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Haines v. Comfort Keepers, Inc.

Supreme Court of Alaska

March 24, 2017

PETER HAINES, as the personal representative of the Probate Estate of Verna Haines (Deceased), Appellant,

         Appeal from the Superior Court of the State of Alaska, Superior Court No. 3AN-11-12882 CI Third Judicial District, Anchorage, Paul E. Olson, Judge.

          Yale H. Metzger, Law Offices of Yale H. Metzger, Anchorage, for Appellant.

          John J. Tiemessen, Clapp Peterson Tiemessen Thorsness & Johnson, LLC, Fairbanks, for Appellee Comfort Keepers, Inc.

          No appearance by Appellee Luwana Witzleben.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.


          MAASSEN, Justice.


         An elderly woman hired an in-home care company to assist her with day-today living. The company provided an in-home assistant who was later discovered to have stolen the woman's j ewelry and prescription medication. The woman sued both the company and the assistant for conversion and assault, among other causes of action, and accepted an offer of judgment from the company. The assistant did not appear in the superior court.

         Eventually the woman applied for entry of default against the assistant "on the condition that once default is entered[, ]... damages are to be determined by a jury." The superior court granted a default but ruled that trial on damages would take place without a jury. After a bench trial, the court found that the assistant's actions had caused the woman no additional suffering and therefore awarded her no damages.

         The woman appeals. We affirm the superior court's decisions on the measure of damages for conversion and discovery sanctions. But we conclude it was an abuse of discretion to grant the woman's application for default while denying the condition on which it was based - retaining her right to a jury trial. We also conclude that it was error to award no damages or attorney's fees after entry of default when the allegations of the complaint and the evidence at trial put causation and harm at issue, and that the allegations of the complaint could have supported an award of punitive damages. We therefore vacate the superior court's judgment and remand for further proceedings.


         Because of her advanced age and declining health, Verna Haines hired Comfort Keepers, Inc. to provide in-home care. Comfort Keepers assigned its employee Luwana Witzleben to work as Verna's personal assistant. Witzleben stole Verna's jewelry and prescription pain medication and, to conceal her theft of the medication, substituted pills that looked similar but had not been prescribed.

         In December 2011 Verna filed a complaint against Comfort Keepers and Witzleben in superior court, alleging claims for negligent hiring, conversion, assault and battery, breach of contract, and unjust enrichment. Along with her complaint Verna filed a timely demand for a jury trial.

         Verna served discovery requests on Witzleben, and after receiving no response filed a motion to compel. She also asked the court to hold that Witzleben's failure to timely respond to the discovery requests waived any objection to them. The court granted Verna's motion to compel but declined to impose sanctions, citing Witzleben's self-represented status and some doubt as to whether she "fully understood her [discovery] obligation."

         Another year passed without any response from Witzleben. Verna died in the meantime, and Peter Haines (Haines), the personal representative of her estate, was substituted as plaintiff. In April 2014 the superior court invited Haines to apply for entry of default against Witzleben under Alaska Civil Rule 55(c). In another order issued the same day, the court granted Comfort Keepers' motion to strike Haines's unjust enrichment claim, which was based on the theory that the damages for conversion of Verna's medication should be calculated by reference to its "street value." Rejecting this theory, the court stated that "[t]here is no basis for permitting a party to recover the value realized by a defendant through illegal activity" and held that any damages for the medication's conversion were limited to "the fair market value or value to [Verna] at the time it was taken."

         In August 2014 Haines accepted an offer of judgment from Comfort Keepers, notified the superior court, and filed a proposed final judgment against Comfort Keepers. The court responded that "pursuant to Alaska Civil Rule 54(b), a final judgment will not be entered against one defendant until all the claims in the case are resolved as to all the defendants, " and it asked Haines for "an update . . . regarding whether he intends to pursue default judgment against Ms. Witzleben." Haines accordingly applied for entry of default against Witzleben "on the condition that once default is entered... damages are to be determined by a jury." The superior court signed the entry of default against Witzleben in November 2014, set a default judgment hearing for a few weeks later, and expressly stated that "[a] jury trial will not occur." (Emphasis in original.)

         The default judgment hearing took place in December 2014, and the only issue was damages. The court heard testimony from several witnesses, including Verna's children, on the extent of her non-economic harm, but Haines did not attempt to prove economic damages. The court's subsequent written decision awarded Haines no damages at all, finding that Witzleben's tortious conduct, though "callous, " caused Verna no pain or suffering beyond what she was already undergoing. The court later entered final judgment against Witzleben as well as a satisfaction of judgment against Comfort Keepers-though no final judgment against Comfort Keepers had been entered on the accepted Alaska Civil Rule 68 offer of judgment.

