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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Tammie Guilford v. Weidner Investment Services, Inc., Weidner Investment Services, Inc. v. Tammie Guilford (1/13/2023) sp-7639

Tammie Guilford v. Weidner Investment Services, Inc., Weidner Investment Services, Inc. v. Tammie Guilford (1/13/2023) sp-7639

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER.  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

          corrections@akcourts.gov.  



                    THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



TAMMIE  GUILFORD,                                             )  

                                                              )                                  

                                                                  Supreme Court Nos. S-17591/17611  

                                            

                            Appellant and                     )  

                                                                                                                      

                            Cross-Appellee,                   )   Superior Court No. 3AN-15-08984 CI  

                                                              )  

         v.                                                                          

                                                              )   O P I N I O N  

                                                              )  

                  

WEIDNER INVESTMENT                                                                                   

                                                              )   No. 7639 - January 13, 2023  

                    

SERVICES, INC.,                                               )  

                                                              )  

                                           

                            Appellee and                      )  

                            Cross-Appellant.                  )  

                                                              )  



                   A                                                                             

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

                                                                                    

                   Judicial District, Anchorage, Andrew Guidi, Judge.  



                                                                                              

                   Appearances:          Nicholas  Kittleson,  Kittleson  Law  Office,  

                                                                                                      

                   LLC, Anchorage, for Appellant/Cross-Appellee. Gregory R.  

                                                                                                   

                   Henrikson,         Walker       &     Eakes,       LLC,      Anchorage,          for  

                   Appellee/Cross-Appellant.  



                                                                                            

                   Before:          Winfree,        Chief      Justice,     Maassen,         Carney,  

                                                            

                   Borghesan, and Henderson, Justices.  



                                            

                   BORGHESAN, Justice.  



I.       INTRODUCTION  



                                                                                                                   

                   A  landlord tried  to  evict  a tenant  for nonpayment of  rent.   The tenant  



                                                                                                             

counterclaimed under Alaska's Uniform Residential Landlord Tenant Act (URLTA),  



                                                                                                                        

seeking damages for a variety of alleged harms: retaliatory eviction; failure to return her  


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

                                                                                                                               

security deposit; intentional misrepresentation of certain fees; and personal injury and  



                                                                                                                                   

emotional distress caused by  mold  in the  apartment, which the tenant  alleged was  a  



                                                                                                               

violation of the landlord's duty under URLTA to maintain fit premises.  



                                                                                                                               

                    The litigation unfolded over several years, leading to a mixed result.  The  



                                                                                                                        

eviction was denied. The court entered summary judgment against the tenant's damages  



                                                                                                                         

claim for personal injury on the ground that the tenant failed to provide expert opinion  



                                                                                                                            

evidence supporting the link between mold exposure and her health problems.  After  



                                                                                                                      

trial, a jury awarded the tenant modest damages for misrepresentation and for emotional  



                                                                                                                               

distress  caused  by  mold  exposure.                     The jury  found  in  the  landlord's  favor  on  the  



                                                                                                                           

retaliatory eviction and security deposit claims.  The superior court awarded the tenant  



                                                                                                                              

partial attorney's fees, using a "blended analysis" that relied on both Alaska Civil Rule  



                                                                                                                           

82 and on URLTA's provision for full reasonable fees and then discounting the award  



                                                       

due to the tenant's limited success.  



                                                                                                                            

                    The tenant appeals the grant of summary judgment on her personal injury  



                                                                                                                                

claim  and  the  attorney's  fees  calculation.                      The  landlord  cross-appeals,  arguing  the  



                                                                                                                                  

superior court erred in a number of its evidentiary decisions, by permitting the tenant to  



                                                                                                                  

recover  emotional  distress  damages  for  a  breach  of  URLTA's  duty  to  maintain  fit  



                                                                                                            

premises, and by awarding the tenant attorney's fees as the prevailing party.  



                                                                                                                                 

                    We  affirm the  superior court's  evidentiary rulings.   We  also  affirm its  



                                                                                                                                

decision to permit recovery of emotional distress damages caused by violations of the  



                                                                                                                        

duty to maintain fit premises.  But we reverse summary judgment  against the tenant's  



                                                                                                                     

personal  injury  claim.               Medical  records  in  which  the  tenant's  treating  physician  



                                                                                                                         

suggested that mold exposure may have been the cause of her health problems amount  



                                                                                                                                

to sufficient expert medical opinion that, when viewed in the light most favorable to the  



                                                                                                                                 

tenant  as the non-moving party,  create a genuine issue of material  fact that must be  



                            

resolved at trial.  



                                                                -2-                                                         7639
  


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

                   Because   we   reverse   summary  judgment on   the   tenant's  personal   injury  



claim,  the  attorney's  fee  award  must  be  vacated.   Yet  we  address the  superior  court's  



holding   that   Civil   Rule   82,   and   not   URLTA's   attorney's   fee   provision, applies   to   a  



damages  claim  for  personal  injuries  even  when  those  injuries  stem  from  conditions  that  



violate  the  landlord's  duty  under  URLTA  to  maintain  fit  premises.   Such  a  claim  arises  



out  of  the  common  law  of  torts,  not  URLTA.   Therefore  we  see  no  error  in  the  superior  



court's  decision  to  apply  Civil  Rule  82  to  fees  incurred  in  pursuit  of  the  tenant's  personal  



injury  claim.   Yet  we  conclude  that  discounting  the  tenant's  award  of  attorney's  fees  due  



solely  to  the  disparity  between  her modest damages  recovery  and  the  amount  of  fees  



incurred  to  achieve  it  was  error.  



II.       FACTS  AND  PROCEEDINGS  



          A.       Eviction  Action  And  Counterclaims  



                   In   October   2008   Tammie   Guilford   began   renting  an   apartment   from  



Weidner  Investment  Services,  Inc.  in  Anchorage.   Guilford  was  often  behind  on  rental  

                                                                                                      1  against her in  

payments,  and  Weidner filed  forcible  entry  and  detainer  (FED)  actions                                            



May, June, and July of 2015, each of which was dismissed.  

                                                                       



                   In August 2015 Weidner filed another FED action because Guilford had not  

                                                                                                                        



paid rent.   The district court held a hearing on the matter later that month.   Guilford  

                                                                                                               



testified that she had attempted to pay the rent but that Weidner refused to accept it and  

                                                                                                                       



demanded approximately $900 in extra fees.  Guilford testified that she was willing and  

                                                                                                                       



able to deposit her rent payment with the court pending resolution of the claims.  A  

                                                                                                                         



Weidner employee disputed that Guilford had offered to pay rent.  The district court  

                                                                                                                    



found that Guilford testified credibly that she attempted to pay the rent and that it was  

                                                                                                                      



not accepted.  The district court denied the eviction and ordered Guilford to pay the  

                                                                                                                       



          1  

                   See  AS  09.45.060-.160  (describing  eviction  procedures).  



                                                            -3-                                                        7639  


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

August  rent  and  all  subsequent  rent  into  a  court  registry  until  the  dispute  was  resolved.   



                   A   second   FED   hearing   was   held   a   month   later.    Weidner   alleged  that  



Guilford  had  not  paid  the  September  rent  into  the  registry  on  time;  Guilford  blamed  her  



late  payment  on  her  medical  conditions  and  a  problem  with  the  court's  registry.  



                                                                                                   2  

                   Guilford  raised  counterclaims  to  the  FED  under  URLTA.   She  alleged  that  



Weidner  had  breached  its  duty  under  AS  34.03.100  to  maintain  the  premises  in  a  "fit  and  



habitable  condition,"  that  it  was  trying  to  evict  her  in  response  to  her  complaints,  that  it  



failed  to  return  her  security  deposit,  and  that  it  fraudulently  added  charges  to  her  electric  



bill.  



                   Guilford  alleged  that  Weidner  failed  to  maintain  fit  premises  by  allowing  



excessive  mold to accumulate in the apartment, which she  alleged caused  her  physical  



injuries.   She  alleged  that  she  started  experiencing  significant  medical  problems  around  



a  year after   she  moved  in.   Her   alleged  health  problems  included   facial   swelling   and  

                   3   allergic reactions,  and  severe respiratory  issues  including  asthma  and  

angioedema,                                                                                                            



respiratory failure.  Guilford was hospitalized several times during her tenancy.  

                                                                                                       



                   According to Guilford, the apartmentbuilding had a "massive problem with  

                                                                                                                       



moisture"  and her  apartment had problems  with water  intrusion, mold,  and rodents.  

                                                                                                                              



Guilford alleged that when she complained about mold problems, Weidner employees  

                                                                                 



told  her  to  wash  and  bleach  the  moldy  areas.                     Guilford  claimed  that  mold  in  her  

                                                                                                                        



apartment caused her medical problems and that her symptoms stopped when she began  

                                                                                                                     



          2  

                   AS  34.03.010-.380.  



          3        Angioedema, synonymous  with  "giant  hives,"  is  defined  as  "[r]ecurrent  



large circumscribed areas of subcutaneous or mucosal edema of sudden onset, usually  

                                                                                                                              

disappearing  within  24  hours;  frequently,  an  allergic  reaction  to  foods  or  drugs."  

                       TEDMAN'S   MEDICAL   DICTIONARY,   Westlaw   (database   updated   Nov.  

Angioedema ,  S 

2014).  



                                                            -4-                                                      7639
  


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

staying  at  a  friend's h   ome.   She  said  she  moved back into her  apartment  after  a  home  



inspector's   report   found   no   evidence   of   mold   or   moisture   in   the   apartment,   but   her  



symptoms  quickly  reappeared.    Guilford  moved   out  permanently  in  March 2016   and  



claims  to  have  suffered  no  additional  angioedema  episodes  since  leaving.  



         B.       Pretrial  Motion  Practice  And  Evidentiary  Rulings  



                  In   December   2016   Weidner   moved   for   partial   summary   judgment   on  



Guilford's  personal  injury  claim  as  well  as  several  other  issues.   Weidner  presented  an  



expert's opinion that Guilford's  alleged angioedema  was "unrelated to mold" and was  



probably  genetic  and  that  there  was  "no  credible  evidence  of  any  relationship"  between  



her   asthma   and   mold.    The   expert   also   stated   that   there   was   "absolutely no   medical  



literature  .  .  .  linking  exposure  to  mold  and  the  development  of  angioedema."   Guilford  



opposed,   arguing   that   the   expert   report   was   inadmissible   hearsay  and   that   expert  



testimony  was  not  necessary  to  show  that  mold  caused  her  symptoms  because  the  causal  



relationship  was  readily  apparent.  



                  In  July  2017  the  district  court  denied summary  judgment,  agreeing  with  



Guilford  that  she  was  not  required  to  provide  expert  testimony  because  the  connection  



between  mold  and  her  symptoms  was  "reasonably  apparent."   In  November  Guilford  



moved  to  transfer  the  case  to  the  superior  court  because  her  alleged  damages  exceeded  

$100,000.4  

                The  motion  was  granted.  



                  Weidner again moved for  summary judgment  on  Guilford's personal  injury  



claim;  Guilford  opposed.   The  superior  court  granted  summary  judgment  for  Weidner,  



concluding   that   causation   was   not   readily   apparent.     The   superior   court   found   that  



because  Guilford  had  provided  "no  competent  expert  evidence"  to  contradict  the  opinion  



         4  

                  See  AS  22.15.030(a)(1)  (providing  that  district  courts  have  no  jurisdiction  

over  civil  cases  in  which  amount  of  damages  claimed  exceeds  $100,000).  



                                                        -5-                                                    7639  


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

                                                                                                                                 

of Weidner's expert that Guilford's symptoms were unrelated to mold, there was no  



                                                                                                                            

genuine  dispute  of  material  fact  about  the  cause  of  Guilford's  injuries.                                  The  court  



                                                             

scheduled a jury trial on the remaining issues.  



                                                                                                            

                    The court made several evidentiary rulings before trial.  Weidner moved  



                                                                                                                               

to exclude the testimony of other tenants in the same apartment building, arguing that  



                                                                                                                                      

their proposed testimony was irrelevant and prejudicial.  The court denied the motion.  



                                                                                                                              

The court declined to reconsider the issue when Weidner renewed its motion during trial,  



                                                                                                                        

concluding  that  "[h]abitability  is  sort  of  a  broad  subject"  and  that  other  tenants'  



                                                                                                         

experiences with the conditions of the building were relevant to the case.  



                                                                                                                              

                    Guilford moved to exclude several of Weidner's proposed witnesses who  



                                                                                                                        

had not been named until Weidner's final witness list, filed 15 days before trial. Weidner  



                                                                                                                                 

opposed,  arguing that  Guilford was  made  aware  of their  existence  in  the  course  of  



                                                                                                            

discovery.   The  court  excluded the witnesses.   Weidner  moved for  reconsideration,  



                                                                                                                             

pointing out that the court had not issued a pretrial order and therefore there was no strict  



                                                                                                                             

deadline for final witness lists.  The court denied the motion for reconsideration.  



                                                                                                                    

                    The Friday before trial, Weidner announced that it had recently discovered  



                                                                                                                                      

over 300 photographs and a video of Guilford's apartment taken when she moved out.  



