Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.gov.

THE SUPREME COURT OF THE STATE OF ALASKA

JAMES WILLIAMS and SUSIE 

WILLIAMS,

 Appellants and 

 Cross-Appellees,

v. 

JOHN STRONG,

 Appellee and 

 Cross-Appellant,

and

MUNICIPALITY OF ANCHORAGE,

 Appellee.

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Supreme Court Nos. S-18528/18547

Superior Court No. 3AN-15-08446 CI

O P I N I O N

No. 7716 – September 6, 2024

Appeals from the Superior Court of the State of Alaska, 

Third Judicial District, Anchorage, Andrew Guidi, Judge.

Appearances: Alfred Clayton, Jr., Clayton & Diemer, LLC, 

Anchorage, for Appellants and Cross-Appellees. Anne 

Helzer, Anchorage, for Appellee and Cross-Appellant. 

Notice of nonparticipation filed by Meagan Carmichael and 

Robert P. Owens, Assistant Municipal Attorneys, and Blair 

M. Christensen, Acting Municipal Attorney, Anchorage, for 

Appellee Municipality of Anchorage.

Before: Maassen, Chief Justice, and Carney, Borghesan, 

Henderson, and Pate, Justices.
-2 - 7716

HENDERSON, Justice. 

INTRODUCTION

 A man sued his neighbors, alleging that an access road on their property 

caused flooding on his property. After he reached a settlement with the neighbors, the 

man stipulated to a dismissal of his claims with prejudice. More than three years later 

the man again sued the neighbors, alleging that the flooding had continued and asserting 

claims of nuisance, trespass, intentional infliction of emotional distress, and breach of 

contract. The superior court applied res judicata and granted summary judgment in 

favor of the neighbors as to the tort claims, but not as to the breach of contract claim. 

Following a bench trial, the court found that the neighbors had breached

their settlement agreement with the man. The court granted specific performance and 

awarded consequential damages and attorney’s fees, but denied the man’s request for 

punitive damages. The neighbors appeal the court’s decision on the contract claim, and 

the man cross-appeals the court’s summary judgment dismissal of his tort claims and 

denial of punitive damages. We reverse the superior court’s ruling that the man brought 

his breach of contract claim within the statute of limitations, as well as the court’s 

finding of breach of contract and resulting orders related to specific performance, 

monetary damages, and attorney’s fees. We affirm the superior court’s ruling that the 

man’s tort claims were barred by res judicata, as well as its denial of punitive damages.

FACTS AND PROCEEDINGS

A. 2010 Complaint And Settlement Agreement

 John Strong has owned his property since 1974. Around 1988, the owner 

of a property neighboring Strong’s built an allegedly substandard raised driveway on 

that property. Many years later the current owners, James and Susie Williams, acquired 

the neighboring property. During this time period, Strong and the series of owners of 

the neighboring property that included the Williamses, engaged with each other and the 

Municipality of Anchorage about the driveway. 
-3 - 7716

In August 2010 Strong filed suit against the Williamses, asserting

nuisance and trespass claims related to the driveway on the Williamses’ property.1 

Shortly after the suit’s commencement, the parties negotiated an agreement to resolve 

the litigation. With the assistance of counsel, Strong signed a written settlement 

agreement in March 2012. In exchange for $7,500 and “the agreement of Jim Williams 

to upgrade his driveway in accordance with [an] attached plan and specifications by 

June 30, 2012,” Strong released the Williamses from “all claims and causes of action 

asserted or which could have been asserted against [them].” The agreement also stated 

that “[s]tipulations for dismissal with prejudice will be signed in conjunction with the 

execution of this release.” Attached to the agreement was a plan for an updated 

driveway, and five “Driveway Specifications.” The specifications required:

1. Applicable Municipality of Anchorage permit for the 

driveway.

2. Two density tests of the type II classified fill after 

placement and compaction.

3. Gradation report or lab or vendor certification that the 

type II fill meets [Municipality] standards.

4. Inspection by [Strong’s retained engineer] before the 

placement of geo-textile fabric, before culvert backfill, 

and at compaction.

