Russell Maddox, dba R&R Dog Boarding v. Penny Hardy and Dorene Lorenz

This appeal involves a controversy surrounding a large fire started by

Dorene Lorenz and other persons for the purpose of clearing rubbish. Russell Maddox,

a next-door neighbor, sued Lorenz and other parties he thought were involved for

damages the fire caused to his home-based business and property. Lorenz

counterclaimed, primarily stating claims based on Maddox's behavior toward her after

the fire. The superior court dismissed Lorenz's counterclaims and all of Maddox's

claims except his nuisance action. At trial, the jury found in favor of Maddox and

awarded him compensatory and punitive damages.



Maddox appeals the superior court's refusal to impose joint and several

liability on the alleged owner of the property where the fire took place. We affirm

because this person did not own the property during the relevant time period. Lorenz

appeals the jury's findings and its award of damages. She also appeals the dismissal of

her counterclaims. We affirm the jury's verdict, but reverse the dismissal of most of her

counterclaims.



II. FACTS



Russell Maddox owns a home in Seward. In 2000 he began a home-based

dog boarding business called R & R Dog Boarding. According to Maddox, by late 2001

business was strong and his kennels were full.



On November 24 and 25, 2001, Dorene Lorenz decided to clear debris from

a piece of property neighboring Maddox's land. The ownership of this property at the

time of the fire is contested in this appeal.1 Wilbur "J.R.” Thomas Jr., a family friend of

Lorenz, drove his excavator to the property. Using the excavator, he began pulling and

crushing debris, piling it in a common area about fifty feet away from Maddox's fence.2



While the parties dispute the pile's exact contents, it likely included, among other things,

a Quonset hut, a trailer, a storage shed, a school bus, old cars, furniture, and wood.



Concerned by this activity, Maddox came over to the property and asked

Lorenz what was happening. Lorenz told him that she was cleaning up the property and,

according to Maddox, "made fun of” him for his concern. Maddox testified that, as he

was leaving the property, he smelled gasoline and the pile burst into flame. Thomas

added more refuse to the pile as the fire burned. The wind was in the direction of

Maddox's property.



The parties dispute the ferocity and size of the fire, although there is general

agreement that it was large. Maddox testified that flames came over his fence. He

further testified that embers landed on his property and that occasional small explosions

threw pieces of metal onto his property. Maddox spent much of the evening stomping

out embers that fell on the straw he used for his dogs. The November 24th fire lasted

into the night. The following day, Thomas returned and continued his work cleaning the

property, burning debris in a second location.



After the fires, Maddox's property was covered with ash. Maddox

contacted the Alaska Department of Environmental Conservation (ADEC) and

complained about the fire. The ADEC told Maddox to take samples of the ash on his

property and have them sent for testing. Maddox did so, paying for the testing with his

funds. The testing revealed elevated levels of lead. After these results, the ADEC and

the Alaska Department of Health and Social Services became involved, as did the federal

Environmental Protection Agency (EPA). The agencies conducted their own testing

the parties dispute the interpretation of the results — and recommended cleanup

procedures.



In light of the testing results, Maddox closed his dog boarding business and

began efforts to clean his property. Maddox reopened his business two years later, in

January 2004. Maddox explained the delay by stating that the ADEC and EPA told him

to leave his property alone so they could assess the contamination and clean the property.



After two years, Maddox tired of waiting for agency action and reopened.



III. PROCEEDINGS



Maddox, represented by counsel, filed a complaint in March 2003 against

Dorene Lorenz, Wilbur "J.R.” Thomas, Ethel "Penny” Hardy, and others he believed

were involved in the fire.3 Hardy was sued as a possible owner of the property. Maddox

asserted claims of nuisance, offensive contact, negligence, negligence per se, and strict

liability and asked for compensatory and punitive damages. Lorenz's pro se answer,4

after amendments, included a number of compulsory and permissive counterclaims:

defamation, intentional infliction of emotional distress, battery, and two counts of

nuisance (one for Maddox's dog boarding business, the other for an alleged marijuana

business).



Maddox moved to dismiss Lorenz's counterclaims in May 2004. In June

Superior Court Judge Harold M. Brown issued a notice of intent to dismiss counterclaims

for failure to state a claim on which relief may be granted and gave Lorenz an

opportunity to amend her counterclaims. After Lorenz filed amended counterclaims,

Maddox again moved to dismiss them. Lorenz made no response and the judge

dismissed Lorenz's counterclaims without further explanation. Lorenz appeals this

dismissal, arguing that the judge failed to treat her pro se pleadings charitably and failed

to provide her with a minimum level of information so that she could properly correct her

counterclaims. She also argues that her counterclaims stated proper claims.



