorities, both English and American.32                                                                     It  

                                                                                                                                                          



noted that "[i]n the early history of the common law, the subject of the ascertainment of  

                                                                                                                                                         



 damages [following entry of default] was in some confusion"; that different courts had  

                                                                                                                                                      



 applied different rules since the time of Blackstone's original Commentaries in 1765; but  

                                                                                                                                                       



            29          State v. First Nat'l Bank of Anchorage                                   , 660 P.2d 406, 423-24 (Alaska               



 1982) (citing           Ross v. Bernhard               , 396 U.S. 531, 533 (1970)).                         



            30          See, e.g., Glover v. State, Dep't of Transp., Alaska Marine Highway Sys.,  

                                                                                                                                                    

 175 P.3d 1240, 1256 (Alaska 2008) (holding that a statute requiring seamen's claims  

                                                                                                                                                

 against the state to proceed exclusively under the workers' compensation statutes did not  

                                                                                                                                                       

violate the right to a jury trial because "at common law there was no right to sue the  

                                                                                                                                                      

 sovereign and therefore no right to a jury trial in such a suit");  Christensen v. NCH  

                                                                                                                                                   

 Corp.,  956  P.2d  468,  477  (Alaska  1998)  (holding  that  a  proper  grant  of  summary  

                                                                                                                                           

judgment could not violate the constitutional right to a jury trial because "[a]t common  

                                                                                                                                            

law - as under current Alaska law - a court had the power to remove factual issues  

                                                                                                                                                 

 fromthejury's consideration 'wherethecourtdecide[d]there[was]insufficient evidence  

                                                                                                                                             

to raise a question of fact to be presented to the jury' "  (alteration in original) (citing  

                                                                                                                                                

 Taylor v. Interior Enters., Inc., 470 P.2d 405, 407 (Alaska 1970))).  

                                                                                                                           



            31          Benz, 164 F.R.D. at 116 (citing cases).  

                                                                                  



            32          20 F. Cas. 332, 333-34 (C.C.D. Conn. 1877).  

                                                                                               



                                                                          -14-                                                                     7163
  


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

that Connecticut's practice had "improved upon the common law of England" by clearly                                                                   



 allowing a court to assess damages itself after default without the assistance of a sheriff's                                                     



         33  

                                                                                                                                                    

jury.         Observing that "[t]he practice of the United States courts, in the different circuits,  



                                                                                                                                                          

has not been uniform," the court concluded that "[t]he more common method has been  



                                                                                                34  

                                                                                                                                                             

to assess damages by a jury, upon a writ of inquiry."                                                But because federal "practice has  



                                                                                                                                                                

 conformed to the usages of the state in which the circuit court was held," and because in  



                                                                                                                                                         

 Connecticut "the uniform practice of the state courts" did not require a jury, the court  



                                                                                                                                                             

 ordered that "the damages be assessed by the court, or, if the parties, agree, by the  



             35  

 clerk."          



                                                                                                                                                               

                         A later opinion by the Oregon Supreme Court concluded that whether to  



                                                                                                                                               

request a jury's input on damages in cases of default "to inform the mind or conscience  



                                                                                                                                                           

 of the court" had always been a matter of judicial discretion rather than of right, in both  



                                                    36 

                                                                                                                                                             

English and American law.                               The court therefore held that a state statute directing the  



                                                                                                                                                             

 court to assess damages following default "without the intervention of a jury" did not  



                                                                                                                                                   

violate the state constitutional command that the right to a jury as it existed at common  



                                        37  

                                                                                                                              

 law remain inviolate.                       But a few other courts decided more or less contemporaneously  



                                                                                                                                   38  

                                                                                                                                        

that their states' common law did require jury trials following default. 



             33          Id.  at 333-34 (quoting 2 Z                    EPHANIAN  SWIFT,AS                      YSTEM OF THE              LAWS OF THE       



 STATE OF CONNECTICUT 268 (1795)).   

                                                



             34          Id.  at  334.  



             35          Id.  



             36          Dean  v.   Willamette  Bridge  Ry.  Co.,  29  P.  440,  441-43  (Or.   1892).  



             37          Id.  at  442-43.  



             38          See  Cent.  &  M.R.  Co.  v.  Morris,  3  S.W.  457,  462  (Tex.  1887)  (concluding  



                                                                                                                                         (continued...)  



