Opinion
Supreme Court No. S-12151.
August 15, 2007.
Appeal from the Superior Court of the State of Alaska, First Judicial District, Juneau, Patricia A. Collins, Judge, Superior Court No. 1JU-04-00907 CI.
Jake D. Olivit, Sr., pro se, Juneau. Eric S. Kueffner, Faulkner Banfield, P.C., Juneau, for Appellees.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and Carpeneti, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
1. Alleging harassment by Juneau Police Department Officer Paul Comolli and the Juneau Police Department, Jake Olivit, Sr., sued Officer Comolli, the Juneau Police Department, and the City and Borough of Juneau (collectively, CBJ) for intentional infliction of emotional distress (IIED). Olivit appeals the summary judgment entered in the defendants' favor. We affirm. It was not error to dismiss the IIED claim on summary judgment because Olivit did not satisfy the threshold requirement of demonstrating that Officer Comolli engaged in outrageous conduct. This conclusion makes it unnecessary to decide whether it was an abuse of discretion not to grant Olivit's request for a jury trial, and whether it was error to dismiss Olivit's spoliation of evidence claim. We also reject as completely unfounded Olivit's apparent contention that the superior court judge was biased against him. Finally, Olivit has raised no basis for challenging the substantial award of costs and fees entered against Olivit under Alaska Civil Rule 68(b)(1). We therefore affirm in all respects.
2. This appeal arises out of a series of encounters between Olivit and Juneau Police Department (JPD) Officer Paul Comolli. Those encounters are generally described by the superior court's order granting summary judgment to defendants. We attach that order as an appendix and incorporate by reference its description of the proceedings and the disputed and undisputed facts, and its resolution of Olivit's IIED claim against the defendants. We agree in every respect with the superior court's thorough discussion of the IIED issue and the deficiencies in Olivit's attempt to demonstrate that Officer Comolli's conduct during the incidents at issue met the threshold requirement of a successful IIED claim. We elaborate on the superior court's discussion of those incidents in the next paragraph and address Olivit's other issues in subsequent paragraphs.
3. In the first incident, in July 2003, Olivit, a NAPA Auto Parts employee, drove a company vehicle and tailgated Officer Comolli, who was driving a marked police car. Officer Comolli did not pull Olivit over at the time, but three days later Officer Comolli visited the downtown NAPA store to issue Olivit a warning and tell Olivit's supervisor of the incident. The second incident occurred a month later. While a television reporter videotaped Officer Comolli and another JPD officer riding Segway scooters, a NAPA Auto Parts truck drove by twice, honking its horn each time. During the videotaping, the officers received and responded to a call about an injured person who was in front of the downtown NAPA store. After Officer Comolli had responded to the call, he inquired at the NAPA store about who was driving the vehicle he had seen earlier that day. He was told that it was Olivit. Soon after, a brief exchange between Officer Comolli and Olivit occurred at the NAPA store; Officer Comolli warned Olivit that there was an ordinance against unnecessary honking. According to Olivit, during this incident, "Officer Comolli [was] inches from Mr. Olivit's face barking at him like a drill sergeant." The television reporter videotaped at least some of this conversation between Olivit and Officer Comolli. The next incident occurred in June 2004, when Olivit came upon Officer Comolli directing traffic. In an unsworn statement Olivit claimed that Officer Comolli saluted him and mouthed something "derogatory and antagonistic." In his affidavit, Officer Comolli denied mouthing anything derogatory and stated that he saluted twenty to fifty vehicles as part of his job of directing traffic. The next incident occurred a day later, at Olivit's son's high school graduation, where Officer Comolli was on duty. Olivit claimed that Officer Comolli puffed out his chest and gave Olivit a dirty look. In his unsworn "Amendment to Pleadings," Olivit claimed that over the next year he saw Officer Comolli driving through Olivit's neighborhood on at least five occasions. But in a sworn statement Officer Comolli claimed not to know where Olivit lived. In the final incident, according to Olivit's unverified opposition to CBJ's motion for dismissal, in August 2004 someone banged on the wall of his mobile home in the middle of the night. Olivit claimed that the next morning a set of JPD keys was found in his yard. He asserted that Officer Comolli was to blame for the incident and that the keys found in his yard were Officer Comolli's.