Trial was in Seward on November 15-17, 2005. The jury returned a verdict

in favor of Maddox, finding Lorenz and Thomas liable in nuisance.5 The jury allocated

fault as follows: Lorenz – sixty percent; Thomas – forty percent; Hardy – zero percent.



The jury further found that Maddox did not fail to mitigate his damages. In total, the jury

awarded Maddox $21,000 for lost earnings, $72,000 for lost property value, and $2,000

for mitigation expenses. The superior court allocated these damages according to the

degree of fault found by the jury. The jury also assessed punitive damages against

Lorenz and Thomas in the amounts of $500 and $50,000, respectively.

At trial, the judge only instructed the jury on Maddox's nuisance claim.

Maddox appeals the superior court's refusal to instruct the jury on his claim of strict

liability based on AS 46.03.822.



After the verdict, Lorenz moved for a new trial. The court denied the

motion. Lorenz repeats her arguments on appeal. Specifically, she appeals the jury's

finding of causation and its award of damages. Thomas has not participated on appeal.



IV. DISCUSSION



A. Statutory Strict Liability Did Not Apply to Hardy Because She Was Not

the Owner of the Property.



Maddox challenges the superior court's refusal to impose joint and several

strict liability on Hardy based on AS 46.03.822. We review questions of law and the trial

court's application of the law to facts de novo.6



Alaska Statute 46.03.822 is an environmental statute providing joint and

several strict liability for damages resulting from a release of a hazardous substance.7 The

statute applies when two elements are met. First, there must have been an "unpermitted

release of a hazardous substance” that caused damages.8 Second, the party being sued

must own the hazardous substance at the time of the release.9

Maddox's argument rests solely on the statute, but the parties' briefs

occasionally refer to common law strict liability. This reliance is misplaced.



The

elements of the statute are distinct from tort law's ultrahazardous activity analysis.10

Moreover, the goal of Maddox's appeal is to "impos[e] joint and several strict liability on

Penny Hardy for the full amount of the compensatory damages awarded by the jury

below.” Strict liability in tort, as modified by AS 09.17.080(d), only provides several

liability. Because the jury allocated zero fault to Hardy, Maddox's legal theory cannot

be based on common law strict liability.11



We assume arguendo that the fire released a hazardous substance within the

meaning of AS 46.03.826(5). Accordingly we only discuss the second element of the

statute.



For the second element, Maddox invokes the portion of the statute that

imposes liability on the owner of a hazardous substance at the time of its release.12

Maddox argues that Hardy was the owner of the property at the time of the fire's release

of lead-tainted ash. Hardy responds that she did not own the property at the time of the

fire.13 The trial court did not reach the issue of property ownership because the court

erroneously applied the common law strict liability test and concluded that the fire was

not ultrahazardous.



When applying AS 46.03.822 this court follows a title theory of ownership.14

Accordingly, an owner of property is the person holding title.15 The issue of property

ownership turns on the August 8, 2001 bill of sale that Hardy delivered to Lorenz.

Maddox did not object to the admission of this document at trial and on appeal the parties

do not dispute the genuineness of this document. Maddox argues that the controlling fact

is that Hardy and Lorenz did not execute and record a quitclaim deed until after the fire

in 2002. Hardy responds that the pre-fire bill of sale transferred title.

Maddox first argues, citing the recording statute AS 40.17.090, that the 2002

(post-fire) quitclaim deed "should have been conclusive on this issue [of ownership].”



Maddox is wrong. The recording statute provides that properly acknowledged documents

are "admissible as evidence of the conveyance without further proof”16 and that properly

acknowledged and recorded documents "create presumptions with respect to title.”17 His

argument that the recorded chain of title creates a "conclusive” finding of ownership for

the relevant time periods misconstrues the statute. Maddox's argument is also contrary

to case law holding that the presumptions of a recorded deed can be overcome by clear

and convincing evidence.18 Here, the bill of sale provides clear and convincing evidence

to overcome the presumption that title transferred on the date listed in the recorded deed.



