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.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

PETER HAINES, as the personal 

representative of the Probate Estate of 

Verna Haines (Deceased), 

Appellant, 

v. 

COMFORT KEEPERS, INC. and 

LUWANA WITZLEBEN, 

Appellees. 

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) Supreme Court No. S-16034
 

Superior Court No. 3AN-11-12882 CI 

O P I N I O N 

No. 7163 – March 24, 2017 

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Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Anchorage, Paul E. Olson, Judge. 

Appearances: Yale H. Metzger, Law Offices of Yale H. 

Metzger, Anchorage, for Appellant. John J. Tiemessen, 

Clapp Peterson Tiemessen Thorsness & Johnson, LLC, 

Fairbanks, for Appellee Comfort Keepers, Inc. No 

appearance by Appellee Luwana Witzleben. 

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, 

and Carney, Justices. 

MAASSEN, Justice. 

I. INTRODUCTION 

Anelderlywoman hired an in-home care company to assisther with day-today living. The company provided an in-home assistant who was later discovered to 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

have stolen the woman’s jewelry and prescription medication. The woman sued both the 

company and the assistant for conversion and assault, among other causes of action, and 

accepted an offer of judgment from the company. The assistant did not appear in the 

superior court. 

Eventually the woman applied for entry of default against the assistant “on 

the condition that once default is entered[,] . . . damages are to be determined by a jury.” 

The superior court granted a default but ruled that trial on damages would take place 

without a jury. After a bench trial, the court found that the assistant’s actions had caused 

the woman no additional suffering and therefore awarded her no damages. 

The woman appeals. We affirm the superior court’s decisions on the 

measure of damages for conversion and discovery sanctions. But we conclude it was an 

abuse of discretion to grant the woman’s application for default while denying the 

condition on which it was based — retaining her right to a jury trial. We also conclude 

that it was error to award no damages or attorney’s fees after entry of default when the 

allegations of the complaint and the evidence at trial put causation and harm at issue, and 

that the allegations of the complaint could have supported an award of punitive damages. 

We therefore vacate the superior court’s judgment and remand for further proceedings. 

II. FACTS AND PROCEEDINGS 

Because of her advanced age and declining health, Verna Haines hired 

Comfort Keepers, Inc. to provide in-home care. Comfort Keepers assigned its employee 

Luwana Witzleben to work as Verna’s personal assistant. Witzleben stole Verna’s 

jewelry and prescription pain medication and, to conceal her theft of the medication, 

substituted pills that looked similar but had not been prescribed. 

In December 2011 Verna filed a complaint against Comfort Keepers and 

Witzleben in superior court, alleging claims for negligent hiring, conversion, assault and 

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battery, breach of contract, and unjust enrichment. Along with her complaint Verna filed 

a timely demand for a jury trial. 

Verna served discovery requests on Witzleben, and after receiving no 

response filed a motion to compel. She also asked the court to hold that Witzleben’s 

failure to timely respond to the discovery requests waived any objection to them. The 

court granted Verna’s motion to compel but declined to impose sanctions, citing 

Witzleben’s self-represented status and some doubt as to whether she “fully understood 

her [discovery] obligation.” 

Another year passed without any response from Witzleben. Verna died in 

the meantime, and Peter Haines (Haines), the personal representative of her estate, was 

substituted as plaintiff. In April 2014 the superior court invited Haines to apply for entry 

of default against Witzleben under Alaska Civil Rule 55(c). In another order issued the 

same day, the court granted Comfort Keepers’ motion to strike Haines’s unjust 

enrichment claim, which was based on the theory that the damages for conversion of 

Verna’s medication should be calculated by reference to its “street value.” Rejecting this 

theory, the court stated that “[t]here is no basis for permitting a party to recover the value 

realized by a defendant through illegal activity” and held that any damages for the 

medication’s conversion were limited to “the fair market value or value to [Verna] at the 

time it was taken.” 

In August 2014 Haines accepted an offer of judgment from Comfort 

Keepers, notified the superior court, and filed a proposed final judgment against Comfort 

Keepers. The court responded that “pursuant to Alaska Civil Rule 54(b), a final 

judgment will not be entered against one defendant until all the claims in the case are 

resolved as to all the defendants,” and it asked Haines for “an update . . . regarding 

whether he intends to pursue default judgment against Ms. Witzleben.” Haines 

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accordingly applied for entry of default against Witzleben “on the condition that once 

default is entered . . . damages are to be determined by a jury.” The superior court signed 

the entry of default against Witzleben in November 2014, set a default judgment hearing 

for a few weeks later, and expressly stated that “[a] jury trial will not occur.” (Emphasis 

in original.) 

The default judgment hearing took place in December 2014, and the only 

issue was damages. The court heard testimony from several witnesses, including 

Verna’s children, on the extent of her non-economic harm, but Haines did not attempt 

to prove economic damages. The court’s subsequent written decision awarded Haines 

no damages at all, finding that Witzleben’s tortious conduct, though “callous,” caused 

Verna no pain or suffering beyond what she was already undergoing. The court later 

entered final judgment against Witzleben as well as a satisfaction of judgment against 

Comfort Keepers —though no final judgment against Comfort Keepers hadbeen entered 

on the accepted Alaska Civil Rule 68 offer of judgment. 

Haines appeals. He argues that the superior court erred when it (1) struck 

Haines’s claim for unjust enrichment; (2) denied oral argument on the motion to strike; 

(3) “improperly denied [his] request for an order [stating] that any objections to 

discovery requests . . . were waived”; (4) denied Haines a jury trial on damages; 

(5) entered its damages award without considering the legal effect of the default against 

Witzleben; (6) failed to award punitive damages; (7) failed to award Haines attorney’s 

fees; and (8) entered asatisfaction ofjudgment against ComfortKeepers “without having 

ever entered final judgment.” 

Comfort Keepers does not address most of the issues raised on Haines’s 

appeal because they involve only Witzleben. It does address the court’s grant of its 

motion to strike Haines’s unjust enrichment claim, Haines’s request for oral argument 

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on the motion, and the satisfaction of judgment. Witzleben does not appear in this 

appeal. 