         Haines appeals. He argues that the superior court erred when it (1) struck Haines's claim for unjust enrichment; (2) denied oral argument on the motion to strike; (3) "improperly denied [his] request for an order [stating] that any objections to discovery requests . . . were waived"; (4) denied Haines a jury trial on damages; (5) entered its damages award without considering the legal effect of the default against Witzleben; (6) failed to award punitive damages; (7) failed to award Haines attorney's fees; and (8) entered a satisfaction of judgment against Comfort Keepers "without having ever entered final judgment."

         Comfort Keepers does not address most of the issues raised on Haines's appeal because they involve only Witzleben. It does address the court's grant of its motion to strike Haines's unjust enrichment claim, Haines's request for oral argument on the motion, and the satisfaction of judgment. Witzleben does not appear in this appeal.


         "We decide constitutional issues of law" such as a party's right to a jury trial "by applying our independent judgment."[1] In doing so we will adopt "a reasonable and practical interpretation in accordance with common sense based upon 'the plain meaning and purpose of the provision and the intent of the framers.' "[2] "A trial court's determination of damages is a finding of fact which we affirm unless it is clearly erroneous. But we apply our independent judgment in deciding whether the trial court's award of damages is based on an erroneous application of law."[3]

         We review denials of oral argument on non-dispositive motions, sanctions for discovery violations, and awards of attorney's fees for abuse of discretion.[4] "The trial court has broad discretion" in awarding attorney's fees, [5] and we "will not find an abuse of that discretion absent a showing that the award was arbitrary, capricious, manifestly unreasonable, or stemmed from an improper motive."[6] We also review for abuse of discretion the superior court's decision to grant or deny an application for default.[7]


         In the discussion that follows we conclude that the superior court did not err in striking Haines's claim for unjust enrichment, nor did it abuse its discretion in declining to award him sanctions and attorney's fees during the course of discovery. But we conclude it was an abuse of discretion to enter a default while denying Haines a jury trial on damages when Haines had expressly conditioned his application for default on retaining the jury trial right. We also conclude that the superior court erred in its findings on damages and attorney's fees in the proceedings that followed. Although these last issues might not arise again on remand given the procedural options, they are significant, and we address them now for the sake of efficiency.

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

         On Comfort Keepers' pretrial motion the superior court struck Haines's claim for "unjust enrichment, " which sought to measure damages by the "street value" of the medication Witzleben converted rather than fair market value or some other traditional measure of Verna's actual loss. The court concluded that "[t]here is no basis" in Alaska law "for permitting a party to recover the value realized by a defendant through illegal activity." This was not error.

         "Unjust enrichment" is not a cause of action but a prerequisite to recovery under the doctrine of restitution.[8] Restitution, an equitable remedy based on the concept of quasi-contract, is available only when there is no adequate remedy at law.[9] For conversion claims, such remedies generally exist. We have noted that courts use "three different standards" to "measur[e] damages for loss of personal property": (1) fair market value; (2) value to the owner "based upon actual monetary loss resulting from the owner being deprived of the property"; and (3) "where the property has its primary value in sentiment, " "value to the owner including sentimental and emotional value."[10] Under these standards Haines could have sought damages based on the converted medication's fair market value, what Verna actually spent for it, or what she would have had to spend to replace it.

         But Haines did not attempt to prove economic damages at trial under these or any other measures. Instead he focused entirely on noneconomic damages, and the superior court, finding no proof of noneconomic harm, therefore awarded no damages at all. But the lack of a damage award does not mean that Haines lacked an adequate remedy at law. He could have presented evidence of economic damages but chose not to once the court had ruled against him on his favored measure of damages. And as for noneconomic harm, he was awarded no damages because the court found that the evidence was insufficient, not because damages were not legally available if proven. Because Haines had an adequate remedy at law, restitution was not available as an equitable alternative.

         Haines also argues that Comfort Keepers' motion to strike the damages remedy was, in effect if not in form, an Alaska Civil Rule 12(b)(6) motion to dismiss on which the court was obliged to accept as true all well-pleaded allegations of his complaint, including his allegation that Witzleben was unjustly enriched by her wrongful conduct.[11] But the motion was directed at a measure of damages, not a cause of action; it was not a Rule 12(b)(6) motion to dismiss.[12] And even on a motion to dismiss, a court is not obliged to accept as true "unwarranted factual inferences and conclusions of law."[13] Thus, even if the court was bound to accept the factual allegation that Witzleben unjustly enriched herself by converting Verna's jewelry and medication, it did not have to accept Haines's preferred legal conclusion: that Haines was therefore entitled to restitution as a remedy.