Maddox next argues, relying on the recording act, that he was an innocent

third party to the conveyance and, thus, that the transfer of title was not effective as to him

until the deed was recorded. Maddox's recording argument finds some support in case

language. For example, when upholding the validity of an unacknowledged deed, we

have added the qualification that the unacknowledged deed is only valid "as between the

parties.”19 But Hardy's interpretation of the recording act is superior. Even if a deed is

not recorded, title transfers upon execution of a bill of sale.20 Thus, ownership for the

purposes of AS 46.03.822 transfers upon execution of a bill of sale.21 Importantly, the

policy behind the recording act is not at issue in this case. The recording act is meant to

protect a subsequent purchaser's reliance on a seller's title by providing a means for

resolving competing claims to title.22 Maddox was not a purchaser of property. He never

relied on ownership records. The events at issue would have occurred regardless of

recording.



B. The Superior Court Properly Denied Lorenz's Motion for a New

Trial.



Lorenz moved for a new trial after the jury's verdict. The superior court

denied the motion. On appeal Lorenz challenges the jury's finding of causation and its

award of compensatory and punitive damages.



The question of whether to grant or deny a motion for a new trial "rests in

the sound discretion of the trial court.”23 In reviewing an order denying a new trial, this

court views the evidence in the light most favorable to the non-moving party.24 "[W]e

will reject a jury's award of damages and order a new trial only when the evidence

supporting the jury's conclusion is 'so completely lacking or slight and unconvincing as

to make the verdict plainly unreasonable and unjust.' ”25



1. Sufficient evidence supports the jury's finding of causation.



Lorenz argues that there was insufficient evidence to support the jury's

finding that the fire was the source of the lead that contaminated Maddox's property. She

makes two arguments. First, she argues that testing revealed that there was no

contamination. Second, she argues that "no evidence was presented to actually

demonstrate that the fire was the source of any lead particles found on Maddox's

property.”



Construing the evidence in the light most favorable to Maddox, we find that

the trial court did not abuse its discretion when it denied Lorenz's motion for a new trial.



The jury's determination that Maddox's property was contaminated by lead is adequately

supported by the evidence. The sample of ash that Maddox sent out for testing contained

in excess of ten percent lead by weight. Initial testing by the Alaska Department of Health

and Social Services caused the EPA to conclude that the ash on Maddox's property

contained lead in levels exceeding state and federal environmental standards. Maddox's

expert testified that many samples taken from Maddox's property contained lead in

amounts exceeding state and federal standards. While Lorenz argues that later testing by

the EPA found that lead was no longer present in levels exceeding the cleanup standards,

Maddox's expert directly addressed this later testing and both disputed Lorenz's

interpretation of the results and criticized the EPA for using improper testing procedures.



Lorenz also argues that blood tests conducted on Maddox and the dogs on his property

revealed no elevated levels of lead. But this argument does not address Maddox's

argument that his property was contaminated. Maddox never claimed and received no

damages for personal injury.



Lorenz's second argument — that there was insufficient evidence linking the

lead on Maddox's property to the fire — involves a similar inquiry. Many of the samples

taken by Maddox and the environmental agencies were of ash. Lorenz does not argue that

this ash came from a non-fire source. The state's environmental report suggested that the

ash from the fire contained high levels of lead. The state's report also explained that the

prevailing wind would have blown this ash in the direction of Maddox's property.

Moreover the EPA found elevated levels of lead in soil samples taken from the burn site

of each fire. Lorenz argues that Maddox's expert could not rule out other sources of the

lead on Maddox's property (she does not suggest what those sources might be) and did

not know if Seward's soil naturally contained elevated levels of lead. She also points out

that no one conducted a forensic investigation to determine the source of the lead. But

these arguments ignore the applicable burden of proof and standard of review and are

insufficient to warrant a new trial.



2. Sufficient evidence supports the jury's award of compensatory

damages.



Lorenz argues that there was insufficient evidence to support the jury's

award of compensatory damages. She challenges the jury's award of lost earnings for

Maddox's dog kennel business on mitigation of damages grounds and the lost property

value determination on sufficiency of evidence grounds.



a. Sufficient evidence supports the jury's finding that

Maddox mitigated his damages.



Lorenz argues that Maddox's lost business earnings should be reduced

because Maddox did not mitigate his damages. As a result of the fire Maddox closed his

dog boarding business for two years, reopening it in January 2004. Lorenz argues that

Maddox could have reopened his business less than four months after the fire. Maddox

responds that he kept his business closed because the ADEC and EPA told him to leave

his property alone so they could assess it and clean it up if it was contaminated.