III. STANDARDS OF REVIEW 

“We decide constitutional issues of law” such as a party’s right to a jury 

trial “by applying our independent judgment.”1 In doing so we will adopt “a reasonable 

and practical interpretation in accordance with common sense based upon ‘the plain 

meaning and purpose of the provision and the intent of the framers.’ ”2 “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 law.”3 

We review denials of oral argument on non-dispositive motions, sanctions 

for discovery violations, and awards of attorney’s fees for abuse of discretion.4 “The trial 

court has broad discretion” in awarding attorney’s fees,5 and we “will not find an abuse 

of that discretion absent a showing that the award was arbitrary, capricious, manifestly 

1 See Simpson v. Murkowski, 129 P.3d 435, 440 (Alaska 2006) (citing Alaska 

Legislative Council v. Knowles, 21 P.3d 367, 370 (Alaska 2001)). 

2 Id. (quoting Alaska Legislative Council, 21 P.3d at 370). 

3 Beaux v. Jacob, 30 P.3d 90, 97 (Alaska 2001) (citing Curt’s Trucking Co. 

v. City of Anchorage, 578 P.2d 975, 977 (Alaska 1978)). 

4 See Alaska R. Civ. P. 77(e)(2); Nautilus Marine Enters., Inc. v. Exxon 

Mobil Corp., 332 P.3d 554, 557 (Alaska 2014) (first citing Wooten v. Hinton, 202 P.3d 

1148, 1151 (Alaska 2009); then citing Khalsa v. Chose, 261 P.3d 367, 372 (Alaska 

2011)). 

5 Nautilus Marine, 332 P.3d at 560 (citing Valdez Fisheries Dev. Ass’n v. 

Froines, 217 P.3d 830, 833 (Alaska 2009)). 

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unreasonable, or stemmed from an improper motive.”6 We also review for abuse of 

discretion the superior court’s decision to grant or deny an application for default.7 

IV.	 DISCUSSION 

In the discussion that follows we conclude that the superior court did not 

err in striking Haines’s claim for unjust enrichment, nor did it abuse its discretion in 

declining to award him sanctions and attorney’s fees during the course of discovery. But 

we conclude it was an abuse of discretion to enter a default while denying Haines a jury 

trial on damages when Haines had expressly conditioned his application for default on 

retaining the jury trial right. We also conclude that the superior court erred in its findings 

on damages and attorney’s fees in the proceedings that followed. Although these last 

issues might not arise again on remand given the procedural options, they are significant, 

and we address them now for the sake of efficiency. 

A.	 The Superior Court Did Not Err In Striking Haines’s Claim For 

Unjust Enrichment. 

On Comfort Keepers’ pretrial motion the superior court struck Haines’s 

claim for “unjust enrichment,” which sought to measure damages by the “street value” 

of the medication Witzleben converted rather than fair market value or some other 

traditional measure of Verna’s actual loss. The court concluded that “[t]here is no basis” 

in Alaska law “for permitting a party to recover the value realized by a defendant through 

illegal activity.” This was not error. 

6 United Servs. Auto. Ass’n v. Pruitt ex rel. Pruitt, 38 P.3d 528, 531 (Alaska 

2001) (quoting Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20, 44 (Alaska 

1998)). 

7 See Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378 (Alaska 1982) 

(“When an application for default is made to the court under Alaska Civil Rule 55(c), the 

trial court is required to exercise its discretion in determining whether the judgment 

should be entered.”). 

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“Unjust enrichment” is not a cause of action but a prerequisite to recovery 

under the doctrine of restitution.8 Restitution, an equitable remedy based on the concept 

of quasi-contract, is available only when there is no adequate remedy at law.9 For 

conversion claims, such remedies generally exist. We have noted that courts use “three 

different standards” to “measur[e] damages for loss of personal property”: (1) fair 

market value; (2) value to the owner “based upon actual monetary loss resulting from the 

owner being deprived of the property”; and (3) “where the property has its primary value 

in sentiment,” “value to the owner including sentimental and emotional value.”10 Under 

these standards Haines could have sought damages based on the converted medication’s 

fair market value, what Verna actually spent for it, or what she would have had to spend 

to replace it. 

But Haines did not attempt to prove economic damages at trial under these 

or any other measures. Instead he focused entirely on noneconomic damages, and the 

superior court, finding no proof of noneconomic harm, therefore awarded no damages 

at all. But the lack of a damage award does not mean that Haines lacked an adequate 

8 Alaska Sales & Serv., Inc. v. Millet, 735 P.2d 743, 746 (Alaska 1987). 

9 See Knaebel v. Heiner, 663 P.2d 551, 553 (Alaska 1983) (“One who seeks 

the interposition of equity must generally show that he either has no remedy at law or 

that no legal remedy is adequate.” (citing Coffman v. Breeze Corps., 323 U.S. 316, 322 

(1945))). We have defined “quasi-contracts” as “judicially created obligations to do 

justice.” Millet, 735 P.2d at 746 (citing 1 A. CORBIN, CORBIN ON CONTRACTS §§ 18-19, 

at 39-50 (1963); 1 S. WILLISTON, WILLISTON ON CONTRACTS §§ 3-3A, at 8-13 (3d ed. 

1957)). 

10 Landers v. Municipalityof Anchorage, 915 P.2d 614,618-19(Alaska 1996) 

(citations omitted); see also Dressel v. Weeks, 779 P.2d 324, 328 (Alaska 1989) 

(“Damages in an action of conversion generally are measured by the value of the item 

at the time it was converted plus interest.” (quoting Rollins v. Leibold, 512 P.2d 937, 944 

(Alaska 1973))). 

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remedy at law. He could have presented evidence of economic damages but chose not 

to once the court had ruled against him on his favored measure of damages. And as for 

noneconomic harm, he was awarded no damages because the court found that the 

evidence was insufficient, not because damages were not legally available if proven. 

Because Haines had an adequate remedy at law, restitution was not available as an 

equitable alternative. 

Haines also argues that Comfort Keepers’ motion to strike the damages 

remedy was, in effect if not in form, an Alaska Civil Rule 12(b)(6) motion to dismiss on 

which the court was obliged to accept as true all well-pleaded allegations of his 

complaint, including hisallegation that Witzleben was unjustly enriched by her wrongful 

conduct.11 But the motion was directed at a measure of damages, not a cause of action; 

it was not a Rule 12(b)(6) motion to dismiss.12 And even on a motion to dismiss, a court 

is not obliged to accept as true “unwarranted factual inferences and conclusions of 

law.”13 Thus, even if the court was bound to accept the factual allegation that Witzleben 

unjustly enriched herself by converting Verna’s jewelry and medication, it did not have 

to accept Haines’s preferred legal conclusion: that Haines was therefore entitled to 

restitution as a remedy. 