                                                                                                                         

The court excluded the photographs and video.  The court observed that "[t]he purpose  



                                                                                                                                    

of discovery is undermined . . . if, after three years of litigation suddenly we produce . . .  



                                                                                

300 photographs of the condition of an apartment."  



                                                                               

          C.        Trial, Verdict, And Attorney's Fee Award  



                                                                                                                         

                    A jury trial was held in July 2019. Weidner objected to Guilford's opening  



                                                                                                                                  

statement, which mentioned that the district court had found that Guilford attempted to  



                                                                                                                               

pay her rent.  The superior court overruled the objection, concluding that the finding was  



                                                                                                                                 

res judicata.  The court later instructed the jury that "Guilford offered to pay her rent on  



                 

August  1, 2015."  



                                                                -6-                                                         7639
  


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

                 Weidner objected  to  the  admission of  publications  about  mold  published  



by   the   Occupational   Safety and Health   Administration   (OSHA),   the   Environmental  



Protection   Agency   (EPA),   and   the   Alaska   Department   of   Health   &   Social Services  



(DHSS)  that Guilford  offered to support her habitability claim.  Weidner argued these  



documents  were  hearsay,  but  the  court  admitted  them  under  the  public  record  exception  

to  the  hearsay  rule.5  



                 The parties also  disputed  whether  emotional  distress damages are permitted  



under  URLTA.   The  court  ultimately  instructed  the  jury  that  it  could  award  damages  to  



compensate  Guilford  "for the  discomfort, annoyance,  and  other mental  and  emotional  



distress  she  suffered  from  living  in  inadequate  housing."  



                 At  the  close  of  trial  Weidner  moved  for  a  directed  verdict  on  several  issues,  



including  Guilford's  claim  that  it  had  fraudulently  misrepresented  fees o              n  her  electric  



bill.       The    court    denied    the    motion    for    a    directed    verdict   on   the    intentional  



misrepresentation  claim.   The  court  concluded  that  the  issue  came  down  to  credibility  of  



the  witnesses  because  "[n]obody  from  Weidner  has  admitted  that  they  were  committing  



fraudulent misrepresentations, but  inferences can be drawn from the party's conduct."   



                 The jury found that Weidner  breached  its  duty to keep Guilford's  apartment  



in  a  fit  and  habitable  condition and that it made intentional misrepresentations relating  



to  electric  utility  charges,  but  the  jury  did  not  find  that  Weidner  had  evicted  Guilford  in  



retaliation  for  her  complaints  or  that  it  failed  to  timely  return  her   security  deposit.   It  



awarded  Guilford   $7,325  in  damages,  including  $5,835  for  "Discomfort,  Annoyance,  



Inconvenience,  and  Mental  Distress."  



         5       See   Alaska   R.   Evid.  803(8)   (exempting   from   hearsay   rule   certain  



government  "records,  reports,  statements,  or  data  compilations  .  .  .,  or  matters  observed  

pursuant  to  duty  imposed  by  law  and  as  to  which  there  was  a  duty  to  report,  [and]  factual  

findings  resulting  from  an  investigation  made  pursuant  to  authority  granted  by  law").  



                                                      -7-                                                 7639
  


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

                   Each  party  filed  a  motion  for  attorney's  fees,  claiming  to  be  the  prevailing  



party.    The   superior court   found   that   Guilford   was   the  prevailing  party  because   she  



successfully   defended    against   Weidner's    claims    and    succeeded    on   two    of   her  



counterclaims.   But  the  superior  court  recognized  that  "the  overall  result  of  the  four  years  



of   litigation   is   quite   mixed."     It   also   rejected   Guilford's   argument   that   URLTA's  

attorney's  fee  provision,  which  authorizes full reasonable  fees  to  the  prevailing  party,6  



applied  to  all  of  her  claims.   Instead  it  calculated  the  attorney's  fee  award  with  a  "blended  



analysis"   by   applying   Civil   Rule   82   (which   authorizes   award   of   partial   fees   to   the  

prevailing  party7)  to  fees  incurred  in  pursuit  of  the  personal  injury  claim  and  URLTA's  



attorney's  fee  provisions  to  the  remainder  of  Guilford's  claims.   First,  the  court  deducted  



from   the   total   amount   of   fees   Guilford   incurred   the   portion   incurred   pursuing   the  



unsuccessful   personal   injury   claim.     Second,   it   deducted   80%   of   the   reasonable  



attorney's  fees  that  Weidner  incurred  while  defending  against  the  personal  injury  claim,  



determining   that   Guilford's   pursuit   of   the   personal   injury   claim   was   objectively  

unreasonable.8  Finally, the court reduced Guilford's remaining fees by 50% "because  



of the vast disparity between the fees and the actual award," reasoning that URLTA's  

                                                                                                              



attorney's  fee  provision  "should  not  be  applied  as  if  it  were  a  guarantee  of  full  

                                                                                                                       



employment for lawyers."  As a result, the superior court granted Guilford $22,803.40  

                                                                                                             



in attorney's fees.  

                    



          6        AS  34.03.350;  Dawson  v.  Temanson,   107  P.3d  892,  897  (Alaska  2005).  



          7        Alaska  R.  Civ.  P.  82.  



          8        Alaska  R.  Civ.  P.  82(b)(3)(G)  (permitting  court  to  vary  presumptive  award  



of  20%  of  reasonable  fees  incurred  due  to  "vexatious  or  bad  faith  conduct").   



                                                            -8-                                                      7639
  


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

         D.      Appeal  



                 Guilford  appeals  the  superior  court's  summary  judgment  order  dismissing  



her  personal  injury  claim.   She  argues  that  expert  testimony  was  not  required  to  survive  



summary  judgment   on   the   issue   of  whether  her   injuries  were   caused  by   mold   in   the  



apartment.   Guilford  also  appeals  the  attorney's  fee  award,  arguing  that  the  court  should  



have  awarded  her  full  reasonable  attorney's  fees  by  applying  URLTA's  fee  provision  



only and  that it should not have  given Weidner a credit for fees incurred in defense of  



the  personal  injury  claim.  



                 Weidner  raises  several  issues  on  cross-appeal.   It argues that the  superior  



court erred  by  instructing  the  jury  that   Guilford   offered  to  pay  her  rent  on  August   1,  



2015.   It  then  challenges  the  court's  evidentiary  decisions  to  allow  Guilford  to  call  other  



tenants  as  witnesses,  to  exclude  Weidner's  late-disclosed  witnesses,  and  to  exclude  the  



300  photographs and  video  it  provided  to  Guilford  on  the  eve  of  trial.   Weidner  also  



argues  that  the  court  erred  when  it  admitted  the  government  publications  concerning  the  



dangers  of  mold.   Weidner argues  that the  court  should  not  have  permitted  the  jury  to  



consider   damages   for   emotional   distress   and   that   the   court   should   have   granted  



Weidner's  motion  for  a  directed  verdict  on  Guilford's  misrepresentation  claims.   Finally,  



Weidner   argues   that  it  was   the   prevailing   party   because   it   was   granted   summary  



judgment  "on  the  main  issue  of  personal  injury."  



III.     STANDARDS  OF  REVIEW  



                 "We  review  a  grant  of  summary  judgment  de  novo,  'affirming  if  the  record  



presents  no  genuine  issue  of  material  fact  and  if  the  movant  is  entitled  to  judgment  as  a  

matter  of  law.'  "9  

                        In  determining  whether  any  genuine  issue  of  material  fact  exists,  we  



         9       Miller   v.   Fowler,   424   P.3d   306,   310   (Alaska   2018)   (quoting   Kelly   v.  



Municipality  of  Anchorage ,  270  P.3d  801,  803  (Alaska  2012)).  



                                                    -9-                                                 7639  


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

draw all factual  inferences  in  favor  of the  party  against whom summary judgment was  



            10  

granted.        Whether  expert  testimony  is  required  to  show causation  at  summary  judgment  



                                                                11  

is  a  question  of  law  that  we  review  de  novo.               



                   Whether  res  judicata  or  collateral  estoppel  applies  is  also  a  question  of  law  



                                    12                                                                                     13  

that  we  review   de  novo.             Statutory   interpretations   are   likewise  reviewed   de  novo.                    



"When construing statutes, we consider three factors:  'the  language of the statute,  the  

legislative  history,  and  the  legislative  purpose  behind  the  statute.'  "14  



                   We   review   the   superior   court's   evidentiary   rulings   for   an   abuse   of  

discretion.15  

                   Errors  in  the  admission  or  exclusion  of  evidence warrant  reversal  only  if  



                                                           16  

necessary  to  ensure  "substantial  justice."                 



                   We review a grant or denial of a motion for a directed verdict de novo,  

                                                                                                                      



asking  "whether  the  evidence,  when  considered  in  the  light  most  favorable  to  the  

                                                                                                                         



          10       Id.  



          11       See  Culliton  v.  Hope  Cmty.  Res.,  Inc.,  491  P.3d  1088,  1093  (Alaska  2021)  



(citing  Punches   v.  McCarrey   Glen  Apartments,  LLC,   480   P.3d   612,   624-25   (Alaska  

2021)).  



          12  

                   McElroy  v.  Kennedy,  74  P.3d  903,  906  (Alaska  2003).  



          13        Oels  v.  Anchorage  Police  Dep't  Emps. Ass'n, 279 P.3d 589,  595  (Alaska  



2012).  



          14       Id.   (quoting   Shehata   v.   Salvation  Army ,   225   P.3d 1106,   1114   (Alaska  



2010)).  



          15       Luther   v.  Lander,   373   P.3d   495,   499   (Alaska   2016)   (quoting Noffke   v.  



Perez,   178  P.3d   1141,   1144  (Alaska  2008)).  



          16       Id. (quoting Loncar v. Gray, 28 P.3d 928, 930 (Alaska 2001)).  

                                                                                                    



                                                            -10-                                                      7639
  


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

nonmoving  party,  is  such  that  reasonable  persons  could  not  differ  in  their  judgment." 17  



                    "Whether  the  court  applied  the  proper  legal  analysis  to  calculate  attorney's  



                                                                        18  

fees   is   a   question   of   law   we   review   de   novo."              When the   correct   legal   analysis   is  

applied,  we  review  the  subsequent  award  of  attorney's  fees  for  abuse  of  discretion.19  



IV.	      DISCUSSION  



                                                                                                                             

          A.	       It  Was  Error  To  Dismiss  Guilford's  Personal  Injury  Claim  On  

                                      

                    Summary Judgment.  



                                                                                                                   

                    Guilford  appeals  the   superior  court's  grant  of  summary  judgment  



                                                                                                                             

dismissing her personal injury claim. The court dismissed the claim after concluding that  



                                                                                                                                

Guilford failed to establish a genuine dispute of material fact as to whether the mold in  



                                                                                                                        

her apartment caused her health problems. The court ruled that Guilford failed to present  



                                                                                                                              

any expert testimony to  contradict the  opinion of Weidner's medical  expert that the  



                                                                                                                             

conditions  for  which  Guilford  sought  treatment  were  not  caused  by  mold  in  her  



                                                                                                                     

apartment. And it reasoned that Guilford's "subjective lay testimony" was not sufficient  



                                                                                                                      

to create  a material  dispute  of  fact  about the  cause  of her  injuries because  whether  



                                                                                                                

environmental mold could cause  those  kinds  of  injuries was  not  a  fact  "reasonably  



                                                                                                                20  

                                                                                                        

apparent to  an ordinary layperson," citing our decision in  Choi v. Anvil .     Whether  



                                                                                                                             

Guilford presented enough evidence to survive summary judgment is a question of law  



          17        Todeschi v. Sumimoto Metal Mining  Pogo, LLC, 394 P.3d  562,  570 (Alaska  



2017)  (quoting  Noffke,   178  P.3d  at   1144).  



          18        Kollander  v.  Kollander,  322  P.3d  897,  903  (Alaska  2014)  (quoting  Weimer  



v.  Cont'l  Car  &  Truck,  LLC,  237  P.3d  610,  613  (Alaska  2010)).  



          19        Id.  



          20        32 P.3d 1, 3 (Alaska 2001).  

                                                     



                                                              -11-	                                                       7639
  


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

we  review  de  novo.21  



                    Guilford  argues  that  summary  judgment  was  error  because  Weidner  failed  



to  meet   its  initial  burden   of   "proving,  through   admissible   evidence,  that there   are  no  



                                                                                                                            22  

genuine  issues  of  material  fact  and  that  [it  was]  entitled  to  judgment  as  a  matter  of  law."                     



Specifically,  Guilford  argues  that  the  affidavit  of  Weidner's  expert  was  not  admissible  



under  Alaska  Civil  Rule  56(c)  because  it  "contains  opinion,  not  fact,  and  was  not  made  



through  personal   knowledge."    But   we   have   consistently   accepted   the   use   of   expert  



                                                              23  

affidavits   to   support   summary  judgment.                      The   affidavit   of   Weidner's   expert   was  



sufficient  to  establish,  as  an  initial  matter,  a  lack  of  causation  between  mold  in  Guilford's  



apartment  and  her  medical  condition.  



                   Nevertheless,   Guilford  met   her   burden   to   produce   contrary   evidence.   



