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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. DeNardo v. Corneloup (07/13/2007) sp-6140
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| DANIEL DeNARDO, | ) |
| ) Supreme Court No. S- 11703 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-02-8023 CI | |
| v. | ) |
| ) O P I N I O N | |
| PAT CORNELOUP, and THE | ) |
| FOREMANS PROPERTIES | ) No. 6140 - July 13, 2007 |
| PARTNERSHIP, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: Daniel DeNardo, pro se,
Anchorage. Peter J. Maassen, Ingaldson,
Maassen & Fitzgerald, P.C., Anchorage, for
the Foremans Properties. No appearance by
Pat Corneloup.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Daniel DeNardo sued his landlord and his neighboring
tenant alleging that cigarette smoke emanating from the neighbors
apartment was making DeNardo ill. The superior court ultimately
rejected all of DeNardos claims.
We affirm. There was no error in dismissing DeNardos
claims of negligence and breach of the covenant of habitability
after he voluntarily moved for dismissal of those claims and
failed to preserve them in the superior court. There was no
error in rejecting his claim that the landlord breached the
covenant of quiet enjoyment, because there was no evidence the
landlord substantially disturbed his use of the land. There was
no error in rejecting his battery claim, because there was no
contention that either defendant deliberately caused smoke to
contact him. There was no error in rejecting his trespass and
nuisance claims, because the arguments DeNardo makes here for
imposing a duty on the tenant to refrain from smoking are
unpersuasive, because he has not established that the landlord
should be liable in trespass for tenant conduct it cannot
control, and because he has not established that cigarette
smoking by a tenant is ultrahazardous activity. We also affirm
the grant of summary judgment on DeNardos claim of retaliatory
eviction, because we conclude that he has not established that
his failure to pay his rent in full was excused. He was
therefore in default in rent per AS 34.03.310(c)(1) and
ineligible to claim retaliatory eviction.
Finally, we detect no hint of bias, prejudice, or
unfairness in the superior courts rulings and therefore reject
DeNardos appellate contention that the judge should have been
disqualified.
II. FACTS AND PROCEEDINGS
In 1991 Daniel DeNardo began renting an Anchorage
apartment from the Foremans Properties, a partnership of five
members of the Foreman family. We sometimes refer to it as the
landlord. The rental term was month-to-month, and rent was $385
throughout the rental period.
In March 2002 Pat Corneloup moved into the apartment
next to DeNardos in the Foremans Propertiess building. During
the spring of 2002 Corneloup smoked cigarettes in his apartment.
The lease did not restrict smoking in the Foremans Properties
apartments. DeNardo asserted that he complained to Corneloup
that smoke could be smelled in adjoining apartments. He also
asserted that he complained to Helen Foreman in March 2002,
although she denied this assertion under oath. One other
resident also complained to Corneloup that she smelled smoke
every now and again. This other resident later testified that
the situation cleared up after she complained to Corneloup, and
that she never complained to the landlord.
On June 7, 2002 DeNardo filed suit against Corneloup
for battery, negligence and trespass as a result of cigarette
smoke invad[ing] his property. Corneloup was the only defendant.
The complaint did not name the Foremans Properties or any
individual partners as defendants.
As of June 12 DeNardo owed his landlord $677.73 for May
and June rent; on June 12 he tendered a rent payment of $185,
leaving him $492.73 in arrears. Later that day the Foremans
Properties served DeNardo with an eviction notice. Relying on a
superior court affidavit signed by Helen Foreman, the Foremans
Properties contended below and argues here that it had no
knowledge until June 13 that DeNardo had filed suit against
Corneloup. DeNardo asserts that the Foremans Properties had
notice of the lawsuit as early as June 8, and that the eviction
notice was retaliatory.
On June 20 DeNardo amended his complaint to name the
Foremans Properties Partnership and its individual partners as
additional defendants. He later testified in the eviction
proceeding that at the same time he sued the landlord, he gave
written notice that he was withholding rent because Corneloups
smoking made the apartment uninhabitable. The Foremans
Propertiess brief of appellee asserts that the individual
partners were never served with a summons or complaint. Although
the record contains copies of supplemental summonses issued by
the superior court for Penny, Helen, Oliver, Reed, and David
Foreman, it contains no return of service for any of them.
Because DeNardos reply brief does not argue that the individual
Foremans were served, we assume that they were not. As a result,
the only defendants before the superior court were Corneloup and
the Foremans Properties.
On June 24 the landlord served DeNardo with a Forcible
Entry and Detainer (FED) summons and complaint seeking his
eviction. In opposing the attempt to evict him, DeNardo
successfully argued that he should not be evicted while his
eviction appeal was pending; both he and Corneloup therefore
continued to reside in their apartments. DeNardo asserted that
he suffered from anxiety, nausea, headaches, dizziness,
sleeplessness, and general ill feeling in addition to humiliation
and distress caused by exposure to secondhand smoke. DeNardo was
never medically evaluated for these alleged ill effects, and he
admitted that no medical records exist associated with the claims
in this case.
