author: Melnick, P.J.

text:
    STATE of Washington, Respondent, v. Jeffrey L. BUTTERFIELD, Appellant.
    No. 51519-9-II
    Court of Appeals of Washington, Division 2.
    Filed August 27, 2019
    Marie Jean Trombley, Attorney at Law, Po Box 829, Graham, WA, 98338-0829, Erin Christine Riley, Attorney at Law, 102 W Broadway Ave. Rm. 102, Montesano, WA, 98563-3621, for Appellant.
    Erin Christine Riley, Attorney at Law, 102 W Broadway Ave. Rm. 102, Montesano, WA, 98563-3621, for Respondent.
    PUBLISHED IN PART OPINION
   Melnick, P.J.

¶1 Jeffrey Butterfield appeals his eight convictions for two counts each of rape of a child in the first degree, rape of a child in the second degree, rape of a child in the third degree, and incest in the first degree. The crimes relate to the sexual abuse of Butterfield's twin daughters, AB1 and AB2, over the course of their childhood.

¶2 In the published portion of this opinion, we address Butterfield's argument that the trial court erred in imposing an exceptional sentence. We agree that the court imposed a sentence unauthorized by the jury's findings. In the unpublished portion of this opinion, we address Butterfield's other arguments, in which he contends that he received ineffective assistance of counsel and that the trial court imposed unauthorized legal financial obligations (LFOs).

¶3 We reverse Butterfield's exceptional sentence and remand for resentencing. We otherwise affirm.

FACTS

¶4 Born in 1989, AB1 and AB2 are twins. Butterfield, their biological father, sexually abused them from the time they were four or five years old until they were sixteen years old.

¶5 The State charged Butterfield with two counts each of rape of a child in the first degree, rape of a child in the second degree, rape of a child in the third degree, and incest in the first degree. For each of the four crimes, one count related to AB1 and one count related to AB2.

¶6 For each count, the State alleged an aggravating factor in the information that the "offense was part of an ongoing pattern of psychological, physical, or sexual abuse of the same victim manifested by multiple incidents over a prolonged period of time and [that it would] ask for an exceptional sentence outside the standard range upon [Butterfield's] conviction." Clerk's Papers (CP) at 64-68. The State cited RCW 9.94A.535(i) ; however, the language followed RCW 9.94A.535(3)(h)(i) but omitted that the offense involved domestic violence or stalking.

¶7 Butterfield pled not guilty, and the case proceeded to trial. At the conclusion of trial, the court instructed the jury on all eight counts. It also gave the jury special verdict forms for all counts, which asked the question: "Was the crime part of an ongoing pattern of psychological, physical, or sexual abuse of the same victim manifested by multiple incidents over a prolonged period of time?" CP at 86-100. This language also followed RCW 9.94A.535(3)(h)(i), but again omitted that the offense involved domestic violence or stalking.

¶8 The jury convicted Butterfield on all counts. Additionally, the jury answered in the affirmative on each of the special verdict forms.

¶9 The court sentenced Butterfield to an exceptional sentence of 1,520 months. It sentenced Butterfield to the statutory maximum on each count and ran the counts consecutive to each other.

¶10 The court entered findings of fact and conclusions of law supporting the exceptional sentence. One finding stated, "The jury unanimously found beyond a reasonable doubt that [each count] ... was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time." CP at 131-32. The court cited RCW 9.94A.535(2)(g). Butterfield appeals.

ANALYSIS

I. EXCEPTIONAL SENTENCE

¶11 Butterfield argues that we should reverse his exceptional sentence because the trial court, not the jury, made the factual finding necessary to impose the exceptional sentence. We agree.

¶12 RCW 9.94A.535 includes numerous aggravating factors that, if found, allow the trial court to impose an exceptional sentence. Most of these circumstances must be "prove[n] to a jury beyond a reasonable doubt." RCW 9.94A.537(3) ; see RCW 9.94A.535(3)(g)-(h) ; Blakely v. Washington , 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). "[U]nder both the Sixth Amendment to the United States Constitution and article I, sections 21 and 22 of the Washington Constitution, the jury trial right requires that [the sentence imposed by the trial court] be authorized by the jury's verdict." State v. Williams-Walker , 167 Wash.2d 889, 896, 225 P.3d 913 (2010).

¶13 RCW 9.94A.535(3) is an exclusive list of aggravating factors that must be submitted to and found by a jury before a court may consider imposing an exceptional sentence. One aggravating factor requires a jury to find that an "offense was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time." RCW 9.94A.535(3)(g). Another aggravating factor requires a jury to find that an "offense involved domestic violence, as defined in RCW 10.99.020, or stalking, as defined in RCW 9A.46.110, and ... [t]he offense was part of an ongoing pattern of psychological, physical, or sexual abuse of a victim or multiple victims manifested by multiple incidents over a prolonged period of time." RCW 9.94A.535(3)(h)(i).

¶14 Here, the State alleged that Butterfield's "crime[s were] part of an ongoing pattern of psychological, physical, or sexual abuse of the same victim manifested by multiple incidents over a prolonged period of time." CP at 64-68. This allegation largely followed RCW 9.94A.535(3)(h)(i). However, the charging language omitted a statutory element, which requires a jury to find, along with the above, that the offense involved "domestic violence" as defined in RCW 10.99.020 or "stalking" as defined in RCW 9A.46.110. RCW 9.94A.535(3)(h).

¶15 Like the charging document, the jury instructions and special verdict forms also omitted the domestic violence or stalking element. The court instructed the jury that if it found Butterfield guilty, then it must determine "[w]hether the crime was part of an ongoing pattern of psychological, physical, or sexual abuse of the same victim manifested by multiple incidents over a prolonged period of time." CP at 77-80, 82. The court then provided the jury with special verdict forms, which asked the question: "Was the crime part of an ongoing pattern of psychological, physical, or sexual abuse of the same victim manifested by multiple incidents over a prolonged period of time?" CP at 86-100. The jury answered in the affirmative.

¶16 Because the court instructed the jury using an incorrect instruction, the jury never found that Butterfield's crimes constituted domestic violence or stalking. As a result, the jury did not find all of the elements of a statutory aggravating factor beyond a reasonable doubt. RCW 9.94A.535(3)(h).

¶17 In imposing the exceptional sentence, the trial court's findings of fact and conclusions contained a different error from that contained in the information, jury instructions, and special verdicts. The court found: "The jury unanimously found beyond a reasonable doubt that [each count] ... was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time." CP at 131-32. This language followed RCW 9.94A.535(3)(g), not (3)(h)(i). Thus, in imposing the exceptional sentence, the court relied on a different statutory aggravating factor than the incomplete one charged by the State and the incomplete one on which it instructed the jury and which the jury found.

¶18 In short, the charging documents, jury instructions, and special verdict forms each contained errors. Another error occurred at sentencing when the court gave Butterfield an exceptional sentence based on findings the jury did not make. As a result of these errors, the court did not have the authority to impose an exceptional sentence and erred by imposing one.

¶19 Although the State concedes that all of the above errors occurred, it argues that the errors were harmless. The State applies its harmless error analysis without first discussing whether harmless error applies at all. We conclude that a harmless error analysis is inapplicable in Butterfield's situation.

¶20 In Williams-Walker , the court consolidated three cases. 167 Wash.2d at 892, 225 P.3d 913. In each case, the State charged the defendants with firearm enhancements; however, the court submitted special verdict forms to each jury for deadly weapon enhancements. Williams-Walker , 167 Wash.2d at 893-94, 225 P.3d 913. The juries then answered the special verdict forms in the affirmative, finding that the defendants were armed with deadly weapons. Williams-Walker , 167 Wash.2d at 893-94, 225 P.3d 913. Notwithstanding the juries' special verdicts, at each defendant's sentencing, the court imposed the more severe firearm enhancement. Williams-Walker , 167 Wash.2d at 893-94, 898, 225 P.3d 913.

¶21 The court concluded that error had occurred. "When the jury is instructed on a specific enhancement and makes its finding, the sentencing judge is bound by the jury's finding." Williams-Walker , 167 Wash.2d at 899, 225 P.3d 913.

¶22 The court reasoned that the juries' findings authorized in the special verdicts did not support the sentencing enhancements imposed by the courts and violated the defendants' constitutional rights under article 1, sections 21 and 22. Williams-Walker , 167 Wash.2d at 899-900, 225 P.3d 913. After determining that the imposed enhancements constituted error, the court next concluded that a harmless error analysis was inapplicable. Williams-Walker , 167 Wash.2d at 902, 225 P.3d 913. It noted that "the error was made, not in the jury instruction, but in the trial court's imposition of a sentence." Williams-Walker , 167 Wash.2d at 900, 225 P.3d 913. By so acting, the trial court exceeded its authority in sentencing, and when the court imposes a sentence unsupported by a jury's findings, that error "can never be harmless." Williams-Walker , 167 Wash.2d at 902, 225 P.3d 913.

¶23 In Williams-Walker , the court specified that no error existed in the charging document, in the jury instructions, or in the jury findings. 167 Wash.2d at 901, 225 P.3d 913.

¶24 In the present case, the court not only imposed an exceptional sentence above the standard range based on a finding the jury did not make, but unlike Williams-Walker , error also existed in the charging document, in the jury instructions, and in the jury's findings. The State charged an aggravating factor but did not include all of the statutory elements of the aggravating factor. The court instructed the jury on the same aggravating factor the State charged. It also omitted an element. As a result, the jury did not find all the elements of the statutory aggravating factor. Compounding these errors, the trial court sentenced the defendant to an exceptional sentence above the standard range. In so doing, it made findings of fact and conclusions of law. Its explicitly stated findings involved an aggravating factor not charged and not found. Therefore, the trial court imposed a sentence unsupported by the jury's findings. We conclude that a harmless error analysis is inapplicable because, under Williams-Walker , such an error can never be harmless.

¶25 The State relies on State v. Brown , 147 Wash.2d 330, 339, 341, 58 P.3d 889 (2002), to support its harmless error argument; however, that case is distinguishable because Brown involved a missing element from the "to-convict" instruction and did not involve a sentence that was unsupported by the jury's verdict.

¶26 Because the court sentenced Butterfield in excess of its authority and in violation of Butterfield's constitutional rights, we reverse his exceptional sentence and remand for resentencing.

¶27 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

Sutton, J.

Glasgow, J.

