THE SUPREME COURT OF THE STATE OF ALASKA
MARILYN PLYMIRE , ) ) Supreme Court No. S -8 058 Appellant , ) ) Superior Court No . v . ) 3AN-95-9243 CI ) EMBLEY-MOE PARTNERSHIP , ) ) Appellee . ) MEMORANDUM OPINION ) AND JUDGMENT· ) MARILYN PLYMIRE, ) [NO. 0 932 - September 15, 1999] ) Appellant, ) ) v , ) Supreme Court No . S-8298 ) DON CLOYD, GEOSEARCH, INC. , ) and D. C, E., INC . , ) ) Appellees. ) )
Appeal from the Superior Court of the State of Alaska, Third Judic ial District, Anchorage, Karen L. Hunt, Judge .
Appearances: Marily n Plymire, pro se, Anchorage. Brent R. Cole, Marston & Cole , P.C., Anchorage, for Appellees .
Before: Matthews, Chief Justice, Eastaugh, Fabe, Bryner, and Carpeneti, Justices .
• Entered pursuant to Appellate Rule 214 . 1. Marilyn Plymire sued Don Cloyd and three
corporations that Cloyd allegedly represented (collectively, Cloyd)
for failing to deliver gold for which Plymire had paid $78, 411.
Plymire claimed that in return for her payment Cloyd had promised
her 261 . 39 ounces of gold refined to a purity of 86% or better but
that he had delivered only 114.02 ounces. P1ymire further claimed
that of the gold delivered, 77.39 ounces met the specified purity,
but one bar, weighing 36.63 ounces, tested at only 55 . 1% pure.
Plymire accused Cloyd of negligence and breach for failing to
deliver all of the promised gold and of fraud, misrepresentation,
and unlawful conspiracy for delivering the bar of gold that proved
to be insufficiently pure .
2. In the same complaint, P1ymire sued the Embley-Moe
Partnership, a partnership holding title to Cloyd's place -of
business, alleging that Emb l ey-Moe owed her a duty to restrain
Cloyd from engaging in unlawful business activities on its property
and that it had willfully breached this duty by allowing Cloyd ' s
fraudulent conduct.
3. The superior court granted summary judgment in fav or
of Embley-Moe and unconditionally dismissed it from the case,
ruling that Plymire ' s complaint against Embley-Moe was grounded
-2- 0932 exc l usiv ely in tort and was therefore barred by the two-year
statute of l imitations set out in AS 09 . 10.070 . The court
thereafter awarded Embley-Moe full attorney's fees and costs .
4. The court similarly found that the statute of
limitations barred Plymire ' s tort claims against Cloyd and, on this
basis , granted partial summary judgmen t in Cloyd ' s fav or. The case
against Cloyd proceeded to a jury trial on Plymire ' s contract
claims, and the jury returned a v erdict for Cloy d.
5. Plymire appeals, asserting that the court made
v arious evidentiary and instructional errors at trial, contending
that the v erdict fails to conform to the evidence, challenging the
superior court ' s summary judgment rulings, and contesting the
court ' s order awarding full attorney's fees and costs to Embley-
Moe.
6. Plymire ' s evidentiary claims have no merit . She
asserts that the court erred in excluding the Oxford Report from
evidence, but the record establishes that the court admitted this
document upon the parties' stipulation. She claims t h at t h e court
err ed in excluding her notes of meetings with Cloyd but offers no
argume nt against the superior court's ruling that the notes were
inadmissible because they were not business records . She maintains
that the court erred in excluding photocopies of the three gold
-3- 0932 bars that she claimed Cloyd had given her . But the record supports
the t ria l court ' s finding that these photocopies did not accurately
depict relevant characterist i cs of the gold bars and that, because
Plymire had disposed of twc of the three bars, the photocopies
might prejudice Cloyd's defense. Having reviewed the record, we
are not definitely and firmly convinced that the trial court made
a mistake in any of these evidentiary r ulings . 2 Accordingly, these
rulings did not amount to an abuse of the court ' s discretion. 3
7. Plymire contends that the trial court erred in
characterizing her failure to preserve two gold bars as a
spoliation of evidence and in instructing the jury that, for that
reason, Plymire bore the burden of rebutting, by a preponderance of
evidence, the presumption that Cloyd had not given her the bar that
Plymire claimed was i mpure.' But even if the court erred in its
ruling , the disputed spoliation instruction amounted to harmless
2 Bohna v. Hughes, Thorsness, Gantz. Powell & Brundin, 828 P . 2d 745, 763-64 (Alaska 1992). 3 See Hutchins v. Schwartz, 724 P . 2d 1 194 , 1197 (Alaska 1986) .