11 See Dworkin v. First Nat’l Bank of Fairbanks, 444 P.2d 777, 779 (Alaska 

1968). 

12 Because we reject Haines’s argument that the motion to strike his unjust 

enrichment claimwas a Rule 12(b)(6) motion to dismiss, we also reject his argument that 

the court was obliged to schedule oral argument on the motion under Rule 77(e). 

Rule77(e)(2) explains that except for “dispositivemotions,”“oral argumentshall beheld 

only in the discretion of the judge.” Haines alleges no specific prejudice caused by the 

lack of oral argument nor does he identify any other basis on which we could conclude 

that the denial of oral argument was an abuse of discretion. 

13 Dworkin, 444 P.2d at 779. 

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Finally, Haines argues that public policy supports his theory that damages 

in this context should be measured by the amount of the defendant’s gain rather than the 

amount of the plaintiff’s loss — the usual measure in tort cases.14 He argues that limiting 

the plaintiff’s recovery to what the plaintiff lost rewards the thief who steals something 

for which the victim paid very little and sells it on the black market for a great deal more. 

But “[t]he primary purpose of tort law is to provide just compensation to the tort victim,” 

and “[c]ompensatory damage awards are designed to achieve this purpose.”15 Punishing 

the wrongdoer, when appropriate in the civil law, is accomplished through punitive or 

other exemplary damages.16 And the consequences for wrongdoing may extend beyond 

civil damages. Criminal statutes require thieves to pay fines and restitution.17 In this 

case, Witzleben did not escape the public consequences of her crimes; she was convicted 

of misconduct involving a controlled substance and theft. We are not convinced that 

either public policy or the facts of this case require the dramatic change in the measure 

14 See 1 D. DOBBS, LAW OF REMEDIES § 1.1, at 4 (2d ed. 1993) (“[T]he aim 

of damages is compensation for the plaintiff’s loss, or at least some substitute for 

compensation. In particular, damages [are] not measured by defendant’s gain, which is 

the province of restitutionary remedies.”). 

15 Anderson v. State ex rel. Cent. Bering Sea Fishermen’s Ass’n, 78 P.3d 710, 

717 (Alaska 2003) (citing State Farm Mut. Auto. Ins. Co. v. Weiford, 831 P.2d 1254, 

1266 (Alaska 1992)). 

16 Id. (“Punitive damages have different objectives [from compensatory 

damages]. They are intended ‘to punish the wrongdoer and to deter the wrongdoer and 

others like him from repeating the offensive act.’ As such, they are like fines imposed 

in criminal and civil cases.” (citing Weiford, 831 P.2d at 1264)). 

17 See, e.g., AS 11.46.120-.150 (defining the four degrees of theft); 

AS 12.55.045 (authorizing trial courts to “order a defendant convicted of an offense to 

make restitution . . . to the victim or other person[s] injured by the offense”). 

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of compensatory damages that Haines advocates. The superior court did not err in 

striking Haines’s unjust enrichment claim. 

B.	 The Superior Court Did Not Abuse Its Discretion In Its Discovery 

Rulings. 

Haines contends that the superior court abused its discretion in two 

discovery rulings, but we find no abuse of discretion in either. In the first, the court 

declined to hold that Witzleben waived any objections to written discovery by her failure 

to timely respond. Haines argues that this was error because Witzleben never showed 

the “good cause” required to excuse her nonresponse.18 

But the superior court enjoys broad discretion in deciding whether to 

impose discovery-related sanctions.19 Here, in determining that the requested sanction 

was “inappropriate at this time,” the court expressly noted the governing standard that 

“[a]ny grounds not stated in a timely objection [to an interrogatory] are waived unless 

a party’s failure to object is excused by the court for good cause shown.”20 The court 

concluded that Witzleben, who was not represented by an attorney, may not have “fully 

understood her obligation” and accordingly allowed her another 20 days to respond. A 

superior court’s ruling is not an abuse of discretion unless it is “arbitrary, capricious, 

18 See Alaska R. Civ. P. 33(b)(4) (providing that any objection to an 

interrogatory “not [timely] stated . . . is waived unless the party’s failure to object is 

excused by the court for good cause shown.”); see also Alaska R. Civ. P. 37(a)(2)(A) 

(providing for “appropriate sanctions” if a party does not respond to discovery requests). 

19 Khalsa v. Chose, 261 P.3d 367, 372 (Alaska 2011) (noting that this 

discretion becomes more limited if the superior court’s sanction imposes liability; 

establishes the outcome of or precludes evidence on a central issue; or ends the litigation 

entirely). 

20 Alaska R. Civ. P. 33(b)(4). 

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manifestly unreasonable, or . . . stems from an improper motive.”21 The court clearly 

considered the good-cause standard when it decided to give Witzleben more time to 

respond before considering sanctions; this was not an abuse of discretion. 

Second, Haines asserts that he was wrongly denied an award of attorney’s 

fees after the court granted his motion to compel discovery from Witzleben. Alaska 

Civil Rule 37(a)(4)(A) directs the court to award “reasonable expenses . . . . including 

attorney’s fees” to the successful proponent of a such a motion. But the rule also allows 

a court to decline to award fees if it “finds . . . the opposing party’s nondisclosure . . . 

substantially justified, or [if] other circumstances make an award of expenses unjust.”22 

The court noted these aspects of the rule in its order and determined not to award 

attorney’s fees because “Witzleben [was] a self-represented litigant” and “it [was] 

unclear whether she ever received” Haines’s discovery requests or understood the 

procedures for response. It was not an abuse of discretion for the court to take these 

matters into account and decide that under the circumstances it would be unjust to award 

fees. 

C.	 It Was An Abuse Of Discretion To Enter Default But Deny Haines A 

Jury Trial On Damages When His Request For Default Was 

Conditioned On Retaining His Right To A Jury Trial. 