DeNardo proceeded pro se in his lawsuit against
Corneloup and the landlord and claimed: (1) breach of the
covenant of quiet enjoyment, (2) breach of the covenant of
habitability, (3) negligence, (4) trespass, (5) battery, (6)
nuisance, and (7) retaliatory eviction. The superior court
dismissed all claims against Corneloup and granted summary
judgment to the landlord on all claims except breach of the
covenant of habitability and negligence.
DeNardo moved for reconsideration, and also argued that
dismissing some but not all of the causes of action was logically
inconsistent; he therefore move[d] the court for an entry of
judgment for defendants on all counts as the logical result of
the summary opinion. The Foremans Properties joined DeNardos
motion for entry of a judgment dismissing those remaining claims.
The superior court granted DeNardos motion and issued a final
judgment dismissing the case, thus effectively dismissing all
remaining causes of action, including the claim for breach of the
covenant of habitability and the claim of negligence.
During litigation DeNardo moved for recusal for cause
of the assigned judge, Superior Court Judge Sharon L. Gleason.
DeNardo had filed two lawsuits against Judge Gleason in which he
accused her of, among other things, not being fair and objective.
Judge Gleason declined to disqualify herself. Superior Court
Judge Eric Smith was then assigned to consider whether Judge
Gleason should be disqualified; his order denying DeNardos
disqualification motion found no sign of either incompetence or
bias. To the contrary, the file reveals a careful and impartial
consideration of the relevant law and facts on the part of Judge
Gleason.
DeNardo appeals pro se.1
III. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo to
determine whether a genuine issue of material fact exists and
whether the moving party was entitled to judgment as a matter of
law, drawing all reasonable factual inferences in favor of the
party against whom judgment was entered.2
Decisions on motions for disqualification are reviewed
for abuse of discretion.3
B. DeNardo Waived His Claims of Breach of the Covenant of
Habitability and Negligence.
Because DeNardo asked the superior court to dismiss his
claims of breach of the covenant of habitability and negligence,
he is precluded from asserting that it was error to dismiss those
claims or that he should be allowed to pursue them on remand.
DeNardo seems to argue that it would be a waste of judicial
resources to require plaintiffs to continue to litigate suits
they know they will lose. Some jurisdictions permit a party to
consent to entry of an adverse judgment to facilitate an appeal.
The California Supreme Court has held that [i]f consent [to an
adverse judgment] was merely given to facilitate an appeal
following adverse determination of a critical issue, the party
will not lose his right to be heard on appeal.4 But this view is
held in a minority of American jurisdictions.5 In Alaska we
recognize a Cooksey plea by which a criminal defendant does not
contest conviction conditioned upon the right to appeal on a
reserved issue.6
We have never recognized a civil analogy to a Cooksey
plea or held that entry of a consent judgment to facilitate an
appeal would permit such an appeal. But even if we had, we would
not apply those procedures here. DeNardo did not consent to
judgment while preserving an issue; he moved to dismiss without
reservation. He apparently thought that his habitability and
negligence claims against the landlord were doomed without his
battery, trespass, and nuisance claims. But those claims were
distinct from his claims that the landlord failed to provide a
habitable residence or was negligent. DeNardo should have
proceeded to trial on the habitability and negligence claims if
he wanted to litigate or preserve them; upon entry of a final
judgment after trial he could have appealed, or cross-appealed,
any adverse final or interlocutory rulings. Because DeNardo
instead asked the court to dismiss his habitability and
negligence claims and did not attempt to preserve them, he may
not appeal from the order granting his own motion.
C. Breach of the Covenant of Quiet Enjoyment
DeNardo argues that because cigarette smoke entered his
apartment,7 the landlord breached the covenant of quiet
enjoyment. In Alaska, the covenant of quiet enjoyment is
breached if the lessees enjoyment of the leased land is disturbed
in a substantial manner either by the lessor or by the owner of a
title paramount.8 Because DeNardo did not offer facts sufficient
to prove that his landlord substantially disturbed his use of
the land, it was not error to dismiss this cause of action.
D. Battery
DeNardo next argues that because smoke contacted him
there was a battery and that it was therefore error to dismiss
his battery claim. A person commits the tort of battery when the
actor intends to cause harmful or offensive contact with another;
one need not intend injury but must intend to cause contact.9
Blowing tobacco smoke in someones face has been held to be
harmful or offensive contact in other states, and DeNardo cites
Leichtman v. WLW Jacor Communications, Inc., in which the
defendant intentionally blew cigar smoke in [the plaintiffs]
face.10
DeNardo does not contend that anyone intentionally blew
smoke into his apartment or intended that the smoke contact him.
