source: Caselaw Access Project

author: CARPENETI, Justice.

license: Public Domain

text:
    Diana L. FYFFE and Stephen R. Pierce, Appellants, v. Pattie WRIGHT, Ken Gill, Rick Fickel, and Kelly Fickel, Appellees.
    No. S-10726.
    Supreme Court of Alaska.
    June 25, 2004.
    Rehearing Denied July 21, 2004.

      Diana L. Fyffe, pro se
    Stephen R. Pierce, pro se.
    Wayne E. Watson, Anchorage, for Appel-lee Pattie Wright.

      Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Diana Fyffe sued her former landlord, Pat-tie Wright, for multiple violations of Alaska’s landlord-tenant laws. Wright counterclaimed for damage to the rental property and unpaid rent. The superior court found fault on both sides and awarded damages to Fyffe, considerably offset by the money it found Fyffe owed Wright. Fyffe appeals, contending that the superior court should have awarded her more compensation than it did for her belongings, for punitive damages, for Wright’s alleged intentional infliction of emotional distress, and for costs and fees. Fyffe also contends that Wright’s violation of Alaska landlord-tenant law should have precluded offsetting Fyffe’s award. We affirm the superior court’s decision in all respects.

II. FACTS AND PROCEEDINGS

A. Facts

Patti Wright owned a home in Chugiak. In late 1995 Wright signed a lease agreement to rent the home to Diana Fyffe and Stephen Pierce (sometimes referred to collectively as Fyffe), who were married at the time. Fyffe and Pierce moved into the home with their two teenage children, Samantha and Timothy. The lease provided that upon termination all rent owed to the landlord had to be paid before the tenant removed any belongings from the property. The rent was set at $1,000 per month. There was a $35 fee for bounced rent checks, and a $100 fee for any monthly rent not received by the 15th day of the month — plus a $10 charge for every additional day the rent was unpaid. The house was in disrepair when Fyffe and Pierce moved in, but because Pierce had prior experience in construction work they agreed to clean and refurbish it themselves in exchange for a reduction in rent. Fyffe also asked for and received permission to keep animals outside the house. Pierce was working in a different city when his family moved in, and they were assisted by Rick Fickle, an acquaintance.

Pierce and Fyffe divorced in October 1997, but for a time maintained good relations, continuing to share the home and “act as a financial unit.” However, Pierce spent most of his time working in Valdez until the spring of 1998, when Fyffe moved to South Carolina and Pierce returned to the Chugiak home. At about that time, Pierce notified Wright that the family intended to vacate the house that spring or summer. Pierce put Wright in touch with Fickle; Wright and Fickle agreed that Fickle would rent the property and move into the house after Fyffe’s family left.

Pierce and Fickle apparently reached an oral agreement during the month of August that Pierce would leave some of the family’s personal property in a locked storage shed on the property. Before moving out of the house in early September 1998, Pierce and his two children boxed up many of the family’s belongings and stored them in the shed, though without making a list of the items stored. Additionally, the family left an old ear on the property and stored four tires and some of Samantha’s equestrian equipment inside it. Fyffe admitted that by the time her family vacated the home, they owed five months’ rent to Wright.

Wright claimed she never visited the house herself after Pierce moved out. But Fickle reported that the house was left with extensive damage, including the remains of dead ferrets and animal urine and feces; a nonworking septic system; and damage to a door and the backyard done by Fyffe’s dogs. Wright agreed to waive Fickle’s fust three months of rent, worth a total of $3,000, in exchange for his cleaning and repair of the house.

Wright claimed that when the Fyffe/Pierca family moved out of the Chugiak house, she was “desperately” trying to contact Fyffe and Pierce to discuss damages and back rent, but that Fyffe had not given her the family’s new contact information and was avoiding her. On September 17, 1998 Wright wrote to Pierce. She mentioned the damages and back rent due, and warned that if Fyffe’s personal items left on the property were not removed within fifteen days Wright would dispose of them. Roughly one week after her family moved out of the Chugiak residence, Samantha entered the property without permission from Fickle or Wright. She retrieved her farrier equipment and winter tires from the car that her family had left at the house.

Fyffe returned to Alaska in September 1998. On several occasions after her return, Fyffe requested access to the property from Fickle or Wright in order to retrieve her personal items. But Fyffe did not actually make a physical attempt to retrieve her property until November 20 of that year. Fickle refused to allow Fyffe onto the property. After she was denied access to the property to retrieve her belongings, Fyffe began to make lists of the personal property allegedly withheld by Wright and Fickle. Fyffe constructed the lists based on her own memory of the possessions, as well as the recollections of Pierce, Tim, and Samantha, who had boxed the items (since Fyffe was not present when the belongings were packed and stored).

Fyffe claims that from September 20,1998 until March or April of 1999 she and Pierce repeatedly and fruitlessly attempted to contact Wright and her husband Ken Gill at their home. Wright and Gill said that until Fyffe paid $10,000 in back rent, a $10 per day late rent fee, “and everything” she owed (apparently for damage to the property) she would not be able to get back her belongings. Gill indicated that the items were in storage. Meanwhile, according to Fickle, at some point that spring, Gill apparently removed the entire shed and its contents from the property.

Fyffe eventually saw a lawyer and discussed suing Wright to gain access to the property. Wright apparently told Fyffe or her lawyer that Wright and Gill had considered the items remaining on the property to be abandoned, and had taken them to the Salvation Army. Fyffe unsuccessfully searched the Salvation Army and the thrift stores in town for the family’s property or any record of anything left by Wright or Gill.

B. Proceedings

Fyffe brought suit against Wright in superior court, asserting that the actions taken by Wright violated numerous Alaska landlord-tenant laws. Fyffe demanded compensation for any property not returned, the expense of renting equipment in her thwarted attempts to retrieve the property, “non-tangible damages including ... time loss in researching this action, malicious intent, mental distress,” and litigation costs and fees.