5. If any construction discrepancies are observed by 

[Strong’s retained engineer], they will be raised with the 

engineer of record to be resolved prior to completion of 

the project. 

 After executing the settlement agreement, the Williamses initiated the 

upgrade of their driveway and completed construction in June 2012.2 After the 

Williamses’ contractor finished building the driveway, Strong’s retained engineer 

1

 Strong also sought to have the driveway removed to abate the perceived 

nuisance. 

2 Notes from the Williamses’ contractor indicate construction was complete 

on or around June 7, 2012. 
-4 - 7716

notified Strong that he “completed [a] review of the driveway and culvert installation” 

and informed Strong’s attorney “[a]t this time, not [sic] additional actions are required.” 

Strong told the Williamses he was “satisfied.” The parties signed and filed a stipulation 

for dismissal with prejudice in early July 2012. 

B. 2015 Complaint and Current Lawsuit

 On July 21, 2015, Strong filed a new lawsuit asserting various claims 

related to his property, which continued to experience flooding. In addition to nuisance 

and trespass claims that comprised part of Strong’s 2010 complaint, he also claimed 

intentional infliction of emotional distress (IIED) and breach of contract.3

 Strong 

asserted that “[d]uring most spring seasons, and periods characterized with heavy rain, 

water pools near [the Williamses’ raised driveway] and the pool grows consistently with 

the amount of waterfall or snow-melt,” and that he spent thousands of dollars pumping 

his septic system to prevent flooding of sewage. Strong also stated that after the 

Williamses finished reconstructing their driveway “the weather ha[d] been 

unseasonably dry,” and did not produce water runoff “that would flood” his property 

“because of the dam.”4

 He indicated that “[a]fter receiving a great deal of rain in 2013 

[he] discovered that the culvert ha[d] not solved the flooding problem caused by the 

roadbed.” Strong requested an order for specific performance requiring the Williamses 

to either remove the driveway or excavate the roadbed “to a depth necessary to restore 

flow of the ground water by installing” fill that would accomplish this goal. He also 

requested compensatory damages for the costs of septic pumping and flooding damage 

to his home and for his mental anguish associated with the flooding dating back to 1990, 

as well as punitive damages in the amount of $1,000,000. 

3

 The Municipality was also a defendant, but for separate claims not 

relevant to this appeal. The superior court dismissed those claims in 2017 and Strong 

appealed. Strong v. Williams (Strong I), 435 P.3d 872 (Alaska 2018). We reversed and 

remanded for further proceedings. Id. at 875-76. 

4 Strong has referred to the driveway as a “dam” or “embankment.”
-5 - 7716

1. Partial summary judgment

 The Williamses moved for partial summary judgment regarding Strong’s 

nuisance, trespass, and IIED claims, asserting that res judicata barred Strong from 

raising them in the second lawsuit. The superior court granted partial summary 

judgment, dismissing all of Strong’s tort claims. It concluded that Strong’s nuisance, 

trespass, and IIED claims were barred by res judicata because all of those claims arose 

“out of the driveway embankment.” In particular, the court determined that: (1) the 

superior court was a “court of competent jurisdiction,” (2) it had “rendered a final 

judgment on the merits” when it dismissed the 2010 lawsuit with prejudice, and (3) “the 

same cause of action and the same parties or their privies were involved in both 

lawsuits.”5 The court also concluded that Strong’s IIED claim against the Williamses 

was precluded “by the broad language of the settlement agreement.” 

2. Trial 

 The parties participated in an eight-day bench trial in June 2022. Strong 

testified about his observations of flooding on his property and his need to pump his 

septic tank after the Williamses completed the reconstruction of their driveway. He 

observed that the pumping issue got worse after the driveway upgrade was complete. 

He read from his pumping service records, noting the pumping charge from July 2012, 

and emphasized that septic pumping expenses, along with attorney’s fees, “ate [him] 

up.” 

 Strong’s grandson testified about his observations of the driveway 

construction after Strong signed the settlement agreement resolving the first lawsuit. 