He argues that the entry of smoke into his apartment should be
deemed intentional because of the special relationship between
landlord and tenant. DeNardo appears to base this theory on a
misreading of a case in which the battery of an employee (who
intentionally smoked his pipe around [defendant] in order to harm
her) was held potentially imputable to the employer for knowingly
acquiescing in a battery.11 But DeNardo has not alleged
deliberate contact. There was consequently no battery.
E. Trespass and Nuisance
DeNardo next advances related theories of negligent
trespass and nuisance against Corneloup and the Foremans
Properties. Because a landlord cannot be liable for trespass
based on actions of a tenant over whom the landlord has no
control, DeNardos trespass claim against the Foremans Properties
fails.12
Corneloup did not commit negligent trespass or create a
nuisance unless he violated a duty of care.13 The superior court
ruled that one tenant in an apartment does not owe a duty to
another tenant to refrain from cigarette smoking. Whether there
is a duty of care is a legal question which we review de novo.14
One state has enacted a statute declaring that smoke
passing between residences is a nuisance,15 but there is no
corresponding Alaska statute or Anchorage ordinance and there is
no recognized common law obligation in Alaska to ensure that ones
cigarette smoke does not drift into other residences. DeNardo
does not cite, nor have we found, any American precedent holding
that one tenant owes other tenants a duty to refrain from smoking
absent either a provision in the rental agreement or a statute or
municipal ordinance prohibiting smoking or declaring smoke a
nuisance in a multi-party residence.16
DeNardo points out that AS 18.35.300, which bans
smoking in some public places, states that [s]moking in any form
is a nuisance and a public health hazard. But we do not read
this language as making smoking a per se private nuisance.
Alaska Statute 18.35.305 prohibits smoking in schools, but
exempts private residences located in the same building as a
school. This implies that smoking in a private residence will
not necessarily be a nuisance as to other residents. It also
implies that the legislature did not intend to prohibit smoking
in private residences. We conclude that an action for private
nuisance based on the facts alleged by DeNardo must still be
proved under ordinary legal principles governing nuisance.
We have adopted a multi-factor test the so-called
D.S.W. factors to determine whether there is an actionable duty
of care if no duty arises from recognized common law principles
or from such sources as statutes.17 But DeNardo has not briefed
the D.S.W. factors as such and has only touched on them. Absent
briefing on the issue we are unwilling to consider here whether
these factors might give rise to a novel duty of care requiring
tenants to avoid exposing co-tenants to ordinary levels of
cigarette smoke resulting from personal use of cigarettes. No
other court has ever found such a duty of care so far as we know,
and we decline to create one in this case based on the briefing
before us.
DeNardo alternatively contends that there was a
trespass because cigarette smoking is an ultrahazardous activity.
Trespass resulting from an ultrahazardous activity results in
strict liability.18 DeNardos original complaint did not plead
ultrahazardous activity, but he discussed it at the summary
judgment oral argument, so we choose to treat the issue as
preserved for appeal.
We have held that an activity or thing can only be
ultrahazardous if it is not a matter of common usage19 and
necessarily involves a risk of serious harm . . . which cannot be
eliminated by the exercise of utmost care.20 Smoking of the sort
alleged here does not satisfy that standard. Smoking is a matter
of common usage. Exposure to the limited amount of secondhand
smoke emanating from a private apartment does not necessarily
involve a risk of serious harm. Even without taking any
extraordinary precautions, smokers can limit their smoking to
places where non-smokers will be exposed to little or no smoke.
Alaska Statute 18.35.305(1), which prohibits smoking in some
public places, by its own terms does not apply to a designated
smoking area that is properly ventilated. Because the danger
from secondhand smoke can be eliminated by the exercise of a
modicum of care, the proper legal standard applicable in such
cases is negligence, not the strict liability that attaches to
ultrahazardous conduct.21
The Foremans Properties does not deny that secondhand
smoke can be a health hazard, but denies that either smoking
cigarettes or renting an apartment infiltrated by secondhand
smoke is ultrahazardous activity. We observe that the hazard
posed by secondhand cigarette smoke differs from the hazard posed
by typical ultrahazardous activities, such as blasting or
fumigation with cyanide gas.22 Even a brief exposure to blasting
or cyanide gas may cause serious injury or instant death. No
other court has found that exposing another to second-hand smoke
is an ultrahazardous activity. We do not need to consider here
what long-term harm might result from frequent and extended
exposure to secondhand smoke. In any event, the sorts of harms
alleged in this case (such as nausea and ill feeling) are not
akin to serious injury or death.