A wronged party's damages award is reduced by that party's failure to

mitigate.26 The reasonableness of a party's mitigation is a question of fact.27



The jury

found that Maddox did not fail to mitigate his damages.



Because the jury's mitigation determination is supported by the evidence,

we find that the trial court did not abuse its discretion when denying Lorenz's motion for

a new trial. Lorenz's expert testified that the cleanup procedures recommended by the

agencies would take two days to implement. But Maddox testified that the ADEC and

EPA told him to leave his property alone until they finished their assessments and any

necessary cleanup. Given that the EPA was conducting on-site assessments in June 2002,

potentially conducted additional assessments after June, and issued its final preliminary

assessment report in January 2004, there is evidence that the agencies were conducting

an investigation during the two years that Maddox closed his business. The

contamination that the agencies were investigating could have reasonably informed

Maddox's decision to keep his dog boarding business closed.



b. Sufficient evidence supports the jury's finding that

Maddox's property is now worthless.



Lorenz challenges the jury's assessment of damages for lost property value.

The jury awarded Maddox the fair market value of his property — $72,000. Lorenz

argues that Maddox did not prove that his property was worthless. Maddox's primary

evidence was from an appraiser's post-fire valuation of the property at $72,000.



The

appraiser worked under the assumption that the property was not contaminated. But the

appraiser did state that he thought that if the property was contaminated it would be

"worth nothing, and may be less.” Lorenz contends that this was an unfair method of

valuing the property because the appraiser in his appraisal did not treat Maddox's property

as if it were contaminated and was hesitant to assume that it was. Maddox responds that

there was sufficient evidence for the jury to determine that the property was contaminated

and that, given this contamination, the jury could have found that the property was worth

nothing.



The jury could have reasonably found that Maddox's property is now

contaminated.28 The testimony of Maddox's appraiser suggests that the property would

be worthless if it was contaminated. The jury is entitled to combine evidence from

multiple sources to reach its determination. Nothing in the record suggests that it was

unfair for Maddox to establish the lost value of his property in this manner.

Lorenz also argues that Maddox failed to properly establish the value of his

property.29 Maddox testified that his property was worth $72,000 before the fire. Lorenz

did not object to this testimony at trial. Maddox and the appraiser provided testimony

suggesting the value of Maddox's property after the fire. Alaska allows lay testimony

from the owner of property as to the value of the property before and after a damaging

event.30 Maddox has provided enough evidence for this court to determine that the jury's

damages award was not so unreasonable and unjust as to require a new trial.



3. Sufficient evidence supports the award of punitive damages.



Lorenz argues that her behavior was not egregious enough to trigger the

jury's assessment of $500 in punitive damages against her. She notes that the jury found

that her actions were not motivated by financial gain and that she did not know of the

adverse consequences of the fire.



Alaska Statute 09.17.020 governs awards of punitive damages. The statute

provides that the plaintiff must establish "by clear and convincing evidence that the

defendant's conduct (1) was outrageous, including acts done with malice or bad motives;

or (2) evidenced reckless indifference to the interest of another person.”31 A showing of

malice is not required. It is sufficient to show that "the defendant's conduct 'amounted

to reckless indifference to the rights of others, and conscious action in deliberate disregard

32 Chizmar v. Mackie, 896 P.2d 196, 210 (Alaska 1995) (quoting State v.

Haley, 687 P.2d 305, 320 (Alaska 1984)).

33 Wal-Mart, Inc. v. Stewart, 990 P.2d 626, 638 (Alaska 1999) (quoting

Johnson & Higgins of Alaska, Inc. v. Blomfield, 907 P.2d 1371, 1376 (Alaska 1995)).

34 AS 09.17.020(b)(2). Lorenz confuses the jury's finding that she did not

know the adverse results of the fire beforehand by suggesting that this finding would

prevent the jury from determining that she acted with reckless indifference.



However,

"knowledge” of a result is a higher state of mental culpability than "reckless

indifference.” Cf. AS 11.81.610(c) (criminal statute).

of [those rights].' ”32 We will reverse a punitive damages award only "if consideration

of the record as a whole leaves us with a firm conviction of error and the need to intervene

to prevent a miscarriage of justice.”33



The jury reasonably could have determined that Lorenz acted with reckless

indifference to Maddox's interests.34 Maddox testified at trial that Lorenz mocked him

for raising concerns before she started the first fire. Maddox further testified that the two

fires were sizable, that the wind was blowing in the direction of his property, that the fires

consumed objects containing lead, that the fires deposited a great deal of ash, and that

explosions within the fires threw pieces of metal onto his property. The jury reasonably

could have credited Maddox's testimony. Lorenz's arguments are insufficient to upset

the jury's determination.