Medical records attached to Guilford's opposition to summary judgment, which  arguably  



show  her  treating  physician's  belief  that  mold  exposure  may  have  been  the  cause  of  her  



                                                                                                                            24  

health  problems,  were  sufficient  evidence  to  create  a  genuine  dispute  of  material  fact.                             



She did "not need to produce enough evidence to persuade the court that [she] would  

                                                                                                                      



          21       See  Miller  v.  Fowler,  424  P.3d  306,  310  (Alaska  2018).  



          22  

                   James  v.  Alaska  Frontier   Constructors,  Inc.,  468  P.3d  711,  717  (Alaska  

2020).  



          23       See,  e.g.,  Parker  v.  Tomera,  89  P.3d  761,  765-67  (Alaska  2004)  (affirming  



grant  of  summary  judgment  in  favor  of  defendants  based  on  affidavit  of  expert  physician  

that  procedure  was  not  the  cause  of  plaintiff's  medical  problem,  which  plaintiff  failed  to  

rebut);  Achman  v.  State,   323  P.3d   1123,   1130   (Alaska  2014)   (noting  rule  that   expert  

opinion  admissible  at  trial  is  admissible  for  summary  judgment  purposes).  



          24  

                   See James, 468  P.3d  at  717  (describing non-moving  party's  burden  to  

                                                                                                                            

"present  specific  facts  showing there  is  'evidence reasonably  tending  to  dispute  or  

                                                                                                                           

contradict' the moving party's evidence, thereby creating a genuine issue of material  

                                                                                                                   

fact" (quoting Christensen v. Alaska  Sales  & Serv., Inc., 335 P.3d 514, 517 (Alaska  

                                                                                             

2014))).  

               



                                                            -12-                                                       7639
  


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

                                                                                                                            25  

prevail  at  trial,  only  enough  evidence  to  demonstrate  a  genuine  issue  of  material  fact."                           



                    The   superior   court  did  not   err  in   concluding  that  the   causal  relationship  



between   mold   exposure   and   various   ailments  is   complex   enough   that   it   must   be  



established  with  medical  opinion  evidence.   We  recently  affirmed  summary  judgment  in  



a  case  with  facts  similar  to  this  one  because  the  plaintiff  provided  "no  proof  beyond  her  



                                                                                                            26  

personal  belief  that  her  ailments  were  caused  by  [mold]  in  her  apartment."                           



                    Yet  even  when  the  causal relationship  between  certain  facts  and  alleged  



injuries  is  so  complex  that  it  must  be  established  through  medical  opinion,  a  party  does  



not  necessarily  have  to  produce  the   affidavit   of   a  retained   expert  to   defeat   summary  



judgment.   Admissible  evidence  showing  the  opinion  of  a  treating  physician  suffices.   



In  Culliton  v.  Hope  Community  Resources,  Inc.  the  estate  of  a  deceased  woman  sued  her  



caretakers,   alleging   that   they   failed   to   notify   her   mother that the   woman   (who   was  

                                                                       27  As  a result, the  estate alleged, the  

severely   disabled)  had   aspirated   food   or   liquid.                                                               



mother failed to recognize the symptoms of pneumonia and seek treatment until it was  

                                                                                                                         

                                                     28  We held that to survive summary judgment, the  

too late, causing the woman's death.                                                                                       

                                             



estate needed  to  show evidence of a doctor's opinion that the  aspiration caused the  

                                                                                                                          



woman's pneumonia  and that  treating  it  earlier would  have  saved the woman's  life  

                                                                                                                          



          25       Id.   



          26        See   Punches   v.   McCarrey   Glen   Apartments,   LLC,   480   P.3d   612,   625  



(Alaska   2021)   (affirming   grant   of   summary  judgment   against   claim  that   exposure  to  

mold   caused   health   problems   because   plaintiff   failed   to   obtain   "proof   beyond   her  

personal   belief"   to "establish   a   connection   between   mold   exposure   and   her   alleged  

injuries  including  mucormycosis,  a  respiratory  infection,  bouts  of  skin  abscesses,  and  

chronic  fatigue").    



          27        491 P.3d 1088, 1096-99 (Alaska 2021).  

                                                                     



          28       Id.  



                                                            -13-                                                       7639
  


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

because  this  theory  of  causation  involved  "causal  connection[s]  that  [are]  not  commonly  



                                                           29  

part  of  lay  people's  everyday  experience."                 But  we  reversed  the  superior  court's  grant  



of  summary  judgment  because  the  treating  physician's deposition  testimony  created  a  



                                                             30  

reasonable  dispute   of  fact  about  causation.                Although  the  treating  physician  did  not  



confidently  opine  that  the  aspiration  was  the  cause  of  death  and  that  earlier  treatment  



would   have   saved   the   woman's   life,   the   testimony,   when   viewed   in   the   light   most  



favorable   to   the   estate,   was   sufficient   evidence   of   causation  to   defeat   summary  



              31  

judgment.          



                   Guilford   opposed   summary  judgment   with   comparable   evidence.     She  



presented medical  records  that,  when  viewed  in  the  light  most  favorable  to  her  (as  the  



non-moving   party),   indicate   the   opinion   of   a   treating   physician   that   mold   exposure  



caused   her   health   problems.     These   records,   attributed   to   treating   physicians   Dr.  



Dolgonos  and  Dr. Rojas, are  somewhat  ambiguous.   Under  the  heading  "past  medical  



history"  appears  the  word  "diagnosis,"  followed by  a  series of  ailments  like  "anemia"  



and   "borderline  hypertension."    Included   in  this   list   is   "idiopathic   angioedema   black  



mold   at   home   2015,  symptoms   disapear   after   moving   to   different house"   and   "dizzy  



spells  Black  mold  angioedema  caused   [everything  sic]."   It  is  not  clear  whether these  



statements  indicate  the  physicians'  belief  about  the  likely  cause  of  her  ailments  or  merely  



record  Guilford's  own  beliefs a   bout  causation.   But  drawing  all  inferences  in  favor  of  



Guilford,  as  we  must,  these  records  can  be  viewed  as  showing  the  opinion  of  her  treating  



          29       Id.  at   1097.  



          30       Id.  at  1097-98,  1098  n.52  (explaining  that  treating  physicians  can  testify  as  



"hybrid"   witnesses,   offering   both   personal   knowledge   of   relevant  facts   and   expert  

opinion  testimony  on  causation).  



          31       Id.  



                                                          -14-                                                     7639
  


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

                                                                                                   32  

physicians  that  her  symptoms  were  caused  by  mold  in  her  apartment.                           As  in  Culliton,  



                                                                                                                   33  

that  is  enough  to  meet  our  "lenient  standard"  for  withstanding  summary  judgment.                             We  



therefore   reverse   the   superior   court's   order   granting   partial   summary  judgment   on  



Guilford's  personal  injury  claim  to  Weidner.   



          B.	      The  Superior  Court  Did  Not  Err  By  Giving  Preclusive  Effect  To  The  

                   District  Court's  Finding  That  Guilford  Offered  To  Pay  Her  Rent.   



                   The  superior  court  ruled  that  the  district  court's  finding  that  Guilford  tried  



to pay her August 2015 rent was res judicata and allowed Guilford to present that fact  



to  the  jury.   Weidner  concedes  that  the  superior  court  likely  meant  to  rely  on  the  doctrine  



of  collateral  estoppel  but  maintains  that  the  superior  court  misapplied  that  doctrine.   This  



error,  Weidner suggests,  undercut  its   ability  to  challenge  Guilford's  credibility,   even  



though  the  superior  court  prohibited  Guilford  from  arguing  that  the  district  court had  



found  her  more  credible  than  Weidner.   

                   We   review   applications   of   collateral   estoppel   de   novo.34  

                                                                                                              Collateral  



estoppel,  also  known  as  issue  preclusion,  "prohibits  a  party  from  relitigating  an  issue  of  



fact"  and  is  appropriate  when:   



                   (1)  the  party  against  whom  the  preclusion  is  employed  was  a  

                   party  to  or  in  privity  with  a  party  to  the  first action;  (2)  the  

                   issue   precluded   from   relitigation   is   identical  to  the   issue  

                   decided  in  the  first a   ction;  (3)  the  issue  was  resolved  in  the  

                   first   action   by   a   final  judgment   on   the   merits;   and   (4)   the  

                   determination    of    the    issue    was    essential    to    the    final  



          32       Weidner   does   not   argue   on   appeal   that   these   medical   records   or   the  



statements  in  them  are  inadmissible  evidence.  



          33       Christensen  v.  Alaska  Sales  & Serv.,  Inc.,  335  P.3d  514,  520  (Alaska  2014)  



(quoting  Shaffer  v.  Bellows,  260  P.3d   1064,   1069  (Alaska  2011)).  



          34       Matanuska Elec. Ass'n  v. Chugach Elec. Ass'n, Inc.,  152 P.3d 460, 465  

                                                                                                                

(Alaska 2007).  

             



                                                           -15-	                                                     7639
  


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

                                  [35]  

                   judgment.            



                                                                                                    36  

                    Weidner  argues  that  our  decision  in  Chilton-Wren  v.  Olds                   established  that  



an  FED  hearing  cannot  give  rise  to  a  final  judgment  and  appears  to  argue  that  the  district  



court's  finding  was  not  essential  to  its  final  judgment,  but  does  not  challenge  the  other  



elements  of  collateral  estoppel.   Weidner  misconstrues  our  holding.   In  that  case  we  held  



that   although  "the   FED   hearing   .   .   .   was   resolved   by   a   final  judgment,"   that   final  

judgment  extended  only  to  the  issue  of  possession  and  not  the  tenant's  counterclaims.37  

                                                                                                                               



A  final  judgment  in  an  FED  hearing  therefore  has  preclusive  effect  only  with  respect  to  

the  factual  findings  essential  to  the  ultimate  issue  of  possession.38  



                    Whether   Guilford   had   tendered  payment   for   her   August   2015   rent   was  



essential  to the  issue  of  possession  and  was  the  sole  basis  for  the  district  court's  denial  



of  Weidner's  action  to  evict  her.   The   superior  court  did  not err  by  giving  preclusive  



effect  to  the  finding  that  Guilford  had  indeed  tendered  that  payment  to  Weidner.    



          C.	       The   Superior   Court   Did   Not   Err   By   Permitting   Recovery   Of   Non- 

                    Economic  Damages  For  Guilford's  URLTA  Claims.  



                   URLTA  assigns  to  landlords  several  duties  regarding  the  condition  of  the  



premises  including  the  duty  to  "make  all  repairs  and  do  whatever  is  necessary  to  put  and  



          35       Allstate  Ins.   Co.   v.  Kenick,   435   P.3d   938,   944   (Alaska   2019)   (quoting  



Latham  v.  Palin,  251  P.3d  341,  344  (Alaska  2011)).  



          36        1 P.3d 693 (Alaska 2000).  

                                                 



          37       Id.  at  697-98.  



          38       Id.  ("Although  Chilton-Wren was  a  party  to  the  FED  hearing  which  was  



resolved  by  a  final  judgment  in  her  favor,  her  asserted  claims  for  relief  were  not  identical  

to  the  issues  raised  in  the  FED  hearing;  nor  were  they  essential  to  the  final  judgment.").  



                                                            -16-	                                                     7639
  


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

                                                                       39  

keep  the  premises  in  a  fit  and  habitable  condition."                These  duties  are  sometimes  referred  

to as a warranty of habitability.40  URLTA also contains a separate statutory  provision  



authorizing  the  tenant  to  recover  damages  for  the  landlord's  noncompliance  with  these  



          41  

duties.       Weidner  argues  that  this  remedy  permits  recovery  of  economic  damages  only  



and  that  the  superior  court  erred  by  allowing  the  jury  to  award  Guilford  damages  "for  the  



discomfort,  annoyance,  and  other  mental  and  emotional  distress  she  suffered  from  living  



in   inadequate   housing."    Although   this   issue  presents   a   close   call,   we   conclude   that  



URLTA  permits  recovery  of  non-economic  damages  for  habitability  violations.   



                    Weidner argues  that  because  URLTA's  warranty  of  habitability  reflects  



                                                    42  

principles   of   contract   and   tort   law,           its damages   provision   should   be   interpreted   to  



incorporate  the  limitations  on  damages  that  exist  in  contract  and  tort  actions  at  common  



law.   In  Hancock  v.  Northcutt,  for  example,  we  ruled  that  plaintiffs  could  not  recover  



emotional   distress   damages  in   a  breach  of   contract   action   against  the  builder   of  their  



          39       AS  34.03.100(a).  



          40       See  Newton   v.  Magill,   872   P.2d   1213,   1217   (Alaska   1994)   (describing  



development   of  implied  warranty   of  habitability  at  common  law   and   concluding  that  

Alaska legislature "by adopting the  URLTA  has  accepted  the  policy  reasons on which  

the  warranty  of  habitability  is  based").   



          41  

                   AS 34.03.160(b).  

                          



          42  

                   See McCall v. Fickes, 556 P.2d 535, 537-38 (Alaska 1976) (observing that  

                                                                                                                          

URLTA   "accord[s]  tenants  previously   unrecognized   rights  by   recognizing   the  

                                                                                                                         

contractual nature  of the  landlord-tenant relationship");  see  also  Myron  Moskovitz,  

                                                                                                              

Implied Warranty of Habitability: A New Doctrine Raising New Issues, 62 CAL.  L.  REV.  