The next issue we address involves Haines’s right to a jury trial on damages 

following entry of default against Witzleben. When Haines applied for entry of default, 

his application was made expressly “on the condition that once default is entered . . . 

damages are to be determined by a jury.” The superior court granted the application for 

21 Roderer v. Dash,233 P.3d 1101, 1107 (Alaska2010)(alteration in original) 

(quoting Shea v. State, Dep’t of Admin., Div. of Ret. & Benefits, 204 P.3d 1023, 1026 

(Alaska 2009)). 

22 Alaska R. Civ. P. 37(a)(4)(A). 

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default but ruled that a damages hearing would occur without a jury. Haines argues that 

article I, section 16 of the Alaska Constitution granted him a right to a jury trial which 

he did not waive by seeking the entry of default. We disagree that he had a right to a jury 

trial following default. But because his application for default was expresslyconditioned 

on keeping a jury trial, we agree it was an abuse of discretion to grant the default while 

rejecting the condition. 

The Alaska Constitution guarantees the right to trialby jury “[i]n civil cases 

where the amount in controversy exceeds two hundred fifty dollars . . . to the same extent 

as it existed at common law.”23 “That this right is to be jealously guarded by the courts 

of this state is made clear by Alaska Civil Rule 38(a), which charges the courts with 

insuring that the right to trial by jury in civil cases ‘shall be preserved to the parties 

inviolate.’ ”24 Rule 38(b) provides that “[a]ny party may demand a trial by jury of any 

issue triable of right by a jury by serving upon the other parties a demand therefor.” And 

under Alaska Civil Rule 39(a), 

[w]hen a trial by jury has been demanded and not waived as 

provided in Rule 38, the trial of all issues so demanded shall 

be by jury, unless (1) the parties or their attorneys of record 

. . . consent to trial by the court siting without a jury or (2) the 

court upon motion by a party or upon its own motion finds 

that a right of trial by jury of some or all of those issues does 

not exist under the state constitution or statutes of the state. 

23 Alaska Const. art. I, § 16. We noted in Glover v. State, Dep’t of Transp., 

Alaska Marine Highway Sys. that “the constitutional convention considered proposals 

extending the right to a jury trial to all suits brought in the superior court and rejected 

those proposals.” 175 P.3d 1240, 1256 (Alaska 2008) (citing 2 Proceedings of the 

Constitutional Convention (PACC) 1351-52, 1355 (Jan. 6, 1956)). 

24 Frank v. Golden Valley Elec. Ass’n, 748 P.2d 752, 754 (Alaska 1988). 

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Accordingly, because the parties in this case did not consent to proceed 

without a jury, the first issue we address is whether Haines had a right to a jury trial on 

damages following default “under the state constitution or statutes of the state,”25 with 

the constitutional inquiry focusing on whether such a right “existed at common law.”26 

1.	 A jury trial on damages following default is not required by 

Alaska statutes or the Alaska Constitution. 

We first observe that there are no “statutes of the state” that grant a right to 

a jury trial in these circumstances. The legislature, by statute, has provided for juries in 

various types of special proceedings,27 but it has not found it necessary to supplement by 

statute the constitution’s reservation of the right to a jury trial for the general run of civil 

cases like the one at issue here.28 

In defining the reach of the constitutional right, we must determine whether 

the right to a jury following default “existed at common law.” We have noted that “[a]t 

common law, the existence of a right to trial by jury depended upon whether the claim 

25 Alaska R. Civ. P. 39(a). 

26 Alaska Const. art. I, § 16. 

27 See, e.g., AS 09.50.030 (granting a right to jury trial for persons charged 

with certain types of contempt of court); AS 09.55.320 (granting a right to jury trial in 

eminent domain proceedings “on the question of the amount of damages and the value 

of the property”); AS 13.06.085(a) (granting a right to jury trial in certain probate cases 

“in which any controverted question of fact arises as to which any party has a 

constitutional right to trial by jury”). 

28 There is federal authority for the proposition that the only statutes relevant 

to whether the jury trial right survives default are those few that “specifically provide[] 

for jury trial after default.” See Benz v. Skiba, Skiba & Glomski, 164 F.R.D. 115, 116 

(D. Me. 1995). Having identified no state statutes relevant to the preservation of the 

jury-trial right, we find it unnecessary to address this issue further. 

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asserted was legal or equitable in nature.”29 But we have also recognized that the 

common law itself made exceptions to this general rule.30 

Courts have disagreed on whether a jury demand survives the entry of 

default. Onefederal courtsurveyed therelevant precedentand concluded that “[c]aselaw 

dating back to the eighteenth century . . . makes clear that the constitutional right to jury 

trial does not survive the entry of default.”31 A close reading of the early cases, however, 

shows that the common law on this issue developed differently in different states, and 

federal courts opted early to follow state practice, whatever that might be. Thus in 

Raymond v. Danbury & N.R. Co., the federal court for the District of Connecticut made 

perhaps the most extensive review of early authorities, both English and American.32 It 

noted that “[i]n the early history of the common law, the subject of the ascertainment of 

damages [following entry of default] was in some confusion”; that different courts had 

applied different rules since the time of Blackstone’s original Commentaries in 1765; but 

29 State v. First Nat’l Bank of Anchorage, 660 P.2d 406, 423-24 (Alaska 

1982) (citing Ross v. Bernhard, 396 U.S. 531, 533 (1970)). 

30 See, e.g., Glover v. State, Dep’t of Transp., Alaska Marine Highway Sys., 

175 P.3d 1240, 1256 (Alaska 2008) (holding that a statute requiring seamen’s claims 

against the state to proceed exclusively under the workers’ compensation statutes did not 

violate the right to a jury trial because “at common law there was no right to sue the 

sovereign and therefore no right to a jury trial in such a suit”); Christensen v. NCH 

Corp., 956 P.2d 468, 477 (Alaska 1998) (holding that a proper grant of summary 

judgment could not violate the constitutional right to a jury trial because “[a]t common 

law — as under current Alaska law — a court had the power to remove factual issues 

fromthejury’s consideration ‘wherethecourtdecide[d]there[was]insufficient evidence 

to raise a question of fact to be presented to the jury’ ” (alteration in original) (citing 

Taylor v. Interior Enters., Inc., 470 P.2d 405, 407 (Alaska 1970))). 

31 Benz, 164 F.R.D. at 116 (citing cases). 

32 20 F. Cas. 332, 333-34 (C.C.D. Conn. 1877). 