      Before Blakely v. Washington , 542 U.S. 296, 305, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), aggravating factors could be found by a trial court, and furthermore, RCW 9.94A.535 's list of aggravating was merely illustrative, not exclusive. Blakely clarified that this practice was unconstitutional. 542 U.S. at 305, 124 S.Ct. 2531. In response to Blakely , the legislature amended RCW 9.94A.535(3) such that the list of aggravating factors became exclusive and had to be found by a jury beyond a reasonable doubt. See Laws of 2005, ch. 68, §§ 1, 3.

      RCW 9.94A.535(2)(g) only existed until 2005. We presume that the court intended to cite (3)(g).


source: Caselaw Access Project

license: Public Domain

text:
    Teresa HARBOTTLE, individually and as Personal Representative of the Estate of John F. Harbottle III, deceased, Appellant, v. Kevin E. BRAUN, M.D. and Jane Doe Braun, and their marital community, Respondents.
    No. 51427-3-II
    Court of Appeals of Washington, Division 2.
    Filed August 27, 2019
    Philip Albert Talmadge, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Ave. Sw, Third Floor Ste. C, Seattle, WA, 98126-2138, John Robert Connelly Jr., Nathan Paul Roberts, Connelly Law Offices, PLLC, 2301 N 30th St., Tacoma, WA, 98403-3322, for Appellant.
    Scott Matthew O'Halloran, Fain Anderson, Et Al, Barret Joseph Schulze, Fain Anderson Vanderhoef, Et Al, 1301 A St. Ste. 900, Tacoma, WA, 98402-4299, Mary H. Spillane, Fain Anderson, Et Al, Jennifer D. Koh, Fain Anderson Vanderhoef Rosendahl O'Hal, 701 5th Ave. Ste. 4750, Seattle, WA, 98104-7089, Respondents.
    PUBLISHED OPINION
   Melnick, P.J.

¶1 John Harbottle, III became Dr. Kevin Braun's patient. After Harbottle passed away, his wife, individually and on behalf of his estate (collectively Estate) filed a lawsuit for medical negligence and failure to obtain informed consent. The trial court granted summary judgment to Braun on the informed consent claim. The medical negligence claim went to trial and a jury found for Braun. The Estate appeals the summary judgment order and the trial court's exclusion of Braun's prior misconduct from evidence at trial.

¶2 The Estate did not have a claim for failure to obtain informed consent because Braun failed to diagnose Harbottle's condition and did not know about it. When a doctor misdiagnoses a patient's condition, and therefore is unaware of an appropriate treatment, a claim for failure to obtain informed consent does not arise. In addition, the trial court did not abuse its discretion by excluding the prior misconduct evidence. We affirm.

FACTS

I. TREATMENT

¶3 John Harbottle first became Braun's medical patient in January 2010. In June 2011, Harbottle complained to Braun of "chest burning" he had been experiencing for about two months. Clerk's Papers (CP) at 263. At first, Braun believed numerous potential causes for the chest burning existed, including gastrointestinal and cardiovascular. Braun performed a physical examination and determined the cause was likely gastroesophageal reflux disorder (GERD).

¶4 Braun ordered a number of tests for Harbottle, including an electrocardiogram (EKG), a chest x-ray, and a stress test. Braun's nurse performed the EKG on the same day as the appointment. Braun and a cardiologist reviewed the EKG and stated it did not suggest any problems with his cardiovascular system. Another doctor stated the EKG signaled the need for a stress test, but agreed the EKG alone was not a reason to get a stress test. The x-ray came back as normal. Braun referred Harbottle to a cardiologist to perform a stress test, which would determine if the source of Harbottle's pain involved cardiovascular issues.

¶5 Braun prescribed a GERD medication. Braun and Harbottle scheduled a follow-up visit for July to see whether the GERD medication resolved Harbottle's symptoms and to review the results of the diagnostic tests.

¶6 At the July follow-up appointment, Harbottle reported that his symptoms had resolved. Braun felt he had identified the cause of the chest pain as GERD. The GERD medication would not have prevented coronary artery disease symptoms other than via placebo effect. Braun did not believe a cardiovascular cause of the pain was "ruled out," but thought it was unlikely because the symptoms had resolved. CP at 266. Braun did not follow up with Harbottle regarding the stress test, as he believed the issue had been resolved through GERD treatment.

¶7 In August, Harbottle saw Braun for unrelated issues. He noted that Harbottle's heartburn was well treated by GERD medication. A physical examination showed no abnormalities. Neither Braun nor Harbottle mentioned the stress test. A cardiologist later stated that Braun should have treated Harbottle for elevated lipids and cholesterol at this visit.

¶8 At some point, Harbottle cancelled the stress test believing that Braun had "pinpointed" the problem. CP at 267. Braun did not tell Harbottle to cancel the test and did not know why he did so. If Harbottle had followed through with the stress test, the test would likely have been positive for coronary artery disease. Braun stated, with regard to the stress test, "I engaged in shared decision-making with Mr. Harbottle, with regard to his options for additional testing. At the time he elected a stress test, and it was ordered, and the referral was completed, to the best of my ability." CP at 274.

¶9 In March 2012, Harbottle complained to Braun of shortness of breath caused by exertion. After reviewing Harbottle's symptoms, Braun prescribed him medication for asthma. Braun did not believe the issues related to Harbottle's cardiovascular system because Harbottle specifically denied experiencing chest pain. Braun did not see Harbottle again.

¶10 The following May, Harbottle died of cardiac arrest at the age of 53. An autopsy report noted his cause of death as atherosclerotic heart disease.

II. LAWSUIT

¶11 In January 2015, the Estate filed a complaint against Braun alleging medical negligence and failure to obtain informed consent, both of which proximately caused Harbottle's death. Braun moved for summary judgment on the informed consent claim, arguing that failure to diagnose a condition is a matter of medical negligence but not informed consent. The trial court granted Braun's motion, concluding that no genuine issue of material fact existed.

A. EXPERT TESTIMONY

¶12 Dr. Jerrold Glassman, a cardiologist, testified in a deposition that every male patient with chest pressure consistent with heart disease should be referred to a cardiologist for a stress test. Glassman and Dr. Howard Miller, another expert witness, believed that Harbottle suffered from two heart disease risk factors: he was a male and he had a history of elevated lipids. Glassman said that referral to a cardiologist for a stress test would have been appropriate, despite the results of the tests Braun performed and the resolution of his symptoms via the GERD medication. Glassman also stated he believed the failure to refer Harbottle to a cardiologist led to his death. Miller stated Braun should have followed up with the stress test to rule out coronary artery disease, even though the GERD medication resolved Harbottle's symptoms. Miller stated that the standard of care should have required Braun to "rule out" coronary artery disease with a stress test. CP at 330.

¶13 Relating to the diagnostic process generally, Braun said, "I'm not sure ruling out is ever what we do. What we do is risk stratify and try and do a responsible history, physical examination, data gathering, like labs and EKG, and subsequent risk stratification as to how high a risk you have rather than ruling out." CP at 274. Throughout his deposition, Braun used terminology reflecting relative likelihood that Braun suffered from various conditions. While he refused to say he felt a cardiac cause was "ruled out," he stated that after the GERD medication resolved Harbottle's symptoms, that "what had been a very unlikely potential cause of his symptoms was even less likely, given that his symptoms had completely resolved." CP at 266.

B. EVIDENCE EXCLUDED

¶14 During discovery, the Estate submitted an interrogatory asking whether Braun had "ever been the subject an [sic] allegation, claim, complaint, or lawsuit (including any civil claims, criminal claims, and/or professional complaints) alleging inappropriate conduct or improper and/or negligent or substandard treatment." CP at 716. Braun responded, "[o]ther than this case, no." CP at 716.

¶15 At Braun's subsequent deposition, the Estate asked why he had left his job at a clinic in 2005. Braun said he left to practice on his own and for more direct control over his care and stated that his departure was "favorable." CP at 275. He said he would "have to speculate" whether the clinic would know of additional reasons for his departure. CP at 275-76. Braun listed reasons he wanted to leave the clinic, including complaints about the clinic staff "among other things." CP at 276. When asked whether he was subject to complaints during his time at the clinic, Braun said "[t]here's always complaints" such as by patients who didn't receive prescriptions they wanted. CP at 276. When asked about other complaints, Braun said he would "have to go back and look through" but did not know what he would look through. CP at 276. Braun maintained that his departure from the clinic had been mutual.

¶16 The Estate subpoenaed Braun's employment file and various other documents relating to his employment at the clinic, including "any and all complaints, grievances, or investigations, and the like pertaining" to Braun. CP at 590-91. Records produced by the clinic indicated that three female patients had complained of inappropriate flirtatious behavior and untoward touching. The clinic placed Braun on administrative leave as a result of the complaints and considered terminating his employment. Braun resigned five days later.

¶17 The Medical Quality Assurance Commission (MQAC) conducted an investigation and described the allegations of misconduct in detail. The MQAC case summary described three incidents between 2003 and 2005 in which Braun allegedly inappropriately touched and made sexual innuendo comments to female patients. Braun denied any wrongdoing. The MQAC dismissed the complaints and closed the file based on insufficient evidence. It determined no disciplinary action was necessary.

¶18 Braun moved to exclude evidence of past grievances filed against him, arguing they were irrelevant, overly prejudicial under ER 403, and not germane to his treatment of Harbottle. The Estate responded that Braun's professional misconduct and untrustworthiness during discovery were "highly relevant to his veracity" at trial. CP at 820.

¶19 At arguments on the motion to exclude, the trial court stated that "[t]here would never, in this case, be a reveal to the jury as to what the underlying issues were, sexual misconduct, there'd be no way that I would allow that in," as it would be "way too prejudicial." Report of Proceedings (RP) (Sept. 8, 2017) at 26. The Estate's attorney agreed. The court said it was concerned that the facts of the underlying misconduct were "so prejudicial that [it was] concerned about whether it takes over the case as opposed to what needs to be the issue, which is did he violate the standard of care." RP (Sept. 8, 2017) at 27-28. The parties primarily argued about whether the Estate could impeach Braun's credibility with his dishonest discovery responses. The court granted Braun's motion to exclude.

¶20 After a trial, the jury returned a verdict for Braun on the medical negligence claim and the trial court entered judgment for Braun. The Estate appeals, arguing the court erred by granting summary judgment on the informed consent claim and excluding evidence of Braun's prior instances of misconduct.