                                                                                                             

 1444,  1471  (1974)  (describing  the  implied  warranty  theory  as  "essentially  a  tort-contract  

hybrid  concept").   



                                                            -17-                                                       7639
  


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

                     43  

custom  home.            We  recited  the   general  rule  that  recovery   of   damages   for   emotional  



distress  will be precluded for breach of contract unless the contract or breach  was of a  



                                                                                   44  

kind  that  would  likely  result  in  serious  emotional  distress.                   We  concluded  that  "breach  



of  a  house  construction  contract  is  not  especially  likely to result in  serious  emotional  



                                                                                                      45  

disturbance"  because   "[s]uch   contracts   are  not   .   .   .  highly  personal."                    Weidner   also  



points  to  the  rule  that  damages  for  emotional  distress  are  generally  unavailable  in  tort  



unless  physical  injury  occurs  or  the  conduct  meets  the  standards  of  intentional  infliction  



                               46  

of  emotional  distress.           



                   We   are   not   persuaded   that   the   legislature   intended  to  enshrine   these  



common  law  rules  in  URLTA's  statutory  remedy.   To  the  contrary,  we  have  emphasized  



the   significant   differences between  the  rights   and  remedies   available   in  URLTA   and  



those  available  at  common  law.   In  Helfrich  v.  Valdez  Motel  Corp.  we  held  that  URLTA  

and  the  common  law  of  tort  offer  distinct  rights  and  remedies.47                   Given the fundamental  

                                                                                                             



          43        808  P.2d  251,  258  (Alaska   1991).  



          44       Id.  (quoting  RESTATEMENT  (SECOND)  OF  CONTRACTS    353  (AM.  L.  INST .  



1981)).  



          45       Id.  at  258.  



          46       Id.  at  257-58.   But  see  RESTATEMENT  (SECOND)  OF  TORTS    821D  (AM.  L.  



INST .   1979)   (describing   tort   of   "private   nuisance"   as   "a   nontrespassory   invasion   of  

another's  interest  in  the  private  use  and  enjoyment  of  land");  id.  cmt.  b  (explaining  that  

"[f]reedom from discomfort  and  annoyance  while  using land is  often as important to a  

person  as  freedom  from  physical  interruption  with  his  use  or  freedom  from  detrimental  

change  in  the  physical  condition  of  the  land  itself"  and  that  this  interest  receives  "much  

greater  legal  protection"  than  interest  in  freedom  from  emotional  distress).  



          47       207 P.3d 552, 559 (Alaska 2009) (reasoning that Alaska's tort law, not  

                                                                                                                          

URLTA, confers tenant's right to be free of landlord's negligence and remedy to recover  

                                                                                                                    

damages for personal injuries).  

                                               



                                                            -18-                                                       7639
  


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

                                                              48  

differences  between  tort  law  and  URLTA,                     there  is  little  reason  to  think  the  legislature  



intended  to  incorporate  damages  limitations  from  the  common  law  of  torts  in  URLTA's  



habitability  provision.   The  same  is  true  of  contract  law.   The  legislature  went  far  beyond  



the  common  law  by  placing  a  wide  array  of  mandatory  duties u   pon  both  landlord  and  



                                                                         49  

tenant, most  of  which  cannot  be  contracted  away.                       Several  of URLTA's  damages  go  

beyond making the tenant whole, such as by using a damages multiplier50 or a penalty  



amount.51  

                  Moreover,   even   courts   that   have   recognized   the   implied   warranty   of  



habitability  as  a  contract  theory  have  held  that  a  tenant  may  recover damages  for  the  



                                                                                           52  

annoyance   and   discomfort  caused  by breach  of  the  warranty.                            We  therefore   are  not  



          48       Id.  at  561  ("URLTA damages  compensate  tenants  who  live  with  conditions  



that  render  a  dwelling  unfit,  uninhabitable,  or  unsafe,  or  who  are  constructively  evicted  

by   those   conditions.    Fault is irrelevant   to   such   URLTA   claims.    Common   law   tort  

remedies compensate plaintiffs  for  consequential damages resulting from personal injury,  

including   medical   expenses,   loss   of   employment   or   lack   of   income,   and  pain  and  

suffering.").   



          49        AS  34.03.040(a)  (prohibiting rental  agreement providing  for waiver  of  

                                                                                                                            

rights or remedies under URLTA); but see AS 34.03.100(c) authorizing tenant to assume  

                                                                                                                     

certain duties to maintain fit premises in rental unit for which rent exceeds $2,000 per  

                                                             

month).  



          50       E.g., AS 34.03.070(d) (providing for damages of up to twice amount of  

                                                                                                                             

security deposit unlawfully withheld); AS 34.03.210 (authorizing one and one-half times  

                                                                                                                        

actual  damages  for unlawful  ouster  or  deliberate  interruption of  essential  services);  

                                                                                                                 

AS 34.03.290(c) (authorizing landlord to recover one and one-half times actual damages  

                                                                                                                   

if tenant remains unlawfully in possession).  

                                                                  



          51       E.g., AS 34.03.300 (authorizing award of actual damages or one month's  

                                                                                                                    

period rent for landlord or tenant's violation of provisions governing landlord's right of  

                                                                                                                             

access to dwelling).  

               



          52       Hilder v. St. Peter, 478 A.2d 202, 209 (Vt. 1984) (holding that residential  

                                                                                                                 

lease creates contractual relationship between landlord and tenant such that "standard  

                                                                                                                  

                                                                                                           (continued...)  



                                                             -19-                                                       7639
  


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

convinced  that  the  legislature  intended  to  import  wholesale  the  common  law  of  contract  



damages  into  URLTA.   



                   Rather   than   parsing   the   common   law   to   decide   the   scope   of   damages  



permitted  for  habitability  violations,  we  must  interpret  the  statute.   When  interpreting  



statutes,  our  goal  "is  to  give   effect to the   legislature's  intent,  with  due  regard   for  the  



                                                                            53  

meaning   the   statutory   language   conveys to   others."                    We   consider   the   statute's   text,  



                                              54  

legislative  history,  and  purpose.              



                   Alaska's   version   of   URLTA   is   patterned  on  the   Uniform   Residential  



                                               55  

Landlord  &  Tenant  Act  of   1972.    URLTA  prescribes  various  duties  for  landlords  and  



tenants,  regarding  payment  of  rent,  security  deposits,  and control  and  condition  of  the  



premises.   For  each  duty  there  is  a  corresponding  remedy.   The  tenant's  general  remedy  



for   the   landlord's   noncompliance   with   the   rental   agreement   or   the   warranty   of  



habitability   provides:     "Except   as   provided   in   this   chapter,   the   tenant   may   recover  



damages  and  obtain  injunctive  relief  for  any  noncompliance  by  the  landlord  with  the  



          52       (...continued)  



contract  remedies  .   .   .  are  available  to  the  tenant w         hen  suing  for  breach  of  the  implied  

warranty  of  habitability,"  while  also  holding  that  damages  should  be  allowed  for  tenant's  

discomfort  and  annoyance  due  to  landlord's  breach);  Teller  v.  McCoy,  253  S.E.2d   114,  

 127-28  (W.  Va.   1978)   (explaining   that   although   residential   lease   is   a   contract   and  

"common   law  remedies   for  breach   are   applicable,"   courts have  had   "great   difficulty  

formulating   an   appropriate   measure   of   damages   applicable   to  a   breach   of   implied  

warranty" and ultimately concluding that tenant may recover damages for  annoyance and  

discomfort).  



          53       City of Valdez v. State, 372 P.3d 240, 254 (Alaska 2016) (quoting City of  

                                                                                                                          

Fairbanks v. Amoco  Chem. Co., 952 P.2d 1173, 1178 (Alaska 1998)).  

                                                                                                      



          54       Ray v. State, 513 P.3d 1026, 1033 (Alaska 2022).  

                                                                                  



          55       Compare AS  34.03.010  -  .380, with  UNIF .   RESIDENTIAL   LANDLORD   &  

                                                                           

TENANT  ACT     1.101  - 6.104  ,  7B  U.L.A.  277-427  (1972).   



                                                           -20-                                                      7639
  


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

rental  agreement  or  AS  34.03.100  [warranty  of habitability], 34.03.210 [unlawful  ouster,  



exclusion,   or   diminution   of   service],   or   34.03.280   [limits   on   landlord's   recovery of  



                    56  

                                                                                                                              

possession]."             The  text  neither  expressly  authorizes  non-economic  damages  nor  



                                         

expressly precludes them.  



                                                                                                                               

                    Other courts have reasoned, when construing their states' versions of the  



                                                                                                                           

uniform act, that the measure of damages depends on the nature of the injury for which  



                                                   57  

                                        

the legislature provided a remedy.                                                                                            

                                                       We agree with this methodology, while noting that  



                                                                                                                           

textual differences between the various state versions of the uniform act have led courts  



                                      

to different conclusions about the scope of damages available.  In Alaska the statutory  



                                                                                                                      

warranty of habitability requires a landlord to do the following:  maintain the premises  



                                                                                                                                  

in "a fit and habitable condition," including specifically to keep common areas "in a  



                                                                                                                               

clean and safe condition"; make sure appliances, plumbing, and ventilation systems are  



                                                                                                                         

in  "good  and  safe working  order"; ensure appropriate rubbish removal;  and  furnish  



                       58  

                            The  landlord's  failure  to  provide  these  things  may  in  some  cases  lead  

adequate locks. 



the  tenant  to   suffer  physical  harm.    But   in  most   cases  the   tenant's injury  will  be  the  



          56        AS   34.03.160(b).    The   remedy   for   damages   and   injunctive   relief   is   in  



addition  to  the  tenant's  right  to  terminate  the  rental  agreement  upon  giving  proper  notice,  

provided  for  in  AS  34.03.160(a).   



          57        See Brewer v. Erwin, 600 P.2d 398, 405-06 (Or.  1979) ("In short, when  

                                                                                                                           

other statutory indicators are lacking, the key to damages seems to be to determine what  

                                                                                                                             

kind of harm, in the setting of a normal residential rental transaction, can reasonably be  

                                                                                                                                

said to lie within the contemplation of the protective provision of the act upon which the  

                                                                                                                               

claim is founded.");  Thomas v.  Goudreault, 786 P.2d  1010, 1016 (Ariz. App.  1989)  

                                                                                                                           

("We agree with the Brewer court that the key to determining the type of 'damages' or  

                                                                                                                                 

'actual damages' contemplated under the Act is to determine the type of harm in the  

                                                                                                                               

setting of a normal residential rental transaction that can reasonably be said to lie within  

                                                                                                                          

the contemplation of the protections afforded by the Act.").  

                                                                                 



          58        AS 34.03.100(a).  

                           



                                                              -21-                                                         7639
  


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

discomfort,  disgust,  and  stress  of  living  in  a  filthy,  uncomfortable,  or  unsafe  residence.   



                    Generally,  the  residential  tenant  who  has   suffered  a  breach  of  the  

                    warranty  does  not  lose  money.   [Tenants]  cannot  bathe  as  frequently  

                    as   [they]   would   like   or   at   all   if   there   is   inadequate   hot   water;  

                    [tenants]   must   worry   about   rodents   harassing   [their]   children   or  

                    spreading  disease  if  the  premises  are  infested;  or  [they]  must  avoid  

                    certain  rooms  or  worry  about  catching  a  cold  if  there  is  inadequate  

                    weather  protection  or  heat.   Thus  discomfort  and  annoyance  are  the  

                    common  injuries  caused  by  each  breach  and  hence  the  true  nature  of  

                    the  general  damages  the  tenant  is  claiming.[59]  



Because  discomfort,  annoyance,  and mental  stress are the  common  and  foreseeable  

                                                                                                               



harms caused by habitability violations, it stands to reason that the legislature did not  

                                                                                                                            



intend to preclude damages for these kinds of harms.  Of course, some tenants may be  

                             



able to use their own resources to cure minor problems and could claim those expenses  

                                                                                                                    



as economic damages.  But because tenants do not own the premises, their ability to fix  

                                                                                                                             

the problem  will  often be  limited.60                  And if  economic harm  is the  only measure  of  

                                         

                                                                                                                             



damages  recoverable,  then  only  those  tenants  with  the  financial  means  to  protect  

                                                                                                                      



themselves will have a remedy.  Interpreting the act in a way that offers no remedy for  

                                                                                                                            



many violations or for the most vulnerable tenants would go against the statute's express  

                                                                                                                      



command that it "be liberally construed and applied" to "encourage landlord and tenant  

                                                                                                                        

to maintain and improve the quality of housing."61  

                                                           

                                                                             



          59        See  Moskovitz,  supra  note  42,  at   1470-71.  



          60        It  is  notable  that  the  Alaska  Legislature  did  not  adopt  a  provision  from  the  



uniform  act  that  would  allow  the  tenant  to  fix  minor  habitability  problems  and  deduct  the  

cost   of   the  repair   from   the  rent.    Cf.  UNIF .   RESIDENTIAL   LANDLORD   &   TENANT   ACT  

  4.103.   In  Alaska,  the  only  remedy  for  a  tenant  who  repairs  minor  habitability  defects  

is  to  sue  for  damages.  