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that Connecticut’s practice had “improved upon the common law of England” by clearly 

allowing a court to assess damages itself after default without the assistance of a sheriff’s 

jury.33 Observing that “[t]he practice of the United States courts, in the different circuits, 

has not been uniform,” the court concluded that “[t]he more common method has been 

to assess damages by a jury, upon a writ of inquiry.”34 But because federal “practice has 

conformed to the usages of the state in which the circuit court was held,” and because in 

Connecticut “the uniform practice of the state courts” did not require a jury, the court 

ordered that “the damages be assessed by the court, or, if the parties, agree, by the 

clerk.”35 

A later opinion by the Oregon Supreme Court concluded that whether to 

request a jury’s input on damages in cases of default “to inform the mind or conscience 

of the court” had always been a matter of judicial discretion rather than of right, in both 

English and American law.36 The court therefore held that a state statute directing the 

court to assess damages following default “without the intervention of a jury” did not 

violate the state constitutional command that the right to a jury as it existed at common 

law remain inviolate.37 But a few other courts decided more or less contemporaneously 

that their states’ common law did require jury trials following default.38 

33 Id. at 333-34 (quoting 2 ZEPHANIAN SWIFT,ASYSTEM OF THE LAWS OF THE 

STATE OF CONNECTICUT 268 (1795)). 

34 Id. at 334. 

35 Id. 

36 Dean v. Willamette Bridge Ry. Co., 29 P. 440, 441-43 (Or. 1892). 

37 Id. at 442-43. 

38 See Cent. & M.R. Co. v. Morris, 3 S.W. 457, 462 (Tex. 1887) (concluding 

(continued...) 

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The historical common law rule in this context is thus subject to different 

interpretations. But the common law as it existed at the time of the adoption of the 

Alaska Constitution is clearer.39 By that time, federal courts had largely coalesced 

behind a rule that although “the court may order a jury trial as to damages in a default 

situation if it seems to be the best means of assessing damages[,] . . . neither side has a 

right to a jury trial on damages.”40 This continues to be the generally accepted 

38(...continued) 

“that, under the course of procedure at common law, when a judgment was rendered by 

default, and the cause of action was not liquidated, a jury was always called to assess the 

damages,” and that this right was necessarily preserved by the state constitution and 

could not “be infringed by any act of the legislature”); Hickman v. Baltimore &Ohio R.R 

Co., 4 S.E. 654, 659 (W. Va. 1887), overruled in part on other grounds by Richmond v. 

Henderson, 37 S.E. 653, 660 (W. Va. 1900) (concluding that “according to the common 

law, as recognized and settled in this state, there can be no final judgment by default” in 

cases involving over $20 and not a sum certain and that “the right of either party, if he 

demands it, to have such writ executed by a jury, is guarantied [sic] by our constitution”). 

39 See, e.g., People ex rel. Daley v. Joyce, 533 N.E.2d 873, 876 (Ill. 1988) 

(explaining that “it is the common law right to jury trial as enjoyed at the time of the 

adoption of the 1970 constitution to which [the constitutional phrase] ‘heretofore 

enjoyed’ refers”(emphasisin original)); Statev. $17,515.00in Cash Money,670N.W.2d 

826, 827 (N.D. 2003) (holding that the state constitutional guarantee of a jury trial 

“merely preserves the right as it existed at the time of the adoption of our constitution”); 

LeBlanc v. Snelgrove, 133 A.3d 361, 372 (Vt. 2015) (explaining that the constitutional 

right of trial by jury “applies to ‘the right to trial by jury as it was known at common law 

at the time of the adoption of the [Vermont] Constitution’ ” (quoting Reporter’s Notes 

to Vt. R. Civ. P. 38(a)); Kroner v. Oneida Seven Generations Corp., 819 N.W.2d 264, 

284 (Wis. 2012) (holding that civil litigants have a constitutional right to a jury trial 

“if that right existed at common law at the time of the adoption of the constitution”); see 

also AS 01.10.010 (“So much of the common law not inconsistent with the Constitution 

of the State of Alaska or the Constitution of the United States or with any law passed by 

the legislature of the State of Alaska is the rule of decision in this state.”). 

40 10A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE 

(continued...) 

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interpretation of the constitutional right, and most courts therefore reject demands that 

a jury trial on damages follow entry of default as a matter of right.41 We have found no 

40(...continued) 

§ 2688, at 82 (4th ed. 2016); see Brown v. Van Braam, 3 U.S. 344, 355 (1797) 

(concludingthat“theEnglish authorities countenancetheRhodeIslandlawand practice” 

with regard to the roles of judge and jury in determining damages, including that 

“[w]here judgment is by default, the court may give the damages, without putting the 

party to the trouble of a writ of enquiry [to a jury]”); Bass v. Hoagland, 172 F.2d 205, 

209 (5th Cir. 1949) (“There is of course no right to a jury trial when there is no issue of 

fact to be tried, and a judgment by default proceeds on that basis.”); Midland Contracting 

Co. v. Toledo Foundry & Mach. Co., 154 F. 797, 799-800 (7th Cir. 1907) (holding that 

an Illinois statute authorizing “the assessment of damages by the court, without a jury” 

following default does not infringe the constitutional right of trial by jury); Gill v. 

Stolow, 18 F.R.D. 508, 510 (S.D.N.Y. 1955) (holding that defendant had “no right to 

have the matter [of damages] referred to a jury after default” (citing 6 J. MOORE’S 

FEDERAL PRACTICE 172 (2d ed. 1951))), rev’d on other grounds, 240 F.2d 669 (2d Cir. 

1957); cf. Barber v. Turberville, 218 F.2d 34, 37 n.1 (D.C. Cir. 1954) (deciding that “in 

a [default] case such as this, it is the better practice, if not actually compelled, that the 

issue as to damages be submitted to the jury,” and implying that because the federal civil 

rules “have the effect of statutes,” Civil Rule 38 may preserve the jury right following 

default). 