ANALYSIS

I. INFORMED CONSENT

¶21 The Estate contends that the trial court erred by granting summary judgment for Braun on the Estate's informed consent claim. It claims that "where the physician knows of the condition but misdiagnoses it believing another condition is present, the physician must advise the patient of the possible conditions known to him or her and inform the patient of them so that the patient can make an informed decision." Br. of Appellant at 21. The Estate acknowledges that "a physician cannot advise of a condition he/she does not know," but contends that Braun was aware that Harbottle's "symptoms of severe chest pain and shortness of breath on exertion could evidence a life-threatening coronary disease." Br. of Appellant at 21. Because the facts of this case do not support an informed consent claim, we conclude the trial court did not err in granting summary judgment.

A. LEGAL PRINCIPLES

¶22 We review a grant of summary judgment de novo, performing the same inquiry as the trial court. Volk v. DeMeerleer , 187 Wash.2d 241, 254, 386 P.3d 254 (2016). "Summary judgment is appropriate when there is 'no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.' " Volk , 187 Wash.2d at 254, 386 P.3d 254 (quoting CR 56(c) ). We construe all facts and reasonable inferences in the light most favorable to the nonmoving party. Scrivener v. Clark Coll. , 181 Wash.2d 439, 444, 334 P.3d 541 (2014).

¶23 The doctrine of informed consent refers to the requirement that a health care provider has a duty to his or her patient "to disclose relevant facts about the patient's condition and the proposed course of treatment so that the patient may exercise the right to make an informed health care decision." Stewart-Graves v. Vaughn , 162 Wash.2d 115, 122, 170 P.3d 1151 (2007). "Informed consent focuses on the patient's right to know his bodily condition and to decide what should be done." Burnet v. Spokane Ambulance , 54 Wash. App. 162, 168, 772 P.2d 1027 (1989).

¶24 "Informed consent and medical negligence are distinct claims that apply in different situations. While there is some overlap, they are two different theories of recovery with independent rationales." Anaya Gomez v. Sauerwein , 180 Wash.2d 610, 617, 331 P.3d 19 (2014). To prove medical negligence, a plaintiff must show that the defendant proximately caused injuries by failing to exercise the appropriate degree of care, skill, and learning. RCW 7.70.040. To prove failure to obtain informed consent, a plaintiff must prove the following four elements:

(a) That the health care provider failed to inform the patient of a material fact or facts relating to the treatment;
(b) That the patient consented to the treatment without being aware of or fully informed of such material fact or facts;
(c) That a reasonably prudent patient under similar circumstances would not have consented to the treatment if informed of such material fact or facts;
(d) That the treatment in question proximately caused injury to the patient.

RCW 7.70.050(1).

¶25 Informed consent " 'does not place upon the physician a duty to explain all possible risks, but only those of a serious nature.' " Backlund v. Univ. of Wash. , 137 Wash.2d 651, 662 n.3, 975 P.2d 950 (1999) (quoting Brown v. Dahl , 41 Wash. App. 565, 570, 705 P.2d 781 (1985) ). If the " 'reasonable person in the patient's position would attach significance to a risk in deciding treatment,' " the doctor must disclose that risk as material. Backlund , 137 Wash.2d at 662 n.3, 975 P.2d 950 (quoting Brown , 41 Wash. App. at 570, 705 P.2d 781 ).

B. MISDIAGNOSIS

¶26 The duty to obtain informed consent "is not confined to the choice of treatment once a disease is present and has been conclusively diagnosed." Gates v. Jensen , 92 Wash.2d 246, 250, 595 P.2d 919 (1979). In certain circumstances, "the right to informed consent can include the process of diagnosis." Anaya Gomez , 180 Wash.2d at 617, 331 P.3d 19. The fact that a patient's "symptoms were 'inconclusive' ... does not prevent the doctrine of informed consent from applying. It merely points out the duty to inform the patient of potentially fatal causes of his abnormality, and the means of ruling out or confirming this source of illness." Keogan v. Holy Family Hosp. , 95 Wash.2d 306, 315, 622 P.2d 1246 (1980).

¶27 However, a "physician who misdiagnoses the patient's condition, and is therefore unaware of an appropriate category of treatments or treatment alternatives, ... may not be subject to an action based on failure to secure informed consent." Backlund , 137 Wash.2d at 661, 975 P.2d 950. "Simply put, a health care provider who believes the patient does not have a particular disease cannot be expected to inform the patient about the unknown disease or possible treatments for it." Anaya Gomez , 180 Wash.2d at 618, 331 P.3d 19. "In such situations, a negligence claim for medical malpractice will provide the patient compensation if the provider failed to adhere to the standard of care in misdiagnosing or failing to diagnose the patient's condition." Anaya Gomez , 180 Wash.2d at 618, 331 P.3d 19. This rule is necessary "to avoid imposing double liability on the provider for the same alleged misconduct." Anaya Gomez , 180 Wash.2d at 618, 331 P.3d 19.

¶28 Gates established that the duty of a physician to obtain informed consent applies at the diagnostic stage. 92 Wash.2d at 250-51, 595 P.2d 919. In Gates , the patient had a condition "which doubled her risk of glaucoma." 92 Wash.2d at 247, 595 P.2d 919. She consulted with an ophthalmologist who performed tests that put her "in the borderline area for glaucoma." Gates , 92 Wash.2d at 247, 595 P.2d 919. An additional test indicated "no evidence of abnormality," so the doctor told the patient he had checked and "found everything all right." Gates , 92 Wash.2d at 247-48, 595 P.2d 919. He diagnosed her problems as "difficulties with [her] contact lenses" and treated her accordingly. Gates , 92 Wash.2d at 248, 595 P.2d 919. The ophthalmologist did not inform the patient of her increased risk factors for glaucoma, nor that there existed "two additional diagnostic tests for glaucoma which [were] simple, inexpensive, and risk free." Gates , 92 Wash.2d at 248, 595 P.2d 919.

¶29 The court ruled that "[t]he patient's right to know is not confined to the choice of treatment once a disease is present and has been conclusively diagnosed" because important treatment decisions are often required in "non-treatment situations" such as "procedures leading to a diagnosis." Gates , 92 Wash.2d at 250-51, 595 P.2d 919. These decisions "must all be taken with the full knowledge and participation of the patient" and the physician has a duty "to tell the patient what he or she needs to know in order to make them." Gates , 92 Wash.2d at 251, 595 P.2d 919.

¶30 Anaya Gomez further clarified and narrowed Gates . In Anaya Gomez , a blood test preliminarily determined that the patient's blood cultures were positive for yeast. 180 Wash.2d at 614, 331 P.3d 19. Because of the potential seriousness of this result, the doctor determined that if the patient was feeling ill, she should come in immediately for treatment, but, if she was feeling better, it was more likely that the test result was a false positive, "a common occurrence in microbiology labs." Anaya Gomez , 180 Wash.2d at 614, 331 P.3d 19.

¶31 After learning that the patient was feeling better, the doctor concluded the result had been a false positive and never informed her about it. Anaya Gomez , 180 Wash.2d at 614, 331 P.3d 19. The result was not a false positive and the patient died several months later as a result. Anaya Gomez , 180 Wash.2d at 614-15, 331 P.3d 19. Her estate sued the doctor and clinic for both medical negligence and failing to obtain informed consent. Anaya Gomez , 180 Wash.2d at 615, 331 P.3d 19.

¶32 "[W]hen a health care provider rules out a particular diagnosis based on the circumstances surrounding a patient's condition, including the patient's own reports, there is no duty to inform the patient on treatment options pertaining to a ruled out diagnosis." Anaya Gomez , 180 Wash.2d at 623, 331 P.3d 19. "To hold otherwise would require health care providers and patients to spend hours going through useless information that will not assist in treating the patient." Anaya Gomez , 180 Wash.2d at 623, 331 P.3d 19. In a footnote, the court quoted Keogan , 95 Wash.2d at 331, 622 P.2d 1246 (J. Hicks concurring in part and dissenting in part), " '[There are] 200 different things that might cause chest pain, only 3 of which are related to the heart.' A health care provider cannot possibly inform a patient about every disease that might be causing each of his or her symptoms." Anaya Gomez , 180 Wash.2d at 623 n.8, 331 P.3d 19.

¶33 The court declined to adopt a new rule requiring health care providers "to inform patients of all positive test results," noting that health care providers use many tools to form a diagnosis and "[o]nly after the provider has used these tools to make a diagnosis can he or she inform the patient about possible treatments and the risks associated with each." Anaya Gomez , 180 Wash.2d at 619-20, 331 P.3d 19. It noted that "[g]iven the vast number of false positive test results that occur in Washington on a daily basis, imposing a duty on health care providers to inform every patient about every test result would be unduly burdensome, pointless, and unwise." Anaya Gomez , 180 Wash.2d at 627, 331 P.3d 19.

¶34 Anaya Gomez clarified that Gates "has not been overruled" and that "[u]nder Gates , there may be instances where the duty to inform arises during the diagnostic process." 180 Wash.2d at 623, 331 P.3d 19. The "determining factor is whether the process of diagnosis presents an informed decision for the patient to make about his or her care." Anaya Gomez , 180 Wash.2d at 623, 331 P.3d 19.

¶35 The court distinguished Gates on the grounds that the doctor in Gates "had available 'two additional diagnostic tests for glaucoma which are simple, inexpensive, and risk free' " and that the doctor "could have put to Mrs. Gates [the decision of] whether to do the additional testing in light of her borderline test result." Anaya Gomez , 180 Wash.2d at 621, 331 P.3d 19 (quoting Gates , 92 Wash.2d at 248, 595 P.2d 919 ). The doctor in Gates also saw that the patient had "consistently high eye pressure readings that pointed to higher risk for glaucoma over a two year period," whereas the doctor in Anaya Gomez 's only contact with the decedent was "a phoned-in lab report and her medical record." Anaya Gomez , 180 Wash.2d at 621, 331 P.3d 19. The doctor in Anaya Gomez "[u]s[ed] the information available to him," lacked "the ability to obtain more information," and "determined that there was nothing further to diagnose." 180 Wash.2d at 622, 331 P.3d 19.