4 Plymire also cursorily notes that the trial court overruled her objections to Cloyd's proposed Jury Instructions Nos. 37, 38, and 42. But the superior court did not give proposed instruct i ons Nos. 37 and 38, and Plymire identifies no error in proposed instruction No. 42, which sets out a conventional definition of "agent. "
-4- 0932 error . Unl ike the case of Sweet v. Sisters of Providence in
washington,S where a similar spoliation instruction shifted the
6 burden of proof from the plaintiff to the defendant, the
instruction here simply assigned Plymire a burden that she already
had as plaintiff : the burden of proving all of her claims,
including her claim that she obtained t he impure gold bar from
Cloyd. As Cloyd correctly notes, "by holding that the
preponderance of the evidence standard applied, the trial court
essentially returned the e v identiary ruling to its status quo and
neutralized any advantage [Cloyd) might hav e gained from the
rebuttable presumption. "
8. Emphasizing the strength of the case she presented
to support her claims, Plymire argues that the jury's verdict di d
not conform to the evidence . But in reviewing a verdict for
sufficiency of evidence, we mu s t defer to the jury's view of the
weight and credibility of the testimony unless evidence supporting
the verdict is completely absent or is so slight and unconvincing
as to leave no "room for diversity of opinion among reasonable
S 895 P.2d 484 (Alaska 1995) . 6 See id. at 490-92 . -5- 0932 people. ,,7 The jury heard sub stantial evidence supporting Cloyd ' s
defense and casting doubt on the credibility of Plymire's primary
witness. Our review of the record persuades us that the evidence
left ample room for diversity among reasonable jurors.
Accordingly, we reject Plymire ' s claim.
9. Ply mire contends that the superior court erred in
granting summary judgment to Cloyd and to Embley-Moe on her tort
claims and in dismissing t he complaint against Embley-Moe on that
basis . But Plymire built all o f her legal claims aga i nst Cloyd and
Embley-Moe -- her tort and contract claims alike -- on the same
factual foundation: her contention that she had paid Cloyd for gold
that he failed to deliver. In returning a verdict against Plymire
on her contrac t claims, the jury unequivocally found that Plymire
had failed t o prove the factual theory common to all of her claims.
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THE SUPREME COURT OF THE STATE OF ALASKA
MARILYN PLYMIRE , ) ) Supreme Court No. S -8 058 Appellant , ) ) Superior Court No . v . ) 3AN-95-9243 CI ) EMBLEY-MOE PARTNERSHIP , ) ) Appellee . ) MEMORANDUM OPINION ) AND JUDGMENT· ) MARILYN PLYMIRE, ) [NO. 0 932 - September 15, 1999] ) Appellant, ) ) v , ) Supreme Court No . S-8298 ) DON CLOYD, GEOSEARCH, INC. , ) and D. C, E., INC . , ) ) Appellees. ) )
Appeal from the Superior Court of the State of Alaska, Third Judic ial District, Anchorage, Karen L. Hunt, Judge .
Appearances: Marily n Plymire, pro se, Anchorage. Brent R. Cole, Marston & Cole , P.C., Anchorage, for Appellees .
Before: Matthews, Chief Justice, Eastaugh, Fabe, Bryner, and Carpeneti, Justices .
• Entered pursuant to Appellate Rule 214 . 1. Marilyn Plymire sued Don Cloyd and three
corporations that Cloyd allegedly represented (collectively, Cloyd)
for failing to deliver gold for which Plymire had paid $78, 411.
Plymire claimed that in return for her payment Cloyd had promised
her 261 . 39 ounces of gold refined to a purity of 86% or better but
that he had delivered only 114.02 ounces. P1ymire further claimed
that of the gold delivered, 77.39 ounces met the specified purity,
but one bar, weighing 36.63 ounces, tested at only 55 . 1% pure.
Plymire accused Cloyd of negligence and breach for failing to
deliver all of the promised gold and of fraud, misrepresentation,
and unlawful conspiracy for delivering the bar of gold that proved
to be insufficiently pure .
