TRACY HARRELL, personal representative of the Estate of WINNIE SUE WILLIS, and TRACY HARRELL and CINDY KLOXIN, Individually, Appellants,
BRIAN CALVIN, Appellee.
from the Superior Court of the State of Alaska, First
Judicial District, Superior Court No. 1KE-15-00267 CI
Ketchikan, Trevor Stephens, Judge.
Michael A. Stepovich and Sandra K. Rolfe, Stepovich &
Vacura Law Office, Fairbanks, for Appellants.
T. Quinn and C. Cody Tirpak, Richmond & Quinn, Anchorage,
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
died in a house fire. Her two adult children, having
concluded that the cause of the fire was a neighbor's
electric fish smoker, brought suit both on behalf of their
mother's estate and as individuals, asserting claims for
wrongful death and negligent infliction of emotional
distress. The superior court concluded that their suit was
barred by two-year statutes of limitations and granted
summary judgment for the neighbor. The court also awarded the
neighbor attorney's fees under Alaska Civil Rule 82 and
entered judgment jointly and severally against the estate and
the two individuals.
plaintiffs appeal. They argue that the superior court erred
in granting summary judgment because the statutes of
limitations were tolled by the "discovery rule."
They also argue that the court abused its discretion in
assessing attorney's fees against them as individuals and
in making them jointly and severally liable for the judgment.
We conclude, however, that the superior court properly
applied the statutes of limitations and that it did not abuse
its discretion in its attorney's fees award. We therefore
affirm the judgment.
FACTS AND PROCEEDINGS
families shared a duplex in Ketchikan. In the upper unit
lived Brian Calvin with his wife and child; in the lower unit
lived Tracy Harrell with her husband, Klyn Kloxin, and her
mother, Winnie Sue Willis. On July 11, 2013, the duplex was
destroyed by fire, and Willis was killed.
South Tongass Volunteer Fire Department and the Alaska State
Troopers responded to the fire and found Calvin, Klyn Kloxin,
and Cindy Kloxin, Willis's other daughter, at the scene.
Klyn Kloxin told investigators he had smelled fish smoking
the night before "and assumed that Mr. Calvin was
smoking fish, " and Calvin confirmed that he had been
operating his smoker. According to Calvin, he finished at
10:30 p.m., unplugged the smoker, removed the trays,
"and as far as he knew everything was done." He
told the Troopers that when he left for work at approximately
five o'clock the next morning nothing was "out of
Plumb, the State Deputy Fire Marshall, noted that the most
severe fire damage was in the upper northwest side of the
duplex. In the same corner of the building he found the
remains of a Big Chief fish smoker in a pile of debris. Plumb
interviewed Harrell, Calvin, and Klyn Kloxin on July 12, the
day after the fire. Klyn repeated that he had smelled smoking
fish the evening of July 10 and again the morning of July 11.
Calvin again confirmed that he had smoked fish on his deck on
the evening of July 10 but saw nothing amiss when he left for
work the next morning. Klyn told another investigator, also
on July 12, that "the upstairs neighbor [Calvin] had
previously dumped ashes from the smoker on the ground
outside" but he was not sure if this happened on July
the smoker, the investigators continued to actively consider
several different causes, including an electrical fire
originating near the roof or in the laundry room, a discarded
cigarette, and "the possibility that someone
intentionally set this fire." In January 2014 Harrell
received a copy of Plumb's official report, which
included Calvin's fish smoker as one of the fire's
potential causes. In February Harrell was appointed personal
representative of Willis's estate and retained a lawyer,
who in turn retained a private fire investigator in June. The
investigator concluded in October that it was "more
probable th[a]n not" that "the fire originated on
the second floor exterior deck" and that Calvin's
"Big Chief smoker" was the cause.
and Cindy Kloxin filed a complaint in superior court on
July 20, 2015, two years and nine days after the fire.
Harrell brought survival and wrongful death claims on behalf
of her mother's estate,  and she and Kloxin brought
individual claims for negligent infliction of emotional
distress. The complaint alleged that "Brian Calvin was
negligent in the use and operation of his Big Chief
Smoker" and "[a]s a result of his negligence a fire
started, " which was "the direct and proximate
cause of Winnie Sue Willis'[s] death."
raised a statute of limitations defense and moved for summary
judgment on that ground. Harrell and Kloxin argued in
response that the statute of limitations was tolled by the
discovery rule and that "there [were] genuine issues of
material fact as to when . . . [they] had sufficient
information to alert a reasonable person" to a potential
cause of action.
superior court concluded that a "two year statute of
limitations . . . applie[d] to" all of Harrell's and
Kloxin's claims. It rejected the argument that the
limitations period was tolled under the discovery rule,
relying on evidence that Harrell and Kloxin knew by July 12,
2013, the day after the fire, that Willis had died in the
fire and that Calvin's fish smoker "was under active
consideration as a possible cause" of the fire.
According to the superior court, these facts would have put a
reasonable person on "inquiry notice" of a
potential cause of action. The court accordingly granted
summary judgment to Calvin.
moved for attorney's fees under Rule 82(b)(2) as the
prevailing party. The court granted Calvin's motion and
also ordered that Harrell, Kloxin, and the estate be jointly
and severally liable for the attorney's fees award.
Kloxin, and the estate appeal, arguing that the superior
court erred in its ruling on the statutes of limitations and
abused its discretion in its award of attorney's fees.
STANDARDS OF REVIEW
review a grant of summary judgment de novo. "When
reviewing a grant of summary judgment, our duty is to
determine whether there was a genuine issue of material fact
and whether the moving party was entitled to judgment on the
law applicable to the established facts." "Ordinarily,
summary judgment is an inappropriate means of ascertaining
when a statute of limitation commences." "Where,
however, there exist uncontroverted facts that determine when
a reasonable person should have been on inquiry notice
'we can resolve the question as a matter of law.'
"The superior court's decision to award
attorney's fees is reviewed for abuse of discretion and
is overturned only where the award is manifestly
The Superior Court Did Nor Err In Its Application Of The