41 See Graham v. Malone Freight Lines, Inc., 314 F.3d 7, 16 (1st Cir. 1999) 

(“Neither the Seventh Amendment nor the Federal Rules of Civil Procedure require a 

jury trial to assess damages after entry of default in these circumstances.”); Matter of 

Dierschke, 975 F.2d 181, 185 (5th Cir. 1992) (holding that neither plaintiffnor defendant 

has a constitutional right to a jury trial following default); Mwani v. Bin Laden, 

244 F.R.D. 20, 23 (D.D.C. 2007) (finding no constitutional or statutory right to a jury 

trial following default but leaving open the question whether, as a discretionary matter, 

a jury trial would be the most appropriate method for assessing damages); CountrymAn 

Nevada, LLC v. Suarez, No. 6:15-cv-0436-SI, 2016 WL 5329597, at *4 (D. Or. Sept. 22, 

2016) (“There is . . . substantial case law holding that there is no right to a jury trial for 

damages after an entry of default . . . .” (collecting cases)). But cf. Zero Down Supply 

Chain Sols., Inc. v. Global Transp. Sols., Inc., 282 F.R.D. 604, 606-07 (D. Utah 2012) 

(citing federal consensus that defendants do not have a constitutional right to a jury trial 

folloing entry of default but relying on “the plain language of Rule 38(d)” to hold that 

(continued...) 

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indication that the common law as understood by the framers of the Alaska Constitution 

was any different. In the absence of such evidence we are compelled to conclude that 

the right to a jury trial “as it existed at common law”42 at the time of our constitution’s 

adoption did not include a right to have a jury determine damages following entry of 

default. 

2.	 Haines did not waive his right to a jury trial by conditionally 

applying for entry of default. 

Although Haines did not have a right to a jury trial following default, he 

was not obliged to seek a default at all; he could have proceeded to trial without first 

seeking entry of default and thereby preserved his right to have a jury decide the case.43 

The next question we address, therefore, is whether Haines lost his right to a jury trial 

by applying for default even though his application was expressly conditioned on 

preserving that right. 

41(...continued) 

a non-consenting party does not lose its right to a jury trial just because it is in default); 

Kormes v. Weis, Voisin & Co., 61 F.R.D. 608, 609-10 (E.D. Pa. 1974) (citing federal 

consensus “that neither party has a constitutional right to a jury trial on the issue of 

damages after the entry of default” but concluding that “fairness and logic” mandate 

applying the waiver-only-by-consent requirement of Rule 38(d) after default and 

granting a jury trial on damages); Wood v. Detroit Auto. Inter-Ins. Exch., 321 N.W.2d 

653, 657-60 (Mich. 1982) (relying on the court’s constitutional authority to establish 

rules of practice, along with the civil rules regarding the jury trial right, to conclude that 

the Michigan Constitution requires that a demand for jury trial survive entry of default). 

42 Alaska Const. art. I, § 16. 

43 Alaska R. Civ. P. 38. The rules also allow a party who has filed a timely 

jury demand to withdraw it unilaterally if the other party does not appear at trial; 

Rule 38(d) provides, in part, that “[a] party’s consent to withdraw the jury trial demand 

may be implied by a failure to appear at trial.” 

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Civil Rule 38(a) “preserve[s]” the “right of trial by jury . . . inviolate,” and 

we have emphasized the importance of the right.44 We have held, for example, that the 

right to a jury trial “will not be deemed waived . . . unless the waiver is explicit, or 

illustrated by actions ‘so inconsistent with [an] intent to enforce the right in question’ as 

to indicate that the right has been waived.’ ”45 “The proper inquiry” is whether the party 

has “prior notice of the consequences of his action” which “justifies the court in finding 

a waiver.”46 

The record in this case contains no evidence of “prior notice” to Haines that 

by seeking an entry of default he would extinguish his right to a jury trial; in fact, the 

conditional nature of his application shows that he had no such understanding of the 

consequences. And as noted above, the rules do not require a party to accept a default 

proceeding he did not ask for. Civil Rule 55(a)(1) allows a trial court to enter a default 

against a party who “has failed to appear and answer or otherwise defend as provided by 

these rules”; it is captioned “Application for Default,” and it strongly implies that the 

process is initiated not by the court but by “[t]he party seeking default,” who must show 

facts “by affidavit or otherwise” that entitle the party to the relief sought. Civil 

Rule 55(c) addresses default judgments in cases involving damage claims that cannot 

easily be reduced to a sum certain, and it describes the initiation of the process more 

clearly by stating that “the party entitled to a default judgment shall apply to the court 

therefor.” The rule goes on to state: 

44 See Chilton-Wren v. Olds, 1 P.3d 693, 696-97 (Alaska 2000). 

45 Id. (alteration in original) (quoting Frank v. Golden Valley Elec. Ass’n, 748 

P.2d 752, 754-55 (Alaska 1988)). 

46 Id. (emphasis in original) (quoting Frank, 748 P.2d at 755). 

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If, in order to enable the court to enter judgment or to carry 

it into effect, it is necessary to take an account or to determine 

the amount of damages or to establish the truth of any 

averment by evidence or to make an investigation of any 

other matter, the court may conduct such hearings or order 

such references as it deems necessary and proper.[47] 

The effect of the rule is that when a party seeks a default judgment the court has 

discretion as to how it will receive the evidence necessary to determine damages or to 

resolve other outstanding issues of fact. But the default judgment process does not 

preclude a party from telling the court, in effect: “I would like a default but not if it 

means that I give up my right to a jury trial on damages” — as Haines did here. 

“There has always been a strong policy favoring jury trials in Alaska.”48 

Before Rule 38(d) was amended to allow implied waiver of the jury trial right by a 

party’s non-appearance at trial, we decided in several cases that even non-appearing 

defendants did not lose the right to a jury absent their express consent.49 Although we 

follow the weight of authority in concluding that there is no constitutional right to a jury 

following default, the protectiveness we have historically accorded the jury trial right 

compels us to once again state that a party may not forfeit that right inadvertently or 

without prior notice. We therefore conclude that a party who applies for default, while 

47 Alaska R. Civ. P. 55(c)(1). 

48 Loomis Elec. Prot., Inc. v. Schaefer, 549 P.2d 1341, 1344 n.16 (Alaska 

1976) (citing cases). 

49 Hall v. Morozewych, 686 P.2d 708, 712 (Alaska 1984) (holding that it was 

error to proceed without a jury where a defendant made a timely jury demand but did not 

appear at trial); Hill v. Vetter, 525 P.2d 529, 531 (Alaska 1974) (holding that it was error 

to proceed without a jury where the defendant failed to appear at trial and the plaintiff 

unilaterally revoked his jury demand). But see Frank, 748 P.2d at 755 (“Under [Rule 

38(d)] as it reads today, however, the trial court may quite properly conclude that a 

party’s failure to appear at trial constitutes waiver of the jury trial right.”). 