¶36 In Backlund , a prematurely born child suffered from jaundice. 137 Wash.2d at 654, 975 P.2d 950. The doctor treated the child with phototherapy, a common remedy for that condition, but did not discuss the possibility of a riskier transfusion treatment often used in more severe cases. Backlund , 137 Wash.2d at 655, 975 P.2d 950. He did not believe the child's condition was serious enough to warrant the transfusion treatment and thought that bringing it up would cause unnecessary stress and distress to the family. Backlund , 137 Wash.2d at 656, 975 P.2d 950. The risk of brain damage from phototherapy was approximately one in 10,000, while the risk of serious consequences associated with the transfusion were about four or five in 100. Backlund , 137 Wash.2d at 656, 975 P.2d 950. The phototherapy resulted in permanent brain damage to the child. Backlund , 137 Wash.2d at 655, 975 P.2d 950. The parents sued for medical negligence and failure to obtain informed consent. Backlund , 137 Wash.2d at 655, 975 P.2d 950.

¶37 Backlund observed that, while the doctor was aware of the child's condition,

A physician who misdiagnoses the patient's condition, and is therefore unaware of an appropriate category of treatments or treatment alternatives, may properly be subject to a negligence action where such misdiagnosis breaches the standard of care, but may not be subject to an action based on failure to secure informed consent.

137 Wash.2d at 661, 975 P.2d 950. Physicians should not be liable under RCW 7.70.050 "for a condition unknown to the physician," rather such misdiagnoses are a proper basis for liability in negligence if they breach the standard of care. Backlund , 137 Wash.2d at 661 n.2, 975 P.2d 950. For example, "a physician who misdiagnosed a headache as a transitory problem and failed to detect a brain tumor may be guilty of negligence for the misdiagnosis," but it would be "anomalous to hold the physician culpable under RCW 7.70.050 for failing to secure the patient's informed consent for treatment for the undetected tumor." Backlund , 137 Wash.2d at 661 n.2, 975 P.2d 950. An informed consent claim was available in Backlund because "a trier of fact might still have found [the doctor] did not sufficiently inform the patient of risks and alternatives" given that he was aware of the transfusion alternative. 137 Wash.2d at 662, 975 P.2d 950.

¶38 In Flyte v. Summit View Clinic , a pregnant woman felt ill and visited a clinic. 183 Wash. App. 559, 562, 333 P.3d 566 (2014). In the months preceding her visit, the clinic received public health alerts about "a global pandemic of 'swine flu,' a potentially fatal illness." Flyte , 183 Wash. App. at 562-63, 333 P.3d 566. The clinic neither informed the woman of the dangers of swine flu, nor about an available treatment. Flyte , 183 Wash. App. at 563, 333 P.3d 566. Her condition deteriorated and she died shortly after delivering her child, who died months later. Flyte , 183 Wash. App. at 563, 333 P.3d 566. Her estate sued the clinic for medical negligence and failure to obtain informed consent. Flyte , 183 Wash. App. at 562, 333 P.3d 566.

¶39 On the informed consent claim, the trial court instructed the jury that "[a] physician has no duty to disclose treatments for a condition that may indicate a risk to the patient's health until the physician diagnoses that condition." Flyte , 183 Wash. App. at 572, 333 P.3d 566.

¶40 On appeal, we ruled that the jury instruction was a "clear misstatement of the law" because " '[e]ven if a doctor has not specifically diagnosed a medical problem, if the doctor embarks on a diagnostic procedure which entails a reasonable foreseeable risk to the patient, the patient must be informed of the risk and possible alternatives.' " Flyte , 183 Wash. App. at 578, 333 P.3d 566 (quoting Keogan v. Holy Family Hosp. , 22 Wash. App. 366, 369-70, 589 P.2d 310 (1979), rev'd by Keogan , 95 Wash.2d 306, 622 P.2d 1246 (emphasis omitted)). The "jury could reasonably have concluded that, in light of [the patient's] symptoms, a reasonable person in [her] position would, in making [her] decision, have attached significance to information regarding the extreme danger [swine flu] posed to pregnant women and the availability of suitable prophylactic measures." Flyte , 183 Wash. App. at 578-79, 333 P.3d 566. Accordingly, the patient had an informed consent claim against the clinic and the court reversed the trial court for giving an erroneous jury instruction that contained a clear misstatement of law. Flyte , 183 Wash. App. at 580, 333 P.3d 566.

¶41 Flyte distinguished Anaya Gomez on its facts. 183 Wash. App. at 576-77, 333 P.3d 566. It observed that, though the doctor testified that he had "ruled out influenza," he said he "had no independent memory" of meeting the patient and "admitted that he based his testimony entirely" on his notes. Flyte , 183 Wash. App. at 579, 333 P.3d 566. The notes did not "definitively rule[ ] out influenza as a possible diagnosis" because they used the terms " 'working diagnosis,' " with notation of "[c]hills and sweats[;] not sure where coming [sic] from[;] exam normal[.] If gets worse to go to ER," providing space for a "reasonable inference" that upper respiratory infection was only a tentative diagnosis. Flyte , 183 Wash. App. at 579, 333 P.3d 566. A witness present also testified that he recalled the doctor saying the patient had "influenza." Flyte , 183 Wash. App. at 579, 333 P.3d 566. This situation provided an issue of fact for the jury as to whether the doctor had actually ruled out influenza, and if the jury found he had not done so, it could have properly considered the informed consent claim. Flyte , 183 Wash. App. at 580, 333 P.3d 566.

¶42 In the present case, Harbottle went to Braun complaining of "chest burning." CP at 36-37. Braun ordered an EKG, a chest x-ray, and a stress test "to try and help diagnose potential causes" of the chest pain. CP at 38. He did not find the x-ray or EKG results remarkable. Braun believed the problem was most likely GERD and prescribed GERD medication. A month later, resolution of Harbottle's symptoms reinforced Braun's belief that GERD had been causing the chest pain. Braun thought a cardiac cause of Harbottle's symptoms was very unlikely and even more unlikely after his symptoms were resolved by GERD medication. Harbottle cancelled the stress test on his own, without consulting with Braun, and told the cardiologist his doctor had "pinpointed" the cause of his symptoms. CP at 267. Braun never followed up about the stress test or informed Harbottle of potential risks if the chest pain was related to cardiovascular problems. Harbottle died of a condition that the stress test would likely have uncovered.

¶43 This case is factually similar to Anaya Gomez , where the doctor was aware of a test result, but believed it to be a false positive and did not inform the patient of it. In this case, Braun was aware both that chest pain was a symptom of potentially fatal coronary disease and that Harbottle suffered from chest pain, but he believed the source of Harbottle's chest pain was GERD. Harbottle's condition improved as a result of taking the GERD medication. As Anaya Gomez stated,

Simply put, a health care provider who believes the patient does not have a particular disease cannot be expected to inform the patient about the unknown disease or possible treatments for it. In such situations, a negligence claim for medical malpractice will provide the patient compensation if the provider failed to adhere to the standard of care in misdiagnosing or failing to diagnose the patient's condition.

180 Wash.2d at 618, 331 P.3d 19.

¶44 The patient in Gates had consistently high eye pressure readings pointing to glaucoma risk over two years and that additional diagnostic tests for glaucoma were "simple, inexpensive, and risk free." 92 Wash.2d at 248, 595 P.2d 919. Harbottle lacked many risk factors for coronary disease and lived a healthy lifestyle. Unlike the additional glaucoma tests available in Gates , the stress test in this case had to be scheduled in advance with a specialist. Braun "use[ed] the information available to him" and "determined that there was nothing further to diagnose." Anaya Gomez , 180 Wash.2d at 622, 331 P.3d 19. Anaya Gomez also noted that the doctor knew the patient had "one blood test that was inconsistent with her physical condition and other tests, rendering the positive blood test more likely to be a false positive" and never knew of the specific, particularly threatening strand of yeast that turned out to be present. 180 Wash.2d at 621 n.5, 331 P.3d 19. Braun's assessment of Harbottle's condition over time made him believe more firmly that he suffered from GERD and not coronary disease.

¶45 The Estate contends that Harbottle's heart condition was "known" to Braun such that the case law regarding unknown conditions does not apply. Reply Br. of Appellant at 3. In support of this contention, the Estate points out that Braun "determined that Harbottle needed to see a cardiologist, then dropped that course of treatment after Harbottle responded to heartburn medication without informing him of the risks involved." Reply Br. of Appellant at 4. The record does not reflect that Braun ever knew of Harbottle's condition. Rather, he sought to diagnose Harbottle's complaints of "chest burning" and scheduled a stress test. After he believed that he successfully diagnosed the chest burning as GERD, he did not follow up further relating to the stress test. To the extent it was negligent for him to misdiagnose Harbottle's heart condition as GERD, the jury found in Braun's favor at trial.

¶46 Flyte distinguished Anaya Gomez on grounds that the doctor did not "definitively rule[ ] out influenza" because his chart referred to his diagnosis as "working," included influenza symptoms and that he was "not sure" where the patient's symptoms were coming from, and a witness overheard him say she had "influenza." 183 Wash. App. at 579, 333 P.3d 566.

¶47 Like Flyte , Braun in this case specifically stated he didn't "rule out" a cardiovascular cause of Harbottle's chest pain because he did not believe that was his role as a doctor. Rather, he believed a coronary disease to be an "unlikely cause" of Harbottle's pain made even more unlikely by the fact that the GERD medication cleared Harbottle's symptoms. No additional evidence, such as the chart or witness present in Flyte , suggests that Braun ever believed Harbottle suffered from coronary disease other than Braun scheduling the diagnostic stress test. Additionally distinguishing Flyte , that case concerned a public health alert about which the doctor failed to warn the patient. Prophylactic treatment was available to treat swine flu before any test was able to diagnose the disease. Such extraordinary circumstances did not exist in this case.

¶48 The record in this case reflects that Braun did not know of Harbottle's coronary condition when he scheduled the stress test. Though he did not definitively "rule out," coronary disease during his diagnostic process, to do so is not the role of a doctor. Imposing a requirement that a doctor must obtain informed consent not to treat any condition that is not definitively "ruled out" would "require health care providers and patients to spend hours going through useless information that will not assist in treating the patient." Anaya Gomez , 180 Wash.2d at 623, 331 P.3d 19. As Braun described, when GERD medication resolved Harbottle's symptoms, "what had been a very unlikely potential cause of his symptoms was even less likely." CP at 266. Braun's misdiagnosis of Harbottle allowed for a medical negligence cause of action, for which the jury ruled in favor of Braun. On the facts of this, Braun's failure to inform Harbottle of the potential risks of coronary disease or of cancelling the stress test did not breach the duty to obtain informed consent.