                                                                              -15-                                                                       7163
  


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

                       The historical common law rule in this context is thus subject to different                                     



interpretations.    But the common law as it existed at the time of the adoption of the                                                         

                                                      39   By that time, federal courts had largely coalesced  

Alaska Constitution is clearer.                                                                                       



behind a rule that although "the court may order a jury trial as to damages in a default  

                                                                                                                                      



situation if it seems to be the best means of assessing damages[,] . . . neither side has a  

                                                                                                                                     

right  to  a  jury  trial  on  damages."40                           This  continues  to  be  the  generally  accepted  

                                                                                                                                     



            38(...continued)  



                                                                                                                                                 

"that, under the course of procedure at common law, when a judgment was rendered by  

                                                                                                                                                

default, and the cause of action was not liquidated, a jury was always called to assess the  

                                                                                                                                               

damages," and that this right was necessarily preserved by the state constitution and  

                                                                                                                                               

could not "be infringed by any act of the legislature"); Hickman v. Baltimore &Ohio R.R  

                                                                                                                                                   

Co., 4 S.E. 654, 659 (W. Va. 1887), overruled in part on other grounds by Richmond v.  

                                                                                                                                       

Henderson, 37 S.E. 653, 660 (W. Va. 1900) (concluding that "according to the common  

                                                                                                                                                  

law, as recognized and settled in this state, there can be no final judgment by default" in  

                                                                                                                                                 

cases involving over $20 and not a sum certain and that "the right of either party, if he  

                                                                                                                             

demands it, to have such writ executed by a jury, is guarantied [sic] by our constitution").  



            39         See, e.g., People ex rel. Daley v. Joyce, 533 N.E.2d 873, 876 (Ill. 1988)  

                                                                                                                                           

(explaining that "it is the common law right to jury trial as enjoyed at the time of the  

                                                                                                                                                

adoption  of  the  1970  constitution  to  which  [the  constitutional  phrase]  'heretofore  

                                                                                                                                 

enjoyed' refers"(emphasisin original)); Statev. $17,515.00in Cash Money,670N.W.2d  

                                                                                                                                        

826, 827 (N.D. 2003) (holding that the state constitutional guarantee of a jury trial  

                                                                                                                                              

"merely preserves the right as it existed at the time of the adoption of our constitution");  

                                                                                                                             

LeBlanc v. Snelgrove, 133 A.3d 361, 372 (Vt. 2015) (explaining that the constitutional  

                                                                                                                              

right of trial by jury "applies to 'the right to trial by jury as it was known at common law  

                                                                                                                                               

at the time of the adoption of the [Vermont] Constitution' " (quoting Reporter's Notes  

                                                                                                                                           

to Vt. R. Civ. P. 38(a)); Kroner v. Oneida Seven Generations Corp., 819 N.W.2d 264,  

                                                                                                                                              

284 (Wis. 2012) (holding that civil litigants have a constitutional right to a jury trial  

                                                                                                                                              

"if that right existed at common law at the time of the adoption of the constitution"); see  

                                                                                                                                                

also AS 01.10.010 ("So much of the common law not inconsistent with the Constitution  

                                                                                                                                

of the State of Alaska or the Constitution of the United States or with any law passed by  

                                                                                                                                                 

the legislature of the State of Alaska is the rule of decision in this state.").  

                                                                                                                  



            40         10A C      HARLES  ALAN  WRIGHT ET AL                       ., F  EDERAL  PRACTICE AND                   PROCEDURE  



                                                                                                                              (continued...)  



                                                                       -16-                                                                 7163
  


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

 interpretation of the constitutional right, and most courts therefore reject demands that                                                      



                                                                                                                                            41  

 a jury trial on damages follow entry of default as a matter of right.                                                                                                              

                                                                                                                                                  We have found no  



               40(...continued)  



                                                                                                                                                                          

   2688,  at  82  (4th  ed.  2016); see  Brown  v.  Van  Braam,  3  U.S.  344,  355  (1797)  

                                                                                                                                                                       

 (concludingthat"theEnglish authorities countenancetheRhodeIslandlawand practice"  

                                                                                                                                                                                 

with  regard  to  the  roles  of  judge  and  jury  in  determining  damages,  including  that  

                                                                                                                                                                                   

 "[w]here judgment is by default, the court may give the damages, without putting the  

                                                                                                                                                                                

party to the trouble of a writ of enquiry [to a jury]"); Bass v. Hoagland, 172 F.2d 205,  

                                                                                                                                                                                     

 209 (5th Cir. 1949) ("There is of course no right to a jury trial when there is no issue of  

                                                                                                                                                                

 fact to be tried, and a judgment by default proceeds on that basis."); Midland Contracting  

                                                                                                                                                                                  

 Co. v. Toledo Foundry & Mach. Co., 154 F. 797, 799-800 (7th Cir. 1907) (holding that  

                                                                                                                                                                              

 an Illinois statute authorizing "the assessment of damages by the court, without a jury"  

                                                                                                                                                                                     

 following default does not infringe the constitutional right of trial by jury);  Gill v.  

