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Harrell v. Calvin

Supreme Court of Alaska

September 8, 2017

TRACY HARRELL, personal representative of the Estate of WINNIE SUE WILLIS, and TRACY HARRELL and CINDY KLOXIN, Individually, Appellants,

         Appeal 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.

          Daniel T. Quinn and C. Cody Tirpak, Richmond & Quinn, Anchorage, for Appellee.

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


          MAASSEN, Justice.


         A woman 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.

         The 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.


         A. Facts

         Two 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.

         The 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 the ordinary."

         Robert 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 10.

         Besides 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.

         B. Proceedings

         Harrell and Cindy Kloxin[1] 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, [2] 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."

         Calvin 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.

         The 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.

         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.

         Harrell, 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.


         We review a grant of summary judgment de novo.[3] "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."[4] "Ordinarily, summary judgment is an inappropriate means of ascertaining when a statute of limitation commences."[5] "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.' "[6]

          "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 unreasonable."[7]


         A. The Superior Court Did Nor Err In Its Application Of The ...

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