Fyffe sought to introduce itemized lists that she had made of the shed’s contents, setting out the alleged value of each item. Fyffe had had no idea of the monetary value of many of the items when she compiled the lists, so she deduced values by comparing her list with equivalent items in catalogs or thrift stores. In light of what it viewed as Fyffe’s questionable estimation methods, the superi- or court decided to admit the lists primarily to identify the items for which Fyffe sought compensation, and not as definitive proof of their values. Wright introduced exhibits evidencing the rent, late fees, and repair costs that she claimed. The court pointedly asked all parties if they had any objections to the admission of these exhibits, and no party objected.

Following a one-day bench trial, the superior court made preliminary findings of fact. The court asked the parties to submit additional briefing on the legal issue whether Fyffe could recover damages for emotional distress stemming from the loss of personal property. The court later held that Ken Gill did not own the Chugiak residence, but acted as Wright’s agent, and that Wright was legally accountable for Gill’s actions in connection with Fyffe’s property. The court also held that Wright, acting through Gill, “caused the destruction and disposition of the plaintiffs’ personal property” without providing notice to Fyffe, as required by AS 34.03.260. That statute provides that a landlord who fails to give notice to a tenant of disposition or sale of the tenant’s property that the landlord deems abandoned is liable for actual damages, and penal damages in an amount not to exceed actual damages.

Fyffe claimed $23,542.80 in total damages. The superior court awarded Fyffe $9,461.30 in actual damages and $5,000 in punitive damages. However, the superior court also concluded that Fyffe’s award should be offset by certain moneys rightfully claimed by Wright. Specifically, the court concluded that: (1) Fyffe owed Wright a total of $5,250 in. unpaid rent; (2) Fyffe owed Wright a total of $140 for four bounced rent checks, each with a $35 penalty; (3) the $100 penalty for rent tendered later than the 15th of the month was unreasonable and should be reduced retroactively to $50 — which, when multiplied by the eighteen times Fyffe missed the deadline, amounted to $900; and (4) Fyffe owed Wright $3,000 for damages done to the property. Additionally, the court found that Fyffe had paid Wright, a total of $814 of the money she owed. Adding the $5,250, $140, $900, and $3,000, and subtracting the $814, the court found that Fyffe and Pierce owed Wright a total of $8,476; it reduced the plaintiffs’ award accordingly. The court refused to award anything to Fyffe for her emotional distress claim because it found that Fyffe had not proven that her distress was sufficiently severe. The court did not address Fyffe’s other claims for relief. Combining the total damages to Fyffe and Pierce, and subtracting the damages to Wright, the court held that the plaintiffs were entitled to a total of $5,985.30, and entered judgment accordingly.

Following the superior court’s decision, Fyffe filed several post-trial motions: a motion to dismiss the evidence and testimony of the defendants, a motion for a new hearing of fact, a motion for alteration and amendment of the superior court’s written decision, and a motion for a new trial. The court denied all of Fyffe’s post-trial motions. Fyffe appeals the court’s award of damages and its denial of the post-trial motions.

III. STANDARD OF REVIEW

We review the superior court’s application of the law to undisputed facts under the de novo standard. We review the superior court’s findings of fact and its application of the law to disputed facts under the “clearly erroneous” standard. Under that standard, we must have a definite and firm conviction that a mistake was made before rejecting a trial court’s factual findings. Additionally, it is the function of the superior court, not of this court, to judge witness credibility and to weigh conflicting evidence. Thus, if most of the evidence is oral testimony, or the superior court’s factual determinations depend largely on conflicting testimony, then the superior court’s greater ability to assess witness credibility requires deferential review by this court. We review de novo the law applied by a trial court in determining damages, but review the damages actually awarded for abuse of discretion.

IV. DISCUSSION

A. The Superior Court Did Not Err in Considering Exhibit B.

Fyffe argues that the superior court erred in allowing an offset against her recovery. The superior court based its offsetting calculation at least in part on “Exhibit B,” submitted by Wright. Exhibit B itemizes the amounts of money Fyffe allegedly owed to Wright, and is fairly specific as to unpaid rent, late fees, and bounced checks. However, Exhibit B also summarizes all alleged damage to the property caused by Fyffe in one figure: $3,000. Wright explained at trial that this represents the three months of rent she forgave Fickle in exchange for his agreement to fix and clean the property.

Fyffe’s argument on this point contains three main contentions: (1) although Fyffe did not object to the admission of Exhibit B at trial, her right to object in subsequent procedures was preserved; (2) even if Fyffe’s right to object to Exhibit B was waived, the superior court should not have admitted Exhibit B into evidence; and (3) even if Exhibit B was properly admitted into evidence, the court erred in relying on Exhibit B to reduce Fyffe’s damages, because Wright violated AS 34.03.070(b) and other laws. Fyffe is mistaken as to all three contentions.

1.Fyffe waived her right to object to the admission of Exhibit B.

Alaska Rule of Evidence 103(a)(1) provides that error may not be based upon a ruling admitting or excluding evidence unless a substantial right of a party is affected and “a timely objection or motion to strike appears of record.” When a party fails to object to the admission of evidence, that party waives the objection. By her own admission, Fyffe made no objection to Exhibit B at trial. Under these circumstances, Fyffe waived her objection to Exhibit B.

Fyffe also claims that Wright failed to disclose Exhibit B during discovery and, as a result, Fyffe was “not prepared to litigate the entire rental history or provide an adequate defense.” If Fyffe believed that Wright violated the rules of discovery by failing to disclose Exhibit B or the evidence underlying it before trial, it was Fyffe’s responsibility to move to compel disclosure under Alaska Rule of Civil Procedure 37(a)(2). Fyffe was represented by counsel before and at trial, and at no time did Fyffe’s attorney move to compel disclosure. Fyffe cannot now object to the admission of Exhibit B.

2. The superior court did not err in admitting Exhibit B.

Only where the admission of evidence constitutes “plain error,” and affects a “substantial right” is the failure to object to the evidence excused. “To establish plain error a litigant must ... establish that the application of that rule of law to the facts of his case was so obvious that it should have been noticed by the trial court sua sponte.” The appellant bears the burden of proving plain error. Fyffe has not met her burden of proving that the evidence in Exhibit B was so manifestly improper that the superior court should have excluded the exhibit sua sponte.