Although Olivit frequently alludes to this second incident, his pleadings do not describe it in detail, so this description relies primarily on the description in Officer Comolli's affidavit.
The parties dispute whether, and to what extent, the tape was edited after the fact.
4. We review a grant of summary judgment de novo. We will affirm if there are no genuine issues of material fact and if the moving party is entitled to judgment as a matter of law. On review, all reasonable inferences of fact are drawn in favor of the nonmoving party. In IIED cases, a "trial judge should make a threshold determination whether the severity of the emotional distress and the conduct of the offending party warrant a claim of [IIED]." This threshold determination is reviewed for abuse of discretion. To make out a prima facie case of IIED a plaintiff must show that: "(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." In making its threshold determination, the superior court addressed only the first element. In defining conduct that is extreme or outrageous, Alaska has adopted the standard from the Restatement (Second) of Torts § 46; it explains in comment (d) that "[l]iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."
Alaska Action Ctr., Inc. v. Municipality of Anchorage, 84 P.3d 989, 991 (Alaska 2004).
Norville v. Carr-Gottstein Foods, Co., 84 P.3d 996, 1000 n. 1 (Alaska 2004).
Id.
Odom v. Fairbanks Mem'l Hosp., 999 P.2d 123, 133 (Alaska 2000) (internal citations omitted).
Id.
Lincoln v. Interior Reg'l Hous. Auth., 30 P.3d 582, 589 (Alaska 2001) (internal citations omitted).
RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965); Lybrand v. Trask, 31 P.3d 801, 803 n. 4 (Alaska 2001).
5. Olivit failed to assert facts that, if true, would demonstrate that Officer Comolli engaged in conduct that was sufficiently outrageous to satisfy the threshold for maintaining an IIED claim. Olivit's most serious contention was his assertion that Officer Comolli caused a disturbance at Olivit's home in the middle of the night by banging on the wall. But Olivit produced no evidence linking Officer Comolli to the alleged incident at Olivit's home. Olivit asserted that he had keys in his possession that belonged to Officer Comolli, but Olivit offered no evidence that linked the keys to Officer Comolli. Officer Comolli submitted a sworn affidavit stating that to his knowledge he had never been to Olivit's home and had not "spen[t] any time that evening or any other evening beating on the walls of any mobile home." He also stated that he had "never lost a set of police department keys in the vicinity of the Aldersgate Church [near Olivit's home] or anywhere else." Given Officer Comolli's sworn denial and the lack of evidence linking Officer Comolli to the alleged incident at Olivit's house, that incident cannot form the basis of an IIED claim against Officer Comolli. The other alleged incidents, assuming they occurred as Olivit described them, do not individually or collectively demonstrate outrageous behavior by Officer Comolli sufficient to satisfy the threshold for an IIED claim. The superior court therefore did not abuse its discretion in making the threshold determination that CBJ's conduct was not "severe and outrageous."
Even if Olivit's pleadings alleged facts that, if true, would link Officer Comolli to the keys Olivit claims were found on his property, there would still be an issue whether the superior court could rely on Olivit's unverified pleadings. In order to preclude summary judgment, Olivit must submit sources of fact that satisfy Alaska Civil Rule 56(c). DeNardo v. Bax, 147 P.3d 672, 685 (Alaska 2006). Complaints and other pleadings are adequate only if verified. A complaint may be verified if it is notarized, or if the complainant has followed the procedures set out in AS 09.63.020. See Bennett v. Weimer, 975 P.2d 691, 694-95 (Alaska 1999). Olivit's complaint and other pleadings in this case were not notarized and did not comply with AS 09.63.020.