         Finally, Haines argues that public policy supports his theory that damages in this context should be measured by the amount of the defendant's gain rather than the amount of the plaintiff s loss-the usual measure in tort cases.[14] He argues that limiting the plaintiffs recovery to what the plaintiff lost rewards the thief who steals something for which the victim paid very little and sells it on the black market for a great deal more. But "[t]he primary purpose of tort law is to provide just compensation to the tort victim, " and "[compensatory damage awards are designed to achieve this purpose."[15] Punishing the wrongdoer, when appropriate in the civil law, is accomplished through punitive or other exemplary damages.[16] And the consequences for wrongdoing may extend beyond civil damages. Criminal statutes require thieves to pay fines and restitution.[17] In this case, Witzleben did not escape the public consequences of her crimes; she was convicted of misconduct involving a controlled substance and theft. We are not convinced that either public policy or the facts of this case require the dramatic change in the measure of compensatory damages that Haines advocates. The superior court did not err in striking Haines's unjust enrichment claim.

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

         Haines contends that the superior court abused its discretion in two discovery rulings, but we find no abuse of discretion in either. In the first, the court declined to hold that Witzleben waived any objections to written discovery by her failure to timely respond. Haines argues that this was error because Witzleben never showed the "good cause" required to excuse her nonresponse.[18]

         But the superior court enjoys broad discretion in deciding whether to impose discovery-related sanctions.[19] Here, in determining that the requested sanction was "inappropriate at this time, " the court expressly noted the governing standard that "[a]ny grounds not stated in a timely objection [to an interrogatory] are waived unless a party's failure to object is excused by the court for good cause shown."[20] The court concluded that Witzleben, who was not represented by an attorney, may not have "fully understood her obligation" and accordingly allowed her another 20 days to respond. A superior court's ruling is not an abuse of discretion unless it is "arbitrary, capricious, manifestly unreasonable, or . . . stems from an improper motive."[21] The court clearly considered the good-cause standard when it decided to give Witzleben more time to respond before considering sanctions; this was not an abuse of discretion.

         Second, Haines asserts that he was wrongly denied an award of attorney's fees after the court granted his motion to compel discovery from Witzleben. Alaska Civil Rule 37(a)(4)(A) directs the court to award "reasonable expenses .... including attorney's fees" to the successful proponent of a such a motion. But the rule also allows a court to decline to award fees if it "finds ... the opposing party's nondisclosure . . . substantially justified, or [if] other circumstances make an award of expenses unjust."[22] The court noted these aspects of the rule in its order and determined not to award attorney's fees because "Witzleben [was] a self-represented litigant" and "it [was] unclear whether she ever received" Haines's discovery requests or understood the procedures for response. It was not an abuse of discretion for the court to take these matters into account and decide that under the circumstances it would be unjust to award fees.

         C. It Was An Abuse Of Discretion To Enter Default But Deny Haines A Jury Trial On Damages When His Request For Default Was Conditioned On Retaining His Right To A Jury Trial.

         The next issue we address involves Haines's right to a jury trial on damages following entry of default against Witzleben. When Haines applied for entry of default, his application was made expressly "on the condition that once default is entered . . . damages are to be determined by a jury." The superior court granted the application for default but ruled that a damages hearing would occur without a jury. Haines argues that article I, section 16 of the Alaska Constitution granted him a right to a jury trial which he did not waive by seeking the entry of default. We disagree that he had a right to a jury trial following default. But because his application for default was expressly conditioned on keeping a jury trial, we agree it was an abuse of discretion to grant the default while rejecting the condition.

         The Alaska Constitution guarantees the right to trial by jury "[i]n civil cases where the amount in controversy exceeds two hundred fifty dollars... to the same extent as it existed at common law."[23] "That this right is to be jealously guarded by the courts of this state is made clear by Alaska Civil Rule 38(a), which charges the courts with insuring that the right to trial by jury in civil cases 'shall be preserved to the parties inviolate.' "[24] Rule 38(b) provides that "[a]ny party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor." And under Alaska Civil Rule 39(a),

[w]hen a trial by jury has been demanded and not waived as provided in Rule 38, the trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record ... consent to trial by the court siting without a jury or (2) the court upon motion by a party or upon its own motion finds that a right of trial by jury of some or all of those issues does not exist under the state constitution or statutes of the state.

         Accordingly, because the parties in this case did not consent to proceed without a jury, the first issue we address is whether Haines had a right to a jury trial on damages following default "under the state constitution or statutes of the state, "[25] with the constitutional inquiry focusing on whether such a right "existed at common law."[26]

         1. A jury trial on damages following default is not required by Alaska statutes or the Alaska Constitution.

         We first observe that there are no "statutes of the state" that grant a right to a jury trial in these circumstances. The legislature, by statute, has provided for juries in various types of special proceedings, [27] but it has not found it necessary to supplement by statute the constitution's reservation of the right to a jury trial for the general run of civil cases like the one at issue here.[28]

         In defining the reach of the constitutional right, we must determine whether the right to a jury following default "existed at common law." We have noted that "[a]t common law, the existence of a right to trial by jury depended upon whether the claim asserted was legal or equitable in nature."[29] But we have also ...

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