                                                                                                                                                                         

Stolow, 18 F.R.D. 508, 510 (S.D.N.Y. 1955) (holding that defendant had "no right to  

                                                                                                                                                                         OORE'S  

have the matter [of damages] referred to a jury after default" (citing 6 J. M 

 FEDERAL PRACTICE  172 (2d ed. 1951))),                                                rev'd on other grounds                           , 240 F.2d 669 (2d Cir.                  

                                            

 1957);  cf. Barber v. Turberville                                 , 218 F.2d 34, 37 n.1 (D.C. Cir. 1954) (deciding that "in                                                       

 a [default] case such as this, it is the better practice, if not actually compelled, that the                                                                                     

 issue as to damages be submitted to the jury," and implying that because the federal civil                                                                                     

rules "have the effect of statutes," Civil Rule 38 may preserve the jury right following   

 default).     



               41            See Graham v. Malone Freight Lines, Inc., 314 F.3d 7, 16 (1st Cir. 1999)  

                                                                                                                                                                             

 ("Neither the Seventh Amendment nor the Federal Rules of Civil Procedure require a  

                                                                                                                                                                                       

jury trial to assess damages after entry of default in these circumstances."); Matter of  

                                                                                                                                                                                     

Dierschke, 975 F.2d 181, 185 (5th Cir. 1992) (holding that neither plaintiffnor defendant  

                                                                                                                                                                     

has  a  constitutional  right  to  a  jury  trial  following  default);  Mwani  v.  Bin  Laden,  

                                                                                                                                                                          

 244 F.R.D. 20, 23 (D.D.C. 2007) (finding no constitutional or statutory right to a jury  

                                                                                                                                                                                

trial following default but leaving open the question whether, as a discretionary matter,  

                                                                                                                                                                           

 a jury trial would be the most appropriate method for assessing damages); CountrymAn  

                                                                                                                                                              

Nevada, LLC v. Suarez, No. 6:15-cv-0436-SI, 2016 WL 5329597, at *4 (D. Or. Sept. 22,  

                                                                                                                                                                                   

 2016) ("There is . . . substantial case law holding that there is no right to a jury trial for  

                                                                                                                                                                                   

 damages after an entry of default . . . ." (collecting cases)).  But cf. Zero Down Supply  

                                                                                                                                                 

 Chain Sols., Inc. v. Global Transp. Sols., Inc., 282 F.R.D. 604, 606-07 (D. Utah 2012)  

                                                                                                                                                                             

 (citing federal consensus that defendants do not have a constitutional right to a jury trial  

                                                                                                                                                                                 

 folloing entry of default but relying on "the plain language of Rule 38(d)" to hold that  

                                                              

                                                                                                                                                            (continued...)  



                                                                                         -17-                                                                                 7163
  


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

indication that the common law as understood by the framers of the Alaska Constitution                                              



was any different.                In the absence of such evidence we are compelled to conclude that                               

                                                                                              42 at the time of our constitution's  

the right to a jury trial "as it existed at common law"                                                                           



 adoption did not include a right to have a jury determine damages following entry of  

                                                                                                                                                      



default.  

                



                        2.	         Haines did not waive his right to a jury trial by conditionally  

                                                                                                                                                            

                                    applying for entry of default.  

                                                                             



                        Although Haines did not have a right to a jury trial following default, he  

                                                                                                                                                      



was not obliged to seek a default at all; he could have proceeded to trial without first  

                                                                                                                                                   

 seeking entry of default and thereby preserved his right to have a jury decide the case.43  

                                                                                                                                                            



                                                                                                                          

The next question we address, therefore, is whether Haines lost his right to a jury trial  



                                                                                                                              

by  applying  for  default  even  though  his  application  was  expressly  conditioned  on  



                                       

preserving that right.  



            41(...continued)  



                                                                                                                                           

 a non-consenting party does not lose its right to a jury trial just because it is in default);  

                                                                                                                                              

Kormes v. Weis, Voisin & Co., 61 F.R.D. 608, 609-10 (E.D. Pa. 1974) (citing federal  

                                                                                                                                                      

 consensus "that neither party has a constitutional right to a jury trial on the issue of  

                                                                                                                                           

damages after the entry of default" but concluding that "fairness and logic" mandate  

                                                                                                                                                   

 applying  the  waiver-only-by-consent  requirement  of  Rule  38(d)  after  default  and  

                                                                             

granting a jury trial on damages); Wood v. Detroit Auto. Inter-Ins. Exch., 321 N.W.2d  

                                                                                                                                          

 653, 657-60 (Mich. 1982) (relying on the court's constitutional authority to establish  

                                                                                                                                                    

rules of practice, along with the civil rules regarding the jury trial right, to conclude that  

                                                                                                                                           

the Michigan Constitution requires that a demand for jury trial survive entry of default).  