II. PRIOR MISCONDUCT

¶49 The Estate contends that the trial court erred by "refusing to address" Braun's "willful nondisclosure in discovery of past instances of professional misconduct." Br. of Appellant at 22 (initial capitalization omitted).

It claims that the trial court should have allowed evidence of Braun's past professional grievances at trial and his attempts to hide those grievances in discovery to impeach Braun's credibility as a witness. The trial court did not abuse its discretion.

¶50 "This court reviews a trial court's evidentiary decisions for an abuse of discretion." Farah v. Hertz Transporting, Inc. , 196 Wash. App. 171, 181, 383 P.3d 552 (2016). "A trial court abuses its discretion when it exercises it on untenable grounds or for untenable reasons." Farah , 196 Wash. App. at 181, 383 P.3d 552.

¶51 ER 607 provides that the "credibility of a witness may be attacked by any party." Parties may impeach a witness's credibility with "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility." ER 608(b). Such specific instances "may not be proved by extrinsic evidence, but may 'in the discretion of the court, if probative of truthfulness or untruthfulness , be inquired into on cross examination of the witness ... concerning the witness' character for truthfulness or untruthfulness.' " State v. O'Connor , 155 Wash.2d 335, 349, 119 P.3d 806 (2005) (quoting ER 608(b) ). The trial court has "broad discretion to admit or exclude" specific instances of nonconvicted conduct. Loeffelholz v. Citizens for Leaders with Ethics & Accountability Now , 119 Wash. App. 665, 708, 82 P.3d 1199 (2004).

¶52 Impeachable instances of misconduct under ER 608 "must be probative of truthfulness and not remote in time; further, the court should apply the overriding protection of ER 403 (excluding evidence if its probative value is outweighed by danger of unfair prejudice, confusion of the issues, or misleading the jury)." State v. Wilson , 60 Wash. App. 887, 893, 808 P.2d 754 (1991). "Any fact which goes to the trustworthiness of [a] witness may be elicited if it is germane to the issue." State v. York , 28 Wash. App. 33, 36, 621 P.2d 784 (1980). However, requiring the trial court to "admit any instance of a key witness's prior misconduct ... would be clearly contrary to ER 608, which grants trial courts discretion to make such determinations." O'Connor , 155 Wash.2d at 350, 119 P.3d 806.

¶53 In York , the State's case against a defendant for delivery of a controlled substance rested largely on the testimony of an undercover investigator with the sheriff's department. 28 Wash. App. at 34, 621 P.2d 784. The trial court admitted evidence of the deputy's background and military service, including his experience in undercover work, but denied the defendant's request to cross-examine him about his being fired from a Montana sheriff's department over "irregularities in his paperwork procedures, and his general unsuitability for the job." York , 28 Wash. App. at 34, 621 P.2d 784.

¶54 Despite the discretion due to the trial court's decision, the appellate court reversed. York , 28 Wash. App. at 38, 621 P.2d 784. It emphasized that allowing criminal defendants "no cross-examination into an important area is an abuse of discretion" and noted that criminal defendants are "given extra latitude in cross-examination to show motive or credibility, especially when the particular prosecution witness is essential to the state's case." York , 28 Wash. App. at 36, 621 P.2d 784.

¶55 In State v. Griswold , the defendant in a criminal child molestation case sought to cross-examine one of the victims and her mother about a specific incident of alleged lying "related to why [she] was unable to continue helping on her friend's paper route."

98 Wash. App. 817, 822, 991 P.2d 657 (2000), abrogated on other grounds by State v. DeVincentis , 150 Wash.2d 11, 74 P.3d 119 (2003). The victim's mother had stated under oath that the victim quit the route out of fear of the defendant, but the victim stated in an interview that she lost the job because she sometimes threw papers away instead of delivering them. Griswold , 98 Wash. App. at 822-23, 991 P.2d 657. The defendant wished to impeach the State's witnesses to show their dishonesty, but the trial court did not allow cross-examination on this issue. Griswold, 98 Wash. App. at 823, 830, 991 P.2d 657.

¶56 The trial court did not abuse its discretion because, even "assuming the prior false statement [was] relevant to [the victim's] credibility, her prior false statement [was] not germane to the guilt issues." Griswold , 98 Wash. App. at 831, 991 P.2d 657. The issue was "clearly collateral" and would have led to a "mini trial" relating to the victim's paper route. Griswold , 98 Wash. App. at 831, 991 P.2d 657.

¶57 In O'Connor , the State charged the defendant with malicious mischief in the second degree for slashing the tires on his ex-girlfriend's car. 155 Wash.2d at 337, 119 P.3d 806. The victim received compensation from both the defendant, and her insurance company, leading to a windfall of about $300. O'Connor , 155 Wash.2d at 339-40, 119 P.3d 806. The defendant sought to cross-examine the victim about her payment from the insurance company, arguing her windfall went to her credibility and "ability to tell the truth on the stand," but the trial court ruled that facts about the payment were relevant only to her character, not to whether her testimony was likely truthful. O'Connor , 155 Wash.2d at 339-40, 119 P.3d 806.

¶58 The court observed that "the York , Wilson , Griswold line of cases contemplates consideration of whether the evidence sought to be explored during cross-examination under ER 608(b) is relevant to the issue at hand." O'Connor , 155 Wash.2d at 350, 119 P.3d 806. It noted that "[p]rohibiting the trial court from considering the issue of germaneness to the issue at hand when exercising its discretion under ER 608 could result in a system under which a trial court is constitutionally required to admit any instance of a key witness's prior misconduct," which would be "clearly contrary to ER 608." O'Connor , 155 Wash.2d at 350, 119 P.3d 806. The court held,

[I]n exercising its discretion under ER 608, a trial court may consider whether the proposed subject of cross-examination is relevant to the witness's veracity on the stand and germane to the issues in question at trial. While the retention of the $300 may reflect an instance of dishonesty, it did not involve a lie under oath. ... Moreover, the retention of the excess $300 was not germane to the key factual issue to which [the victim] testified, namely the fact that [the defendant] was outside her house on the night her tires were slashed. Fundamentally, it is reasonable to conclude that the insurance payment is not relevant to the ultimate question of whether [the defendant] slashed the tires. Therefore, the trial court acted within its discretion when it determined that the retention of the excess $300 was not probative of [the victim's] truthfulness on the stand because it was simply too attenuated from her testimony regarding the events on the night in question.

O'Connor , 155 Wash.2d at 352-53, 119 P.3d 806.

¶59 In this case, Braun denied allegations of misconduct during his employment at a clinic in his discovery responses. He stated this case was the only "allegation, claim, complaint, or lawsuit" alleging any inappropriate conduct or improper and/or negligent or substandard treatment that he had ever been subjected to. CP at 716. As a result of a subpoena to the clinic, the Estate learned of three sexual misconduct grievances filed against Braun that led to his suspension and ultimately his withdrawal.

¶60 The trial court granted Braun's motion to exclude his past misconduct from evidence and prohibit the Estate from cross-examining him with his false and misleading discovery responses at trial. We review whether this decision was an abuse of discretion by looking to whether the misleading discovery responses were germane to the issues in this case or collateral such that they would likely result in a mini-trial.

¶61 This case is most similar to Griswold . The defendant in Griswold alleged that the victim and her mother had made inconsistent statements at a previous hearing and during an interview and wished to cross-examine them on these statements. 98 Wash. App. at 822-23, 991 P.2d 657. As in this case, the alleged misstatements were made during the course of the litigation. Also as in this case, the misstatements had to do with matters collateral and unrelated to the litigation. Braun's sexual misconduct at a clinic in 2005 is no more relevant to his treatment years later of Harbottle than the Griswold victim's loss of her paper route were to the state's prosecution of Griswold for child molestation. In both cases, the only relevance of the misconduct would have been to impeach credibility as a witness on a collateral matter.

¶62 Unlike York and Griswold , this case is civil and does not implicate a criminal defendant's fundamental rights or merit "extra latitude" in cross-examination of essential prosecution witnesses. 28 Wash. App. at 36, 621 P.2d 784. By comparison, Loeffelholz , a civil case, noted the trial court's "broad discretion" to admit or exclude alleged misconduct. 119 Wash. App. at 708, 82 P.3d 1199.

¶63 The trial court had access to the full record and was in the best position to make a decision as to whether to allow cross-examination on this issue. Additionally, Braun's history of sexual misconduct was collateral to the issues in the case. The trial court did not abuse its discretion by excluding evidence of Braun's misleading discovery responses.

¶64 We affirm.

We concur:

Sutton, J.

Glasgow, J.

      GERD "is when acidic stomach contents come up into the esophagus, where they don't belong, and they cause symptoms." CP at 37.

      The record reflects that major risk factors for coronary artery disease include hyperlipidemia, diabetes, smoking, hypertension, male gender, and family history. Male gender and high lipid count were the only two of these factors present in Harbottle. To the extent the parties dispute Harbottle's risk factors for coronary disease, we take the facts in the light most favorable to the Estate.

      Braun further contends that summary judgment was appropriate because the Estate failed to make out the prima facie elements of an informed consent case. Because we affirm on the same ground as the trial court, we do not reach this alternative argument.

      The Estate contends that Braun violated discovery rules and perjured himself in his discovery responses and that such conduct is sanctionable. It does not request sanctions or any action from this court other than reversal of the trial court's decision to exclude evidence of the misconduct.

      Although the Estate argues that evidence of both the underlying sexual misconduct and Braun's attempts to cover it up in discovery should have been admissible at trial, its only arguments that this evidence was relevant concern impeachment of Braun's credibility as a witness. The Estate has not explained how the underlying sexual misconduct would have been relevant at trial for any reason since it has nothing to do with Braun's veracity. See ER 608(b). The trial court noted at oral argument on the motion to exclude that "[t]here would never, in this case, be a reveal to the jury as to what the underlying issues were, sexual misconduct, there'd be no way that I would allow that in ... That's way too prejudicial." RP (9/8/17) at 26. The Estate's lawyer agreed with this assessment. We limit our ER 608 analysis to whether the trial court should have permitted the Estate to cross-examine Braun about his dishonest discovery responses.


author: CARNEY, Justice.

text:
    Jerry C. MCCAVIT and Brenda D. McCavit, Appellants, v. Barbara LACHER, Louis Lacher, and State of Alaska, Department of Natural Resources, Appellees.
    Supreme Court No. S-16715
    Supreme Court of Alaska.
    August 16, 2019
    Kevin T. Fitzgerald, Ingaldson Fitzgerald, P.C., Anchorage, for Appellants.
    Brian Duffy, Gruenstein, Hickey, Havelock & Duffy, Anchorage, for Appellees Barbara Lacher and Louis Lacher.
    Notice of non-filing filed by Jessica M. Alloway, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee State of Alaska, Department of Natural Resources.
    Before: Bolger, Chief Justice, Winfree, Stowers, and Carney, Justices. [Maassen, Justice, not participating.]
   CARNEY, Justice.