He testified that he would check on the progress of the work daily. He observed that 

5

 Prior to Strong’s first appeal the superior court had concluded in a separate 

order that res judicata barred his tort claims. See Strong I, 435 P.3d at 873. In addition 

to maintaining its res judicata analysis on remand, the superior court determined that 

because Strong did not include this issue in his first appeal, the court’s dismissal of 

those tort claims had become the law of the case. 
-6 - 7716

one day at the construction site he saw “the culvert was placed literally . . . 8 inches 

above the water and mud that’s underneath it.” He said he asked one of the construction 

workers “how . . . is that supposed to do anything?” to which the construction worker 

responded with a laugh. He also stated that when he observed the project the next day 

the culvert “was still in the same place, 8 inches above the water, and they had finished 

the job,” backfilling it and compacting it with new material. He testified that he told 

Strong about what he saw and that Strong “already knew about it” and “he was going 

to get after it and do what he needed to do to figure it out.” 

3. Findings of fact and conclusions of law

 The court later issued a written decision addressing Strong’s breach of 

contract claim. The court found that the Williamses breached their settlement 

agreement with Strong through their “failure to have the driveway upgrade constructed 

in accordance with the stipulated design.” It cited “four principal deviations” 

constituting the breach.6 The court found that “[n]ot long after the driveway work was 

completed, water problems resumed on Strong’s land.” But the court ruled that Strong 

was not barred by the three-year statute of limitations for contract claims because it was 

6 Deviations cited by the court included incorrect culvert depth, no 

constructed swale, existing unremoved organic material, and unchanged road location. 

A swale is “a low-lying or depressed and often wet stretch of land.” Swale, MERRIAMWEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1998). A swale can serve as “part of 

a storm water drainage system.” U.S. ENV’T PROT. AGENCY, STORM WATER TECH.

FACT SHEET: VEGETATED SWALES (1999), https://nepis.epa.gov/Exe/ZyNET.exe/2000

44A8.TXT?ZyActionD=ZyDocument&Client=EPA&Index=1995+Thru+1999&Docs

=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntry

=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&IntQFieldOp=0&ExtQFie

ldOp=0&XmlQuery=&File=D%3A%5Czyfiles%5CIndex%20Data%5C95thru99%5C

Txt%5C00000015%5C200044A8.txt&User=ANONYMOUS&Password=anonymous

&SortMethod=h%7C&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75

g8/r75g8/x150y150g16/i425&Display=hpfr&DefSeekPage=x&SearchBack=ZyActio

nL&Back=ZyActionS&BackDesc=Results%20page&MaximumPages=1&ZyEntry=1

&SeekPage=x&ZyPURL. 
-7 - 7716

reasonable for Strong “to wait at least a year before concluding that a breach of contract 

had occurred.” The court noted that the substandard construction was “not obvious to 

a lay person” and that the involved design requirements were “subtle.” It found no 

evidence that the substandard construction was “pointed out” to Strong or that his lack 

of knowledge resulted from a “lack of diligence on his part.” It determined that he 

could not “assess the materiality of the breach until it manifested in damage.” 

The court also issued orders related to Strong’s requested remedies. The 

court ordered specific performance requiring the Williamses to rebuild the driveway, 

and awarded consequential damages for the cost of septic tank pumping, damage done 

to Strong’s property, and Strong’s inability to enjoy his property due to flooding and 

related impacts. The court also awarded Strong attorney’s fees. 

The court denied Strong’s request for punitive damages. It held that 

punitive damages are not recoverable under a breach of contract theory “unless the 

breach constitutes an independent tort,” and concluded that no independent torts had 

occurred. In addition, it found that neither the Williamses nor their attorney “acted 

fraudulently or with an intent to deceive Strong in . . . settlement negotiations” or 

regarding the driveway upgrade project, and that they did not “breach[] the covenant of 

good faith and fair dealing implied in” the settlement agreement. The court concluded 

that “[e]ven if a claim for punitive damages were allowed, Strong has not proven by 

clear and convincing evidence that the Williamses engaged in extreme and outrageous 

conduct so as to support an award for punitive damages. In fact, the preponderance of 

the evidence establishe[d] that they did not do so.” 