            42          Alaska Const. art. I,  16.  

                                                                       



            43          Alaska R. Civ. P. 38.  The rules also allow a party who has filed a timely  

                                                                                                                                               

jury  demand  to  withdraw  it  unilaterally  if  the  other  party  does  not  appear  at  trial;  

                                                                                                                                                 

Rule 38(d) provides, in part, that "[a] party's consent to withdraw the jury trial demand  

                                                                                                                                            

may be implied by a failure to appear at trial."  

                                                                         



                                                                         -18-	                                                                   7163
  


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

                           Civil Rule 38(a) "preserve[s]" the "right of trial by jury . . . inviolate," and                                                             



                                                                                                 44  

we have emphasized the importance of the right.                                                                                                                          

                                                                                                       We have held, for example, that the  



                                                                                                                                                                          

right to a jury trial "will not be deemed waived . . . unless the waiver is explicit, or  



                                                                                                                                                                           

illustrated by actions 'so inconsistent with [an] intent to enforce the right in question' as  

                                                                                       45   "The proper inquiry" is whether the party  

                                                                                                                                                                     

to indicate that the right has been waived.' " 



has "prior notice of the consequences of his action" which "justifies the court in finding  

                                                                                                                                                                

a waiver."46  

    



                           The record in this case contains no evidence of "prior notice" to Haines that  

                                                                                                                                                                       



by seeking an entry of default he would extinguish his right to a jury trial; in fact, the  

                                                                                                                                                                        



conditional nature of his application shows that he had no such understanding of the  

                                                                                                                                                                        



consequences.  And as noted above, the rules do not require a party to accept a default  

                                                                                                                                                                



proceeding he did not ask for.  Civil Rule 55(a)(1) allows a trial court to enter a default  

                                                                                                                                                                



against a party who "has failed to appear and answer or otherwise defend as provided by  

                                                                                                                                                                          



these rules"; it is captioned "Application for Default," and it strongly implies that the  

                                                                                                                                                                        



process is initiated not by the court but by "[t]he party seeking default," who must show  

                                                                                                                                                                    



facts  "by  affidavit  or  otherwise"  that  entitle  the  party  to  the  relief  sought.                                                                          Civil  

                                                                                                                                                                   



Rule 55(c) addresses default judgments in cases involving damage claims that cannot  

                                                                                                                                                                 



easily be reduced to a sum certain, and it describes the initiation of the process more  

                                                                                                                                                                    



clearly by stating that "the party entitled to a default judgment shall apply to the court  

                                              



therefor."  The rule goes on to state:  

                                                               



             44            See Chilton-Wren v. Olds                            , 1 P.3d 693, 696-97 (Alaska 2000).                        



             45  

                           Id.  (alteration in original) (quoting                               Frank v. Golden Valley Elec. Ass'n                                   , 748   

P.2d 752, 754-55 (Alaska 1988)).                      



             46            Id.  (emphasis in original) (quoting Frank, 748 P.2d at 755).  

                                                                                                                                          



                                                                                   -19-                                                                             7163
  


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

                          If, in order to enable the court to enter judgment or to carry   

                          it into effect, it is necessary to take an account or to determine                               

                          the   amount   of   damages   or   to   establish   the   truth   of   any  

                          averment by evidence or to make an investigation of any                                                     

                          other matter, the court may conduct such hearings or order                                                

                          such references as it deems necessary and proper.                                               [47]  



The effect of the rule is that when  a party  seeks  a default judgment the court has  

                                                                                                                                                                 



discretion as to how it will receive the evidence necessary to determine damages or to  

                                                                                               



resolve other outstanding issues of fact.   But the default judgment process does not  

                                                                                                                                                                 



preclude a party from telling the court, in effect:  "I would like a default but not if it  

                                                                                                                                                                     



means that I give up my right to a jury trial on damages" - as Haines did here.  

                                                                                                                                                 

                          "There has always been a strong policy favoring jury trials in Alaska."48  

                                                                                                                                                                          



Before Rule 38(d) was amended to allow implied waiver of the jury trial right by a  

                                                                                                                                                                     



party's non-appearance at trial, we decided in several cases that even non-appearing  

                                                                                                                                           

defendants did not lose the right to a jury absent their express consent.49                                                                   Although we  

                                                                                                                                                                  



follow the weight of authority in concluding that there is no constitutional right to a jury  

                                                                                                                                                               



following default, the protectiveness we have historically accorded the jury trial right  

                                                                                                                                                               



compels us to once again state that a party may not forfeit that right inadvertently or  

                                                                                                                                                                    



without prior notice.  We therefore conclude that a party who applies for default, while  

                                                                                                                                                             



             47           Alaska R. Civ. P. 55(c)(1).         



             48  

                                                                                                                                                        

                          Loomis Elec. Prot., Inc. v. Schaefer, 549 P.2d 1341, 1344 n.16 (Alaska  

                           

 1976) (citing cases).  