I. INTRODUCTION

Jerry and Brenda McCavit built a dock extending into Wasilla Lake from their upland property. Their neighbors, Barbara and Louis Lacher, sued the McCavits claiming the dock unreasonably interfered with their riparian rights and constituted a private nuisance. The superior court found for the Lachers and issued an injunction ordering the McCavits to remove a portion of their dock. The McCavits now appeal. Because we announce a new rule of reasonableness regarding riparian or littoral rights, we vacate the superior court's Findings of Fact and Conclusions of Law and Order Granting Injunctive Relief and Nuisance Abatement, remand for the superior court to conduct the proper legal analysis, and vacate the superior court's award for attorney's fees and costs.

II. FACTS AND PROCEEDINGS

A. Facts

Barbara and Louis Lacher own property abutting Wasilla Lake. Jerry and Brenda McCavit own adjacent property abutting Wasilla Lake to the east of the Lachers' property. Both families own their respective property up to the ordinary high water mark of Wasilla Lake, making them littoral landowners. The Lachers purchased their property in 1974 and the McCavits purchased their property in 1991.

When the McCavits bought their property, neither they nor the Lachers had a dock. For 30 years the Lachers' western neighbors allowed the Lachers to use their dock. But in 2012 or 2013, after several incidents involving the Lachers' grandchildren, the western neighbors asked the Lachers to stop using the dock. The Lachers then began considering building a dock from their own property.

Meanwhile in March 1992, the McCavits were granted a permit from the Alaska Department of Fish and Game (ADFG) to construct a dock from their property into Wasilla Lake. They completed their dock before the permit expired at year's end. Between 2011 and 2012 the McCavits built a 16x20 foot extension to the original dock. They never sought nor were granted a permit for this extension. The extension was attached at a right angle to the original dock, and extended in the direction of the Lachers' property.

Both families make use of the lake. The McCavits, their family, and their friends use and frequently park a variety of watercraft at the McCavits' dock during the summer. Jerry McCavit testified that he built the extension to accommodate larger watercraft, to reach deeper water, and to make it easier for his aging father to visit. The Lachers and their family and friends also enjoy using the lake. Their children and grandchildren often use the lake for swimming, boating, fishing, and other recreational uses.

In the spring of 2012 the Lachers informed their daughter, Randy Lacher, about their displeasure with the McCavits' dock and the fact that it was "in front of" their property. Randy, who was then employed by the Alaska Department of Natural Resources (DNR), began making inquiries into her parents' rights regarding the lake and the McCavits' dock. Randy obtained a copy of the agency's "Generally Allowed Uses" regulation. The regulation allows an upland littoral property owner to build a dock for personal, noncommercial use provided the dock is within the "projected sidelines" of the upland littoral property or is built with consent of the neighboring upland littoral property owner. After receiving the copy of the regulation, Randy contacted Jerry McCavit to discuss the dock and whether it was "in front of" the Lachers' property.

Later in the summer of 2012 ADFG sent the McCavits a Notice of Violation advising them that their dock extension was constructed in violation of permitting requirements. Although it is possible that the McCavits' construction of the extension could have supported a misdemeanor charge, ADFG took no further action. In November the Lachers obtained a permit to construct a 10x50 foot dock that would extend from their property. However the Lachers never constructed or made definite plans to construct a dock.

B. Trial Proceedings

In early 2013 Randy attempted to have DNR enforce its "Generally Allowed Use" regulation against the McCavits' dock. She was informed that DNR could not enforce the "projected sidelines" language because the Commissioner had found the language vague and ambiguous. After being advised that they would need to pursue a civil suit to obtain the relief they sought, the Lachers sued the McCavits in superior court. They brought three claims: the dock interfered with their riparian rights, constituted a private nuisance, and was a trespass.

The court granted the McCavits' motion to require the Lachers to join DNR as a necessary party because the dock was located on state land. In response the Lachers amended their complaint to allege that DNR violated their due process rights by arbitrarily and capriciously failing to enforce the "Generally Allowed Use" regulation. DNR successfully moved for summary judgment, arguing that it was not required to act, and was dismissed as a party. The court's order held that: (1) the Lachers did not have a "significant property interest" in the submerged lands of Wasilla Lake; (2) at most the Lachers had a right of reasonable access to Wasilla Lake, which "ha[d] not been completely obstructed by the McCavits' dock"; and (3) if DNR had found that the McCavits' dock violated the "Generally Allowed Uses" regulation, that decision would have been arbitrary and capricious because DNR had previously found the term "projected sidelines" vague and ambiguous.

The McCavits also moved for summary judgment on the Lachers' trespass claim, arguing that the Lachers did not have title to the lake and therefore could not maintain a trespass claim. The superior court agreed and granted summary judgment on this claim.

Trial proceeded on the remaining claims of unreasonable interference with riparian rights and private nuisance. The Lachers' witnesses testified that the Lachers' preferred location for their potential dock would be on the eastern side of their property, which would conflict with the McCavits' existing dock. But witnesses also acknowledged that the Lachers could build a dock elsewhere on their property so as not to conflict with the McCavits' dock.

After four days of trial the superior court issued its Findings of Fact and Conclusions of Law and Order Granting Injunctive Relief and Nuisance Abatement on May 7, 2017. The court found that the McCavits' dock unreasonably interfered with the Lachers' riparian rights and constituted a private nuisance. It ordered the McCavits to remove a portion of their dock.

C. Post-Trial Proceedings

Later in May 2017 the Lachers moved for attorney's fees and costs as the prevailing party under Alaska Rule of Civil Procedure 82. They submitted fees and costs dating from 2012 and including fees incurred as part of their claims against DNR upon which they had not prevailed. The Lachers asserted that they were entitled to 30% of their fees of $120,070, which amounted to $36,021. The superior court awarded the full $36,021 over the McCavits' objection. The court's order included a handwritten note: "The Court is not persuaded that some of plaintiffs' fees must be allocated to their litigation against DNR. The State became a party only due to the McCavits' insistence that DNR was a necessary party."

The McCavits moved for a stay of the superior court's injunction pending this appeal. The superior court denied this motion, but in doing so "clarified" its original decision. The superior court noted that it had "already determined the merits of this case and ... found the McCavit[s'] dock to be a nuisance to the Lacher[s]." In February 2018 we granted the McCavits' motion to stay the injunction pending resolution of this appeal.

The McCavits appeal. They contend that the superior court erred in determining that their dock unreasonably interfered with the Lachers' riparian rights and constituted a private nuisance, and that injunctive relief was therefore inappropriate. Because the superior court had not yet ruled on the Lachers' motion for attorneys fees when the McCavits filed their opening brief, we granted their motion to allow supplemental briefing on attorney's fees. We therefore also address the award of attorney's fees and costs.

III. STANDARD OF REVIEW

"[W]e will not consider arguments that were not raised below, unless the issues establish plain error, or the issues (1) do not depend upon new facts, (2) are closely related to other arguments at trial, and (3) could have been gleaned from the pleadings."

"[W]hether the superior court applied the correct legal standard" and "used the appropriate burden of persuasion" are questions of law. We consider "whether a trial court has applied the correct legal test" to be a question of law. We review questions of law and a superior court's application of the law to facts de novo, using our independent judgment to "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."

IV. DISCUSSION

A. The McCavits Did Not Waive Any Of Their Arguments On Appeal.

The Lachers first argue that the McCavits waived several of their arguments on appeal by failing to raise them during the trial proceedings. But because the McCavits did raise these issues during the trial proceedings, the issues have not been waived.

B. The Superior Court Applied The Proper Standard Of Proof.

The Lachers also claim that the McCavits waived their argument that the superior court improperly applied the preponderance of the evidence standard of proof because they did not request the court to apply a different standard. The McCavits respond that "[p]arties do not have to invoke burdens of proof and persuasion; they are automatic."

"Preponderance of the evidence is the general burden of persuasion in civil cases." A party that wants the court to apply a higher standard of proof must request it; failure to raise this issue before the trial court fails to preserve the issue for appeal. When a party fails to preserve such an issue for appeal, we review it for plain error.

To demonstrate plain error, the McCavits must prove that "an obvious mistake has been made which creates a high likelihood that injustice has resulted." Such a mistake is not present in this case. In Fernandes v. Portwine we explicitly held that preponderance of the evidence is the appropriate standard of proof for nuisance cases. The McCavits primarily rely on Spenard Action Committee v. Lot 3, Block 1, Evergreen Subdivision to argue that clear and convincing evidence should apply. But we distinguished Spenard Action Committee in Fernandes . In Spenard Action Committee the statutes at issue were "quasi-criminal nuisance statutes" that imposed heavy sanctions and therefore demanded a higher burden. In Fernandes we rejected the suggestion that the higher burden was appropriate in the absence of such concerns and held that a preponderance of the evidence standard applied in private nuisance cases. The McCavits have failed to demonstrate that the present case demands the higher standard employed in Spenard Action Commitee . The superior court did not plainly err by applying the preponderance of the evidence standard of proof.

C. We Extend Our Rule Of Reasonable Use To Riparian And Littoral Landowners And Remand For The Superior Court To Apply The Rule To Determine Whether The McCavits' Dock Was An Unreasonable Interference With The Lachers' Littoral Rights.

1. Riparian and littoral rights defined

Alaska is unique in that "[t]he people of the state have a constitutional right to free access to and use of the navigable or public water of the state." This constitutional right does not create a private cause of action; rather, the constitutional right of free access to and use of navigable or public water is a right shared by the public and enforced by the State.

Litigation over water rights frequently involves competing consumptive uses, such as a riparian or littoral landowner's right to appropriate a quantity of water for purposes such as agriculture. Alaska has adopted the Water Use Act to regulate the appropriation and consumptive use of water. But the McCavits' dock is not a consumptive use of water; the McCavits built a structure in the water and the Lachers allege that the placement of the structure affects their property rights.