2. In the same complaint, P1ymire sued the Embley-Moe
Partnership, a partnership holding title to Cloyd's place -of
business, alleging that Emb l ey-Moe owed her a duty to restrain
Cloyd from engaging in unlawful business activities on its property
and that it had willfully breached this duty by allowing Cloyd ' s
fraudulent conduct.
3. The superior court granted summary judgment in fav or
of Embley-Moe and unconditionally dismissed it from the case,
ruling that Plymire ' s complaint against Embley-Moe was grounded
-2- 0932 exc l usiv ely in tort and was therefore barred by the two-year
statute of l imitations set out in AS 09 . 10.070 . The court
thereafter awarded Embley-Moe full attorney's fees and costs .
4. The court similarly found that the statute of
limitations barred Plymire ' s tort claims against Cloyd and, on this
basis , granted partial summary judgmen t in Cloyd ' s fav or. The case
against Cloyd proceeded to a jury trial on Plymire ' s contract
claims, and the jury returned a v erdict for Cloy d.
5. Plymire appeals, asserting that the court made
v arious evidentiary and instructional errors at trial, contending
that the v erdict fails to conform to the evidence, challenging the
superior court ' s summary judgment rulings, and contesting the
court ' s order awarding full attorney's fees and costs to Embley-
Moe.
6. Plymire ' s evidentiary claims have no merit . She
asserts that the court erred in excluding the Oxford Report from
evidence, but the record establishes that the court admitted this
document upon the parties' stipulation. She claims t h at t h e court
err ed in excluding her notes of meetings with Cloyd but offers no
argume nt against the superior court's ruling that the notes were
inadmissible because they were not business records . She maintains
that the court erred in excluding photocopies of the three gold
-3- 0932 bars that she claimed Cloyd had given her . But the record supports
the t ria l court ' s finding that these photocopies did not accurately
depict relevant characterist i cs of the gold bars and that, because
Plymire had disposed of twc of the three bars, the photocopies
might prejudice Cloyd's defense. Having reviewed the record, we
are not definitely and firmly convinced that the trial court made
a mistake in any of these evidentiary r ulings . 2 Accordingly, these
rulings did not amount to an abuse of the court ' s discretion. 3
7. Plymire contends that the trial court erred in
characterizing her failure to preserve two gold bars as a
spoliation of evidence and in instructing the jury that, for that
reason, Plymire bore the burden of rebutting, by a preponderance of
evidence, the presumption that Cloyd had not given her the bar that
Plymire claimed was i mpure.' But even if the court erred in its
ruling , the disputed spoliation instruction amounted to harmless
2 Bohna v. Hughes, Thorsness, Gantz. Powell & Brundin, 828 P . 2d 745, 763-64 (Alaska 1992). 3 See Hutchins v. Schwartz, 724 P . 2d 1 194 , 1197 (Alaska 1986) .
4 Plymire also cursorily notes that the trial court overruled her objections to Cloyd's proposed Jury Instructions Nos. 37, 38, and 42. But the superior court did not give proposed instruct i ons Nos. 37 and 38, and Plymire identifies no error in proposed instruction No. 42, which sets out a conventional definition of "agent. "
-4- 0932 error . Unl ike the case of Sweet v. Sisters of Providence in
washington,S where a similar spoliation instruction shifted the
6 burden of proof from the plaintiff to the defendant, the
instruction here simply assigned Plymire a burden that she already
had as plaintiff : the burden of proving all of her claims,
including her claim that she obtained t he impure gold bar from
Cloyd. As Cloyd correctly notes, "by holding that the
preponderance of the evidence standard applied, the trial court
essentially returned the e v identiary ruling to its status quo and
neutralized any advantage [Cloyd) might hav e gained from the
rebuttable presumption. "
8. Emphasizing the strength of the case she presented
to support her claims, Plymire argues that the jury's verdict di d
not conform to the evidence . But in reviewing a verdict for
sufficiency of evidence, we mu s t defer to the jury's view of the
weight and credibility of the testimony unless evidence supporting
the verdict is completely absent or is so slight and unconvincing
as to leave no "room for diversity of opinion among reasonable
S 895 P.2d 484 (Alaska 1995) . 6 See id. at 490-92 . -5- 0932 people. ,,7 The jury heard sub stantial evidence supporting Cloyd ' s
defense and casting doubt on the credibility of Plymire's primary
witness. Our review of the record persuades us that the evidence
left ample room for diversity among reasonable jurors.