3. The superior court did not err in relying on Exhibit B.

Fyffe also argues that even if Exhibit B was properly admitted and all objections to it waived, it was legal error to rely on Exhibit B. If we read Fyffe’s brief under a generous pro se standard, it appears that Fyffe is arguing that despite her failure to object at trial, her complaint and trial briefings discussed numerous provisions of landlord-tenant law that Wright violated. Fyffe suggests that by violating these statutes, Wright waived her right to offset the damages she owes Fyffe. Therefore, Fyffe appears to argue that even if it was properly admitted, Exhibit B is irrelevant.

Fyffe seems to imply that a civil defendant’s failure to comply with the law as it applies to other aspects of a dispute between the parties bars that defendant from introducing evidence in her favor or from seeking to reduce the amount of damages for which she will be held liable. To the extent that this is in fact what Fyffe argues, such a contention contradicts the most basic notions of fairness and due process. Wright’s alleged violation of one statute does not preclude her from introducing evidence concerning damages or raising a counterclaim.

Fyffe makes the related argument that Exhibit B was inadmissible because it does not conform to requirements of AS 34.03.070(b). The crux of Fyffe’s argument is that AS 34.03.070 completely controls the procedure a landlord must follow to recover damages caused by a tenant. Fyffe argues that any possible recovery by a landlord for damages to property, even in the form of offsetting damages that a landlord must pay to a former tenant, must be itemized and sent to the tenant within the statutory period. According to Fyffe, “[t]here was no itemized list of charges properly served to the Appellants within the 30 days [prescribed] by law; therefore Wright is not entitled to recover any damages under AS 34.03.070(b).”

Fyffe reads the statute far too broadly. It regulates only a landlord’s ability to deduct damages and unpaid rent from a tenant’s security deposit. It is not an instruction to a reviewing court as to how to measure the damages the landlord and tenant owe each other. The superior court was under no obligation to demand from Wright an itemized list of the specific physical harms to her property that Fyffe allegedly caused, nor was it barred from reducing Fyffe’s damage award by inadequacies in Wright’s notice or itemization of damages. The court did not err in relying on Exhibit B.

B. The Superior Court’s Property Evaluations Were Not Clearly Erroneous.

Fyffe argues on appeal that “[t]he Superi- or Court was clearly erroneous, and committed a serious miscarriage of justice when it evaluated the Appellant’s chattels.” Fyffe lists numerous points of error by the superi- or court, generally asserting that the superi- or court: (1) based its decision on faulty fact-finding, credibility determinations, and evaluations of evidence; (2) made unfair or incorrect decisions to admit or bar evidence; (3) issued a written decision “contrary to the summary of its decision at trial”; and (4) “grossly misinterpret[ed] the request for relief in the original complaint.” Most of these claims consist of assertions that the superior court misevaluated evidence, witness credibility, and facts. As noted above, we review a superior court’s findings regarding property evaluation and disposition under the clearly erroneous standard.

1. Exhibit 1

Fyffe argues that the superior court erred in its award of damages for items she listed in “Exhibit 1.” Exhibit 1 consisted of “personal belongings” of Samantha Fyffe-Schmidt and Timothy Fyffe. The superi- or court found that Fyffe failed to prove by a preponderance of the evidence that Samantha’s items left in the car (farrier equipment and winter tires) were destroyed or removed by Wright, because of Fickle’s testimony that Samantha had retrieved personal items from the car. And the court relied on Pierce’s testimony that he had taken Tim’s belongings to Anchorage in rejecting Fyffe’s claim for reimbursement on those items. The court therefore awarded Fyffe nothing for the items in Exhibit 1. Finding no clear error, we affirm both findings.

2. Exhibit 2

“Exhibit 2” consisted of an extensive list of furnishings, appliances, and assorted miscellaneous items stored in the shed, the total value of which Fyffe estimated to be almost $5,400. The superior court found that Fyffe and Pierce failed to prove that the listed furnishings had been removed by Gill, or that the items had actually been left in the shed at all. The court based this decision on (1) Fickle’s testimony that the contents of the shed “consisted principally of cardboard boxes”; (2) testimony that the shed was too small to have contained all of the furnishings and property allegedly stored in it; (3) testimony by Pierce that only Fyffe’s personal items (and not furnishings) had been left in the shed; and (4) the fact that Fyffe’s complaint had “identified the collectibles, and not any furnishings, as the primary items of loss.” Thus, the court awarded nothing to Fyffe and Pierce for the items listed in Exhibit 2.

Fyffe takes issue with the superior court’s evaluation of the conflicting testimony at trial. We reject her arguments; determining witness credibility is the trial court’s responsibility in a bench trial and we cannot say that the court’s findings are clearly erroneous. Fyffe also disagrees with the court’s finding that it is “highly improbable” that “all of the furnishings identified on Exhibit 2” could have fit in the shed. Fyffe states that “[t]he Court’s decision is based on its own theory of proportion.” She asserts that the size of the shed gave “ample room to store all of the chattels described in [E]xhibits 1-6.” Determining the capacity of the shed and the volume of Fyffe’s personal property is a fact-intensive issue for which the superior court is better-equipped than this court. The superi- or court’s determination was well within its discretion in light of the weight of the other evidence presented, and its skepticism as to the shed’s ability to contain all of the items that Fyffe claimed is not clearly misplaced. The lists of the items in the shed were not compiled until at least several months after the shed was packed, and they were compiled by Fyffe, who had not even been present. In fact, even Fyffe expressed some doubts as to whether Pierce stored all of the items listed in Exhibit 2 in the shed or took them to his new home.

Fyffe asserts that the superior court did not award her for the loss of certain chattels because she identified collectibles, and not furnishings, as the primary items of loss in the complaint. But the court did not refuse to compensate Fyffe for her furnishings because of the wording of her complaint. Rather, the court balanced the complaint’s wording against the evidence and the court’s view of the parties’ credibility. The superior court was entitled to weigh the credibility of the parties’ testimony against what it viewed as the complaint’s paucity of attention to the furnishings.