C. The Superior Court Erred when It Awarded Prejudgment Interest on

Maddox's Punitive Damages Against Lorenz.



The superior court awarded Maddox prejudgment interest on the jury's

award of punitive damages of $500 against Lorenz. Lorenz argues that this award violates

the prohibition on prejudgment interest for punitive awards set forth in AS 09.30.070(c).



Maddox, correctly, conceded the point.



D. The Superior Court Erred in Part in Its Dismissal of Lorenz's

Counterclaims.



After Lorenz filed an amended statement of her counterclaims, Maddox

moved to strike all of Lorenz's counterclaims. In response, the superior court issued a

notice of intent to dismiss counterclaims in which the court suggested that Lorenz failed

to state any claim on which relief may be granted and provided Lorenz twenty days to

amend her counterclaims. After Lorenz filed an amended pleading, Maddox again moved

for dismissal on Civil Rule 12(b)(6) grounds. Lorenz did not file an opposition to this

motion. The superior court granted Maddox's motion to dismiss all of Lorenz's

counterclaims without further explanation.



Lorenz makes two challenges. First, she argues that the superior court erred

by not treating her pro se pleadings charitably and by not providing her sufficient

information so that she could properly amend her counterclaims. Second, she argues that

the superior court erred in its denial of her counterclaims because each counterclaim

sufficiently stated a claim for relief.



Because we independently review and charitably construe Lorenz's

counterclaims, we do not address Lorenz's first argument. We treat Lorenz's final pro se

pleading of counterclaims as an opposition to Maddox's Rule 12(b)(6) motion.

Accordingly we reject Maddox's argument that Lorenz defaulted by failing to respond to

his final Rule 12(b)(6) motion.35



We review the superior court's dismissal of Lorenz's counterclaims for

failure to state a claim upon which relief can be granted de novo, "presum[ing] all factual

allegations of the complaint to be true and [making] all reasonable inferences . . . in favor

of the non-moving party.”36



1. The superior court erred when it dismissed Lorenz's defamation

counterclaims.



Lorenz's first and second counterclaims were for defamation. Lorenz

alleged that Maddox made false statements to the government, the press, and local citizens

about issues related to the lawsuit and her cleanup efforts. She alleged that Maddox's

words placed an "unfortunate shadow” on her vocation as an interior designer and her role

as one of Seward's Historical Preservation Commissioners.



In his motion for dismissal, Maddox argued that Lorenz's pleadings did not

set forth the allegedly false statements and that Lorenz failed to properly allege damages.



On appeal Lorenz argues that a complete reading of her complaint provided sufficient

information about Maddox's statements. She also argues that she adequately alleged

damages by claiming harm to her standing in the community. In response, Maddox

contends that Lorenz never set forth the allegedly defamatory statements, made no claim

that the statements were false, and inadequately pled damages.



The elements of defamation are: "(1) a false and defamatory statement; (2)

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

the part of the publisher; and (4) the existence of either 'per se' actionability or special

harm.”37



A charitable reading of Lorenz's pro se counterclaim leads us to conclude

that Lorenz included sufficient allegations of the statements that Maddox made. Lorenz

alleged that Maddox wrote disparaging letters to the editor in the Seward Phoenix Log,

that Maddox sought news coverage of the effects of the burn, that Maddox contacted state

and federal agencies alleging illegal activities in connection with Lorenz's fire, and that

Maddox distributed flyers disparaging Lorenz's cleanup activities. While these

allegations did little to suggest the substance of Maddox's statements, they generally put

Maddox on notice of Lorenz's claims.



Lorenz's complaint sufficiently alleged that the statements Maddox made

were false by making the general assertion that Maddox made "wholly and in-part false

statements.” While the lack of specific statements in her pleadings makes this falsity

allegation broad, this assertion was sufficient to put Maddox on notice of Lorenz's

position.



Lorenz's complaint insufficiently alleged damages for some of her potential

defamation claims. Lorenz's complaint could be read to state causes of action in libel and

slander per se. These claims do not require an allegation of special damages.38 However,

to the extent that Lorenz attempted to recover for slander requiring proof of special

damages (slander per quod), she failed to plead damages with any specificity.39

But this

failure might be attributable to insufficient guidance from the trial court.