Our previous cases regarding non-consumptive uses of water have not involved the rights of riparian neighbors. We have considered competing non-consumptive uses in the context of the natural flow of surface water, specifically surface water drainage, melting permafrost drainage, and surface water diversion. We have generally applied the reasonable use rule allowing the riparian or littoral landowner "to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes harm to others, but incurs liability when his harmful interference ... is unreasonable."

We must now consider different non-consumptive uses: the right of access and the right to use. Because we have applied the reasonable use rule in other cases involving the non-consumptive use of water, we extend its application to this arena. In applying such a rule, we must consider what rights each littoral landowner has and how those rights affect a neighbor's correlative rights.

a. Right of access

i. Overarching right of access

Before statehood there was a general common law riparian and littoral right of access to "deep" or "navigable waters." Under this general law, a riparian or littoral landowner had "the right of access to [deep or navigable] waters for the purpose of navigation," upon which the owner could base an "action against an intruder who places obstacles on the shore that prevent him [or her] from having access to the navigable waters." Several cases affirmatively recognized this general rule before Alaska became a state.

After statehood, in Wernberg v. State we specifically recognized that the right of riparian and littoral landowners of access to deep or navigable waters from their upland properties was a private property right that could not be taken for public use by the government unless it paid just compensation. We were particularly concerned that, due to Alaska's unique geography and economy, taking such a right from a riparian or littoral landowner without just compensation would render property valueless or greatly reduce its value. Without discussing the full scope of this right, we noted that the right of access includes more than just access to the main stream of a channel.

We revisited the issue in Classen v. State, Department of Highways , setting some limits on the right of access. In that case, a riparian owner challenged the construction of a bridge that would interfere with his floatplane business. We held that the bridge was not a taking of the landowner's riparian right of access because he "still ha[d] unlimited access to the river itself, for whatever use he cho[se] to make of it"; only his access to the air via the river was obstructed. Thus, although Wernberg had broadened the right of access, it was not so broad as to include a riparian or littoral landowner's right of access to the air via navigable water.

ii. Right to wharf out

Pre-statehood courts considered the right to wharf out as a subsidiary to the right of access, meaning a riparian or littoral landowner only had the right to wharf out as the means by which he or she exercised the right of access. In Dalton v. Hazelet the Ninth Circuit noted that owners of "land bordering on or bounded by navigable waters ... ha[ve] the right to a free and unobstructed access to such waters." In Alaska Juneau Gold Mining Co. v. Northern Lumber Mills , the territorial court noted that the right of access to navigable water meant "access to or from the water in the usual way by which such access is attained and enjoyed; and that is dependent upon the purpose for which such access is desired, and upon the reasonableness of the manner in which it is proposed to make such right available." Comparing the right of access to navigable waters to that of access to a highway, the court explained that a littoral landowner had the right to wharf out "not because he [or she] ha[d] a right to erect a structure on the shore, but because he [or she] ha[d] a right of access to the deep water, and ... [could not] enjoy that right except by means of a wharf."

But the territorial court limited this right: "[T]he use must be reasonable. ... And 'what shall be deemed a reasonable and proper use of a way depends largely on the local situation and on the public usage.' " It announced that "reasonable access, according to circumstances, [is] all the upland owner [is] entitled to." Additionally, the territorial court noted that it would not intervene if a riparian or littoral landowner "has other and equally convenient means of access" to navigable waters or if the landowner had not yet reasonably exercised his or her right of access.

Since statehood we have had only one opportunity to discuss the right to wharf out, in State, Department of Natural Resources v. Alaska Riverways, Inc. There we concluded that Wernberg did not create an independent right to wharf out, and all that existed was "the common-law right ... that was recognized in territorial days." We noted, however, that this common-law right to wharf out "is limited by the state's exercise of its authority under the public trust doctrine" as incorporated by the Alaska Constitution and Alaska Statutes. Thus, the right to wharf out is the means by which a riparian or littoral landowner may exercise his or her right of access to deep or navigable waters, and it may not be unreasonably obstructed. This right is a qualified right and subject to the State regulations.

b. Right to use

Article VIII, § 16 of the Alaska Constitution establishes a right to common use of public and navigable state waters that protects a riparian and littoral landowner's right to use the water abutting the land: "No person shall be involuntarily divested of his right to the use of waters ... except for a superior beneficial use or public purpose and then only with just compensation and by operation of law." We noted in Classen that the "decision in Wernberg implied that [this language] is coterminous with riparian rights." Thus, a riparian or littoral landowner has an individual property interest in the use of water abutting his or her land, but we have never specified what types of uses this may include.

Other jurisdictions have upheld a riparian right to use water for recreational purposes. We need not specify types of uses allowed because a reasonable use rule allows for a riparian or littoral landowner to use the abutting waters in any lawful way so long as that use is reasonable.

c. Reasonable use rule

We now extend our rule of reasonableness to determine a riparian or littoral landowner's water rights. In so doing we take into account Alaska's unique public trust doctrine and historical common-law rights. Riparian and littoral landowners have the right of reasonable access to and use of adjacent navigable and public waters of the State, as they are defined by the legislature, so long as the access or use is lawful and does not unreasonably interfere with the correlative rights of other riparian or littoral landowners. What is reasonable is a question of fact, to be determined by weighing a variety of factors.

2. Reasonableness factors

All riparian and littoral landowners have correlative water rights associated with their upland properties. When one landowner's exercise of his or her right interferes with a neighboring landowner's exercise of the same, the court must compare the two uses. The court must consider: (1) whether the injured landowner's allegedly interfered-with use is reasonable, and (2) whether the use causing the alleged interference is unreasonable.

To determine the reasonableness of each landowner's use, the fact finder must consider various factors in the context of the specific facts and circumstances of the particular case. The Restatement (Second) of Torts helpfully outlines various factors that a court may consider: (1) the use's purpose; (2) the use's suitability; (3) the use's economic value; (4) the use's social value; (5) the extent or amount of harm the use causes; (6) the practicality of adjusting the use or method of use to avoid harm; (7) "the practicality of adjusting the quantity of water used"; (8) existing values of the use; and (9) "the justice of requiring the user causing harm to bear the loss."

3. Vacate and remand to apply the rule of reasonableness

Because we are announcing a new rule for the unreasonable interference with riparian or littoral rights, the superior court did not have the benefit of the rule in its application of the law. Pursuant to the rule we now announce, we must vacate the judgment and remand to the superior court to apply it. On remand the superior court must determine the reasonableness of the McCavits' and Lachers' respective littoral uses and conduct the proper balancing test to determine whether the McCavits' use unreasonably interferes with the Lachers' use. The superior court must conduct this test before it can determine whether the McCavits' dock constitutes a private nuisance. An unreasonable interference with a riparian or littoral right might, but also might not, be a private nuisance. While the two torts likely overlap in the present case, they are distinguishable and may not always overlap in every instance. Moreover, if the superior court determines on remand that the McCavits' dock is reasonable or that the Lachers' use is unreasonable, the McCavits' dock necessarily cannot be a private nuisance.

The superior court therefore must first go through the unreasonable interference with riparian or littoral rights analysis to determine whether the McCavits' dock constitutes an unreasonable interference with the Lachers' littoral rights before it can determine whether it constitutes a private nuisance.

D. Private Nuisance

Only if the superior court determines that the McCavits' dock constitutes an unreasonable interference with riparian rights should it consider whether it also constitutes a private nuisance. Alaska Statute 09.45.255 defines private nuisance as "a substantial and unreasonable interference with the use or enjoyment of real property, including water." In Riddle v. Lanser we considered "whether odors emanating from a farmer's storage of [roughly 10 million gallons of] septage on his farmland created a nuisance to adjacent landowners." There, the odors were so significant and the nuisance was so obvious that we found it unnecessary to conduct a balancing test. Here the nuisance is not so obvious.

Additionally, while the Lachers could have and did bring both riparian rights and nuisance claims, these claims overlapped entirely because the Lachers asserted only that the McCavits' dock affected their interests in the access to and use of the water abutting their land. While it is possible that the Lachers could have claimed that the McCavits' dock affected other property rights - such as view and property value - they did not do so. As such, while view and property value may be factors for the court to consider on remand, they may not become new claims and the Lachers are not entitled to any damages based on loss of view or diminution of property value.

E. Attorney's Fees

Alaska Rule of Civil Procedure 82(a) states that, unless otherwise agreed to by the parties or provided by law, "the prevailing party in a civil case shall be awarded attorney's fees." The superior court has broad discretion to determine the prevailing party. But because we remand this case and announce a new balancing test that may "affect the superior court's prevailing-party analysis," we vacate the superior court's award of attorney's fees.

V. CONCLUSION

Because we announce a new rule of reasonableness, we VACATE the superior court's Findings of Fact and Conclusions of Law and Order Granting Injunctive Relief and Nuisance Abatement, REMAND for the superior court to conduct the proper legal analysis, and VACATE its award of attorney's fees and costs.

      Throughout this opinion, we use the terms "riparian" and "littoral" interchangeably. "Riparian" means "[o]f, relating to, or located on the bank of a river or stream (or occasionally another body of water, such as a lake)." Riparian , Black's Law Dictionary (10th ed. 2014). "Littoral" means "[o]f, relating to, or involving the coast or shore of an ocean, sea, or lake." Littoral , id.

      See former AS 16.05.870(b) (1987) (requiring permit for construction within anadromous fish habitats).

      11 Alaska Administrative Code (AAC) 96.020(a)(2)(B) (2018).

      See AS 16.05.881 ("If a person ... begins construction on a work or project or use for which notice is required ... without first providing plans and specifications subject to the approval of the commissioner ..., the person or agency is guilty of a misdemeanor.").

      See Alaska R. Civ. P. 82(b)(2).

      The McCavits originally appealed on June 5, 2017, but the award for attorney's fees and costs was not issued until December 12, 2017.

      Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection, Inc. , 32 P.3d 346, 351 (Alaska 2001).

      Burton v. Fountainhead Dev., Inc. , 393 P.3d 387, 392 (Alaska 2017) (alteration in original) (quoting Ayuluk v. Red Oaks Assisted Living, Inc. , 201 P.3d 1183, 1194 (Alaska 2009) ).

      Fernandes v. Portwine , 56 P.3d 1, 4 (Alaska 2002).