One of Olivit's responses to the summary judgment motion tried to link the keys to Officer Comolli by saying that the keys included a handcuff key made by a company that supplied gear to the JPD Swat Team, and that "Officer Comolli seems to have intense ties with JPD Swat and its funding." This thread is too tenuous to justify an inference that there was any connection between Officer Comolli and the keys.
Although we apply a more lenient standard for compliance with court procedures when the litigant is acting pro se, Casciola v. F.S. Air Service, Inc., 120 P.3d 1059, 1062-63 (Alaska 2005), we conclude that the superior court fulfilled its obligation to explain to Olivit what was required of him. It gave Olivit thirty days to amend his complaint to address its deficiencies, and the court's order listed specific information that Olivit was required to provide.
6. Olivit asserts that a jury should have heard his claims. Olivit's request for a jury trial as of right under Alaska Civil Rule 38(d) was untimely. Olivit therefore waived his demand for jury trial as of right. Olivit seems to argue that the superior court erred by failing to grant Olivit a jury trial under Civil Rule 39(b). But because the superior court did not err in granting summary judgment to the defendants, there was nothing left for the superior court to try. The failure to grant Olivit a jury trial therefore did not cause him prejudice, and there is no reason for us to consider whether the court should have granted a jury trial under Civil Rule 39(b).
7. Olivit may be arguing that his spoliation of evidence claim should not have been dismissed. But he has not demonstrated how dismissal of his spoliation claim could have affected him adversely. The evidence that he claimed was spoliated consisted of a portion of the videotape taken by a television newsman who may have taped the encounter between Officer Comolli and Olivit outside the NAPA store. Olivit claims that the tape would have revealed that Officer Comolli was "barking at him like a drill sergeant." Although we doubt that Olivit preserved the claim below, and also doubt that there is a genuine issue about whether Officer Comolli had any possible part in editing the videotape, if such editing actually occurred, we conclude that the allegedly missing videotape, even if it depicted exactly what Olivit described, would not have demonstrated behavior sufficiently outrageous to satisfy the IIED threshold.
8. Olivit repeatedly contends that the superior court judge assigned to his case was biased against him and ruled against him for that reason. Our review of the record reveals no indication whatsoever that the assigned superior court judge treated Olivit in anything less than a fair and impartial manner. The court took pains to inform Olivit, who represented himself, what to do procedurally to correct deficiencies that potentially doomed his complaint. That the superior court ruled against Olivit on matters properly before the court, and ultimately granted summary judgment dismissing his claim, does not imply partiality or bias.
9. Per Alaska Civil Rule 68(b)(1), the superior court awarded CBJ seventy-five percent of the attorney's fees it incurred after it made Olivit an offer of judgment. The total attorney's fees award was $21,824.25. Olivit argues that this award was "unconstitutional, unreasonable, and unsurmountable and stem[med] from improper motive[s]." He also argues that the "billing is fraudulent, and excessive" and that CBJ appears to have "double bill[ed] in some cases, and charg[ed] for multiple lawyers and the service of subpoenas to individuals not on [the] witness list."
10. We review for abuse of discretion a superior court's award of attorney's fees, expert fees, and other costs. The superior court's discretion in awarding Rule 68 attorney's fees is broad, and its decision will not be disturbed on appeal unless it is arbitrary, capricious, manifestly unreasonable, or stems from an improper motive.
Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003).
Id. (internal citations omitted).
11. The superior court assessed attorney's fees according to Rule 68(b), which applies to parties who fail to accept an offer of judgment and then receive a judgment at least five percent less favorable than the offer. Rule 68(b)(1) states that "if the offer was served no later than 60 days after the date established in the pretrial order for initial disclosures required by Civil Rule 26, the offeree shall pay 75 percent of the offeror's reasonable actual attorney's fees." We have explained that "[u]nless the context otherwise indicates, the use of the word `shall' denotes a mandatory intent."
Alaska R. Civ. P. 68(b).
Alaska R. Civ. P. 68(b)(1).