          61        AS   34.03.010(a)-(b);   see   also  Newton   v.  Magill, 872   P.2d   1213,   1217  



                                                                                                            (continued...)  



                                                             -22-                                                        7639
  


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

                    To  interpret  the  measure  of  damages  allowed  by  AS  34.03.160, we  must  



also  consider  the  entire  statutory  scheme,  in  particular  the  many  other  remedies  provided  



                  62  

by  URLTA.            For  example,  the  landlord  has  an  almost  mirror-image  general  remedy  to  



recover  "actual  damages  and obtain  injunctive  relief  for  any noncompliance by the tenant  



                                                                                                63  

with  the  rental  agreement  or  AS  34.03.120  [tenant's  obligations]."                          Weidner  points  out  



that  the  landlord's general remedy is worded  slightly differently  than  the  tenant's:   the  



                                                                                                                     64  

landlord  may  recover  "actual  damages"  while  the  tenant  may  recover  "damages."                                   The  



term   "actual   damages"   does   not   distinguish   between   economic   and   non-economic  



damages,  but  between  "proven  injury  or  loss"  and  exemplary  damages  such  as  punitive  



          61        (...continued)  



(Alaska   1994)   (construing URLTA  to   abolish   landlord  tort   immunity,  relying   on  the  

"policy  reasons  on  which  [URLTA's]  warranty  of  habitability  is  based"  and  explaining  

that   "it   would   be   inconsistent  with a   landlord's   continuing   duty   to   repair   premises  

imposed  under   .   .   .  URLTA  to exempt   from  tort   liability   a   landlord  who   fails   in  this  

duty");   Vinson  v.  Hamilton,   854  P.2d  733,  736  (Alaska   1993)  (construing  URLTA  to  

broadly  apply  to  month-to-month  tenants  because  "[o]therwise,  these  tenants  would  not  

assert  their  rights under their leases and  under the law, rightfully fearful  that  landlords  

would  evict  them  in  consequence,"  a  result  that  "would  frustrate  public  policy").  



          62        See City of Valdez v. State, 372 P.3d 240, 249 (Alaska 2016) ("Because the  

                                                                                                                            

term  'assessment' is used throughout AS 43.56's statutory scheme, an outline of the  

                                                                                                                           

language set forth in the statutory scheme will prove helpful . . . .").  

                                                                                                     



          63        AS 34.03.220(c).  

                          



          64        Compare AS 34.03.160(b) (permitting tenant to recover "damages . . . for  

                                                                                                                             

any  noncompliance  by  the  landlord  with  the  rental  agreement  or  AS  34.03.100,  

                                                                                                               

34.03.210, or 34.03.280"), with AS 34.03.220 (permitting landlord to recover "actual  

                                                                                                                     

damages  .  .  .  for  any  noncompliance  by  the  tenant  with  the  rental  agreement  or  

                                                                                                                            

AS 34.03.120").  

                          



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

                                         65  

damages  or  treble  damages.                 Because  the  tenant's  general  remedy  in  AS  34.03.160(b)  



incorporates   the   right   to   obtain   exemplary   damages  (one   and   one-half   times   actual  

damages)  for  unlawful  ouster  and  the landlord's willful diminution of essential services,66  



the  legislature  likely  used  the  term  "damages"  in  AS  34.03.160(b)  to  encompass  both  



actual  and  exemplary  damages.   The  slightly  different  wording  does  not  shed  any  light  



                                                                                                   67  

on  the  kinds  of  injury  that  the  legislature  intended  to  compensate.                           



                    More  illuminating  is  a  comparison  between  the  tenant's  general  remedy  for  



habitability  violations,  AS  34.03.160(b),  and  the  special  remedy  for  wrongful  failure  to  



supply  essential  services,  AS  34.03.180.   The  latter  statute  provides  special  remedies  for  



what   can  be  viewed   as  the  most   serious  kind   of  habitability  violations:    deliberate   or  



          65        See  actual  damages,  BLACK 'S  LAW  DICTIONARY  (11th  ed.  2019)  (defining  



"actual  damages"  as  "[a]n  amount  awarded  to  a  complainant  to  compensate  for  a  proven  

injury  or  loss;  damages  that  repay  actual  losses").  



          66        AS 34.03.160(b); AS 34.03.210; AS 34.03.280.  

                                                                             



          67        Weidner's brief does not expressly argue that the twin damages remedies  

                                                                                                                     

for landlords and tenants should be interpreted to allow the same types of damages, but  

                                                                                                                              

it is a fair point to consider.  The Oregon Supreme Court, interpreting Oregon's version  

                                                                                                                        

of URLTA, observed:  

                                   



                    [T]he positions  of  the  parties  to  a  residential  tenancy  are  only  

                                                                                                                 

                    superficially symmetrical.  From the landlord's standpoint a rental  

                                                                                                              

                    is ordinarily a business transaction. Allowing for differences among  

                                                                                                               

                    tenants  that  may  make  one  preferable  to  another,  their  rental  

                                                                                                               

                    payments are fungible. From the tenant's viewpoint, the transaction  

                                                                                                         

                    involves his or her home and personal life.  

                                                                               



Brewer v. Erwin, 600 P.2d 398, 405 (Or. 1979). Yet the court also recognized that these  

                                                                                                                           

generalizations were  not  "invariably true"  and that  the  statute provided  damages to  

                                                                                                                 

landlord and tenant in "identical terms."  Id.  It ultimately did not opine on whether the  

                                                                                                                              

damages remedies were identical.  Because the scope of a landlord's damages under  

                                                                                                                          

AS 34.03.120 is not an issue raised in this case, we express no opinion on the matter  

                                                                                                                         

either.  



                                                              -24-                                                        7639
  


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

negligent  failure  "to  supply  running  water,  hot water, heat,  sanitary  facilities,  or  other  



                            68  

essential  services."           In  those  cases,  after  giving  notice  to  the  landlord,  the  tenant  may  



immediately  procure  those  services  and  deduct  "their  actual  and  reasonable  cost  from the  



        69  

rent."     Alternatively,  the  tenant  may  procure  reasonable  substitute  housing;  the  tenant  



is  then  excused  from  paying  rent  and  may  also  recover  the  amount  by  which  the  cost  of  



                                                   70  

substitute  housing  exceeds  the  rent.               Or  as  another  alternative,  the  tenant  may  "recover  



                                                                                                              71  

damages  based  on  the  diminution  in  the  fair  rental  value  of  the  dwelling  unit."                      Yet  this  



statute  also  contains a     limitation:   "A  tenant w            ho  proceeds u      nder  this s   ection  may  not  



                                                                   72  

proceed  under  AS  34.03.160  as  to  that  breach."                  In  other  words,  a  tenant  who  elects  one  



of  the   special  remedies  for  wrongful  failure  to   supply  essential   services  may  not  also  

recover  the  damages  authorized  by  AS  34.03.160.73  



          68       AS  34.03.180(a).  



          69       AS  34.03.180(a)(1).  



          70       AS  34.03.180(a)(3).  



          71       AS  34.03.180(a)(2).  



          72       AS  34.03.180(b).  



          73       Like  URLTA,  the  Uniform  Law  of   1972  provides  for  diminution  in  fair  



market   value   only   for   failure   to   supply   essential   services.   See   UNIF .   RESIDENTIAL  

LANDLORD  & TENANT  ACT    4.104, 7B  U.L.A.  386-390  (1972).   It  is  notable  that  the  

                      

Revised   Uniform   Residential   Landlord   and   Tenant   Act,   adopted   in 2015,   no   longer  

designates  diminution  in  fair  market  value  as  a  remedy  exclusively  for  denial  of  essential  

services.   See  REV.  UNIF .  RESIDENTIAL  LANDLORD  &  TENANT  ACT    407(a),  7B  U.L.A.  

227  (2015)  (providing  that  when  landlord  denies  essential  services, tenant  may  either  

procure  service  and  deduct  cost  or  obtain  substitute  housing).   Instead  the  2015  version  

of  the  uniform  act  expressly  makes  diminution  in  fair  market value  of  the  dwelling  a  

nonexclusive  measure   of   damages   available   for   all  habitability  violations.   Id.     402  

(providing  that  if  landlord's  noncompliance  with  duty  to  maintain  fit  premises  causes  

                                                                                                          (continued...)  



                                                            -25-                                                      7639
  


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

                   These special remedies are framed in economic terms:   the cost of procuring  



the   essential   service;   the   cost of   substitute  housing;   or   the   diminution   in   fair   market  



value.  Yet it is important to keep  in  mind that they are alternative remedies that entail  



tradeoffs.   The  self-help  remedies  make  it  easier  for  the  tenant  to  obtain  immediate  relief  



without   the   delay   and   uncertainty   of   litigation,   yet   the   tenant   may   not   recover   all  



consequential  damages.   Similarly,  the  diminution-in-fair-market-value  remedy  relieves  



the   tenant   of   the   burden   to   prove   the   specific   consequential   damages   suffered,   but  



because  it  is  an  objective  measure  of  harm  rather  than  a  measure  of  the  tenant's  personal  



                                                                74  

injury,   the   tenant   may   not be   made   whole.                Thus   the   provisions   of   AS   34.03.180  



suggest   legislative   intent   to   provide   a   wider   range   of   remedies   for   the   most   serious  



habitability   violations,   rather   than intent   to   limit   the   general   measure   of   damages   to  



economic  harms  only.    



                   The   legislature   also   used   diminution   in   value   in   AS   34.03.190,   which  



authorizes  the  court  to  abate  rent  when  the  tenant  asserts  a  habitability  counterclaim  to  



an FED  action  based  on  nonpayment  of  rent.   In   Chilton-Wren  v.   Olds  we  held  that  a  



tenant   who   sought   this   remedy   as   a   defense   to   eviction   for   nonpayment  was   not  



          73       (...continued)  



denial   of   essential   service,   materially   interferes   with   health   or   safety,   or   materially  

interferes  with  "use  and  enjoyment"  of  premises,  tenant  may  recover  "actual  damages");  

   102   (defining   "actual   damages"   to   include   "diminution   in   the   value   of   a   dwelling  

unit").    The   changes to   the   2015   version   of   the   uniform   act   seem   to   underscore   the  

limited  availability  of  diminution  in  fair  market  value  damages  in  the  original  version  of  

the  uniform  act  and,  consequently,  in  Alaska's  version  of  URLTA.  



          74       See Teller v. McCoy, 253 S.E.2d 114, 128 (W. Va. 1978) ("We feel that the  

                                                                                                                          

true nature of the damages suffered by a tenant faced with a breach by the landlord of the  

                                                                                                                          

warranty are not adequately measured by the exclusive use of the 'difference in value'  

                                                                                                                     

standard."); Hilder v. St. Peter, 478 A.2d 202, 209 (Vt. 1984) (holding that tenant faced  

                                                                                                                      

with breach of implied warranty of habitability may recover diminution of fair market  

value or damages for discomfort and annoyance).  

                                                       



                                                            -26-                                                      7639
  


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

                                                                                                                      75  

collaterally  estopped from  later  recovering  damages  for  habitability  violations.                                   We  



explained   that   the  purpose   of  raising   counterclaims  under   AS   34.03.190   to   the   FED  



action  is  to  show  that  the  tenant's  damages  claim  is  at  least  as  valuable  as  the  rent  owed,  



                                                                                                                      76  

which would  be  a  successful d              efense  to  eviction  based  on  nonpayment o                  f  rent.     The  



statute  authorizes  the  use  of  diminution  in  fair  market  value  as  an  objective  measure  of  



harm  to  the  tenant,  enabling  the  court  to  compare  which  party  is  owed  more  in  a  quick  



                                                                                     77  

way  appropriate  to  the  "uniquely  expedited"  FED  process.                          The  tenant  may  later  prove  



                                                                                                                              78  

the  damages  she  has  actually  suffered  through  a  damages  action  under  AS  34.03.160.                                    



Therefore   the   legislature's   use   of   diminution   in   fair   market   value   in   AS   34.03.190  



reflects  an  alternative  measure  of  damages for  special circumstances, as in  AS  34.03.180.  



                    In  sum,  URLTA's  remedy  structure  provides  for  a  general  remedy  for  the  



landlord's   noncompliance   with   the   warranty   of   habitability  and   alternative   special  



remedies  for  failure  to  provide  essential  services  and  for  calculating  the  parties'  debts  to  



one   another   in   summary   eviction   proceedings.     This   structure,   with   the   alternative  



remedies   measured   in   economic   terms   only,   suggests   that   the   legislature   intended   a  



broader  measure  of  damages  under  AS  34.03.160(b)'s  general  remedy.   



                    Ultimately,   without   a   clear   indication  of   legislative   intent   for   whether  



          75        1  P.3d  693,  695,  698  (Alaska  2000)  (noting  that  tenant  claimed  no  rent  was  



due  in  part  because  landlord  violated  statutory  obligation  to  maintain  safe  and  habitable  

premises).  