3. Exhibit 3

“Exhibit 3” listed ten boxes of Fyffe’s clothing, three boxes of home schooling materials for her children, assorted sentimental items, various collectible items and ornaments, a box of tax and financial records, and materials left over from a failed crafts business Fyffe had started; Fyffe estimated the total worth of these items to be $6,800. The superior court found that the items listed had been converted or disposed of by Wright and Gill. The court rejected Fyffe’s assertion that her tax records were worth $600; it awarded her nothing for them. The court held that, although the value of the remaining items in the exhibit “may be substantially overstated,” such values were the “best evidence” presented, and it awarded Fyffe then- claimed value, or $6,200. The superior court’s deduction of $600 for the tax records was not clearly erroneous: The value of Fyffe’s tax records is entirely speculative.

4. Exhibit5

“Exhibit 5” listed Fyffe’s entire doll collection (numbering approximately thirty-five dolls) with a claimed value totaling $5,325. For several dolls, Fyffe provided estimated ranges of values that she had derived from a variety of sources (for example, she mused that her grandmother’s Kewpie doll could be worth anywhere from $300 to $1,850, but estimated it at $900 in reaching her total for the list). Where a range of values were provided, the superior court adopted the lowest value. For all other dolls in the list, the court accepted Fyffe’s valuations.

The superior court agreed that Gill and Wright were responsible for the loss or destruction of Fyffe’s doll collection. However, the court found that Fyffe had unnecessarily delayed her attempts to retrieve the dolls until November 1998, and that this delay had caused the dolls to suffer some damage from exposure to the conditions in the shed. The court therefore halved the total value of the dolls — and awarded Fyffe $1,987.50 for the collection. The evidence shows that Samantha Fyffe had entered the property and retrieved some of her belongings roughly a week after the family vacated. Additionally, Fyffe returned to Alaska in September, yet she did not actually attempt to retrieve her property until November. The court’s ruling was not clearly erroneous.

5.Exhibit 6

“Exhibit 6” listed a book and encyclopedia collection (estimated by Fyffe to be worth $2,550) and a Bradford Exchange plate collection (estimated by Fyffe to be worth $544.80). The superior court held that Fyffe did not prove by a preponderance of the evidence that her book collection had been in the shed and disposed of by Wright or Gill. But the court did find that the collection of Bradford Exchange plates had been packed in the shed and disposed of by Wright or Gill. The court therefore awarded Fyffe only the value of the plates, $544.80. Fyffe asserts on appeal that “[t]he Court’s written decision is contrary to the summary of its decision at trial concerning Exhibit 6,” because the superior court had acknowledged the existence of the books listed in Exhibit 6 at the conclusion of the trial, but then “stated the plaintiffs did not establish the books were in the shed in its written decision.” Fyffe asserts that this indicates the court’s bias against her. Fyffe is wrong.

First, the court’s oral summary at trial was, as the court explicitly stated at the time, its “tentative thoughts,” not a “complete decision.” The court specifically stated that it would review its conclusions “more carefully” before issuing a written decision. Second, the court did not rule from the bench that Fyffe had proven that her books were in the shed; rather, it indicated that, even assuming the books had been in the shed, Fyffe had overvalued them. Finally, we have held that, as a general rule, “where inconsistencies exist between a court’s written findings and its oral statements, the written findings control,” unless “the written order is so contradictory to the oral decision ‘that its usefulness is impaired.’ ” There is no necessary contradiction between the oral and written decisions of the superior court on this issue. We uphold the court’s written decision.

C. The Superior Court Did Not Err in Denying Fyffe’s Claim for Intentional Infliction of Emotional Distress.

Fyffe asserts that the superior court erroneously denied her intentional infliction of emotional distress (IIED) claim. In order to recover for IIED a party must show: (1) extreme and outrageous conduct, (2) that is intentional or reckless, (3) and causes emotional distress (4) that is severe.

Fyffe discusses at length the “extreme and outrageous conduct” required under Alaskan law for an award of IIED. She notes correctly that we have held that such conduct is similar to that required for an award of punitive damages. She seems to suggest that because the superior court awarded her penal damages under AS 34.03.260, it should award damages for IIED as well. But Wright does not contest the outrageousness of her own conduct, and Wright’s behavior was not an issue in the superior court’s ruling. Rather, the court denied Fyffe’s claim because she failed to prove the requisite severity of her own emotional distress. To the extent that Fyffe is asserting that any defendant found liable for penal damages must automatically be liable for IIED, she is incorrect. Penal damages under AS 34.03.260 are determined by the behavior of the defendant only. A successful claim of IIED, on the other hand, also depends on the effects of á defendant’s behavior upon the plaintiff. Furthermore, AS 34.03.260(d) allows an award of penal damages even against a landlord who violates the statute negligently. But to prevail on a claim for IIED, the plaintiff must prove at least recklessness on the defendant’s part. In short, the superior court was not required to decide in Fyffe’s favor on her IIED claim merely because it had awarded her penal damages under AS 34.03.260(d).

The superior court denied Fyffe’s IIED claim because she failed to prove that her emotional distress was sufficiently severe. We have upheld a definition of severe emotional distress as “distress of such substantial quality or enduring quantity that no reasonable person in a civilized society should be expected to endure it.” “Examples of serious emotional distress may include ‘neuroses, psychoses, chronic depression, phobia, and shock.’ However, temporary fright, disappointment or regret does not suffice under this standard.” Fyffe asserts that she was “extremely distraught over the theft of her chattels,” and that the severity of her emotional distress “was the one fact both parties agreed on.” But there was no such agreement. And such claims tend to arise from much more egregiously , reprehensible behavior by defendants than those exhibited by Wright in the present case. Finally, a determination of the severity of a plaintiffs emotional distress is left to the fact-finder.

When a plaintiffs' only evidence of the severity of her emotional distress is the testimony of sympathetic witnesses, the decision to award nothing for her IIED claim is clearly within the fact-finder’s discretion. Fyffe has presented no evidence of severe emotional distress beyond her testimony and that of her immediate family members — presumably sympathetic witnesses. The superi- or court did not abuse its discretion by concluding that Fyffe’s evidence was insufficient to support her claim for IIED.

