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. ) OPINION
)
WEIDNER INVESTMENT ) No. 7639 – January 13, 2023
SERVICES, INC., )
)
Appellee and )
Cross-Appellant. )
)
Appeal 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
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
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
payments, and Weidner filed forcible entry and detainer (FED) actions1 against her in
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
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.
Guilford raised counterclaims to the FED under URLTA.2 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
angioedema,3 allergic reactions, and severe respiratory issues including asthma and
respiratory failure. Guilford was hospitalized several times during her tenancy.
According to Guilford, the apartment building 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.”
Angioedema, STEDMAN’S MEDICAL DICTIONARY, Westlaw (database updated Nov.
2014).
-4- 7639
staying at a friend’s home. 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
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
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 on 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
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
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
draw all factual inferences in favor of the party against whom summary judgment was
granted.10 Whether expert testimony is required to show causation at summary judgment
is a question of law that we review de novo.11
Whether res judicata or collateral estoppel applies is also a question of law
that we review de novo.12 Statutory interpretations are likewise reviewed de novo.13
“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
necessary to ensure “substantial justice.”16
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
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
fees is a question of law we review de novo.”18 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
apparent to an ordinary layperson,” citing our decision in Choi v. Anvil.20 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
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
genuine issues of material fact and that [it was] entitled to judgment as a matter of law.”22
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
affidavits to support summary judgment.23 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
health problems, were sufficient evidence to create a genuine dispute of material fact.24
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
prevail at trial, only enough evidence to demonstrate a genuine issue of material fact.”25
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
personal belief that her ailments were caused by [mold] in her apartment.”26
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
severely disabled) had aspirated food or liquid.27 As a result, the estate alleged, the
mother failed to recognize the symptoms of pneumonia and seek treatment until it was
too late, causing the woman’s death.28 We held that to survive summary judgment, the
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
because this theory of causation involved “causal connection[s] that [are] not commonly
part of lay people’s everyday experience.”29 But we reversed the superior court’s grant
of summary judgment because the treating physician’s deposition testimony created a
reasonable dispute of fact about causation.30 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
judgment.31
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 about 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
physicians that her symptoms were caused by mold in her apartment.32 As in Culliton,
that is enough to meet our “lenient standard” for withstanding summary judgment.33 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 action; (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
judgment.[35]
Weidner argues that our decision in Chilton-Wren v. Olds36 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
keep the premises in a fit and habitable condition.”39 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
duties.41 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
principles of contract and tort law,42 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
custom home.43 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
kind that would likely result in serious emotional distress.44 We concluded that “breach
of a house construction contract is not especially likely to result in serious emotional
disturbance” because “[s]uch contracts are not . . . highly personal.”45 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
of emotional distress.46
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
differences between tort law and URLTA,48 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 upon both landlord and
tenant, most of which cannot be contracted away.49 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
annoyance and discomfort caused by breach of the warranty.52 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
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
meaning the statutory language conveys to others.”53 We consider the statute’s text,
legislative history, and purpose.54
Alaska’s version of URLTA is patterned on the Uniform Residential
Landlord & Tenant Act of 1972.55 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 when 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
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
possession].”56 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
the legislature provided a remedy.57 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
adequate locks.58 The landlord’s failure to provide these things may in some cases lead
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
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
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
by URLTA.62 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
with the rental agreement or AS 34.03.120 [tenant’s obligations].”63 Weidner points out
that the landlord’s general remedy is worded slightly differently than the tenant’s: the
landlord may recover “actual damages” while the tenant may recover “damages.”64 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”).
-23- 7639
damages or treble damages.65 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
on the kinds of injury that the legislature intended to compensate.67
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
negligent failure “to supply running water, hot water, heat, sanitary facilities, or other
essential services.”68 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
rent.”69 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
substitute housing exceeds the rent.70 Or as another alternative, the tenant may “recover
damages based on the diminution in the fair rental value of the dwelling unit.”71 Yet this
statute also contains a limitation: “A tenant who proceeds under this section may not
proceed under AS 34.03.160 as to that breach.”72 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
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
injury, the tenant may not be made whole.74 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
collaterally estopped from later recovering damages for habitability violations.75 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,
which would be a successful defense to eviction based on nonpayment of rent.76 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
way appropriate to the “uniquely expedited” FED process.77 The tenant may later prove
the damages she has actually suffered through a damages action under AS 34.03.160.78
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
URLTA permits recovery of non-economic damages, we must fall back on its command
to construe URLTA liberally to effectuate its purpose.79 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
essential services, but not for mere negligence.81 It reasoned that the legislature
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 upon 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
“differentiated the gravity of a landlord’s breaches” in two respects: between essential
services and other required services, and between culpable or negligent conduct.82 In
light of this distinction, it concluded that damages for actual psychological harm suffered
would be appropriate only for deliberate conduct.83
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
essential services are available for both negligent and deliberate conduct.84 Alaska law
punishes deliberate failure to supply essential services by authorizing a tenant to recover
one and one-half times actual damages.85 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
for habitability violations.86
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
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
party . . . a duty to mitigate damages.”88 For all habitability violations materially
affecting health and safety, the tenant may terminate the tenancy after 20 days if the
problem is not promptly fixed.89 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
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
probable than it would be without the evidence.”91 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
therewith.”92 But such evidence is admissible to show, among other things, “proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.”93 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 permissible 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
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
named only on its final witness list 15 days before trial.96 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
contact information of any proposed witnesses they expect to call97 and imposes a duty
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
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
photographs and video are the same as those regarding its late-disclosed witnesses.101
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
“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
of a brief, the point will not be considered on appeal.”104 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
justifiable reliance by the recipient, (5) causing loss.’ ”106 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
Todeschi v. 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
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
that elements such as fraud and intent can be inferred from circumstantial evidence.108
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 fee 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
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
prevailing party to full reasonable fees,110 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
successfully defending the personal injury claim ($34,589.20).111 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
rental agreement” to recover full, reasonable fees.112 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
arises out of the common law of torts.113
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
a slip and fall on the premises.114 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).
-39- 7639
by URLTA and therefore did not trigger its anti-retaliation provision.116 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).
-40- 7639
habitability claims under URLTA and personal injury claims based on premises
conditions. In Newton we abrogated landlords’ common law immunity against personal
injury claims.120 We reasoned that this immunity, based on the ancient principle of
caveat emptor, was inconsistent with the legislative policies underlying URLTA, which
imposes a duty on the landlord to repair.121 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 to the former
when calculating the attorney’s fee award.123
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...)
-41- 7639
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
fees incurred is reasonable124 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...)
-42- 7639
often yield less than that.126 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