In short, DeNardos arguments in this case do not
convince us that smoking cigarettes in an apartment is
ultrahazardous activity in Alaska even though it generates
secondhand smoke. His arguments in this case likewise do not
convince us that renting an apartment into which secondhand smoke
migrates is ultrahazardous activity.
We therefore hold that it was not error to dismiss the
trespass and nuisance claims on summary judgment.
F. Retaliatory Eviction Claim
DeNardo asserted a retaliatory eviction claim against
his landlord on the theory it evicted him for engaging in conduct
complaining about Corneloups smoking and suing Corneloup and the
landlord protected by the Uniform Residential Landlord and
Tenant Act (URLTA).23 He argues that he should be allowed to
proceed with that claim on remand.24
The landlord urges us to affirm the summary judgment
rejecting DeNardos retaliatory eviction claim, and contends that
it lawfully evicted DeNardo because he failed to pay rent.
Retaliatory eviction is prohibited by AS 34.03.310.
That statute is part of the URLTA,25 which is to be liberally
construed and applied to promote its underlying purposes and
policies.26 Per AS 34.03.310(a), a residential landlord may not
retaliate against a tenant for engaging in conduct protected by
the URLTA. Subsection .310(a) describes retaliation as
increasing rent or decreasing services or . . . bringing or
threatening to bring an action for possession. Tenant conduct
specifically protected by subsection .310(a) from retaliation
includes complaining to landlords about AS 34.03.100 violations,
seeking enforcement of URLTA rights and remedies, organizing or
joining a tenants union or similar organization, and complaining
to a governmental agency that enforces housing, wage, price, or
rent controls.27
Subsection .310(c)(1)(7) sets out seven specific
circumstances in which landlords, notwithstanding subsections
.310(a) and (b), may bring actions for possession.28 Relevant to
this case, subsection .310(c)(1) permits an action for
possession if the tenant is in default in rent.29 Thus, if the
tenant is in default in rent, subsection .310(c)(1) permits a
landlord to seek possession even if the tenant has engaged in
conduct otherwise protected by subsection .310(a).
The superior court granted the landlord summary
judgment on DeNardos retaliatory eviction claim because it
concluded that retaliatory eviction is only a defense and does
not confer a right or remedy to the tenant. This conclusion is
not entirely correct. Certainly tenants who are victims of
retaliation have, by statute, a defense in an action for
possession.30 But subsection .310(b) also gives them the remedies
provided in AS 34.03.210: tenants subjected to retaliation may
terminate the lease, sue for possession, and recover up to one
and one-half times any actual damages.31
Even though it was incorrect to conclude that
retaliatory eviction may not be the basis for an affirmative
remedy, we may still affirm the superior courts summary judgment
grant if an alternative ground to do so exists.32 The landlord
argues that it was entitled to evict DeNardo because, it claims,
DeNardo was indisputably in default in rent. If DeNardo was in
default in rent, the landlord could seek possession regardless of
whether DeNardo engaged in protected conduct.
DeNardos appellate briefs seem to imply, but do not
expressly contend, that there is a genuine factual dispute that
precludes summary judgment for the landlord on his retaliation
claim. DeNardo is pro se, so we judge his performance by a less
demanding standard.33 By arguing that the Foremans Properties
retaliated against him for engaging in protected conduct and by
requesting a remand for a jury trial, DeNardo has made it
sufficiently clear that he believes there is a genuine factual
dispute about whether he was in default in rent.
The phrase in default in rent is not defined by statute
or case law in Alaska. We assume here that it means that the
tenant is not current on rent, i.e., has not paid the full amount
due on the due date, and has no legally cognizable excuse for not
being current. On June 12, 2002, when DeNardo was given notice
to quit, he owed $492.73 in rent. On June 24, when he was served
with the FED summons and complaint, he still owed at least that
amount. Thus, unless there is a genuine factual dispute about
whether DeNardo was excused from having to pay the full amount of
his rent, he was in default in rent.
DeNardo advances two theories why he was not in default
in rent, i.e., why he was excused from having to pay the full
amount of rent due. First he asserts that he was entitled to
withhold rent because secondhand smoke rendered the apartment not
habitable. Second, he asserts in his reply brief that he had an
oral agreement with Helen Foreman that allowed him to delay
paying his rent.
The viability of his first theory turns on statutory
interpretation, and requires us to determine whether DeNardo had
a right to withhold rent under the circumstances alleged here.
1. Rent withholding
The URLTA gives tenants the self-help remedy of rent
withholding in specific, limited circumstances. The most
prominent example is found in AS 34.03.180. If a landlord
deliberately or negligently fails to provide an essential
service, AS 34.03.180(a) authorizes the tenant to withhold rent
and use the withheld rent to obtain those services or substitute
housing.34 But the tenants rights under subsection .180(a) do not
arise . . . until the tenant has given written notice to the
landlord.35 DeNardo does not rely on section .180, and he does
not claim that he used withheld rent to obtain replacement
services or substitute housing.