D. The Superior Court’s Penal Damages Award Did Not Constitute an Abuse of Discretion.

Fyffe claims that the superior court erred in its determination of penal damages. Fyffe’s argument on this point consists of two assertions: the penal damages in this case must equal the actual damages, and the superior court awarded Fyffe far too little in actual damages. Fyffe is wrong on both counts.

Alaska Statute 34.03.260(d) provides that a landlord found in violation of its other provisions (as Wright was) “is liable for actual damages and penal damages ... not to exceed actual damages.” Fyffe reads this language to mean that, under AS 34.03.260(d), penal damages are determined from the amount of actual damage. Therefore, Fyffe claims that by awarding her only $5,000 in penal damages — an amount less than her actual damages award — the superi- or court erred in its interpretation of AS 34.03.260(d). Fyffe’s argument is basically that the words “not to exceed” should be read instead as “equaling.” Fyffe cites no authority or legislative history to support this interpretation. This reading of the statute is at odds with both the plain meaning of the text and common sense. Under AS 34.03.260(d) punitive damages are limited by actual damages, not calculated according to them. In short, this argument has no merit.

Fyffe also asserts that the superior court “randomly awarded” her $5,000 in punitive damages. We have held that punitive damages awards should not be “arbitrary,” and that they should “bear some reasonable relationship” to compensatory damages awards. But there is no prescribed ratio between compensatory and punitive damages. We cannot say that the superior court’s decision to award Fyffe $5,000 represents a clear error, abuse of discretion, or miscarriage of justice.

E. The Superior Court Did Not Commit Reversible Error by Refusing To Award Attorney’s Fees and Costs.

Fyffe appeals the superior court’s denial of her request for fees and costs. Fyffe’s complaint included a general request for fees and a request for damages for time loss in researching this action. The superior court denied Fyffe’s motion for fees.

Fyffe had an attorney at trial, but she was unrepresented during at least, part of the pre-trial period. Fyffe has not had counsel on this appeal. Fyffe did not claim attorney’s fees for any of the hours billed by her trial attorney in her Motion to Reconsider, and she does not do so on appeal. Even a pro se litigant waives a claim where she does not raise it in superior court or on appeal. Accordingly, the issue on appeal is whether Fyffe can recover the fees she claims for her own legal Work. Prevailing pro se litigants who are not attorneys may not recover legal fees in Alaska. Since Fyffe is not an attorney, she cannot recover anything for her own time and effort spent litigating this case.

Fyffe also moved for reimbursement for costs and expenses. Citing Alaska Rule of Civil Procedure 79(b), the court denied the motion on the ground that the motion was untimely. As a general rule, Civil Rule 79(a) allows a prevailing party to recover litigation costs. But it is limited by Rule 79(b), which provides: “To recover costs, the prevailing party must file and serve an itemized and verified cost bill, showing the date costs were incurred, within 10 days after the date [of final judgment].” The superior court’s Memorandum Decision was dated April 22, 2002. Fyffe did not file a cost bill as required by Civil Rule 79(b). The superior court was therefore correct in its denial of Fyffe’s request for costs.

Fyffe argues that the superior court’s decision was insufficiently “clear and explicit” to meet the standards of Alaska Civil Rule 52(a), which requires the trial court to make findings of fact and state conclusions of law in cases tried without a jury. But Rule 52(a) makes clear that findings of fact and conclusions of law are “unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b) [dealing with dismissal of causes of action].” (Emphasis added.) Since a prevailing party can recover costs only after trial, the superior court was not required to address the request for costs in Fyffe’s complaint. Fyffe failed to file the required cost bill. Therefore, the superior court was not required to issue findings of fact or conclusions of law when it denied Fyffe’s request for costs.

In sum, the superior court did not err in denying both attorney’s fees and costs to Fyffe.

Y. CONCLUSION

For the reasons above, we AFFIRM the superior court’s decision in all respects.

      . The parties argued strenuously about whether Fickle was acting at the behest of Wright or was motivated by his own disdain for Fyffe. Because the dispute is irrelevant to the outcome of the case, we do not attempt to resolve it.

      . Fyffe also sued Fickle in small claims court over related property claims. The cases were consolidated in superior court. Upon making preliminary findings of fact at the conclusion of the trial, the court found that the only properly Fickle owed to Fyffe was a large world globe and its stand. Fickle agreed to return this item, and proclaimed that he only wanted the other parties in the case to leave him alone in the future. There is no indication that Fickle played any further role in this case.

      . The court apparently made an insignificant mathematical error; the sum of Fyffe's actual damages should have been $9,451.30, based on the valuation of each ■ specific item of Fyffe's property.

      . The court stated that it based this award on AS 34.03.270. This was a typographical or scrivener's error. That statute deals with awards to landlords for past rent due and damages. The court apparently meant to cite (as it did earlier in its decision) AS 34.03.260, which allows a court to award penal damages to a tenant not in excess of actual damages.

      . The court also found that the $10-per-day fee for each additional day rent was tendered beyond the 15th of the month was unreasonable and should be ignored.

      . The ten dollar error in the court's calculation of Fyffe's actual damages was carried over to the final judgment; in fact, Fyffe and Pierce should only have been awarded $5,975.30.

      . Luedtke v. Nabors Alaska Dulling, Inc., 834 P.2d 1220, 1223 (Alaska 1992).

      . Id.

      . Vezey v. Green, 35 P.3d 14, 19-20 (Alaska 2001).

      . In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001).

      . Vezey, 35 P.3d at 19-20.

      . Breck v. Moore, 910 P.2d 599, 606 (Alaska 1996).

      . Sherbahn v. Kerkove, 987 P.2d 195, 199 (Alaska 1999).

      . Alaska R. of Evid. 103(d).

      . Carman v. State, 658 P.2d 131, 137 (Alaska App.1983).

      . Adams v. State, 718 P.2d 164, 166 (Alaska App.1986).

      . We hold the pleadings of pro se litigants to a less stringent standard than those of lawyers. Pieper v. Musarra, 956 P.2d 444, 446 (Alaska 1998).

      . AS 34.03.070(b) states in relevant part:
      Upon termination of the tenancy, property or money held by the landlord as prepaid rent or as a security deposit may be applied to the payment of accrued rent and the amount of damages that the landlord has suffered by reason of the tenant's noncompliance with AS 34.03.120. The accrued rent and damages must be itemized by the landlord in a written notice mailed to the tenant's last known address within the time limit prescribed by (g) of this section, together with the amount due the tenant.