Both parties appeal.

STANDARD OF REVIEW

“When the superior court holds an evidentiary hearing to resolve factual 

disputes about when a statute of limitations began to run, we review the resulting 
-8 - 7716

findings of fact for clear error.”7 “[W]e review de novo the legal standard used to 

determine accrual dates, and we review de novo questions regarding the applicable 

statute of limitations, the interpretation of that statute, and whether that statute bars a 

claim.”8

 “The question whether res judicata . . . applies is a question of law, which 

we . . . review de novo.”9

 “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 the law.”10

DISCUSSION

A. It Was Error To Determine That Strong Filed His Breach Of 

Contract Claim Within The Statute Of Limitations. 

 As a preliminary matter, Strong asserts that the Williamses failed to 

adequately raise their statute of limitations argument before the superior court and have 

thus waived the issue for appeal. The Williamses contend the issue is not waived, and 

that Strong frustrated the development of this defense due to late discovery of his septic 

pumping service records. Regardless, the Williamses raised the issue in the superior 

court such that the court considered and addressed the merits of the issue in its final 

order. We are therefore able to consider and address the issue on appeal. 

7 Christianson v. Conrad-Houston Ins., 318 P.3d 390, 396 (Alaska 2014). 

8 Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264, 1271 (Alaska 2013)

(footnotes omitted).

9

 Strong I, 435 P.3d at 874 (alteration in original) (quoting McElroy v. 

Kennedy, 74 P.3d 903, 906 (Alaska 2003)).

10 Galipeau v. Bixby, 476 P.3d 1129, 1134 (Alaska 2020) (quoting Haines v. 

Comfort Keepers, Inc., 393 P.3d 422, 427 (Alaska 2017)). 
-9 - 7716

A three-year statute of limitations applies to breach of contract claims.11 

“Generally, a cause of action for breach of contract accrues, and the statute of 

limitations begins to run, ‘at the time of the breach of the agreement, rather than the 

time that actual damages are sustained as a consequence of the breach.’ ”12 “When a 

party has contracted to perform certain duties . . . any failure to perform those duties 

amounts to a breach of contract.”13

 Alaska common law provides for equitable tolling of the statute of 

limitations of a contract claim “[w]here an element of a cause of action is not 

immediately apparent.”14 This rule, also known as the discovery rule, “mitigate[s] the 

harshness that can result from the [accrual] rule’s preclusion of claims where the breach 

at issue provided insufficient notice of the cause of action to the plaintiff.”15 We have 

previously stated that under the discovery rule:

[T]he statute of limitations does not begin to run until the 

claimant discovers, or reasonably should have discovered, 

the existence of all elements essential to the cause of action. 

Thus we have said the relevant inquiry is the date when the 

11 AS 09.10.053. “Statutes of limitations attempt to protect against the 

difficulties caused by lost evidence, faded memories and disappearing witnesses.” 

Byrne v. Ogle, 488 P.2d 716, 718 (Alaska 1971). 

12 Flint Hills Res. Alaska, LLC v. Williams Alaska Petroleum, Inc., 377 P.3d 

959, 970 (Alaska 2016) (quoting Brannon v. Cont’l Cas. Co., 137 P.3d 280, 284 (Alaska 

2006)); see also Bauman v. Day, 892 P.2d 817, 827 (Alaska 1995) (citing Howarth v. 

First Nat’l Bank of Anchorage, 540 P.2d 486, 490-91 (Alaska 1975), aff’d on reh’g, 

551 P.2d 934 (Alaska 1976)).

13 Am. Comput. Inst., Inc. v. State, Alaska Student Loan Corp., 995 P.2d 647, 

651 (Alaska 2000). 

14 Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 

508-09 (Alaska 2015) (alterations in original) (quoting Gefre v. Davis Wright Tremaine, 

LLP, 306 P.3d 1264, 1274 (Alaska 2013)). In Bauman we held the discovery rule 

applied to actions in contract. 892 P.2d at 828. 