The URLTA also excuses tenants from paying rent or
permits them to reduce rent payments for various reasons
associated with a landlords failure to deliver possession or with
a termination at the tenants option, or upon constructive total
or partial eviction following fire or casualty. Thus, per AS
34.03.160(a), if the landlord fails to materially comply with the
rental agreement or AS 34.03.100 in a way that materially affects
health and safety, the tenant may choose to terminate the rental
agreement, but only after giving written notice.36 Per AS
34.03.170, if the landlord at commencement of the term fails to
deliver possession to the tenant, rent abates until possession is
delivered.37 Per AS 34.03.200(b), the tenant may, after giving
notice, terminate the lease if the premises are damaged or
destroyed by fire or casualty. But these provisions do not
expressly or impliedly allow a tenant in possession to withhold
rent and several contemplate or require prior written notice.
Alaska Statute 34.03.200(a)(2) is an exception. Per
that subsection, if the premises are so damaged by fire or
casualty that enjoyment of the dwelling unit is substantially
impaired but continued occupancy of part of the unit is lawful,
the tenants rent is proportionally reduced by the diminution in
the units rental value as of the date of the casualty. That
subsection arguably allows a tenant in possession to reduce the
rent without giving prior written notice, but there seems to be
little danger in that circumstance that the landlord would not
have ample prior notice of the event that proportionally excuses
rent.
DeNardo generally asserts that he made an oral
habitability complaint under AS 34.03.100 on March 8 and that the
landlord retaliated against him for making that complaint.
Alaska Statute 34.03.160(b) allows a tenant to recover damages
and injunctive relief for a landlords noncompliance with section
.100.38 But those remedies do not include the self-help remedy of
rent withholding, even though they may result in the tenant
defeating a possession claim or obtaining compensatory damages.
The only URLTA provision that expressly addresses rent
withholding, section .180, requires prior written notice.
There is no dispute that DeNardo did not, before he was
given the notice to quit, give his landlord prior written notice
that there was any defect or condition that affected the
apartments habitability. It is also undisputed that he gave his
landlord no prior notice, oral or written, that he was
withholding rent for any purpose.
DeNardo contends on appeal that he gave the landlord
prior oral notice of secondhand smoke before he was given the
quit notice and before he was served with the FED summons and
complaint. We assume, for purposes of reviewing the summary
judgment, that he did so. We must therefore decide whether prior
oral notice would suffice to excuse a tenant from being in
default in rent for purposes of section .310 if the tenant claims
that defects or conditions render his apartment uninhabitable.
No provision in the URLTA states that prior oral notice
is sufficient to allow the tenant to exercise the self-help
remedy of rent withholding. As noted above, the only passage in
the URLTA that allows rent reduction without written notice is
for a tenant who remains in possession after fire or casualty
damage.39 The only URLTA section specifically permitting rent
withholding is AS 34.03.180(a), and per AS 34.03.180(c),
subsection .180(a) relief requires prior written notice. We
think it is significant that the legislature chose to require the
tenant to provide the landlord prior written notice of its
failure to provide essential services before the tenant is
entitled to relief under AS 34.03.180.
Based on the briefing in this case, we are unwilling to
conclude that oral notice of infiltration of secondhand cigarette
smoke from a neighbors apartment is sufficient to excuse a tenant
from being in default in rent for the purposes of subsection
.310(c). As we have seen, the URLTA only grants the remedy of
rent withholding for a tenant in possession in limited
circumstances, and then only after prior written notice.40 We are
reluctant to read URLTA more expansively absent more
comprehensive briefing on the respective rights of landlords and
tenants.
Moreover, DeNardo only contends that he gave oral
notice that the premises were uninhabitable, not that he gave
notice that he was withholding rent as a result of the alleged
uninhabitability. We decline here, on the basis of the briefing
in this case, to hold that a landlord may be liable for damages
on a retaliatory eviction claim if the tenant gives the landlord
no notice that rent is being withheld as a result of the
premisess condition.