      . These consisted of Barbie dolls and accessories, a set of horse farrier tools, and a set of winter tires; Fyffe estimated these items were worth $750.

      . These consisted of Lego sets, baseball and other sports card collections, and two sports memorabilia pictures; Fyffe estimated these items were worth at least $1,500.

      . While Pierce testified that he left some of Tim’s belongings in the shed, he also stated that he brought as much of the children’s personal property as possible to Anchorage. Pierce also admitted that he did not personally see every item that was left in the shed, and made no list of the shed's contents.

      . The furnishings and appliances allegedly stored in the shed included a washing machine and dryer, a space healer, a love seat, a curio cabinet, a sewing machine and sewing table, two medium size metal desks, several lamps, a glass top display table, three portable tables, a tent, a microwave oven and microwave cart, two typewriters, four "captains chairs,” an "octagon end table,” a 24" X 48" kitchen hutch, a wooden coffee table, a computer, a large wood cutting block, "dishes, glasses, Tupperware, pots and pans, [and] other kitchen supplies,” and framed and unframed pictures.

      . Wasserman v. Bartholomew, 38 P.3d 1162, 1166-67 (Alaska 2002).

      . Fyffe also complains that "the Court did not apply the same standard when it awarded damages to Wright, who failed to state a claim for relief in her Answer.” Fyffe misreads the basis of the superior court’s decision. The court based its judgment on the credibility of the evidence presented at trial — and not on the virtues of the parties' pleadings. To the extent Fyffe is raising the issue of Wright’s inadequate pleadings, she is too late. There is no indication in the case files that Wright actually filed a counterclaim for the relief she was awarded by the superior court. But the court heard Wright’s claims for back rent and damages without objection from Fyffe or her attorney. Alaska Rule of Civil Procedure 15(b) provides in part that "[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Accordingly, Fyffe has waived any right to appeal Wright’s failure to file a formal counterclaim.

      . Because the superior court awarded Fyffe the total amount claimed in Exhibit 4, she does not appeal this portion of the court's decision.

      . K.T.E. v. State, 689 P.2d 472, 477 (Alaska 1984).

      . Id. at 477 n. 8 (quoting City of Anchorage v. Steward, 374 P.2d 737, 739 (Alaska 1962)).

      . Teamsters Local 959 v. Wells, 749 P.2d 349, 357 (Alaska 1988).

      . Richardson v. Fairbanks N. Star Borough, 705 P.2d 454, 456 (Alaska 1985).

      . AS 34.03.260(d).

      . Lybrand v. Trask, 31 P.3d 801, 803 (Alaska 2001).

      . Fyffe suggests that the superior court’s decision is contrary to this court's decisions in Lan-ders, Richardson, and Murray, which allowed plaintiffs alleging only personal property loss to recover for IIED. Fyffe misunderstands the meaning of these cases and the superior court’s legal reasoning. All three cases did allow IIED based on the loss of personal property. But all three cases also demanded that the claimant prove each required element of IIED. See Landers v. Municipality of Anchorage, 915 P.2d 614, 619, n. 15 (Alaska 1996) (plaintiff did not claim IIED, lacking proof of defendants’ intent); Murray v. Feight, 741 P.2d 1148, 1158 (Alaska 1987) (plaintiff showed severe emotional distress resulted from defendant’s forcible entry onto and confiscation of plaintiff’s property following recent sudden death of plaintiffs daughter); and Richardson v. Fairbanks N. Star Borough, 705 P.2d at 456-57 (plaintiffs failed to prove severity of emotional distress). Here, the superior court did not deny Fyffe’s claim because it was based on the loss of personal property. It denied the claim because Fyffe failed to prove the severity of her emotional distress.

      . Teamsters Local 959, 749 P.2d at 359 n. 14.

      . Chizmar v. Mackie, 896 P.2d 196, 204-05 (Alaska 1995) (quoting Lejeune v. Rayne Branch Hosp., 556 So.2d 559, 570 (La.1990)). "Serious emotional distress” and "severe emotional distress" have been used interchangeably by this court. See Cameron v. Beard, 864 P.2d 538, 549 (Alaska 1994).

      . Fyffe apparently mistakes allegations by Wright and others that Fyffe was "explosive” and "agitated” on certain occasions for a concession that she suffered from severe emotional distress. We have refused to find the requisite severity of emotional distress where a plaintiff asserted that the defendant's actions had made him "aggravated,” "angry,” "upset,” "red in the face,” or "bothered,” and caused him "emotional distress and mental anguish.” Nelson v. Progressive Corp., 976 P.2d 859, 868 (Alaska 1999).

      . Chizmar v. Mackie, 896 P.2d at 205.

      . See Nelson v. Progressive Corp., 976 P.2d at 868 (plaintiff's evidence of emotional distress consisted only of testimony by plaintiff and his father). We note that in cases tried before a jury, "as a threshold matter, the court must determine 'whether the severity of the emotional distress and the conduct of the offending party warrant an instruction on intentional infliction of emotional distress.' " Chizmar, 896 P.2d at 208 (citations omitted).

      . Fyffe also claims that the superior court violated Alaska Rule of Civil Procedure 52(a), by failing to clearly and explicitly explain the findings of fact and conclusions of law underlying its refusal to award IIED. This court has held that a superior court's findings are sufficiently "clear and explicit” to satisfy Rule 52(a) if they resolve all critical areas of dispute in the case, and are sufficiently detailed to allow for meaningful appellate review. Mapco Express, Inc. v. Faulk, 24 P.3d 531, 537 (Alaska 2001). In this case the superior court’s discussion of Landers v. Municipality of Anchorage, 915 P.2d 614, 619 (Alaska 1996) (party claiming IIED must demonstrate both severity of emotional distress and bad conduct of offending party), while brief, suffices to explain its relevant conclusion of law and finding of fact.