15 Ranes, 355 P.3d at 509 (alteration in original) (quoting Gefre, 306 P.3d at 

1274).
-10 - 7716

claimant reasonably should have known of the facts 

supporting her cause of action. We look to the date when a 

reasonable person has enough information to alert that 

person that he or she has a potential cause of action or should 

begin an inquiry to protect his or her rights.[16]

Thus, where a breach of contract is insufficient to notify a plaintiff of his or her cause 

of action, the statute of limitations may begin to run on either the date when the plaintiff 

is on notice that he or she should inquire further to protect their rights or the date that a 

plaintiff receives actual notice of the elements of their claim.

17 “The inquiry notice date 

is ‘the date when the plaintiff has information which is sufficient to alert a reasonable 

person to begin an inquiry to protect his rights.’ ”18 Generally inquiry notice controls, 

but actual notice may control where a plaintiff made “reasonable inquiry but failed to 

discover the essential elements of the cause of action.”19 

 The Williamses assert that Strong was on inquiry notice of any breach 

either on June 7, 2012, when the driveway upgrade was complete and he was 

purportedly aware the culvert had been installed incorrectly, or by July 13, 2012, when 

he incurred excessive septic pumping costs.20 Both dates are more than three years 

prior to Strong’s filing of his 2015 complaint. 

16 Id. (alterations in original) (quoting Gefre, 306 P.3d at 1275).

17 Id. (quoting Gefre, 306 P.3d at 1275). 

18 Id. (quoting Gefre, 306 P.3d at 1275).

19 Id. at 509 n.20 (citing Cameron v. State, 822 P.2d 1362, 1367 (Alaska 

1991)).

20 The Williamses would not have breached the settlement agreement until 

June 30, 2012, the date they promised in the agreement to have completed their 

driveway upgrade and had not “fully performed” on the building specifications in the 

contract. RESTATEMENT (SECOND) OF THE LAW OF CONTRACTS § 235(2) (AM. L.INST. 

1981). Comment b states that “[n]on-performance includes defective performance.” Id. 

§ 235 cmt. b.
-11 - 7716

 Strong argues the superior court did not err in its application of the 

discovery rule. He contends that the defects in the Williamses’ construction upgrade 

were essentially undetectable, like the attributes of land at issue in Bauman v. Day,

21

and that his claims therefore did not accrue until his land was obviously injured or 

damaged. Strong relies on the court’s findings that elements of the driveway 

construction that did not adhere to the agreement were “not obvious to a lay person.” 

 In Bauman we reversed the superior court’s application of the statute of 

limitations to dismiss a contract claim, concluding that a home buyer was on inquiry 

notice regarding permafrost issues impacting his property only after the issue 

manifested in demonstrable damage to the home.22 But the determination of inquiry 

notice in Bauman is easily distinguished from this case. In Bauman the permafrost 

problem was not detectable until there was resulting damage to the home, whereas here, 

Strong’s own evidence demonstrates that he was aware of one or more defects in the 

Williamses’ driveway reconstruction by the time that reconstruction was completed. 

Viewing the evidence in the light most favorable to Strong, the problems that Strong 

observed at the time the Williamses completed reconstruction of their driveway in June 

2012 constituted notice that Strong needed to take action to protect his rights. While 

some of the defects in the driveway reconstruction observed by the court were “subtle” 

and “not obvious to a lay person,” the height of the culvert above the water was — 

according to Strong’s own evidence — obvious.23 Indeed, Strong’s grandson testified 

21 892 P.2d 817, 828 (Alaska 1995). 

22 Id.

23 Strong also testified about recurring septic problems occurring just 

following completion of the driveway reconstruction. And the superior court observed 

that “[n]ot long after the driveway work was completed, water problems resumed on 

Strong’s land.” Such testimony and findings further support the idea that Strong was 

on inquiry notice about problems with the reconstruction more than three years before 

he filed his 2015 complaint. 
-12 - 7716

that he observed problems with the reconstruction of the Williamses’ driveway prior to 

completion of the project. He testified that he informed Strong of his observations prior 

to its completion, and that Strong confirmed his own awareness of the problems. 