Potentially distinguishable from the section .310
rights and remedies are the rights and remedies provided tenants
by AS 34.03.190(a). Under that provision, a tenant responding in
a landlords action for possession based on nonpayment of rent may
counterclaim for amounts recoverable under the rental agreement
or the URLTA, and a court may order the rent reduced to reflect
the units diminution in value during the period of noncompliance.41
Those are not self-help remedies. The URLTA appears to
distinguish between a claim of retaliatory eviction under section
.310 (which gives a tenant section .210 enhanced remedies beyond
possession) and a counterclaim under section .190. The latter
section permits the tenant to counterclaim for any amount under
the rental agreement or the URLTA and to offset this counterclaim
against rent owed. That section also permits the court to award
possession to the tenant if the tenant pays back rent into the
court such that he or she is no longer in arrears. We are
reluctant based on the briefing in this case to expose a landlord
to the enhanced remedies of section .210 on a retaliatory
eviction claim simply for evicting a tenant who was undisputedly
not current on rent, absent notice that the tenant has a
statutory right to reduced rent (e.g., per subsection .200(a)(2))
or is entitled to reduced rent if the tenant makes repairs or
obtains substitute housing (e.g., per subsection .180(a)).
In short, we decline in this case to interpret the term
in default in rent to contain an exception for a tenant who,
without giving prior written notice, withholds rent because he is
bothered by migration of a neighbors secondhand cigarette smoke.
2. Oral agreement
DeNardo asserts in his reply brief that he and Helen
Foreman had an oral agreement regarding payment of back rent. He
did not advance this contention in his opening appellate brief.
In his superior court motion for reconsideration, he argued that
he had an oral contract with Helen Foreman that gave him until
September of 2002 to pay the back rent he owed, but he later
waived that contention in the lower court. We assume that a
tenant who, by agreement with his landlord, is excused from
paying rent would not be in default in rent. But because DeNardo
waived the issue below and did not raise the issue on appeal
until his reply brief, it is waived for the purposes of appeal.
We therefore affirm the summary judgment on his
retaliatory eviction claim.
G. Damages
DeNardo challenges a superior court ruling that limited
his damages to the period between March 2002 and June 2002. The
superior court reasoned that because the tenancy was month-to-
month, and the landlord was entitled to evict DeNardo in June
2002 for nonpayment of rent, DeNardo was not entitled to damages
after the landlord began trying to evict him in June 2002.
We affirm because we have affirmed the dismissal of all
of DeNardos liability claims, including his retaliatory eviction
claim, and because DeNardos waiver of his habitability claim had
the effect of waiving any claim for any additional damages
resulting from the allegedly uninhabitable apartment.
H. Judicial Disqualification
DeNardo argues that Judge Gleason should have been
disqualified. He advances various reasons. He cites a discovery
ruling in which the court declined to require the Foremans
Properties to provide DeNardo with the home address of a witness.
But DeNardo was provided with the information about the witnesss
workplace, allowing DeNardo to contact the witness. DeNardo also
argues that Judge Gleason failed to cite precedent for her
rulings. Trial judges are not obliged to cite authority in their
rulings, especially procedural rulings, and our review of the
record in this case does not reveal any deficiency on the part of
Judge Gleason to cite precedent where appropriate.
Shortly before appellate oral argument DeNardo asked to
supplement the record with a partial transcript of the October 8,
2002 hearing before Judge Gleason, on the theory it would reveal
partiality. He asserted that the transcript would show that
Judge Gleason had sua sponte broached the subject how to
terminate DeNardos tenancy and had given the Foremans Properties
advice on how to proceed with its suit. The transcript reflects
that the attorney for the Foremans Properties, without any
suggestion from the court, asked the court to clarify whether the
courts stay of the FED action would preclude eviction for reasons
other than nonpayment. DeNardo was then given an opportunity to
respond, and Judge Gleason declared that this order was not
intended to foreclose for all time either party from seeking
whatever remedies are available . . . under the Landlord/Tenant
Code. The transcript does not reveal any improper action or bias
on the part of Judge Gleason.
Statutory reasons for disqualification are set out in
AS 22.20.020(a). The statute includes a general provision
requiring disqualification if for any reason, a fair and
impartial decision cannot be given. Judges should recuse
themselves if there is the appearance of bias, but [b]y
themselves, interpretations of the law are not sufficient to
demonstrate the existence of bias.42 We have recognized that
[d]isqualification was never intended to enable a discontented
litigant to oust a judge because of adverse rulings made. 43
The record reveals no basis for claiming an appearance
of bias or conflict of interest. Judge Gleason was more than
fair to DeNardo. Judge Gleason granted a number of DeNardos
motions that she could have reasonably denied at her discretion.
Superior Court Judge Eric Smith, who reviewed the
disqualification decision in 2003, found that a review of the
actions of Judge Gleason reveals a careful and impartial
consideration of the relevant law and facts. We agree with the
assessment.
DeNardo made a number of remarkably inappropriate
personal attacks on Judge Gleason. For example, he accused her
of having a Satanically possessed mind and a self-destructive
compulsive disorder. DeNardo also filed two civil suits against
Judge Gleason accusing her of a variety of alleged abuses.