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expressly reserving the right to a jury trial on damages, does not automatically forfeit 

the right. 

If a party applies for default expressly conditioned in such a way, the court, 

in the exercise of its discretionary authority under Rule 55(c)(1), should first ascertain 

whether submitting damages to a jury would be “necessary and proper.” If it would be, 

then the court should enter the requested default and allow the jury to determine 

damages. But if the court in its discretion decides that a jury is unnecessary or otherwise 

inappropriate — as it did here — then the court should deny the conditional application. 

The plaintiff at that point can make a knowing decision whether to renew its application 

unconditionally and proceed under Rule 55, with the benefits of an expedited and 

relatively certain default procedure, or try its entire case to a jury without first obtaining 

a default. 

We hold that in this case it was an abuse of discretion to grant Haines’s 

application for default without giving effect to the express condition upon which the 

application was made. The superior court was not bound to accept the condition; it could 

havedenied theconditional application for default and required theentirecaseto proceed 

to trial. But Haines should not have been deprived of a jury trial when he was expressly 

attempting to preserve that right. We therefore vacate the entry of default and remand 

to the superior court for further proceedings. 

D.	 We Address Haines’s Issues Regarding Damages And Attorney’s Fees 

For The Guidance Of The Superior Court On Remand. 

Haines will have the opportunity on remand to apply again for entry of 

default while preserving his right to a jury trial on damages. If he chooses not to do so, 

or if the court denies his conditional application, the case will proceed to trial on liability 

and damages and the discussion that follows will be largely irrelevant. But if Haines 

applies again for default and the court grants the conditional application, or if Haines 

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decides to expressly waive the jury trial right, the fact-finder, whether court or jury, will 

be required to evaluate not only the evidence but also the allegations of the complaint in 

order to determine what facts have been established by the pleadings.50 Because we 

conclude that the effect of the default was not properly taken into account at the damages 

hearing, we provide the following guidance for the court on remand if Witzleben is again 

defaulted. 

1. Haines was entitled to noneconomic damages. 

The superior court did not award Haines any damages despite the entry of 

default against Witzleben. It awarded no economic damages because Haines presented 

no evidence of the value of the converted medication,51 and it awarded no noneconomic 

damages because it found, based on witness testimony, that Witzleben’s actions caused 

Verna no pain or anxiety beyond what she was suffering already. But we conclude that 

the court’s decision on noneconomic damages failed to account for the effect of the entry 

of default. 

Entry of default “establishes the well pleaded allegations of the complaint 

unless they are incapable of proof,” “contrary to facts judicially noticed,” or contrary to 

“uncontroverted evidence presented by the parties.”52 While we have “allow[ed] the trial 

50 See Valley Hosp. Ass’n v. Bauneis, 141 P.3d 726, 728 (Alaska 2006) 

(“Generally speaking, ‘[i]f the court determines that defendant is in default, the factual 

allegations of the complaint, except those relating to the amount of damages, will be 

taken as true.” (quoting 10A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND 

PROCEDURE § 2688 (3d ed. 1998))); see also Pitts ex rel. Pitts v. Seneca Sports, Inc., 321 

F. Supp. 2d 1353, 1356 (S.D. Ga. 2004) (discussing the effect of a default judgment on 

subsequent findings of fact). 

51 Hainesdoesnotchallengethesuperior court’s ruling oneconomic damages. 

52 Syndoulos Lutheran Church v. A.R.C. Indus., Inc., 662 P.2d 109, 112 

(continued...) 

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court ‘to question a defendant’s liability after a default has been entered against him,’ ”53 

we have also held that 

[p]laintiffs [in a default proceeding] do not have to prove 

questioned allegations by a preponderance of the evidence. 

Rather, they need only submit enough evidence to put the 

questioned allegation in controversy. If faced with 

“conflicting but legitimate evidence on both sides, the court 

is bound to enter judgment for the party in whose favor the 

default has been entered.”[54] 

Haines’s complaint alleged that Witzleben “caused [Verna] physical 

injuries” and “harm[].” Testimony at trial supported these allegations. Verna’s daughter 

Elizabeth testified that she believed her mother was experiencing pain and sleeping 

problems while in Witzleben’s care because she was not receiving the medications she 

was prescribed. She also testified that her mother experienced “some” pain and anxiety 

even when not in Witzleben’s care, and the court relied on this testimony to conclude 

that Witzleben’s theft of the medication made no difference to Verna’s symptoms. But 

Verna’s other daughter and her son-in-law testified that there were times Verna suffered 

inexplicable pain while in Witzleben’s care; that it was “a logical deduction” that this 

was because she was not receiving her proper pain medication; that she also experienced 

sleeplessness and anxiety because she was not getting her prescribed diazepam; that 

these problems continued for several months while she was helpless to do anything about 

it; and that these problems contributed to a decline in her quality of life. Haines had no 

52(...continued) 

(Alaska 1983) (citing Thomson v. Wooster, 114 U.S. 104, 108 (1885)). 

53 Valley Hosp. Ass’n, 141 P.3d at 728 (quoting Syndoulos Lutheran Church, 

662 P.2d at 112). 

54 Id. at 728-29 (quoting Syndoulos Lutheran Church, 662 P.2d at 112). 

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burden to prove these facts by a particular quantum of evidence; he only needed to “put 

the questioned allegation in controversy.”55 We conclude that the testimony was 

sufficient for this purpose, and the court was required to accept as proven the allegations 

of causation and harm alleged in the complaint. 

Once pain and suffering are proven, it is error not to award general 

damages.56 Although “[s]uch damages are often difficult to estimate with any 

confidence, . . . it is clear that a carefully considered estimate leads to a more just result 

than denying all recovery to the injured victim.”57 

2.	 The complaint establishes a sufficient basis for an award of 

punitive damages. 