On remand, Lorenz should replead all of her defamation claims. The trial

court can then consider a renewed Rule 12(b)(6) motion or a motion for a more definite

statement under Rule 12(e). Maddox can also utilize discovery to distill Lorenz's claim

and may choose to file a motion for summary judgment. We note that some of Maddox's

statements may be privileged. For example, Maddox's communications with state and

federal officials alleging illegal activities likely warranted a qualified privilege and, if so,

the only question would be whether the privilege was abused.40 We further note that the

jury's special verdict in favor of Maddox might provide him with a defense of truth as to

most of Lorenz's defamation claims. But we take no conclusive position on the validity

of Lorenz's claims as they relate to Maddox's ability to assert privileges or other defenses.



2. The superior court erred when it dismissed Lorenz's claims for

the intentional infliction of emotional distress.



Lorenz's third, fourth, sixth, seventh, and eighth claims for relief involved

the intentional infliction of emotional distress (IIED). Maddox argued that Lorenz failed

to allege extreme or outrageous conduct and that she made insufficient and improper

allegations of damages. On appeal, Lorenz groups her claims together into a more general

argument of IIED.



Lorenz's pleadings can be read to state a cause of action for IIED. An action

for IIED lies where: "(1) the conduct is extreme and outrageous, (2) the conduct is

intentional or reckless, (3) the conduct causes emotional distress, and (4) the distress is

severe.”41 Lorenz claimed at least one instance of arguably outrageous conduct: Maddox

allegedly stated that "the next time he caught [Lorenz] alone he would shoot her.”



However, some of Lorenz's other allegations do not appear to amount to outrageous

conduct for the purposes of IIED. For example, she alleged that Maddox verbally

harassed and taunted her and her daughter.42



Lorenz sufficiently alleged that Maddox's conduct was intentional and that

it caused her emotional distress. Lorenz's allegations suggested that the distress was

severe, resulting in anxiety, depression, and migraine headaches.

On remand, Lorenz should replead all of her IIED claims.43 Maddox will

have the same options as outlined above concerning Lorenz's defamation claims.

We

make no comment on collateral estoppel or mootness that might result from our decision

in this appeal.



3. The superior court erred when it dismissed Lorenz's claim for

battery.



Lorenz's fifth claim for relief was for battery. Maddox, basing his response

on Lorenz's three-paragraph claim for relief, moved for dismissal because the paragraphs

did not state a cause of action. On appeal, Lorenz argues that an earlier paragraph in her

answer alleged that Maddox threw a five-gallon bucket of dirty water on her.



Battery occurs when an actor intends to cause harmful or offensive contact

with another and an offensive contact results.44 Lorenz's allegation that Maddox threw

a bucket of water on her would constitute an intentional, offensive touching. Accordingly

the superior court erred in dismissing this counterclaim.



4. The superior court erred when it dismissed Lorenz's nuisance

claims.



Lorenz's ninth and tenth counterclaims alleged that Maddox operated a dog

boarding business and a drug business from his property and that both of these activities

constituted a nuisance.



A nuisance is a "substantial and unreasonable interference with the use or

enjoyment of real property.”45 Lorenz correctly argues that Maddox's briefing never

suggests why her nuisance claims should fail on Rule 12(b)(6) grounds. A kennel of

barking dogs can constitute a nuisance.46 Maddox's alleged marijuana business might

constitute a private nuisance.47



Maddox argued in his motion to dismiss that the counterclaims were not part

of the same transaction or occurrence as his claims. But Maddox based his entire motion

on Rule 12(b)(6). As is the case with Lorenz's other permissive counterclaims, the

superior court erred when it failed to accept Lorenz's permissive nuisance counterclaim

in accordance with Civil Rule 13(b).



* * *



http://www.state.ak.us/courts/ops/sp-6284.pdf

For the reasons stated, we conclude that the superior court correctly denied

a strict liability instruction with respect to Maddox’s claim against Hardy; correctly

refused to grant Lorenz’s motion for a new trial; and correctly dismissed what Lorenz now

argues is a negligent infliction of emotional distress claim. But it was error to award

prejudgment interest on Maddox’s punitive damage award and to dismiss Lorenz’s

defamation, intentional infliction of emotional distress, battery, and nuisance claims.





Accordingly the final judgment entered by the court is AFFIRMED in part and

VACATED in part and this case is REMANDED for further proceedings in accordance

with this opinion.