Unfounded personal attacks of this sort against a jurist detract
from a clear discussion of the merits of a case. Unsupported
personal attacks on a jurist only distract the reviewing court
from potentially meritorious issues. The record here totally
fails to support any notion that Judge Gleason did not treat
DeNardo fairly and impartially in this matter. His appellate
arguments to the contrary are completely unsupported by the
record.
IV. CONCLUSION
Because DeNardo has waived his right to appeal the
habitability and negligence claims, and because the superior
court properly granted summary judgment to the defendants on all
other causes of action, we AFFIRM the superior courts judgment.
_______________________________
1 Corneloup has not entered an appearance on appeal.
Although the appellate caption used during briefing lists the
individual Foremans Properties partners as appellees, it appears
that they were never served and never appeared in the superior
court. The individual Foremans Properties partners therefore are
not properly appellees and are not listed in our caption.
2 Hammond v. State, Dept of Transp. & Pub. Facilities,
107 P.3d 871, 874 (Alaska 2005).
3 Hanson v. Hanson, 36 P.3d 1181, 1183 (Alaska 2001).
4 Bldg. Indus. Assn v. City of Camarillo, 718 P.2d 68, 71
(Cal. 1986).
5 See 4 Am. Jur. 2d, Appellate Review 175 (1997).
6 Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
7 For purposes of this discussion, we assume that
DeNardos factual allegations are true.
8 Berrey v. Jeffcoat, 785 P.2d 20, 23 (Alaska 1990)
(involving commercial lease).
9 Taylor v. Johnston, 985 P.2d 460, 464 (Alaska 1999);
Restatement (Second) of Torts 13 (1965).
10 Leichtman v. WLW Jacor Commcns, Inc., 634 N.E.2d 697,
699 (Ohio 1994). Other cases of battery cited by DeNardo
regarding smoke involved intentional contact. DeNardo cites
passages from three federal cases to support his argument that
mere exposure to smoke is a battery. See Serv. Employees Intl
Union Health & Welfare Fund v. Philip Morris Inc., 83 F. Supp. 2d
70, 92 (D.D.C. 1999), revd in part on other grounds, 249 F.3d
1068 (D.C. Cir. 2001); Barnes v. Am. Tobacco Co., 984 F. Supp.
842, 869 (E.D. Pa. 1997), affd, 161 F.3d 127 (3d Cir. 1998); Shaw
v. Brown & Williamson Tobacco Co., 973 F. Supp. 539 (D. Md.
1997). They are not on point or they actually contradict his
position.
11 Richardson v. Hennly, 434 S.E.2d 772, 775, 777 (Ga.
App. 1993), revd on other grounds, 444 S.E.2d 317 (Ga. 1994).
12 Parks Hiway Enters. v. CEM Leasing, Inc., 995 P.2d 657,
664 (Alaska 2000) (noting that ownership or control of the
intruding instrumentality is required to be liable for trespass).
13 Negligence requires duty, breach, causation, and harm.
Id.; see also Pruitt v. Douglas County, 66 P.3d 1111, 1115 (Wash.
App. Div. 3 2003) (noting that negligent trespass requires duty,
breach, injury, and proximate cause). Nuisance also requires a
breach of a duty. 58 Am. Jur. 2d, Nuisance 9 (2002).
14 See Schumacher v. City & Borough of Yakutat, 946 P.2d
1255, 1256 n.1 (Alaska 1997) (the existence and extent of a duty
to act is a question of law).
15 Utah Code Ann. 78-38-1(3) (2006) provides that [a]
nuisance under this section includes tobacco smoke that drifts
into any residential unit a person rents, leases, or owns, from
another residential or commercial unit.
16 The most comprehensive article on this issue (David P.
Ezra, Get Your Ashes Out of My Living Room!: Controlling Tobacco
Smoke in Multi-Unit Residential Housing, 54 Rutgers L. Rev. 135
(2001)) discusses theories of how cigarette smoke could qualify
as a nuisance but cites no cases so holding. The cases cited
discussing smoke nuisances involved wood-burning stoves or
garbage incineration. Id. at 156-59. DeNardo cites Dworkin v.
Paley, 638 N.E.2d 636 (Ohio App. 1994), but that case involved a
suit by a tenant to nullify his lease based on a claim of
uninhabitability. The suit was not against a co-tenant and the
plaintiff did not claim damages.
17 D.S.W. v. Fairbanks N. Star Borough Sch. Dist., 628
P.2d 554, 555 (Alaska 1981).
18 Parks, 995 P.2d at 665. Whether an activity is
ultrahazardous is a legal question; whether there was damage is a
factual question. Id.
19 State Farm Fire & Cas. Co. v. Municipality of
Anchorage, 788 P.2d 726, 729 (Alaska 1990) (quoting Restatement
of Torts 520 (1939)) (holding operation of water lines not
ultrahazardous because such systems are common indeed).