      Armstrong v. Tanaka , 228 P.3d 79, 82 (Alaska 2010) ; see Anchorage Chrysler Ctr., Inc. v. DaimlerChrysler Corp. , 129 P.3d 905, 916 (Alaska 2006) ("[W]e think the superior court's failure to make factual findings appropriate to the relevant legal test ... was an error of law, just as erroneous jury instructions are an error of law.").

      Riddle v. Lanser , 421 P.3d 35, 44 (Alaska 2018) (quoting Douglas Indian Ass'n v. Cent. Council of Tlingit & Haida Indian Tribes of Alaska , 403 P.3d 1172, 1175 (Alaska 2017) ).

      The Lachers claim that the McCavits waived their arguments that: (1) the Lachers' common law riparian rights were extinguished by State, Department of Natural Resources v. Alaska Riverways, Inc. , 232 P.3d 1203 (Alaska 2010) ; (2) the superior court used a vague and ambiguous standard for determining littoral property lines; (3) the superior court erred by maintaining the Lachers' private nuisance claim; and (4) the superior court improperly considered evidence of view and property value.

      Fernandes , 56 P.3d at 5.

      See Lindbo v. Colaska, Inc. , 414 P.3d 646, 651 (Alaska 2018) ("An objection is properly raised only if that party 'provide[d] the superior court with an "identifiable opportunity to rule on the issue." ' " (alteration in original) (quoting Reust v. Alaska Petroleum Contractors, Inc. , 127 P.3d 807, 816 (Alaska 2005) )).

      We have similarly ruled that a party must raise an argument regarding the allocation of a burden of proof below in order to preserve the issue for appeal. See Reust , 127 P.3d at 816 ("[The party's] failure to offer proposed language that would have correctly allocated the burden of proof means that [it] did not provide the superior court with an 'identifiable opportunity to rule' on the issues it now raises." (quoting Manes v. Coats , 941 P.2d 120, 125 n.4 (Alaska 1997) )).

      Id.

      Lindbo , 414 P.3d at 652 (quoting Small v. Sayre , 384 P.3d 785, 786 (Alaska 2016) ).

      Fernandes , 56 P.3d at 5.

      902 P.2d 766 (Alaska 1995). They also refer to an unpublished decision, Trails North, Inc. v. Seavey , to support their argument. Nos. S-8425/S-8505, 1999 WL 33958785 (Alaska Dec. 1, 1999).

      56 P.3d at 5.

      Id. at 5.

      The statutes at issue were AS 09.50.170 -.240, which govern abatement of illegal uses of premises. Spenard Action Comm. , 902 P.2d at 774. The severe sanctions discussed in the case dictate that "[a]ll personal property used in the nuisance must be removed and sold, and the building used in the nuisance must be closed for one year." Id. at 775 ; see also AS 09.50.210(a).

      Fernandes , 56 P.3d at 5.

      AS 38.05.126(a), (b) ; see also State, Dep't of Nat. Res. v. Alaska Riverways, Inc. , 232 P.3d 1203, 1211 (Alaska 2010). Wasilla Lake is one such navigable water held in trust by the State. Wasilla Lake , Alaska Dep't of Fish & Game , http://www.adfg.alaska.gov/index.cfm?adfg=fishingSportLakeData.lakeDetail& LakeID=205 (last visited July 11, 2019).

      See Alaska Const. art. VIII, § 16 ; see also AS 38.05.126(c) ("Ownership of land bordering navigable or public water does not grant an exclusive right to the use of the water and a right of title to the land below the ordinary high water mark is subject to the rights of the people of the state to use and have access to the water for recreational purposes or other public purposes for which the water is used or capable of being used consistent with the public trust."); Alaska Riverways, Inc. , 232 P.3d at 1212 (quoting AS 38.05.126(c) ).

      See AS 38.05.505 ; AS 46.15.250.

      See, e.g. , Tulkisarmute Native Cmty. Council v. Heinze , 898 P.2d 935, 941 (Alaska 1995).

      AS 46.15.010 -.270.

      See Ostrem v. Alyeska Pipeline Serv. Co. , 648 P.2d 986, 990 (Alaska 1982) ; see also Weinberg v. N. Alaska Dev. Corp. , 384 P.2d 450, 452 (Alaska 1963).

      See Braham v. Fuller , 728 P.2d 641, 642 (Alaska 1986).

      See Pankratz v. State, Dep't of Highways , 652 P.2d 68, 75 (Alaska 1982) ; see also G & A Contractors, Inc. v. Alaska Greenhouses, Inc. , 517 P.2d 1379, 1381 (Alaska 1974).

      Braham , 728 P.2d at 642-43 (quoting Weinberg , 384 P.2d at 452 ); Ostrem , 648 P.2d at 990-91.

      See Columbia Canning Co. v. Hampton , 161 F. 60, 64-65 (9th Cir. 1908).

      Id.

      See Dalton v. Hazelet , 182 F. 561, 572 (9th Cir. 1910) ; Decker v. Pac. Coast S.S. Co. , 164 F. 974, 976 (9th Cir. 1908) ; Wrangell Ice Co. v. McCormack Dock Co. , 7 Alaska 296, 310-11 (D. Alaska 1925) ; Alaska Juneau Gold Mining Co. v. N. Lumber Mills , 5 Alaska 269, 271 (D. Alaska 1915), aff'd , Worthen Lumber Mills v. Alaska Juneau Gold Mining Co. , 229 F. 966 (9th Cir. 1916) ; Barron v. Alexander , 4 Alaska 591, 596-97 (D. Alaska 1912) ; Thompson v. Pelton , 4 Alaska 510, 517 (D. Alaska 1912).

      516 P.2d 1191, 1199-1201 (Alaska 1973).

      Id. at 1200-01.

      Id. at 1200. We analyzed several cases from other jurisdictions, articulating that a more narrow interpretation would mean only a right of access to the main stream of a channel. Id. at 1199-1200. We noted that these courts were concerned with a "floodgate" argument "that compensation for an obstruction downstream from property would necessitate compensation to all property upstream." Id. at 1200. But due to Alaska's unique features, we found that this floodgates problem would work in reverse; a narrow interpretation would render riparian or littoral land valueless because Alaska "has a seacoast longer than that of the entire United States," "[a] large number of Alaskan communities are located on the shores of bays and inlets," and "[a] substantial amount of development in these cities is along the waterfront." Id. at 1200-01.

      Classen v. State, Dep't of Highways , 621 P.2d 15, 16 (Alaska 1980).

      Id. at 17.

      See Dalton v. Hazelet , 182 F. 561, 572-73 (9th Cir. 1910) ; Ketchikan Spruce Mills v. Alaska Concrete Prods. Co. , 113 F. Supp. 700, 701-02 (D. Alaska 1953) ; Alaska Juneau Gold Mining Co. v. N. Lumber Mills , 5 Alaska 269, 271 (D. Alaska 1915), aff'd , Worthen Lumber Mills v. Alaska Juneau Gold Mining Co. , 229 F. 966 (9th Cir. 1916) ; Dalton v. Katalla Co. , 4 Alaska 410, 415 (D. Alaska 1911).

      182 F. at 573.

      5 Alaska at 271.

      Id.

      Id. at 274 (quoting 14 Cyclopedia of Law & Procedure 1207 (William Mack ed., 1904)).

      Id. at 276 (discussing affirmatively Barron v. Alexander , 4 Alaska 591, 598 (D. Alaska 1912) ).

      Id. at 274-75.

      232 P.3d 1203 (Alaska 2010).

      Id. at 1210-11.

      Id. at 1211.

      Id. at 1209, 1212.

      Alaska Const. art. VIII, § 16.

      Classen v. State, Dep't of Highways , 621 P.2d 15, 17 n.4 (Alaska 1980).

      See Alaska Riverways, Inc. , 232 P.3d at 1210-11 (observing that Wernberg "did not specifically address the scope and limitations" of any riparian right except the right of access). In Wernberg we articulated that "an owner of land abutting a body of water (the riparian proprietor) has an individual right to use the water." Wernberg v. State , 516 P.2d 1191, 1194 (Alaska 1973). But aside from stating this "general rule," we did not further discuss the right and only considered the right of access. Id. at 1196, 1198.

      See e.g. , Taylor v. Tampa Coal Co. , 46 So.2d 392, 394 (Fla. 1950) ; Bino v. City of Hurley , 273 Wis. 10, 76 N.W.2d 571, 575 (1956).

      See Braham v. Fuller , 728 P.2d 641, 642 (Alaska 1986) (defining reasonable use rule in context of melting permafrost); see also Heston v. Ousler , 119 N.H. 58, 398 A.2d 536, 538 (1979).

      See G & A Contractors, Inc. v. Alaska Greenhouses, Inc. , 517 P.2d 1379, 1386 (Alaska 1974) ; see also Weinberg v. N. Alaska Dev. Corp. , 384 P.2d 450, 452-53 (Alaska 1963).

      Restatement (Second) of Torts § 850A (1979).

      We leave it to the superior court on remand to consider that the Lachers have not yet built a dock, and that therefore "[o]ne riparian's right to make a new use may be affected by the fact that other riparians have already put the water to use ... [and] [t]o allow the new use [may] wholly or partially destroy the existing use" unless the two uses can coexist without substantial harm to the other. Id. § 850 cmt. d.

      The unreasonable interference with riparian or littoral rights cause of action affects only those rights that a landowner has by virtue of owning land abutting a body of water. While an individual has a private property interest in his or her riparian or littoral right as discussed above, this right is incident to land ownership and does not connote title. See State, Dep't of Nat. Res. v. Alaska Riverways, Inc. , 232 P.3d 1203, 1212-13 (Alaska 2010). Conversely, a private nuisance cause of action affects the real property or water that a landowner holds title to. AS 09.45.255. Because of the incidental relationship between land ownership and riparian or littoral rights, affecting one's riparian or littoral right necessarily affects the use and enjoyment of one's real property to some degree, but to what degree depends entirely on the facts and circumstances of the particular case.

      421 P.3d 35, 39, 42 (Alaska 2018) (footnote omitted).

      Id. at 45-46.

      The Lachers made no claim of interference with any of their upland property rights (such as noise, offensive odors, or pollution). Their only claimed interest was to their rights of access to and use of the water.

      Lee v. Konrad , 337 P.3d 510, 525 (Alaska 2014).

      Id.