             49           Hall v. Morozewych, 686 P.2d 708, 712 (Alaska 1984) (holding that it was  

                                                                                                                                                                

error to proceed without a jury where a defendant made a timely jury demand but did not  

                                                                                                                                                                  

appear at trial); Hill v. Vetter, 525 P.2d 529, 531 (Alaska 1974) (holding that it was error  

                                                                                                                                                               

to proceed without a jury where the defendant failed to appear at trial and the plaintiff  

                                                                                                                                         

unilaterally revoked his jury demand).  But see Frank, 748 P.2d at 755 ("Under [Rule  

                                                                                                                                                             

38(d)] as it reads today, however, the trial court may quite properly conclude that a  

                                                                                                                                                                     

party's failure to appear at trial constitutes waiver of the jury trial right.").  

                                                                                                                                 



                                                                                -20-                                                                          7163
  


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

expressly reserving the right to a jury trial on damages, does not automatically forfeit  

                                                  



the right.  

       



                     If a party applies for default expressly conditioned in such a way, the court,  

                                                                                                                             



in the exercise of its discretionary authority under Rule 55(c)(1), should first ascertain  

                                                                               



whether submitting damages to a jury would be "necessary and proper."  If it would be,  

                                                                                                                                 



then  the  court  should  enter  the  requested  default  and  allow  the  jury  to  determine  

                                                                                                                      



damages. But if the court in its discretion decides that a jury is unnecessary or otherwise  

                                                                                                                       



inappropriate - as it did here - then the court should deny the conditional application.  

                                                                                                                                       



The plaintiff at that point can make a knowing decision whether to renew its application  

                                                                                                                     



unconditionally  and  proceed  under  Rule 55,  with  the benefits of  an  expedited  and  

                                                                                                                                



relatively certain default procedure, or try its entire case to a jury without first obtaining  

                                                                                                                       



a default.  

    



                    We hold that in this case it was an abuse of discretion to grant Haines's  

                                                                                                                        



application for default without giving effect to the express condition upon which the  

                                                                                                                                 



application was made. The superior court was not bound to accept the condition; it could  

                                                                                                                              



havedenied theconditional application for default and required theentirecaseto proceed  

                                                                                                                          



to trial.  But Haines should not have been deprived of a jury trial when he was expressly  

                                                                                                                       



attempting to preserve that right.  We therefore vacate the entry of default and remand  

                                                                                                                    



to the superior court for further proceedings.  

                                                  



          D.	       We Address Haines's Issues Regarding Damages And Attorney's Fees  

                                                                                                                               

                     For The Guidance Of The Superior Court On Remand.  

                                                                                                  



                    Haines will have the opportunity on remand to apply again for entry of  

                                                                                                                                  



default while preserving his right to a jury trial on damages.  If he chooses not to do so,  

                                                                                                                                 



or if the court denies his conditional application, the case will proceed to trial on liability  

                                                                                                                          



and damages and the discussion that follows will be largely irrelevant.  But if Haines  

                                                                                                                           



applies again for default and the court grants the conditional application, or if Haines  

                                                                                                                           



                                                               -21-	                                                         7163
  


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

decides to expressly waive the jury trial right, the fact-finder, whether court or jury, will                                                                                                            



be required to evaluate not only the evidence but also the allegations of the complaint in                                                                                                                   

                                                                                                                                                                             50     Because we  

order to determine what facts have been established by the pleadings.                                                                                                                                     



conclude that the effect of the default was not properly taken into account at the damages  

                                                                                                                                                                                             



hearing, we provide the following guidance for the court on remand if Witzleben is again  

                                                                                                                                                                                                     



defaulted.  

                          



                                 1.             Haines was entitled to noneconomic damages.  

                                                                                                                                                                         



                                The superior court did not award Haines any damages despite the entry of  

                                                                                                                                                                                                             



default against Witzleben.  It awarded no economic damages because Haines presented  

                                                                                                                                                                                           

no evidence of the value of the converted medication,51  and it awarded no noneconomic  

                                                                                                                                                                                 



damages because it found, based on witness testimony, that Witzleben's actions caused  

                                                                                                                                                                                                 



Verna no pain or anxiety beyond what she was suffering already.  But we conclude that  

                                                                                                                                                                                                         



the court's decision on noneconomic damages failed to account for the effect of the entry  

                                                                                                                                                                                                      



of default.  