      . We interpret Alaska's statutes according to reason, practicality, and common sense, Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999), and we normally give unambiguous language its plain meaning. We may also rely on legislative history as a guide to interpretation, but the plainer the language of a statute, the more convincing legislative history must be to interpret the statute in a manner contrary to its plain language. Evans ex rel. Kutch v. State, 56 P.3d 1046, 1065 (Alaska 2002).

      . Dena’ Nena' Henash v. Ipalook, 985 P.2d 442, 448 (Alaska 1999).

      . Clary Ins. Agency v. Doyle, 620 P.2d 194, 204 (Alaska 1980).

      . Norcon, Inc. v. Kotowski, 971 P.2d 158, 175-77 (Alaska 1999).

      . The superior court denied fees based on its reading of Alaska Rule of Civil Procedure 82. Civil Rule 82(c) states that "[a] motion [for attorney's fees] is required for an award of attorney's fees under this rule ... [which] must be filed within 10 days after the date shown in the clerk's certificate of distribution on the judgment.” The court held that Fyffe failed to meet the ten-day deadline. However, Alaska’s Uniform Residential Landlord and Tenant Act forms the basis for Fyffe's suit, and for the court's decision to award her actual and punitive damages. Fyffe notes correctly that attorney's fees for claims arising out of Alaska’s URLTA should be governed by AS 34.03.350, not Civil Rule 82. Alaska Statute 34.03.350 provides that "[ajttorney fees shall be allowed to the prevailing party in any proceeding arising out of this chapter, or a rental agreement.” It has no time limit. Because a pro se litigant is not entitled to attorney’s fees for her own legal work (as discussed infra), the superior court's error in relying on Rule 82(c) to reject Fyffe's request for fees was harmless.

      . Pieper v. Musarra, 956 P.2d 444, 446 (Alaska 1998); A.H. v. W.P., 896 P.2d 240, 243-44 (Alaska 1995).

      . Shearer v. Mundt, 36 P.3d 1196, 1198 (Alaska 2001).


text:
    Russell J. PETERSON, Jr., Appellant, v. Tyna EK, Appellee.
    No. S-10535.
    Supreme Court of Alaska.
    June 25, 2004.

      Russell J. Peterson, Jr., pro se, Juneau.
    Tyna Ek, pro se, Seattle, Washington.
    Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Russell Peterson and Tyna Ek entered into a contract to renovate and sell a boat, the O’Hana Kai. Peterson breached the contract and Ek successfully brought a claim in the superior court to recoup damages resulting from the breach. Peterson appeals the decision of the superior court finding him liable to Ek for damages resulting from breach of contract, trespass to chattels, and attorney’s fees. We affirm the superior court in all respects.

II. FACTS AND PROCEEDINGS

A. Facts

Tyna Ek and Russell Peterson met in Seattle during the summer of 1999. Ek was a resident of Washington state. During the course of their friendship, Peterson told Ek about a boat he had previously owned, the O’Hana Kai. Peterson told Ek that he had sold the boat to a friend with an agreement that he would have an option to buy the boat back in the future. According to Ek, she did not want to buy a boat, but eventually agreed to do so at Peterson’s urging, provided that the two enter into a written contract. Ek commissioned Jim Sepel to survey the vessel, which was located in Juneau. Sepel estimated the value of the vessel at $50,000. Sepel warned Ek that the boat was a “money pit” that she should avoid; Ek’s financial advisor cautioned her similarly.

On January 18, 2000 Peterson and Ek entered into a contract detailing their mutual rights and responsibilities if and when Ek purchased the O’Hana Kai. The parties’ intent in entering into the contract was “to pool Ms. Ek’s financial resources with Mr. Peterson’s labor and renovation skill and effort to maximize the value of the Boat for resale during the summer of 2001.” Ek would pay the entire purchase price of the vessel and be its sole legal owner. The contract required Peterson “[a]t his own cost and expense, and utilizing his labor ... [to] completely refurbish the Boat and complete efforts to renovate the Boat, converting it to a pleasure boat with the goal of maximizing resale value.” Peterson was responsible for all costs and labor required to make the vessel seaworthy so that it could be transported from Juneau to Seattle within one month of the date of purchase. Peterson was responsible for keeping the vessel safely moored in Seattle, for moorage costs, and for any fines or fees incurred as a result of his use or renovation of the boat. Ek was to provide Peterson with $2,000 for the vessel’s renovation, which she would recoup upon the vessel’s sale. The contract provided that Peterson could live on the vessel rent free until June 15, 2001 so long as he was making reasonable progress in renovating the vessel and was not in breach of the contract. Ek had the right to sell the vessel after June 15, 2001 at a price left to her discretion. The proceeds from the sale would be allocated in the following order. First, Ek would be reimbursed for the full purchase price of the vessel, including the $2,000 cash advance and all other cash expenses she incurred as a result of her ownership of the vessel. Next, Peterson would be reimbursed for any costs associated with his renovation efforts that could be verified by receipt. Finally, any remaining proceeds, minus the costs of sale, would be split equally between Peterson and Ek. Proceeds would be similarly distributed in the event that Peterson breached the contract, the only difference being that Peterson’s potential share of the profits would be capped at $5,000 if he breached the contract within six months of signing it. A choice of law provision provided that the contractual terms would be interpreted in accordance with Washington law.

Ek purchased the vessel for $43,000 from Murray Damitio in February 2000 and registered it in her name. Ek provided Peterson with a “Permission of Use” that gave him “full charge and capacity to act in [Ek’s] behalf with regard to all matters involving the above named vessel in [her] absence.” Peterson, aided by a $1,000 loan from Ek, left Seattle and went to Juneau in February 2000 to begin work on the vessel. Ek loaned Peterson her cellular telephone so that they could communicate while he prepared the vessel for the trip to Seattle. According to Peterson, when he arrived in Juneau and saw the vessel, he realized that renovations were more extensive than he had originally thought. The trial court found that Peterson’s communications with Ek nonetheless suggested that, despite the delays, he anticipated traveling to Seattle sometime in April 2000.