          76        Id. at 698.  

                             



          77        Id.  



          78        Id. (explaining that absent agreement to fully litigate tenant's counterclaims  

                                                                                                            

in  FED  proceeding,  "the  proper  approach  is  to  bifurcate  the  trials  -  litigating  the  

                                                                                                                            

counterclaims in the FED action only to the extent necessary to determine the question  

                                                                                                                    

of possession and preserving the damages issues for a later jury trial").  

                                                                                                



                                                             -27-                                                        7639
  


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

URLTA  permits  recovery  of  non-economic  damages,  we  must  fall  back  on  its  command  



                                                                             79  

to  construe  URLTA  liberally  to  effectuate  its  purpose.                    As  explained  above,  economic  



damages  are  not  the  primary  measure  of  the  injury  caused  by  habitability  violations.   And  



limiting   recovery   to   economic   damages  only   would   preclude   recovery   for   many  



habitability  violations that  do  not   amount  to  denial  of   essential   services.    Construing  



AS 34.03.160(b)  to permit  recovery  of non-economic damages for  habitability violations  



appears  more  consistent  with  the  legislature's  remedial  intent.    



                   Weidner   relies   on   the   Oregon   Supreme   Court's   decision   in   Brewer  v.  



Erwin,  which  held  that  although  non-economic  damages  are  available  for  habitability  



violations  under   Oregon's  version   of  URLTA,  they   can  be  recovered   only  when  the  

landlord's  conduct  was  "deliberate,  willful,  retaliatory,  or  malicious."80   The court noted  

                                                                                                                     



that under Oregon law, damages based on diminution of fair market value were available  

                                                                                                                



only when the landlord deliberately refused or was grossly negligent in failing to provide  

                                                                                                                  

                                                                        81    It  reasoned  that  the  legislature  

essential  services,  but  not  for  mere  negligence.                                                       

                                                        



          79  

                   AS  34.03.010.  



          80       600   P.2d   398,   409   (Or.   1979).    Weidner   also   relies   on   decisions   from  



Colorado  and  Pennsylvania,  but  these  are  not  on  point.   In  Blackwell  v.  Del  Bosco  there  

was  no  statutory  or  common  law  warranty  of  habitability  in  Colorado  law,  and  the  court  

rejected  a  claim for  emotional  distress  damages  on  the  ground  that  the  landlord's  conduct  

failed to  satisfy the standards for intentional  infliction of emotional distress.  536 P.2d  

838,   840-41   (Colo.  App.   1975).   In  Fair  v.  Negley   a  Pennsylvania   court  rejected the  

argument that   "breach   of   the   implied   warranty   of   habitability   constitutes   intentional  

infliction  of  emotional  distress  as  a  matter  of  law"  but  did  allow  the  tenant  to  try  to  prove  

that   the   landlord,   "by   breaching   the   warranty,   has   intentionally   inflicted   emotional  

distress u   pon  the  appellants."  390  A.2d  240,  246  (Pa.  Super.   1978).  Neither  decision  

addressed whether a statutory remedy for violating the warranty of habitability allows  

                                                       

recovery of non-economic damages.  



          81       Brewer, 600 P.2d at 406.  

                                                  



                                                           -28-                                                      7639
  


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

"differentiated  the  gravity  of  a  landlord's  breaches"  in  two  respects:   between  essential  



                                                                                                                           82  

services a   nd  other  required  services,  and  between culpable  or  negligent  conduct.                                    In  



light  of  this  distinction,  it  concluded  that  damages  for  actual  psychological  harm suffered  



                                                                           83  

would  be  appropriate  only  for  deliberate  conduct.                        



                    We   decline  to   follow  the  Brewer   decision  because  Alaska   law   does  not  



draw  the  same  distinctions.   Under  Alaska  law  the  special  remedies  for  failure  to  supply  



                                                                                                              84  

essential  services  are  available  for  both  negligent  and  deliberate  conduct.                              Alaska  law  



punishes  deliberate  failure  to  supply  essential  services  by  authorizing  a  tenant  to  recover  



                                                          85  

one  and  one-half  times  actual  damages.                   Thus  the  degree  of  culpability  in  the  landlord's  



conduct  does  not  support  a  distinction  in  the  type  of  injury  that  may  be  compensated  with  



damages;  Alaska  law  punishes  more  culpable  conduct  with  a  damages  multiplier.   And  



as explained above, although AS 34.03.180's alternative remedies indicate the Alaska  



Legislature  intended  to  make  more  remedies  available  for  the  most  serious  habitability  



violations,  it  does  not  suggest  an  intent  to  limit  the  kinds  of  damages  tenants  may  recover  



                                       86  

for  habitability  violations.                



          82        Id.  at  409.  



          83        Id.  



          84        AS   34.03.180(a)   ("If,   contrary   to   .   .   .   AS   34.03.100,   the   landlord  



deliberately or  negligently fails to supply running water . . . or other essential services  

.  .  .  .").   



          85        AS  34.03.210 ("If the landlord  . . . willfully  diminishes  services to the  

                                                                                                                               

tenant by interrupting or causing the interruption of electric, gas, water, sanitary or other  

                                                                                                                            

essential service to the tenant, the tenant may . . . recover an amount not to exceed one  

                                                                                                                              

and one-half times the actual damages.").  

                                              



          86        See  Thomas  v.  Goudreault,  786  P.2d  1010,  1016  (Ariz.  App.  1989)
  

                                                                                                                          

(rejecting rationale of Brewer decision and holding that Arizona's version of URLTA
  

                                                                                                                   

                                                                                                               (continued...)
  



                                                              -29-                                                         7639
  


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

                   Weidner   also   argues   that   permitting   a   tenant   to   recover   non-economic  



damages  for  habitability   violations   is   contrary   to   URLTA's   statutory   purpose   to  

"simplify,  clarify, modernize,  and  revise  the  law  governing  the  rental  of  dwelling  units"87  



because  it  will  bog  down  resolution  of  these  claims.   We  disagree:   allowing  recovery  of  



non-economic  damages  does  not  make  the  law  complex  or  unclear,  even  if  it  may  expose  



landlords   to   more   litigation   and   greater   liability.     Concern   over   landlords'   liability  



exposure  is  reasonable,  but  should  not  be  overstated.   URLTA  gives  "[t]he  aggrieved  



                                                           88  

party   .   .   .   a   duty   to   mitigate   damages."         For   all   habitability   violations   materially  



affecting  health   and   safety,  the  tenant  may  terminate  the  tenancy   after  20   days   if  the  



                                             89  

problem   is   not   promptly   fixed.              Although   not   all   tenants   will   be   in   a   position   to  



terminate  the  tenancy  and  move  so  quickly,  the  tenant's  right  to  do  so  is  a  consideration  



in  deciding  whether  the  tenant  has  mitigated  damages,  including  non-economic  damages  



allegedly   resulting   from   the   unfit   dwelling.    And   of   course,   the   landlord   can   reduce  



liability  for  noneconomic  damages  due  to  habitability  violations  by  promptly  correcting  



them,  which  is  one  of  the  main  policy  goals  behind  URLTA's  adoption.   



                   Because   URLTA   permits    recovery    of   non-economic damages for  



habitability   violations,   the   superior   court   did   not   err   by   allowing   the  jury   to award  



Guilford   damages   for   the   discomfort,   annoyance,   and mental   distress   attributable   to  



Weidner's  violations  of  the  warranty  of  habitability.    



         86        (...continued)  



permits   recovery   of   emotional   distress   damages   even   when   landlord's  habitability  

violations  are  not  "culpable").   



         87        AS  34.03.010(b)(1).  



         88  

                   AS 34.03.320.  

                         



         89        AS  34.03.160(a).  



                                                          -30-                                                     7639
  


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

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

                    Rulings.   



                    Weidner  appeals  a  number  of  evidentiary  rulings.   We  review  the  superior  



court's   evidentiary   rulings   for   abuse   of   discretion,   reversing   only   if   the   error   is  

"inconsistent  with  substantial  justice."90  



                                                                                                                 

                    1.	       The superior court did not abuse its discretion by permitting  

                                                                        

                              other Weidner tenants to testify.  



                                                                                                                    

                    Weidner argues that the superior court erred when it admitted testimony  



                                                                                                                             

from other tenants in the building.  It asserts that the testimony was not relevant, was  



                                                                                          

overly prejudicial, and constituted impermissible character evidence.  



                                                                                                                           

                    Evidence  is  relevant,  and  therefore  assumed  admissible,  if  it  has  "any  



                                                                                                                             

tendency to make the existence of any fact . . . of consequence . . . more probable or less  



                                                                             91  

                                                             

probable  than  it would  be  without  the  evidence."                                                               

                                                                                  Guilford's  complaints  included  



                                                                                                                             

plumbing issues, mold, and rodents, all of which were likely to affect other tenants and  



                                                                                                                             

other units in her building.  The superior court reasonably concluded their testimony was  



                                                                                                                          

relevant because habitability is a "broad subject" and witnesses should be able "to testify  



                                                                                                                                 

about  conditions  that  [they] observed  in  the  Weidner  Apartment  Complex that  .  .  .  



                                                                                                                      

affected habitability of the unit."  And each of the other tenants testified to at least one  



                                                

of the same problems Guilford alleged.  



                                                                                                                   

                    Weidner contends that the other tenants' testimony was unfairly prejudicial  



                                                                                                                               

and  was  impermissible  evidence  of  Weidner's  "corporate  character."                                      Evidence  of  



                                                                                                                                

specific bad acts "is not admissible if the sole purpose for offering the evidence is to  



                                                                                                                  

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



          90        Luther   v.  Lander,   373  P.3d  495,  499   (Alaska   2016)   (quoting Loncar   v.  



Gray,  28  P.3d  928,  930  (Alaska  2001)).  



          91        Alaska  R.  Evid.  401.  



                                                              -31-	                                                       7639
  


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

                92  

therewith."         But  such  evidence  is  admissible  to  show,  among  other  things,  "proof  of  



motive, opportunity, intent, preparation,  plan, knowledge, identity, or absence of mistake  



                  93  

or   accident."         When   considering   this   evidence, "the   superior   court  must  weigh   the  



undue  prejudice  of  the  character  inference  against  any  probative  value  the  evidence  has  

for a pe   rmissible purpose under [Alaska Evidence]  Rule  403."94  "We  will not reverse  



a   superior   court's   balancing   under   this   test   unless   convinced   the   'potential   danger  

predominated  so  greatly'  as  to  constitute  a  clear  abuse  of  discretion."95  



                   The   tenants'   testimony   that   they   reported   their   issues  to  Weidner   is  



admissible  to  establish  that  Weidner  had  knowledge  of  the  issues  and  an  opportunity  to  



remedy  them.   Weidner's  knowledge  of  the  issues  was  also  essential  to  prove  Guilford's  



retaliatory  eviction  claim.   Any  prejudice  Weidner  may  have  suffered  as  a  result  of  this  



testimony  was  at  least  partially  offset  by  its  opportunity  to  cross-examine  these  tenants,  



which elicited   favorable   evidence   about   its  performance   as   a   landlord.    The   superior  



court  did  not  abuse  its  discretion  by  permitting  Guilford's  neighbors  to  testify  about  the  



conditions  of  the  Weidner  building.  



                   2.	      The superior court did not abuse its discretion by excluding late- 

                            disclosed  witnesses,  photographs,  and  video.  



                   Weidner  also   argues   the   superior   court   abused   its   discretion   when   it  



          92       Alaska  R.  Evid.  404(b)(1).  



          93       Id.  



          94       Lindbo  v.  Colaska,  Inc.,  414  P.3d  646,  656  (Alaska  2018);  see  also  Alaska  



R.  Evid.  403  ("Although  relevant, evidence  may  be  excluded  if  its  probative  value  is  

outweighed  by  the  danger  of  unfair  prejudice,  confusion  of  the  issues,  or  misleading  the  

jury,   or  by   considerations   of  undue   delay,  waste   of  time,   or needless presentation   of  

cumulative  evidence.").  



          95       Id. at 656 (quoting Jones v. Bowie Indus., Inc., 282 P.3d 316, 324 (Alaska  

                                                                                                               

2012)).  



                                                          -32-	                                                   7639
  


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

excluded  three  Weidner  maintenance  employees  as  witnesses  and  refused  to  admit  300  



photographs   and   a   video   of   Guilford's   apartment   that   it  reportedly   found   the   Friday  



before  trial.   The  witnesses  were  not   on  Weidner's  preliminary  witness  list   and  were  



                                                                                  96  

named  only  on  its  final  witness  list   15  days  before  trial.                 The  superior  court  granted  



Guilford's  motion  to  exclude  the  witnesses,  noting  that "                    [t]he  failure  to  identify these  



multiple  witnesses  until  the  last  minute,  coupled  with  the  eve-of-trial  disclosure  of  over  



300  photographs  [and  a  video],  paints  an  unflattering  picture  of  disregard  for  the  pretrial  



order,  the  rules of discovery, and fair  play."  Weidner claims  the  court's  ruling  was  an  



abuse  of  discretion  because  Weidner  complied  with  the  court's  only  order  requiring  a  



witness  list, because its late disclosures were  harmless, and  because the court failed to  



recognize  how  its  ruling  would  prejudice  Weidner.  