Fowler v. City of Anchorage, 583 P.2d 817, 820 (Alaska 1978).
12. CBJ's February 10, 2005 offer of judgment was for one dollar. It made the offer well before the date established in the pretrial order for initial disclosures required by Rule 26. Olivit did not accept the offer. Although we have questioned the validity of a one-dollar offer of judgment, that issue is not properly before us here because Olivit did not raise it below or on appeal. The superior court therefore did not err in applying Rule 68(b)(1) and awarding CBJ seventy-five percent of its attorney's fees. There is no legitimate basis here for disputing the reasonableness of the hours spent, the billing rate, or the total incurred.
In Lowell v. Hayes, we stated that "[a] Rule 68 offer of judgment may be invalid where a party disingenuously makes a low offer so that it may benefit from Rule 68." 117 P.3d 745, 760 n. 76 (Alaska 2005) (internal citations omitted). Because CBJ's offer was for one dollar, Olivit might have disputed the validity of the offer. But other jurisdictions have held that nominal offers "can be valid if the offerors have a reasonable basis at the time of the offer to conclude that their exposure was nominal." McMahan v. Toto, 311 F.3d 1077, 1083 (11th Cir. 2002) (internal citations omitted). We do not reach the issue here because Olivit did not raise it in the superior court and has not raised it on appeal. Lowell, 117 P.3d at 760 n. 76.
13. We therefore AFFIRM the judgment below.
APPENDIX A IN THE SUPERIOR COURT FOR THE STATE OF ALASKA FIRST JUDICIAL DISTRICT AT JUNEAU
JAKE OLIVIT, SR.,
Plaintiff,
v.
PAUL COMOLLI, OFFICER,
JUNEAU POLICE DEPT., CITY
BOROUGH OF JUNEAU,
Defendants.
1JU-04-907 CI (PC)
ORDER ON MOTION FOR SUMMARY JUDGMENT: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
I. INTRODUCTION
This case arises from Jake Olivit's complaint against Officer Paul Comolli and the City and Borough of Juneau (collectively referred to as "the City") alleging intentional infliction of emotional distress (IIED). Olivit claims that the City engaged in a pattern of harassment that caused him severe emotional distress. The City moves for summary judgment, denying that such harassment occurred but stating that, even if true, the type of harassment involved would not constitute extreme or outrageous conduct. [Olivit] opposes the motion.
II. FACTS
Jake Olivit, Sr. alleges that the City has engaged in a pattern of harassment. His complaint lists several incidents involving either Officer Comolli or the City that he claims were intended to harass.
On February 15, 2005, this court entered an order outlining deficiencies in the complaint that might call for dismissal. The court allowed Mr. Olivit the opportunity to file a more definite statement of his factual claims such that the court could determine whether dismissal was appropriate.
Mr. Olivit's March 15, 2005 response to the order asserts that Officer Comolli has intentionally inflicted severe emotional distress on him by "harassing" him at work, home, his son's graduation and a Native Celebration Parade. He claims he has suffered emotional distress that is so severe that it has manifested itself physically.
III. STANDARD FOR SUMMARY JUDGMENT
A party is entitled to summary judgment if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. All reasonable inferences of fact are drawn in favor of the non-moving party. The moving party has the burden of showing, through admissible evidence, that no genuine factual dispute exists and that it is entitled to judgment on the established facts. Once the moving party establishes by convincing evidence the absence of genuine issues of material fact, the non-moving party must then clearly and specifically demonstrate that it can produce admissible evidence disputing the moving party's evidence.
Alaska R. Civ. P. 56(c); Hawks v. State, Dep't of Pub. Safety, 908 P.2d 1013, 1015 (Alaska 1995).
Hawks, 908 P.2d at 1015.
Shade v. Co. Anglo Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska 1995).
Southeast Alaska Constr. Co. v. State, 791 P.2d 339, 342 (Alaska 1990).