                            



                                Entry of default "establishes the well pleaded allegations of the complaint  

                                                                                                                                                                                          



unless they are incapable of proof," "contrary to facts judicially noticed," or contrary to  

                                                                                                                                                                                                             

"uncontroverted evidence presented by the parties."52  While we have "allow[ed] the trial  

                                                                                                                                                                                                         



                50              See Valley Hosp.                             Ass'n v.               Bauneis,   141 P.3d                             726,   728   (Alaska   2006)  



("Generally speaking, '[i]f the court determines that defendant is in default, the factual                                                                                                       

allegations of the complaint, except those relating to the amount of damages, will be                                                                                                                       

taken as true." (quoting 10A C                                             HARLES  ALAN  WRIGHT ET AL                                             ., F   EDERAL  PRACTICE AND   

PROCEDURE  2688 (3d ed. 1998)));                                                     see also Pitts ex rel. Pitts v. Seneca Sports, Inc.                                                             , 321   

                               

F.  Supp. 2d 1353, 1356 (S.D. Ga. 2004) (discussing the effect of a default judgment on                                                                                                                     

subsequent findings of fact).                                          



                51              Hainesdoesnotchallengethesuperior court's ruling oneconomic damages.  

                                                                                                                                                                                                                    



                52              Syndoulos Lutheran Church v. A.R.C. Indus., Inc.,  662  P.2d  109, 112  

                                                                                                                                                    

                                                                                                                                                                                 (continued...)  



                                                                                                    -22-                                                                                              7163
  


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

court 'to question a defendant's liability after a default has been entered against him,' "                                                        53  



                                         

we have also held that  



                                                                                                                      

                        [p]laintiffs [in a default proceeding] do not have to prove  

                                                                                                                                 

                       questioned allegations by a preponderance of the evidence.  

                                                                                                                   

                       Rather, they need only submit enough evidence to put the  

                                                                                                                      

                       questioned   allegation   in   controversy.                                   If   faced   with  

                                                                                                                       

                       "conflicting but legitimate evidence on both sides, the court  

                                                                                                                           

                       is bound to enter judgment for the party in whose favor the  

                                                                     [54]  

                                                     

                       default has been entered." 



                       Haines's  complaint  alleged  that  Witzleben  "caused  [Verna]  physical  

                                                                                                                                        



injuries" and "harm[]." Testimony at trial supported these allegations. Verna's daughter  

                                                                                                                                        



Elizabeth testified that she believed her mother was experiencing pain and sleeping  

                                                                                                                                        



problems while in Witzleben's care because she was not receiving the medications she  

                                                                                                                                                  



was prescribed.  She also testified that her mother experienced "some" pain and anxiety  

                                                                                                                                           



even when not in Witzleben's care, and the court relied on this testimony to conclude  

                                                                                                                                       



that Witzleben's theft of the medication made no difference to Verna's symptoms.  But  

                                                                                                                                                 



Verna's other daughter and her son-in-law testified that there were times Verna suffered  

                                                                                                                                         



inexplicable pain while in Witzleben's care; that it was "a logical deduction" that this  

                                                                                                                                                 



was because she was not receiving her proper pain medication; that she also experienced  

                                                                                                                                  



sleeplessness and anxiety because she was not getting her prescribed diazepam; that  

                                                                                                                                                



these problems continued for several months while she was helpless to do anything about  

                                                                                                                                              



it; and that these problems contributed to a decline in her quality of life.  Haines had no  

                                                                                                                                                   



            52(...continued)  



                                                                                                                             

(Alaska 1983) (citing Thomson v. Wooster, 114 U.S. 104, 108 (1885)).  



            53  

                        Valley Hosp. Ass'n              , 141 P.3d at 728 (quoting                   Syndoulos Lutheran Church                        ,  

662 P.2d at 112).       



            54         Id. at 728-29 (quoting Syndoulos Lutheran Church, 662 P.2d at 112).  

                                                                                                                                        



                                                                        -23-                                                                  7163
  


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

burden to prove these facts by a particular quantum of evidence; he only needed to "put                                                            



                                                                              55  

the   questioned   allegation   in   controversy."                                                                                                

                                                                                     We  conclude  that  the  testimony  was  



                                                                                                                                       

sufficient for this purpose, and the court was required to accept as proven the allegations  



                                                                  

of causation and harm alleged in the complaint.  



                                                                                                                                            

                        Once  pain  and  suffering  are  proven,  it  is  error  not  to  award  general  

                 56     Although  "[s]uch  damages  are  often  difficult  to  estimate  with  any  

damages.                                                                                                                                          



confidence, . . . it is clear that a carefully considered estimate leads to a more just result  

                                                                                                                                                

than denying all recovery to the injured victim."57  

                                                                                            



                        2.	         The complaint establishes a sufficient basis for an  award of  

                                                                                                                                                      

                                    punitive damages.  