                   The   civil   rules   impose   an   ongoing  obligation   to   supplement   a   party's  



discovery disclosures.   Alaska  Civil  Rule  26  requires  parties  to  disclose the  name  and  

                                                                                               97  and imposes a duty  

contact  information  of  any  proposed  witnesses  they  expect  to  call                                               



to supplement disclosures if they are "incomplete or incorrect and if the additional or  

                                                                                                                            



corrective information has not otherwise been made known to the other parties during  

                                                             

the discovery process or in writing."98                   Alaska Civil Rule 37(c) generally requires the  

                                          

                                                                                                                          



trial court to "exclude undisclosed evidence unless there is substantial justification for  

                                                                                    

the party's failure to make timely disclosure and this failure is harmless."99                                  The court  

                                                                                                                       



"has broad discretion in imposing sanctions respecting Rule 26(e), as it does under Rule  

                                                                                                                        



          96       Although  Weidner  appeals  only  the  exclusion of  3  witnesses,  it  actually  



named   11  previously  undisclosed  witnesses  in  its  final  witness  list.  



          97       Alaska  R.  Civ.  P.  26(a)(3).  



          98       Alaska R. Civ. P. 26(e)(1).  

                                               



          99       Adkins  v.  Collens,  444  P.3d   187,  202  (Alaska  2019).  



                                                            -33-                                                       7639
  


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

37,   and   its   decision   in   these   matters   will   only   be   overturned  upon  an  abuse   of  

discretion."100  



                   Weidner argues that its  late  disclosures were harmless because the potential  



witnesses  were  discussed  during  depositions  and  "identified  as  Weidner  employees  with  



knowledge  of  [Guilford's]  unit."   Acknowledging  in  a  deposition  that  these  individuals  



were  employed  by  Weidner,  however,  did  not  notify  Guilford  that  Weidner  intended  to  



call  them  as  witnesses  and  did  not  provide  her  with  their  contact  information  as  required  



by  Rule  26.   Weidner's  late  disclosure  was  neither  justified  nor  harmless.   The  superior  



court  did  not  abuse  its  discretion  by  excluding  the  late-disclosed  witnesses.   



                   Weidner   argues   that   the   superior   court   also  abused  its   discretion   by  



excluding  the  hundreds  of  photographs  it  claims  to  have  discovered  the  Friday  afternoon  



before  the  Tuesday  trial.   Weidner  claims  the  court  automatically  assumed  admitting  the  



photographs  would  be  prejudicial.   Rule  37's  requirements  regarding  the  late-disclosed  



                                                                                                                         101  

photographs  and  video  are  the  same  as  those  regarding  its  late-disclosed  witnesses.                                



Weidner's only justification  was that the photographs were in "an electronic file, you  

                                                                                                                       



know, sitting there on the - on the computer with an awful lot of other electronic files."  

                                                                                                                              



The  court ruled  that the photographs  and video  were  cumulative  and the  discovery  

                                                                                                              



violation was "significant" and "materially prejudicial to [Guilford]." The superior court  

                                                                                                                      



did not abuse its discretion and its exclusion of the photographs and evidence was not  

                                                                                              



          100      Grimes  v.  Haslett,  641  P.2d  813,  822  (Alaska  1982)  ("[T]he  trial  court  has  



inherent  power  to  exercise  this  authority.").  



          101      See   Alaska   R.   Civ.   P.   37(c)(1) (mandating   that  party   "shall   not   .   .   .  be  



permitted  to  use" undisclosed evidence unless there is  showing of substantial  justification  

and  harmlessness);  see  also  Adkins ,  444  P.3d  at  202.  



                                                           -34-                                                      7639
  


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

"inconsistent  with  substantial  justice." 102  



                   3.	      The   superior   court   did   not   abuse   its   discretion   by   admitting  

                            government  publications  about  the  hazards  of  mold.  



                   Weidner    argues   that    the    superior    court    improperly    admitted    three  



publications  from  OSHA,  EPA,  and  DHSS.   The  court  ruled  they  were  admissible  under  

the  public  records  exception  to  the  hearsay  rule.103  



                   Weidner   cites   no   legal   authority   and   fails   to   adequately  develop   its  



arguments  on  appeal,  generally  complaining  the  evidence  was  irrelevant  and  prejudicial.   



But   Weidner   never   explains   how   the   mold   safety   documents   were   irrelevant   or  



prejudicial.   "[W]here  a  point  is  given  only  a  cursory  statement  in  the  argument  portion  



                                                                               104  

of   a   brief,   the   point   will   not   be   considered on   appeal."           Weidner   has   waived   this  

argument  through  inadequate  briefing  on  appeal,  and  we  do  not  address  it.105  



         E.	       The Superior Court Did  Not Err By Denying A  Directed Verdict On  

                   Intentional  Misrepresentation.  



                   Weidner  argues  it  was  entitled  to  a  directed  verdict  on  Guilford's  claim  of  



intentional   misrepresentation.     "We   have   identified   the   elements   of   intentional  



misrepresentation  as  '(1)  a  misrepresentation  of  fact  or  intention,  (2)  made  fraudulently  



(i.e.,  with scienter),  (3) for the  purpose  of  inducing  another  to  act  in reliance,  (4)  with  



         102      Luther   v.  Lander,   373   P.3d  495,   499   (Alaska   2016)   (quoting  Loncar   v.  



Gray,  28  P.3d  928,  930  (Alaska  2001)).  



         103	      See  Alaska  R.  Evid.  803(8)(a).  



         104	      Windel v. Carnahan, 379 P.3d 971, 980 (Alaska 2016) (quoting Adamson  

                                                                                                            

v. Univ. of Alaska , 819 P.3d 886, 889 n.3 (Alaska 1991)).  

                                                                                  



         105       See Hagen v. Strobel, 353 P.3d 799, 805 (Alaska 2015).  

                                                                                         



                                                         -35-	                                                   7639
  


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

                                                                              106  

justifiable  reliance  by  the  recipient,  (5)  causing  loss.'  "                Weidner  argues  that  Guilford  



failed  to  offer  "evidence  of  intentionality."   We  review  a  grant  or  denial  of  a  motion  for  



a  directed  verdict  de  novo,  deciding  "whether  the  evidence,  when  considered  in  the  light  



most  favorable  to  the  nonmoving  party,  is  such  that  reasonable  persons  could  not  differ  

in  their  judgment." 107  



                    Guilford's   claim   for   intentional   misrepresentation   was   based  on   an  



administrative  fee  Weidner  charged  its  tenants  to  pay  their  electric  bill  through  Weidner.   



Guilford  testified   at  trial  that  Weidner  told  her  this   fee  would  be   $15 per month  but  



secretly  raised  the  fee  to  $25  and  then  $50  per  month.   A  Weidner  employee  testified  that  



he  had  written  a  letter  notifying  Guilford  of  the  fee  and  did  not  intentionally  misrepresent  



the  existence  of  the  fee.   On  cross-examination,  the  same  witness  testified  that  he  thought  



he  had  added  the  fee  to  Guilford's  2015  lease,  but  was  not  able  to  identify  the  fee  when  



shown  the  lease.   Guilford  denied  receiving  any  letter  from  Weidner  notifying  her  of  the  



increased  fee.  



                    The court denied Weidner's  motion for  a directed verdict, concluding  it  was  



"the  jury's  job,  not  the  Court's,  to  weigh  the  evidence,  evaluate  the  credibility  of  the  



witnesses,   and   decide   who's   right."     It   reasoned   that   "[n]obody   from   Weidner   has  



admitted  that  they  were  committing  fraudulent  misrepresentations,  but  inferences  can  be  



          106      Anchorage  Chrysler  Ctr.,  Inc.  v.  DaimlerChrysler  Motors  Corp.,  221  P.3d  



977,  987-88  (Alaska  2009)  (quoting  Anchorage  Chrysler  Ctr.,  Inc.  v.  DaimlerChrysler  

 Corp.,   129  P.3d  905,  914  (Alaska  2006)).  



          107       Todeschiv. Sumimoto Metal Mining Pogo, LLC, 394 P.3d 562, 570 (Alaska  

                                                                                                                   

2017) (quoting Noffke v. Perez, 178 P.3d 1141, 1144 (Alaska 2008)); see also Taylor v.  

                                                                                                                            

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

                                                                                                                           

 Change-Craft, 251 P.3d 1008, 1017 (Alaska 2011)) (reviewing denial of directed verdict  

                                                                                                                    

by asking "whether the evidence, and all reasonable inferences which may be drawn  

                                                                                                                     

from the evidence, viewed in the light most favorable to the non-moving party, permits  

                                                                                                                   

room for diversity of opinion among reasonable jurors").  

                                                                                     



                                                            -36-                                                      7639
  


----------------------- Page 37-----------------------

drawn  from  the  party's  conduct."  



                  Viewing  the  evidence  in  the  light  most  favorable  to Guilford,  it  was  enough  



to  present  the  question  of  misrepresentation  to  the  jury.   In  other  contexts  we  have  held  



                                                                                                                    108  

that  elements such as  fraud and intent can be inferred from circumstantial  evidence.                                  



In  this  case  a  reasonable  jury  could,  and  did,  conclude  that  Guilford  was  more  credible  



than  Weidner's   employee   and  that  Weidner's   actions  were  intentional.   The   superior  



court  did  not  err  by  denying  a  directed  verdict  on  intentional  misrepresentation.  



         F.	      The  Superior  Court  Did  Not  Err  By  Ruling  That  Guilford's  Personal  

                  Injury  Claim  Is A  Tort  Claim  Rather  Than  A  URLTA  Claim  When  

                  Awarding  Attorney's  Fees.  



                  The  superior  court  partially  granted  Guilford's  motion  for  attorney's  fees,  



ruling  that  she  was  the  prevailing  party  but  awarding  her  far  less  than  the  six-figure  sum  



she   requested.    Both   parties   appeal   the   attorney's   fee   award.    Because   the   award is  



premised  on  the  dismissal  of  Guilford's  personal  injury  claim,  which we  reverse,  the  



award  must  be  vacated.   Yet  we  address  Guilford's  arguments  pertaining  to  the  fee  award  

because  the  issues  she  raises  will  remain  salient  regardless  of  who  prevails  on  remand.109  



                  The   superior   court  decided   that   Guilford   was   the   prevailing   party   but  



obtained   a   decidedly   "mixed"   result,   with   her   personal   injury   claim   dismissed   on  



         108      See, e.g., Gransbury  v.   United  Bldg.  Supply,  Inc.,   531  P.2d   1247,   1249  



(Alaska   1975)  (inferring  intent  to  hinder,  delay,  or  defraud  from  party's  conduct).  



         109      Weidner  argues  on  cross-appeal  that  the  superior  court  erred  by  declaring  



Guilford  the  prevailing  party.   Because  we  vacate  the  attorney's  fee  award  and  remand  

for  further  proceedings,  which  may  affect  the  court's  determination  of  which  party  is  the  

prevailing   party,   we   decline   to   address   this   argument   on   appeal.     By   contrast,   the  

questions   of   whether   (1)   Guilford's   personal   injury   claim   is   subject   to   URLTA's  

attorney's  fee  provision  and  (2)  Guilford's  attorney's f  ee  award  should  be  discounted  

due   to   modest   recovery   on   her   URLTA   claims   will   remain  regardless   of   how   the  

proceedings  on  remand  unfold.   We  therefore  address  them  here.   



                                                         -37-	                                                  7639
  


----------------------- Page 38-----------------------

summary  judgment  and  her  URLTA  claims  yielding  only  $7,325  in  damages  after  years  



of   litigation.    Reasoning   that   URLTA's   attorney's   fee   provision,   which   entitles   the  



                                                       110  

prevailing  party  to  full  reasonable  fees,             should  not  apply  to  Guilford's  personal  injury  



claim,  the  court  adopted  a  "blended  analysis."   It  started  with  the  total  sum  of  attorney's  



fees   Guilford   incurred   ($112,461),   then   subtracted:    (1)   the   portion   of   the   fees   she  



incurred   in   pursuit   of   the   unsuccessful   personal   injury   claim   ($32,265);   and   (2)   the  



amount   of   attorney's   fees   the   court   awarded   Weidner   under   Civil   Rule   82   for  



                                                                                         111  

successfully  defending  the  personal  injury  claim  ($34,589.20).                          The  court  deemed  the  



resulting   figure,   $45,606.80,   an   unreasonable   amount   of   fees   because   of   the   "vast  



disparity"  when  compared  with  the  actual  award  of  damages.   While  recognizing  that  



URLTA's   full   fee  provision   is   intended  to   create   sufficient   incentive  to ensure   legal  



representation   for   tenants,   the   court   also   reasoned   that   the   provision   "should   not   be  



applied  as  if  it  were  a  guarantee  of  full  employment  for  lawyers."   Therefore  it  reduced  



the   figure   by   half,   resulting   in   an   attorney's   fee   award   of   $22,803.40.    On   appeal,  



Guilford  argues  that  the  superior  court  erred  by  applying  Civil  Rule  82  and  by  reducing  



her  award  further  in  light  of  her  modest  monetary  recovery.  