Moreover, Strong’s response to his grandson — that he was going to get after the 

problem and do what he needed to in order to figure it out — acknowledged the need 

for him to further inquire in order to protect his rights. Unlike the plaintiff in Bauman, 

Strong saw and understood at least some of the alleged problems with the driveway 

reconstruction even as the reconstruction was being completed.24

 Further distinguishing Bauman from the facts here, Strong and the 

Williamses are not parties engaged in an arms-length transaction, but rather are 

neighbors that had already been engaged in a protracted property dispute.25 Strong had 

prior knowledge of the Williamses’ driveway and associated flooding on his property. 

Equipped with that knowledge, and having apparently observed defects in the driveway 

reconstruction, Strong was on notice that the reconstruction may not be in accord with 

the terms of the settlement agreement and that he should inquire in order to protect his 

rights.

 Rather than addressing inquiry notice, the superior court seemed to 

determine that Strong required actual notice of the harm that would result from 

purported breaches of the prior settlement agreement before his claims could accrue. 

This was error. The superior court could only decline to hold Strong to a three-year 

deadline based on an inquiry notice date if Strong engaged in “reasonable inquiry but 

failed to discover the essential elements of the cause of action.”26 But there was no 

evidence offered indicating that Strong inquired or investigated following his 

24 See 892 P.2d at 828.

25 See id. at 819. 

26 See Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 

509 n.20 (Alaska 2015) (citing Cameron v. State, P.2d 1362, 1367 (Alaska 1991)). 
-13 - 7716

observation of problems with the driveway reconstruction, or that such investigation 

failed to reveal a contract breach.27 Under the discovery rule, then, Strong’s cause of 

action for breach of contract accrued by the time of the Williamses’ completion of their 

driveway reconstruction, because he was on notice at that time of at least one significant 

way in which he believed the driveway reconstruction did not comply with the terms of 

the settlement agreement. Contrary to the superior court’s holding, the accrual of 

Strong’s cause of action did not rely upon Strong having suffered a certain injury or 

amount of harm, and it did not rely upon Strong first having a period of time to wait 

and see whether the breach he was on notice of was material.28

 Strong’s observations put him on notice that upon the required completion 

date, June 30, 2012, the Williamses were in breach of the agreement. Therefore, the 

statute of limitations began to run concurrently with the inquiry notice date. And 

Strong’s complaint was filed 22 days beyond the statute of limitations period. We 

therefore reverse the superior court’s decision that Strong’s contract claim was timely

filed. Given that Strong failed to file his contract claim within the three-year statute of 

limitations, we also reverse the court’s determination that the Williamses breached the 

settlement agreement, and its associated awards of specific performance, additional 

monetary damages, and attorney’s fees.29

27 To the extent Strong’s consultation with his expert could be seen as 

reasonable inquiry following his observations of the allegedly faulty construction of the 

culvert, we disagree. The undisputed septic service records after construction ended 

showed septic problems that would have put Strong on inquiry notice as of July 13, still 

more than three years before he filed his contract claim. 

28 Cf. Raines & Shine, LLC, 355 P.3d at 509 n.20.

29 Because we conclude that Strong filed his complaint after the statute of 

limitations expired, we need not address the Williamses’ additional arguments 

regarding the viability of Strong’s contract claim, or their arguments related to remedies 

and attorney’s fees. 
-14 - 7716

B. The Superior Court Correctly Determined That Strong’s Tort Claims 

Were Barred By Res Judicata.

Because Strong’s 2015 suit attempted to relitigate tort claims that were 

addressed in his prior lawsuit, the superior court appropriately concluded that those tort 

claims were barred by res judicata.30 “A judgment is given res judicata effect . . . when 

it is (1) a final judgment on the merits, (2) from a court of competent jurisdiction, [and] 

(3) in a dispute between the same parties (or their privies) about the same cause of 

action.”31 New claims are also precluded if they “stem from the same transaction as 

the claims made in [a prior] complaint.”32

Strong does not dispute the first two elements of res judicata, and does not 

dispute that he and the Williamses are the same parties to his prior lawsuit.33 Instead 

Strong asserts two theories in challenging the superior court’s decision: (1) the 

agreement settling the first lawsuit was not broad enough to cover “any future claims” 

and (2) his current “tort claims that arose after 2012 were not at issue” in the prior 

lawsuit. 