IV. DISCUSSION
In order to defeat a summary judgment motion dismissing a claim for IIED, a plaintiff must present sufficient evidence to support a prima facie case for IIED. A prima facie case for IIED includes the following elements: (1) the conduct is extreme and outrageous, (2) the conduct is intentional and [or] reckless, (3) the conduct causes emotional distress, and (4) the distress is severe.
Hawks, 908 P.2d at 1015.
In light of the difficulty of establishing these elements, the court must evaluate the evidence to determine whether it is sufficient to support Olivit's claim. The court must make a threshold determination of "whether the severity of the emotional distress and the conduct of the offending party warrant a claim" of IIED. The conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."
Beard v. Baum, 796 P.2d 1344, 1350 (Alaska 1990).
Id.
Hawks, 908 P.2d at 1016.
Olivit does not provide sufficient evidence to establish that the City's conduct is so outrageous and extreme as to be regarded as atrocious. Viewing the facts in the light most favorable to Olivit, even if what Olivit alleges is true, the City's actions are annoying and, at most, intimidating. This is not enough, in itself, to meet the threshold for making out an IIED claim. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.
Finch v. Greatland Foods, Inc., 21 P.3d 1282, 1289 (Alaska 2001).
Assuming that Olivit's allegations are true, no more than a few minor annoyances or intimidations occurred. According to Olivit, Officer Comolli's harassment consisted of: (1) issuing two warnings, both at Olivit's place of employment, for Olivit's unlawful conduct, (2) patrolling Olivit's neighborhood, (3) going to Olivit's home and causing a disturbance[,] (4) mouthing something derogatory to Olivit at a parade, [and] (5) puffing out his chest and giving Olivit a dirty look at a high school graduation. Examples of egregious conduct sufficient to satisfy the outrageousness threshold are threatening someone's life, sustained, extensive and concerted efforts to drive someone from their job, or put someone out of business. Alaska courts have held that it is not outrageous to engage in conduct that alienates neighbors, imparts acrimonious messages to immediate neighbors, and seriously diminishes the value of nearby property. Further, in Finch v. Greatland Foods, Inc., the Alaska Supreme Court held that a targeted campaign of workplace harassment and discrimination did not amount to outrageous conduct even though the same evidence was sufficient to overcome summary judgment on a constructive discharge claim. The court held that the alleged harassment and discrimination was not sufficient for an IIED claim because it involved mere threats and ridicule. Correspondingly, Olivit's allegations involve similar harassment that likewise does not rise to the level of outrageousness sufficient for IIED.
Teamsters Local 959 v. Wells, 749 P.2d 349, 358 (Alaska 1988).
Cameron v. Beard, 864 P.2d 538, 540-41 (Alaska 1994).
Oaksmith v. Brusich, 774 P.2d 191, 193-94 (Alaska 1989).
Lybrand v. Trask, 31 P.3d 801, 804 (Alaska 2001).
Finch, 21 P.3d at 1289.
The City asserts that Olivit fails to support his IIED claim with admissible evidence to counter the affidavits the City offered in support of its motion for summary judgment. Instead, Olivit's opposition consists of unsworn contentions generally unrelated to the City's summary judgment motion. Typically, this would be grounds to affirm the motion, because non-movants may not rely upon assertions of fact in unverified pleadings and memoranda to oppose a motion for summary judgment. However, the Alaska Supreme Court has stated that pleadings of pro se litigants should be held to less stringent standards and that pro se litigants should be informed of the need to submit affidavits or other evidence to preclude summary judgment. In granting Defendants['] summary judgment motion, this court does not rely on Olivit's failure to produce admissible evidence. Olivit's claim fails because, even if the unsworn allegations were deemed true, they do not meet the threshold IIED requirement that the City's conduct at issue must be severe and outrageous.
Larson v. Cooper, 90 P.3d 125, 130 (Alaska 2004).
Id.
Mr. Olivit has also failed to present admissible evidence ofsevere emotional distress.
V. CONCLUSION
The motion for summary judgment is GRANTED. All other pending motions are denied as moot.
IT IS SO ORDERED.