Accordingly, we reject Plymire ' s claim.
9. Ply mire contends that the superior court erred in
granting summary judgment to Cloyd and to Embley-Moe on her tort
claims and in dismissing t he complaint against Embley-Moe on that
basis . But Plymire built all o f her legal claims aga i nst Cloyd and
Embley-Moe -- her tort and contract claims alike -- on the same
factual foundation: her contention that she had paid Cloyd for gold
that he failed to deliver. In returning a verdict against Plymire
on her contrac t claims, the jury unequivocally found that Plymire
had failed t o prove the factual theory common to all of her claims.
Since we have found the jury's verdict t o be free of error, it
follows that all of Plymire's legal theories were factually
unsupported and that any error committed by the court in dismissing
he~ alternative legal claims was necessarily harmless .
10 . Plymire last contends that the superior court erred
in awarding full attorne y's fees to Embley-Moe. "It is an abuse of
7 Municipality of Anchorage v . Baugh Constr. & Eng'g Co. , 722 P . 2d 919, 927 (Alaska 1986 ) .
-6- 0932 discretion to award full attorney ' s fees . without an explicit
finding of bad faith or vexat ious conduct. li B Moreov er, the court
must clearly explain its reasons for making an increased fee
award . 9 Here, t he superior c ourt ' s order a warding full attorney ' s
fees to Embley-Moe did not comply with these requirements. The
order mentioned Plymire' s weak and unsupported cause of action and
her pursuit of "unnecessary and needless li ti gation tactics" but
did not expressly find either bad faith or vexatious conduct .10 We
B Kowalski v. Kowalski, 806 P . 2d 1368, 1373 n . 7 (Alaska 1991); accord Stone v . Inter national Marine Carriers. Inc., 918 P.2d 551, 558 (Alaska 1996); Malvo v. J.C. Penney Co . , 512 P. 2d 575, 587 (Alaska 1973) . 9 See Kowalski, 806 ?2d at 1373 n. 7 .
10 In stating the court's basis for granting full fees, its order also referred to Embley- Moe's memorandum in support of its mot i on for full attorney's fees. But while that memorandum listed civil Rule 8 2 (b) (3) (G) (allowing increased fees for v exatious or bad faith conduct) as a potential ground for awarding full fees, it did not expressly allege vexatious or bad faith conduct. Indeed, it did not discuss vexatiousness at all and only mentioned bad faith parenthetically in a citation describing Crook v. Mortenson - Neal, 727 P.2d 2 97 (Alaska 1 986), as a case II [a] warding 80% of actual attorney['s] fees for litigation of weak claim which bordered on bad fa i th and where defendant[']s intransigence required plaintiff to expend c onsiderable efforts on motions and trial practice." Under these circumstances, the superior court's reference to Embley-Moe's supporting memorandum does not equate to an express finding of bad fai t h or vexatiousness. And in the case of a pro se litigant like Plymire, who could not realistically be expected to unde r stand the law as thoroughly or to litigate her case as efficiently as an attorney, we are not inclined to infer a (continued . .. )
- 7- 0932 thus conclude that the awara of full fees amounts to an abuse of
discretion and mus t be vacated .
11 . For the foregoing reasons, we AFFIRM the judgments
against Plymire in all respects except the attorney 's fee award to
Embley-Moe. We VACATE that attorney's fee award and REMAND for
reconsideration of the a ward in light of this decision .
10 ( . .• continued) finding of bad faith or vexatiousness from the superior court's findings that Plymire's case was weak and that she pursued unnecessary litigation tactics. Cf. Kowalski, 806 P.2d at 1373; see also Beard v. Beard, 947 P.2d 831, 834 (Alaska 1997) ("Conduct justifying an increased award must be such that the parties are prevented from litigating the action on an equal plane.").
Although Embley-Moe cites Blackford v. Taggart, 6 72 P.2d 888 (Alaska 1983), as analogous to this case, it is readily distinguishable. In Blackford the court awarded $6,000 in prevailing - party fees to the sole defendant in a personal injury action that took a year to prepare, involved numerous depositions, and culminated in a three-day jury tria l. See id. at 891. Moreover, the award in Blackford did not purport to be one of full fees and therefore did not require a predicate finding of bad faith or vexatiousness. See id.
- 8- 0932