30 We note the superior court incorrectly held that the law of the case also 

barred Strong’s tort claims. In his first appeal we only addressed Strong’s claims 

against the Municipality, not his tort claims against the Williamses. Indeed the superior 

court had not yet issued final judgment as to the claims against the Williamses. See

Strong I, 435 P.3d 872, 873-76 (Alaska 2018); Alaska R. App. P. 202(a). Strong’s tort 

claims against the Williamses thus were not “directly involved with or necessarily 

inhering in a prior appellate decision” and arguably could not have been part of the prior 

appeal. See State, Com. Fisheries Entry Comm’n v. Carlson, 270 P.3d 755, 760 (Alaska 

2012) (quoting Beal v. Beal, 209 P.3d 1012, 1017 (Alaska 2009)). 

31 Strong I, 435 P.3d at 875. 

32 Smith v. CSK Auto, Inc., 132 P.3d 818, 821 (2006) (citing Plumber v. Univ. 

of Alaska Anchorage, 936 P.2d 163, 166 (Alaska 1997)).

33 Strong initially claimed that the superior court “mistakenly held that 

settlement and stipulation dismissing the 2010 lawsuit with prejudice was a final 

judgment on the merits.” But he later conceded that the settlement agreement “was a 

final judgment as to the [Williamses].” Therefore we do not address this issue.
-15 - 7716

As a preliminary matter we clarify the distinction between the doctrine of 

res judicata being appealed and a defense that relies on the terms of a settlement and

release. While the court and Strong have intertwined both concepts, each are distinct. 

Res judicata is a matter of sound judicial policy and relates back to the court’s dismissal

of Strong’s claims on the merits,

34 whereas a settlement release is presumed to be a 

satisfaction of all claims it covers and relates back to the parties’ agreement.35 Here, 

we need not consider Strong’s first argument about the preclusive effect of settlement 

agreement.

 Strong’s second argument regarding when his tort claims accrued is belied 

by the record and is inconsistent with our precedent. Strong contends on appeal that his

2015 tort claims are not barred because the tortious conduct “arises from the 

Williams[es’] breach of the settlement agreement and not from the building of the 

embankment.” Put another way, Strong is asserting that his 2010 claims and 2015 

claims are not part of the same transaction under res judicata. 

 A transaction for purposes of res judication is a “factual grouping” the 

components of which “are related in time, space, origin, or motivation,” and “form a 

convenient trial unit.”36 “The inquiry is a pragmatic one, which also compares the 

evidence and witnesses that may be relied on to prove each claim and the expectations 

of the parties.”37 We do not consider “the legal theories on which multiple claims are 

34 CSK Auto, Inc., 132 P.3d at 820.

35 Mitchell v. Mitchell, 655 P.2d 748, 751 (Alaska 1982) (citing Lee v. State, 

490 P.2d 1206 (Alaska 1971), rev’d on other grounds sub nom. Munroe v. City Council 

for City of Anchorage, 545 P.2d 165, 170 n.11 (Alaska 1975)); see also Petroleum 

Sales, Ltd. v. Mapco Alaska, Inc., 687 P.2d 923, 929 n.11 (Alaska 1984).

36 CSK Auto, Inc., 132 P.3d at 822 (quoting Plumber, 936 P.2d at 167); see 

also Plumber, 936 P.2d at 167 (adopting the Restatement’s test for transaction) (quoting 

RESTATEMENT (SECOND) OF JUDGMENTS § 24(2) (Am. L. Inst. 1982)).