                                                     



                        Haines next argues that the superior erred in denying an award of punitive  

                                                                                                                                            



damagesbecausethewell pleaded allegationsofhis complaint establishedthat Witzleben  

                                                                                                                                        



acted "with malice or bad motives" and "in reckless indifference to the interest of another  

                                                                                                                                             

person."58  

                                                                                                                                        

                      Haines  is  not  necessarily  entitled  to  an  award  of  punitive  damages;  



                                                                                                                                         

AS 09.17.020 provides that "[t]he fact finder may make an award of punitive damages"  



                                                                                                                                        

(emphasis added), and we have affirmed that "[w]hether or not [punitive damages]  



                                                                                                    59  

                                                                                            

should be allowed is discretionary with the trier of fact." 



            55	        Id.    



            56          Grant v. Stoyer             , 10 P.3d 594, 598 (Alaska 2000);                               Martinez v. Bullock                  ,  



535 P.2d 1200, 1204-05 (Alaska 1975);                                 Walker v. Alaska Road Comm'n                             , 388 P.2d 406,       

407 (Alaska 1964).  

                                    



            57         Morrison v. State, 516 P.2d 402, 406 (Alaska 1973).  

                                                                                                          



            58          AS 09.17.020(b).  

                               



            59          Bridges v. Alaska Housing Auth. , 375 P.2d 696, 702 (Alaska 1962).  

                                                                                                                                     



                                                                         -24-	                                                                   7163
  


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

                                 We note, however, that it was error for the superior court to hold that it                                                                                                      



could award no punitive damages because it had awarded no compensatory damages.                                                                                                                                        



As explained above, Haines was entitled to an award of noneconomic damages after                                                                                                                         



entry of default because the court was bound to accept as true the complaint's well                                                                                                                      

                                                                        60       In  addition, punitive damages are available when a  

pleaded allegations of harm.                                                                                                                                                                                     



plaintiff proves "actual damages" or harm, even if the proof is not sufficient to warrant  

                                                                                                                                                                                                  

an award of compensatory damages.61                                                               Here, the well pleaded allegations of Haines's  

                                                                                                                                                                                               



complaint establish both "actual harm" and a credible basis for an award of punitive  

                                                                                                                                                                                                



damages.  



                                 Alaska Statute 09.17.020 allows an award of punitive damages "if the  

                                                                                                                                                                                                            



plaintiff proves by clear and convincing evidence that the defendant's conduct . . . was  

                                                                                                                                                                                                        



outrageous," malicious, "done with . . . bad motives," or "reckless[ly] indifferen[t] to the  

                                                                                                                                                                                                              



interest of another person."  The decision to award punitive damages therefore "turn[s]  

                                                                                                                                                                                                  

                                                                                                                                                                                    62       Here,  the  

on  the  wrongdoer's motive,  state of mind,  and degree of culpability."                                                                                                                                   

                                                                                                                                                     



superior court heard no testimony about Witzleben's motives. The complaint, however,  

                                                                                                                                                                                              



alleged  that  she  "converted  [Verna's]  jewelry,"  "converted  [Verna's]  prescription  

                                                                                                                                                                                      



medication," and "administered medication to [Verna] that [Verna's] physician had  

                                                                                                                                                                                                           



discontinued."  These allegations were not contested and should have been viewed as  

                                                                                                                                                                                                               



                 60               Valley Hosp. Ass'n                           , 141 P.3d at 728 (quoting 10A C                                              HARLES  ALAN  WRIGHT  



              ., FEDERAL PRACTICE AND PROCEDURE  2688 (3d ed. 1998)).                                                                                                We note, however,       

ET AL                                                                                                         

that the court did not have to accept as true allegations regarding the                                                                                                   amount  of actual  

or exemplary damages.                                      Id.  



                 61              Haskins v. Shelden, 558 P.2d 487, 493 (Alaska 1976) (quoting CHARLES  T.  

                                                                                                                                                                                        

      CCORMICK, DAMAGES   83, at 293 (1935)).                                               

M                                   



                 62  

                                Alyeska Pipeline Serv. Co. v. O'Kelley                                                          , 645 P.2d 767, 774 (Alaska 1982)                                     

(citing K. R                 EDDEN, P               UNITIVE  DAMAGES    4.2 (1980)).                             



                                                                                                     -25-                                                                                               7163
  


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

 proven   upon   entry   of   default.     They   reasonably   establish   Witzleben's   reckless  



 indifference to Verna's health, safety, and property interests and hence are a sufficient                                                                                                                                 



 basis for an award of punitive damages.                                                                             



                                       3.                 Haines was entitled to attorney's fees.                                                                              



                                       Haines sought an award of attorney's fees following the entry of final                                                                                                                             



judgment. Although the court identified Haines as the prevailing party, it concluded that                                                                                                                                                     



 he was not entitled to attorney's fees because he received no damages.                                                                                                                                  This conclusion   



 is likely to change if Haines succeeds in recovering a judgment on remand.                                                                                                                     



                                       The court also rejected Haines's reliance on AS 09.60.070 in support of his                                                                                                                              



 attorney's fees application.                                                   Under the statute, "a person who has been injured . . . may                                                                                            



 recover from the offender full reasonable attorney fees . . . if the injury . . . resulted from                                                                                                                                          

                                                                                          63      The statute includes within the definition of "serious  

 . . . a serious criminal offense."                                                                                                                                                                                             

 criminal offense" "assault in any degree."64  

                                                                                                                                                                                                                                               

                                                                                                                             The court concluded that Witzleben had not  



                                                                                                                                                                                                                                

 committed a"serious criminaloffense"within themeaningofAS09.60.070and declined  



                                                                                                                          

 to award Haines attorney's fees under the statute.  