                   The  superior  court  did  not  err  by  applying  Rule  82  to  Guilford's  personal  



injury   claim  because   that   claim   is  not governed  by  URLTA.   URLTA's   fee-shifting  



provision  permits  the  "prevailing  party  in  any  proceeding  arising  out  of  [URLTA]  or  a  



          110      AS  34.03.350;  Dawson  v.  Temanson,   107  P.3d  892,  897  (Alaska  2005).   



          111  

                   The  superior  court  awarded  Weidner  80%  of  its  fees  incurred  in  defense  of  

this  claim,  higher  than  the  presumptive  percentage  of  fees  under  Civil  Rule  82,  because  

it  deemed  Guilford's  pursuit  of  the  personal  injury  claim  to  lack  a  reasonable  basis.   See  

Alaska   R.   Civ.   P.   82(b)(3)(G)   (authorizing   court   to vary   presumptive   award   due   to  

"vexatious  or  bad  faith  conduct").     



                                                           -38-                                                      7639
  


----------------------- Page 39-----------------------

                                                                        112  

rental  agreement"  to  recover  full,  reasonable  fees.                    This  provision  controls  the  award  



of  fees  with  respect  to  claims  properly  stated  under  URLTA.   Yet  the  claim  of  a  tenant  



who   seeks damages   for   injuries   resulting   from   conditions   on   the   premises   does   not  



"aris[e]  out  of"  URLTA,  even  if  it  is  pled  as  a  URLTA  claim  (as  Guilford  did  here).   It  



                                                       113  

arises  out  of  the  common  law  of  torts.               



                   Our   decision   in  Helfrich   distinguished  personal   injury   claims  based on  



premises   conditions   from   URLTA   habitability   claims.     In   that  case   we   considered  



whether  the  plaintiff  could  invoke  the  protection  of  URLTA's  anti-retaliation  provision  



when he was evicted after  threatening to  sue his  landlord in tort for injuries caused by  



                                           114  

a  slip  and  fall  on  the  premises.           URLTA  prohibits  retaliation  against  a  tenant  who  has  

"sought  to  enforce  rights  and  remedies  granted  the  tenant  under  this  chapter."115                            We  

                                                                                                                         



concluded that a suit for personal injury was not one of the "rights and remedies" granted  

                                                                                                                   



          112  

                   AS  34.03.350;  Dawson,   107  P.3d  at  897.  



          113      Despite  the   fundamental   difference  between   a  URLTA   claim   and   a  tort  



claim  based  on  premises  conditions,  the  duties  URLTA  imposes  on  the  landlord  may  be  

relevant   in   defining   the   duty   of   care   applicable   to a   personal   injury   claim   based   on  

premises  conditions.   In  Ass'n  of  Vill.  Council  Presidents  v.  Mael  we  held  that  a  housing  

authority's  contractual  agreement  to  perform  home   safety  inspections  -  which  were  

grounded   in   federal   regulation  -   could   be   the   basis   for   a   tort   claim   based   on   the  

negligent   performance   of   those   inspections.     507   P.3d   963,   974   (Alaska   2022)  

(explaining  that  housing  authority  "undertook  to  render a  service  .  .  .  necessary  for  the  

protection"  of  persons  in  homeowner's  household  and  could  "therefore  be  liable  to  those  

other  persons  for  physical  harm  resulting  from  its  failure  to  exercise  reasonable  care  to  

perform  its  undertaking").   We  then  looked  to  the  terms  of  the  contract  and  regulations  

to   define   the   scope   of   the   defendant's   duty.   Id.   at   976-78.    URLTA's   warranty   of  

habitability  may  work  in  similar  fashion  to  define  the  landlord's  duty  in  a  personal  injury  

claim  based  on  premises  conditions.   



          114      Helfrich v.  Valdez Motel Corp., 207 P.3d 552, 558-62 (Alaska 2009).  

                                                                                                                          



          115      AS 34.03.310(a).  

                          



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                                                                                                     116  

by  URLTA  and  therefore  did  not  trigger  its  anti-retaliation  provision.                           In  reaching  this  



conclusion,   we   suggested   that   tort   law   provides   the   sole   avenue   for   tenants   to state  



personal  injury  claims,  even  when  these  claims  stem  from  habitability  or  fitness  issues:  



                    [R]emedies   for   a   landlord's   noncompliance   with   URLTA  

                    generally  relate  to  habitability  or  fitness  disputes.   URLTA  

                    damages   compensate  tenants  who  live  with  conditions  that  

                    render  a  dwelling  unfit,  uninhabitable,  or  unsafe,  or  who  are  

                    constructively  evicted  by  those  conditions.   Fault  is  irrelevant  

                    to    such   URLTA    claims.     Common   law   tort   remedies  

                    compensate   plaintiffs   for   consequential   damages   resulting  

                    from   personal   injury, including   medical   expenses,   loss   of  

                    employment  or  lack  of  income,  and  pain  and  suffering.[117]  



In other words, URLTA created a damages action for a different kind of injury, governed  

                                                                                                                   



by  different standards, than a common law tort action, which provides  a remedy  for  

                                                                                                                            



personal  injury.   Although  a  different passage  in Helfrich  could be  read  to  suggest  

                                                                                                                     

otherwise,118   the  passage  quoted  above,  the  logic  of  the  decision,  and  the  dissent's  

                                                                                                                   



description  of  the  court's  holding  all  indicate  that  personal  injury  claims  based  on  

                                                                                                                             

premises conditions are not URLTA claims.119  

                                                        

                                                                       



                    Our decision in Newton v. Magill further supports this distinction between  

                                                                                                                     



          116       Helfrich,  207  P.3d  at  561-62.  



          117       Id.  at  561  (footnote  omitted).   



          118       See  id.  at  559  ("  .  .  .  URLTA  does  not  expressly  grant  the  tenant  a  right  to  



be  free  from  the  landlord's  negligence  or  a  remedy  to  recover  consequential  damages  for  

personal   injuries  resulting   from   such  negligence   if   fitness   and  habitability   are  not   in  

issue.").   In  isolation,  this  sentence  could  be  read  to  suggest  that  URLTA  gives  the  tenant  

a  remedy  to  recover  these  damages  if  fitness  and  habitability  are  "in  issue."  



          119       See  id.  at  564  (Winfree,  J.,  dissenting)  (explaining  that  under  court's  

                                                                                                                      

interpretation of URLTA's anti-retaliation statute, tenant may invoke its protection for  

                                                                                                                             

complaining about an unsafe stairwell but may not invoke its protection by filing a suit  

                                                                                                                            

for damages if child is injured on unsafe stairwell).  

                                                                              



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habitability   claims   under   URLTA   and   personal   injury   claims   based   on   premises  



conditions.   In  Newton  we  abrogated  landlords'  common  law  immunity  against  personal  



                    120  

injury   claims.          We   reasoned that   this   immunity,  based   on   the   ancient  principle   of  



caveat  emptor,  was  inconsistent  with  the  legislative  policies  underlying  URLTA,  which  



                                                             121  

imposes   a   duty   on   the   landlord to repair.                If   URLTA   itself   permitted   recovery   of  



damages   for  personal   injury,   it  would  not  have  been  necessary   to   abolish   landlords'  



immunity   from   personal   injury   claims   because   tenants   could   seek   damages   under  



URLTA  instead.   We  also  emphasized  the  distinction  between  URLTA  claims  and  tort  



claims,   rejecting   the   claimant's   argument   that   landlords   should  be   strictly   liable   and  



holding  that  a  "customary  negligence  analysis"  applies  to  personal  injury  claims  based  

on  premises  conditions.122  

                                       



                   Claimants   cannot   avoid  the   common law  rules   applicable  to  negligence  



claims (like  the  need  to  show fault) by  pleading  a  personal  injury  claim  as if  it  were  a  



URLTA   claim.    The   superior   court   did  not   err  by distinguishing   Guilford's  personal  



injury  claim  from  her  URLTA  claim  and  applying  Rule   82's provisions t  o  the  former  



                                                             123  

when  calculating  the  attorney's  fee  award.                   



          120      Newton  v.  Magill,  872  P.2d   1213,   1217  (Alaska   1994).  



          121  

                   Id.  at   1216-17.  



          122  

                   Id.  at   1218  &  n.6.   



          123      Distinguishing  between  the  nature  of  the  claims  is  only  one  step  in  properly  



awarding   attorney's   fees   when   more   than   one   fee   regime   is   involved.    To   properly  

allocate  attorney's  fees,  the  parties  and  superior  court  must  also  distinguish  which  fees  

were  incurred  on  which  claims.   The  superior  court  correctly  recognized  the  need  to  do  

so.   It   deducted   from   Guilford's  total   claimed   fees   "the  portion   of   fees   attributable  to  

work  on  the  personal  injury  claim"  and  then  deducted  an  additional  figure  based  on  the  

fees  incurred  by  Weidner  "defending  against  the  bodily  injury  claim."   Yet given  the  

                                                                                                         (continued...)  



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                   Finally,   we   address   the   superior   court's   decision   to   reduce   Guilford's  



attorney's   fee   award   due   to   the   "vast  disparity"   between   the   fees   incurred   and   her  



damages  recovery.   The  court  observed  that  URLTA  provides  for  recovery  of  attorney's  



fees  to  give   lawyers   incentive   to   represent   tenants   but   reasoned   that   the   provision  



"should  not  be  applied  as  if  it  were  a  guarantee  of  full  employment  for  lawyers."  



                   Courts  have  authority  under  URLTA  to  determine  whether  the  amount  of  



                                     124  

fees  incurred  is  reasonable           but  must  be  careful  to  use  the  proper  benchmark.   Damages  



awards  for  habitability  violations  and  other  violations  of  URLTA  will  usually  be  modest.   



For   example,   even   if  the   landlord   fails  to  provide  heat   in  the   dead   of  winter   and  the  



tenant  has  to  move  out  and  procure  substitute  housing,  the  damages  will  rarely  be  more  

than  several thousand  dollars.125  Claims of improperly withheld security deposits will  

                                                                                                                     



          123      (...continued)  



factual  overlap  between  Guilford's  URLTA  habitability  claim  (on  which  she  prevailed)  

and  her  personal  injury  claim,  it  is  unclear  how  the  court  allocated  the  fees  related  to  both  

claims.   Guilford  did  not  raise  this  point  of  allocation  on  appeal.   Because  we  vacate  the  

attorney's  fee  award,  the  superior  court  will  again  have  to  address the  problem  of  fee  

allocation  regardless  of  who  ultimately  prevails  on  the  personal  injury  claim.   See,  e.g.,  

Manning  v.  State,  Dept.  of  Fish  & Game,  355  P.3d  530,  540  (Alaska  2015)  (holding  that  

under  statute  precluding  award  of  attorney's  fees  incurred  in defense of  non-frivolous  

constitutional   claims,   superior  court  could   not   award   attorney's   fees   incurred   on  

procedural  issues  absent  documentation  that  procedural  issue  was  "related  solely  to  a  

non-constitutional   claim");   see   also  Meyer   v.   Stand  for Salmon , 450   P.3d   689,   691  

(Alaska   2019)   (Winfree,   J., concurring)   (explaining   that   constitutional   claimants   are  

entitled   under   AS   09.60.010   "to   recover   attorney's   fees   devoted   in   any   reasonably  

connected  way  to  the  constitutional  claims  on  which  [they]  prevailed"  while  prevailing  

defendants  "should  be   entitled  to   appropriate  awards  of  non-statutory  attorney's   fees  

against  claimants  for  any  work  devoted  solely  to  non-constitutional  claims").   



          124      Dawson v. Temanson, 107 P.3d 892, 897 (Alaska 2005).  

                                                                                           



          125      E.g., AS 34.03.180(a)(3) (providing that when landlord fails to provide  

                                                                                                                

                                                                                                       (continued...)  



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                                    126  

often yield  less  than  that.           And   attorneys'  time  is   expensive,  meaning  that  tenants'  



monetary  recovery   will   most   often   pale   in   comparison   to   their   attorney's   bills.   



Discounting   an   award   of   attorney's   fees  under  URLTA  because  the  attorney  worked  



inefficiently  or  acted  vexatiously  may  be  appropriate.   But  discounting  an  attorney's  fee  



award  solely  because  the  tenant's  monetary  recovery  is  modest  undermines  the  apparent  



policy   behind   URLTA's   full-fee   provision:   to   give   lawyers   financial  incentive   to  



represent   parties   with   meritorious   URLTA   claims   when   financial   incentives   are  



otherwise  lacking.   For  that  reason  the  superior  court's  decision  to  discount  Guilford's  



attorney's   fee   award  by   50%   due   solely   to   the   large   disparity  between her   damages  



recovery  and  the  fees  award  was  error.  



V.       CONCLUSION  



                  We  REVERSE  the   superior   court's   grant   of  partial   summary  judgment,  



VACATE the award  of attorney's fees, and REMAND for  further  proceedings consistent  



with  this  opinion.  



         125      (...continued)  



essential  service,  tenant  is  excused  from  paying  rent,  may  procure  reasonable  substitute  

housing,  and  may  recover  "the  amount  by  which  the  actual  and  reasonable  cost  exceeds  

rent").  



         126      See AS 34.03.070(d) (providing that if landlord wrongfully withholds a  

                                                                                                                      

portion of tenant's security deposit, "tenant may recover an amount not to exceed twice  

                                                                                                                 

the actual amount withheld").  

                          



                                                         -43-                                                   7639
  

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