20 Parks, 995 P.2d at 665 (holding that gasoline storage
is not ultrahazardous).
21 The baseline common law regime of tort liability is
negligence. When it is a workable regime, because the hazards of
an activity can be avoided by being careful (which is to say,
nonnegligent), there is no need to switch to strict liability.
Ind. Harbor Belt R.R. Co. v. Am. Cyanamid Co., 916 F.2d 1174,
1177 (7th Cir. 1990).
22 See Yukon Equip., Inc. v. Firemans Fund Ins. Co., 585
P.2d 1206, 1211 (Alaska 1978) (rejecting Restatement approach to
ultrahazardous activity and holding instead that storage or use
of explosives leads to absolute liability); Luthringer v. Moore,
190 P.2d 1, 8 (Cal. 1948) (holding fumigation with cyanide gas to
be ultrahazardous); Williams v. Amoco Prod. Co., 734 P.2d 1113,
1123 (Kan. 1987) (holding that although natural gas is both
poisonous and highly flammable, operating natural gas well is not
ultrahazardous).
23 AS 34.03.
24 He also asserts that the superior court did not rule on
or mention the retaliation claim. This assertion is incorrect:
the superior court granted summary judgment to the Foremans
Properties on DeNardos retaliatory eviction claim.
25 AS 34.03.380.
26 AS 34.03.010.
27 AS 34.03.310(a) provides:
Except as provided in (c) and (d) of this
section, a landlord may not retaliate by
increasing rent or decreasing services or by
bringing or threatening to bring an action
for possession after the tenant has
(1) complained to the landlord of a
violation of AS 34.03.100;
(2) sought to enforce rights and
remedies granted the tenant under
this chapter;
(3) organized or become a member of a
tenants union or similar
organization; or
(4) complained to a governmental agency
responsible for enforcement of
governmental housing, wage, price,
or rent controls.
28 AS 34.03.310(c)(1)(7).
29 AS 34.03.310 states in part:
(c) Notwithstanding (a) and (b) of this
section, after serving a notice to quit
to the tenant under AS 09.45.100
09.45.105, a landlord may bring an
action for possession if
(1) the tenant is in default in rent;
. . . .
30 AS 34.03.310(b).
31 AS 34.03.310(b); AS 34.03.210.
32 Spindle v. Sisters of Providence in Wash., 61 P.3d 431,
436 (Alaska 2002) (We are not bound by the trial courts
articulated reasoning and can affirm a grant of summary judgment
on alternative grounds, considering any matter appearing in the
record, even if not considered by the trial court.) (citation
omitted).
33 Peterson v. Ek, 93 P.3d 458, 464 n.9 (Alaska 2004)
(citation omitted).
34 AS 34.03.180(a) provides:
(a) If, contrary to the rental agreement or
AS 34.03.100, the landlord deliberately or
negligently fails to supply running water,
hot water, heat, sanitary facilities, or
other essential services, the tenant may give
written notice to the landlord specifying the
breach and may immediately
(1) procure reasonable amounts of hot
water, running water, heat,
sanitary facilities, and essential
services during the period of the
landlords noncompliance and deduct
their actual and reasonable cost
from the rent;
(2) recover damages based on the
diminution in the fair rental value
of the dwelling unit; or
(3) procure reasonable substitute
housing during the period of the
landlords noncompliance, in which
case the tenant is excused from
paying rent for the period of the
landlord's noncompliance and, in
addition, may recover the amount by
which the actual and reasonable
cost exceeds rent.
35 AS 34.03.180(c).
36 AS 34.03.160(a) (stating that if landlord is in
material noncompliance with rental agreement or AS 34.03.100 in
way that materially affects health and safety, tenant may
terminate rental agreement with twenty days advance written
notice, unless landlord cures within ten days of receipt of
notice).
37 AS 34.03.170(a) (stating that if landlord fails to
deliver possession, tenant need not pay rent until possession is
delivered, and may terminate lease with ten days written notice).
38 AS 34.03.160(b) provides: Except as provided in this
chapter, the tenant may recover damages and obtain injunctive
relief for any noncompliance by the landlord with the rental
agreement or AS 34.03.100, 34.03.210, or 34.03.280. Subsection
.160(b) does not require prior written notice.
39 AS 34.03.200.
40 AS 34.03.180.
41 AS 34.03.190(a)(1).
42 Jourdan v. Nationsbanc Mortgage Corp., 42 P.3d 1072,
1082 (Alaska 2002).
43 Wasserman v. Bartholomew, 38 P.3d 1162, 1171 (Alaska
2002) (quoting Pride v. Harris, 882 P.2d 381, 385 (Alaska 1994)).
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