                                                                                                                                                                                                                                                 

                                       Alaska Statute 11.41.230(a)(1) defines "assault in the fourth degree" as  

                                                                                                                                                                                    65           A  related  statute,  

                                                                                                                                                                                                                                 

 "recklessly  caus[ing]  physical  injury  to  another   person." 



 AS 11.81.900(b)(47), defines "physical injury" as "physical pain or an impairment of  

                                                                                                                                                                                                                                                  



 physical condition."  We conclude that the allegations of Haines's complaint fit these  

                                                                                                                                                                                                                                



 statutory definitions.   The complaint alleged that Witzleben caused Verna "physical  

                                                                                                                                                                                                                            



                    63                 AS  09.60.070(a).  



                    64                 AS  09.60.070(c)(4).  



                    65  

                                       We  previously  held  that  "recklessly"  describes  a  state  of  mind  in  which  "[a]  

 person  is  aware  of  and  consciously  disregards  a  substantial  and  unjustifiable  risk  that  the  

 result will  occur  or  that  the  circumstance  exists."  Johnson  v.  State,  224  P.3d   105,   108  

 (Alaska  2010)  (quoting  AS   11.81.900(a)(3)).  



                                                                                                                       -26-                                                                                                               7163
  


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

 injuries" and "harm[]."                                                                             The testimony at trial generally supported these allegations.                                                                                                                                                                                                      



 Witnesses testified that Verna appeared to be in pain due in part to the fact that "she                                                                                                                                                                                                                                                        



 wasn't being administered the pain medication she was supposed to be."                                                                                                                                                                                                                                            And as we                           



 concluded above, Witzleben acted recklessly.                                                                                                                                                   By depriving Verna of her medication                                                                                 



 Witzleben disregarded a substantial and unjustifiable risk that Verna would suffer as a                                                                                                                                                                                                                                                                       



 result.   



                                                        Because Haines's well pleaded allegations satisfy the elements of assault   



 in the fourth degree, we hold that it was error not to award attorney's fees to Haines                                                                                                                                                                                                                                               

 under AS 09.60.070.                                                                   66  



 V.                          CONCLUSION  



                                                        We VACATE the superior court's entry of default and default judgment  

                                                                                                                                                                                                                                                                                                                            



 against Witzleben and REMAND for further proceedings consistent with this opinion.  

                                                                                                                                                                                                                                                                                                                                                                        



 Subject to our discussion of damages and attorney's fees, we otherwise AFFIRM the  

                                                                                                                                                                                                                                                                                                                                                      



 decisions of the superior court.  

                                                                                                        



                            66                          Haines finally contends that the superior court erred when it entered a                                                                                                                                                                                                                               



 satisfaction   of   judgment   for   Comfort   Keepers   without   first   having   entered  a   final  

judgment.   Haines does not dispute that Comfort Keepers had in fact paid the amount it                                                                                                                                                                                                                                                                       

 had offered to pay in its Rule 68 offer of judgment; he does not say how any alleged                                                                                                                                                                                                                              

 error prejudiced him or what further relief he could receive if we reversed on this issue.                                                                                                                                                                                                                                                                             

 It is clearly moot.                                                       Clark v. State, Dep't of Corr.                                                                                             , 156 P.3d 384, 387 (Alaska 2007) ("A                                                                                                         

 claim is moot where                                                                       a   decision on the issue is no longer relevant to resolving the                                                                                                                                                                                          

 litigation, or where it has lost its character as a 'present, live controversy,' that is, where                                                                                                                                                                                                                                          

 a   party   bringing   the   action   would  not   be   entitled   to   any   relief   even   if   he   or   she  

 prevailed."   (first   quoting   Municipality   of   Anchorage   v.   Baxley,   946   P.2d   894,   899  

 (Alaska App. 1997); then citing                                                                                                     Maynard v. State Farm Mut. Auto. Ins. Co.                                                                                                                                            , 902 P.2d            

  1328, 1329 n.2 (Alaska 1995))).                                                                   



                                                                                                                                                                          -27-                                                                                                                                                                  7163
  

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