37 Id. at 822 (first citing Plumber, 936 P.2d at 167; and then citing Alderman 

v. Iditarod Props. Inc., 104 P.3d 136, 141 (Alaska 2004)).
-16 - 7716

based” because “[o]ne cannot avoid preclusive effect of an earlier judgment by alleging 

the same facts under a new legal theory.”38

 Strong asserts it is the breach of the settlement agreement that “gave rise 

to continuing trespass and continuing nuisance.” But Strong’s assertion on appeal is 

not what he alleged in his operative complaint. That complaint did not assert that the 

Williamses engaged in new or different tortious conduct causing injury after Strong 

signed the settlement agreement. Rather his complaint states that the torts at the root 

of his current allegations have been ongoing since the original driveway was

constructed. Indeed, Strong’s claims in his 2015 complaint “are nearly exact replicas 

of” his 2010 complaint.39 The complaint even seeks damages based on historical events 

that predated his prior complaint by two decades.40 Strong seeks damages related not 

only to the time period after he signed the settlement agreement with the Williamses, 

but also to periods before and leading up to the settlement agreement. 

 And though Strong’s IIED claim was not included in his 2010 complaint, 

the court properly determined that it was part of the same transaction as Strong’s other 

tort claims. The court’s reasoning “that [the claim] could have been brought” in 2010

is correct. Strong’s IIED claim is “just a new legal theory derived from the same facts 

alleged in the first complaint.”41 Therefore, res judicata also bars Strong’s IIED claim.

 To be clear, Strong could sue for breach of the settlement agreement, if 

timely filed. But contrary to his argument on appeal, Strong’s complaint does not assert 

38 Id. (citing White v. State, Dep’t of Nat. Res., 14 P.3d 956, 959-60 (Alaska 

2000)).

39 See id. at 821.

40 Even if Strong could prevail on a continuing trespass or nuisance theories 

his damages “cannot be recovered for initial time-barred acts.” Krause v. MatanuskaSusitna Borough, 229 P.3d 168, 176 n.32 (Alaska 2010) (quoting Oaksmith v. Brusich, 

774 P.2d 191, 200 n.10 (Alaska 1989)).

41 See CSK Auto, LLC, 132 P.3d at 822. 
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new torts that derive from a breach of the settlement agreement, or tort claims that 

would survive the application of res judicata as a different transaction.

42 And he cannot 

relitigate those claims now. To conclude otherwise would cut against established public 

policy that “a party who once has had a chance to litigate a claim before an appropriate 

[court] usually ought not to have another chance to do so.”43

 We conclude that the superior court properly dismissed Strong’s tort 

claims under res judicata.

C. The Superior Court Did Not Err By Denying Punitive Damages 

Because It Found No Evidence Of Egregious Conduct.

 To award punitive damages, Alaska law requires a finding by clear and 

convincing evidence that a defendant’s conduct was either “outrageous, including acts 

done with malice or bad motives” or “evidenced reckless indifference to the interest of 

another person.”44 While Strong contends that the court erred because the Williamses’ 

conduct constituted an independent tort, he did not appeal the superior court’s finding 

that he had “not proven by clear and convincing evidence that the Williams[es] engaged 

in extreme and outrageous conduct” necessary “to support an award for punitive 

damages.” Strong had ample opportunity to elicit evidence of the Williamses’ conduct 

regarding the settlement agreement and driveway reconstruction. And Strong had the 

burden to persuade the court that the Williamses’ conduct warranted such an award.45 

Because the superior court found Strong did not meet the evidentiary burden necessary 

to prevail on his punitive damages claim, even if an independent tort did allow for such

damages, we affirm the court’s denial of Strong’s claim for punitive damages.

42 See id.

43 RESTATEMENT (SECOND) OF THE LAW OF JUDGMENTS 1 Relation

Between Law of Res Judicata and Law of Procedure (AM. L. INST. 1982).

44 AS 09.17.020(b); see also Hagen Ins. v. Roller, 139 P.3d 1216, 1225 

(Alaska 2006). 

45 See Hagen Ins., 139 P.3d at 1225. 
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CONCLUSION

We REVERSE the superior court’s conclusion that Strong filed his breach 

of contract claim within the applicable statute of limitations, as well as the court’s 

finding of breach of contract, grant of specific performance, and awards of monetary 

damages and attorney’s fees. We AFFIRM the superior court’s determinations that 

Strong’s tort claims are barred by res judicata and that Strong’s punitive damages claim 

is unsupported by the evidence.