Haines next argues that the superior erred in denying an award of punitive 

damagesbecausethewell pleaded allegationsofhis complaint establishedthat Witzleben 

acted “with malice or bad motives” and “in reckless indifference to the interest of another 

person.”58 Haines is not necessarily entitled to an award of punitive damages; 

AS 09.17.020 provides that “[t]he fact finder may make an award of punitive damages” 

(emphasis added), and we have affirmed that “[w]hether or not [punitive damages] 

should be allowed is discretionary with the trier of fact.”59 

55	 Id. 

56 Grant v. Stoyer, 10 P.3d 594, 598 (Alaska 2000); Martinez v. Bullock, 

535 P.2d 1200, 1204-05 (Alaska 1975); Walker v. Alaska Road Comm’n, 388 P.2d 406, 

407 (Alaska 1964). 

57 Morrison v. State, 516 P.2d 402, 406 (Alaska 1973). 

58 AS 09.17.020(b). 

59 Bridges v. Alaska Housing Auth., 375 P.2d 696, 702 (Alaska 1962). 

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We note, however, that it was error for the superior court to hold that it 

could award no punitive damages because it had awarded no compensatory damages. 

As explained above, Haines was entitled to an award of noneconomic damages after 

entry of default because the court was bound to accept as true the complaint’s well 

pleaded allegations of harm.60 In addition, punitive damages are available when a 

plaintiff proves “actual damages” or harm, even if the proof is not sufficient to warrant 

an award of compensatory damages.61 Here, the well pleaded allegations of Haines’s 

complaint establish both “actual harm” and a credible basis for an award of punitive 

damages. 

Alaska Statute 09.17.020 allows an award of punitive damages “if the 

plaintiff proves by clear and convincing evidence that the defendant’s conduct . . . was 

outrageous,” malicious, “done with . . . bad motives,” or “reckless[ly] indifferen[t] to the 

interest of another person.” The decision to award punitive damages therefore “turn[s] 

on the wrongdoer’s motive, state of mind, and degree of culpability.”62 Here, the 

superior court heard no testimony about Witzleben’s motives. The complaint, however, 

alleged that she “converted [Verna’s] jewelry,” “converted [Verna’s] prescription 

medication,” and “administered medication to [Verna] that [Verna’s] physician had 

discontinued.” These allegations were not contested and should have been viewed as 

60 Valley Hosp. Ass’n, 141 P.3d at 728 (quoting 10A CHARLES ALAN WRIGHT 

ET AL., FEDERAL PRACTICE AND PROCEDURE § 2688 (3d ed. 1998)). We note, however, 

that the court did not have to accept as true allegations regarding the amount of actual 

or exemplary damages. Id. 

61 Haskins v. Shelden, 558 P.2d 487, 493 (Alaska 1976) (quoting CHARLES T. 

MCCORMICK, DAMAGES § 83, at 293 (1935)). 

62 Alyeska Pipeline Serv. Co. v. O’Kelley, 645 P.2d 767, 774 (Alaska 1982) 

(citing K. REDDEN, PUNITIVE DAMAGES § 4.2 (1980)). 

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proven upon entry of default. They reasonably establish Witzleben’s reckless 

indifference to Verna’s health, safety, and property interests and hence are a sufficient 

basis for an award of punitive damages. 

3. Haines was entitled to attorney’s fees. 

Haines sought an award of attorney’s fees following the entry of final 

judgment. Although the court identified Haines as the prevailing party, it concluded that 

he was not entitled to attorney’s fees because he received no damages. This conclusion 

is likely to change if Haines succeeds in recovering a judgment on remand. 

The court also rejected Haines’s reliance on AS 09.60.070 in support of his 

attorney’s fees application. Under the statute, “a person who has been injured . . . may 

recover from the offender full reasonable attorney fees . . . if the injury . . . resulted from 

. . . a serious criminal offense.”63 The statute includes within the definition of “serious 

criminal offense” “assault in any degree.”64 The court concluded that Witzleben had not 

committed a“serious criminaloffense”within themeaningofAS09.60.070and declined 

to award Haines attorney’s fees under the statute. 

Alaska Statute 11.41.230(a)(1) defines “assault in the fourth degree” as 

“recklessly caus[ing] physical injury to another person.”65 A related statute, 

AS 11.81.900(b)(47), defines “physical injury” as “physical pain or an impairment of 

physical condition.” We conclude that the allegations of Haines’s complaint fit these 

statutory definitions. The complaint alleged that Witzleben caused Verna “physical 

63 AS 09.60.070(a). 

64 AS 09.60.070(c)(4). 

65 We previously held that “recklessly” describes a state of mind in which “[a] 

person is aware of and consciously disregards a substantial and unjustifiable risk that the 

result will occur or that the circumstance exists.” Johnson v. State, 224 P.3d 105, 108 

(Alaska 2010) (quoting AS 11.81.900(a)(3)). 

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injuries” and “harm[].” The testimony at trial generally supported these allegations. 

Witnesses testified that Verna appeared to be in pain due in part to the fact that “she 

wasn’t being administered the pain medication she was supposed to be.” And as we 

concluded above, Witzleben acted recklessly. By depriving Verna of her medication 

Witzleben disregarded a substantial and unjustifiable risk that Verna would suffer as a 

result. 

Because Haines’s well pleaded allegations satisfy the elements of assault 

in the fourth degree, we hold that it was error not to award attorney’s fees to Haines 

under AS 09.60.070.66 

V. CONCLUSION 

We VACATE the superior court’s entry of default and default judgment 

against Witzleben and REMAND for further proceedings consistent with this opinion. 

Subject to our discussion of damages and attorney’s fees, we otherwise AFFIRM the 

decisions of the superior court. 

66 Haines finally contends that the superior court erred when it entered a 

satisfaction of judgment for Comfort Keepers without first having entered a final 

judgment. Haines does not dispute that Comfort Keepers had in fact paid the amount it 

had offered to pay in its Rule 68 offer of judgment; he does not say how any alleged 

error prejudiced him or what further relief he could receive if we reversed on this issue. 

It is clearly moot. Clark v. State, Dep’t of Corr., 156 P.3d 384, 387 (Alaska 2007) (“A 

claim is moot where a decision on the issue is no longer relevant to resolving the 

litigation, or where it has lost its character as a ‘present, live controversy,’ that is, where 

a party bringing the action would not be entitled to any relief even if he or she 

prevailed.” (first quoting Municipality of Anchorage v. Baxley, 946 P.2d 894, 899 

(Alaska App. 1997); then citing Maynard v. State Farm Mut. Auto. Ins. Co., 902 P.2d 

1328, 1329 n.2 (Alaska 1995))). 

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