Ek stated that Peterson contacted her periodically during that period and told her “various stories about why the boat needed additional work before it could be brought to Seattle.” According to Ek, Peterson asked her to advance him money so that he could make repairs to the vessel’s engine that were necessary to get the vessel to Seattle. Ek wired Peterson a total of $4,000 in March and April 2000. According to Ek, $1,500 was a loan for the purchase of engine parts, $500 was to pay a criminal fine owed by Peterson in Juneau, and $2,000 was to be used to pay for moorage and a mechanic.

By May 2000, Ek began to receive unanticipated bills for vessel parts and moorage, unauthorized charges on her credit card, and extremely high cell phone bills. Ek was charged several thousands of dollars by vendors for mechanical parts that Peterson ordered without Ek’s authorization. Ek was also charged for moorage at Trucano Construction. Ek paid Trucano $1,391.01, but instructed Trucano that Peterson was not authorized to incur additional charges on her behalf.

In June 2000 Ek informed Peterson that he was in breach of their contract and that she planned to sell the vessel if he did not begin his trip to Seattle by August 31, 2000. According to Ek, Peterson did not respond to this letter. Because she had not heard from Peterson for some time, Ek then contacted the Coast Guard to ask for a status check on the O’Hana Kai The Juneau police left a message on the vessel asking Peterson to contact Ek, after which Peterson began communicating with Ek regularly via e-mail. On August 28, 2000 Ek sent Peterson an e-mail informing him that he had been in breach of contract for some time and that he was not authorized to move the vessel anywhere until it was insured.

Ek traveled to Juneau on September 4, 2000 to locate and regain possession of the O’Hana Kai. On September 5 she attempted to regain possession of the vessel with the assistance of marine surveyor Jim Sepel. Peterson refused to turn over possession. Ek instructed Peterson not to move the vessel. Peterson refused to agree to not move the vessel, but told Ek that he would not take the vessel outside of Juneau. Peterson filed a labor lien in the amount of $22,418 against the vessel that same day.

Peterson then took the vessel to Peters-burg, where it was moored from September 8 to September 15, 2000. He registered the vessel under a false name and left without paying for moorage. In e-mails exchanged between Peterson and Ek during this period, Peterson maintained that all he wanted to do was to remove -his possessions from the vessel, but he did not take advantage of Ek’s repeated attempts to make arrangements for him to move his things off the vessel and into a storage facility. Peterson left Petersburg and traveled to Taku Harbor, where the vessel was seized by police pursuant to court order.

After the vessel’s seizure there was a great deal of disagreement between the parties as to what property on the boat belonged to Peterson and how he would obtain the property. On September 25, 2000 Ek arranged for a moving company to remove Peterson’s personal property from the vessel and deliver it to him. Peterson claimed that Ek had not returned much of his property. In April 2001, before trial, Peterson and Ek entered into a settlement whereby Ek agreed to give Peterson any personal property that remained on the O’Hana Kai (except for any property considered to be a part of the vessel or its equipment, including an anchor, line, and chain) in exchange for an agreement by Peterson to limit any potential suit against Ek to a contract or quantum meruit claim only for the amount of his lien, and to raise no other claims. In March 2001 Greg Dock-ery filed a lien against the vessel, alleging that Ek owed him $4,000 for his labor and $1,200 for an anchor, line, and chain that he had loaned to Peterson.

B. Proceedings

Ek brought suit against Peterson in September 2000. Before trial, Ek successfully moved to compel Peterson to disclose contact information for numerous people whom Ek believed might have information material to the ease, including Peterson’s father. Trial was held on September 5-7 and 11-13, 2001 before Superior Court Judge Patricia A. Collins.

The superior court found that the parties had formed a contract in which Peterson, as an independent contractor, would repair the vessel and prepare it for resale. Judge Collins found that Peterson breached the contract in numerous ways, including failing to pay for moorage, failing to complete repairs necessary to transport the vessel from Juneau to Seattle, incurring debts against Ek and the vessel without authorization, and refusing to turn over the vessel to Ek following his breach of contract and upon written demand. Judge Collins found that Peterson hired others to do work on the vessel and either failed to pay them personally or told them that Ek would pay them, and ordered materials that he failed to pay for personally or improperly billed to Ek’s credit card. Judge Collins also found that there had not been any waiver or modification of the contract because Ek’s attempts to salvage the contract were aimed at mitigating losses, and that Peterson’s continuing promises of performance justified Ek’s delay in declaring breach and terminating her business relationship with Peterson.

Damages resulting from Peterson’s breach of contract included Ek’s cash advances to Peterson, moorage fees to the date of repossession, travel costs and fees necessary to repossess the vessel, costs for storage of Peterson’s personal belongings, cell phone charges incurred by Peterson, and a rent advance to Peterson. Judge Collins rejected Ek’s damage claims for the purchase price of the vessel, administrative costs surrounding the vessel’s purchase, and costs associated with purchasing a court-ordered bond. Ek’s claim’s for negligent and intentional infliction of emotional distress were also denied. Judge Collins also awarded Ek damages for trespass to the vessel.

Judge Collins found that there was no agreement between Peterson and Ek that he would be paid hourly for his labor, and that the receipts and invoices he submitted'for reimbursement were a “mystery,” “untrustworthy,” and “suspect in numerous instances.” Judge Collins also found, based on the language of Peterson’s and Ek’s settlement agreement, which provided that “Peterson retains a right to pursue his current lien against Ms. Ek for personal labor and materials ... under a breach of contract or quantum meruit legal theory,” that the parties had agreed that Peterson could seek to recover under a theory of quantum meruit. After finding that Peterson was entitled to recover under quantum meruit, Judge Collins found that Peterson’s labor and materials increased the value of the vessel by $3,000, but that the award should be offset against Ek’s damages.

After subtracting Peterson’s $3,000 quantum meruit award, Judge Collins awarded Ek $13,680.62 in net damages, $7,053.75 in attorney’s fees, and $810 in costs pursuant to Alaska Civil Rules 68(b) and 79(f)(5). Peterson appeals.

III. STANDARD OF REVIEW

Interpretation of a contract is a question of law to which we apply our independent judgment. We review a trial court’s findings of fact under the clearly erroneous standard and will reverse the trial court’s factual findings only when, “after a review of the entire record, we are left with a definite and firm conviction that a mistake has been made.” A trial court’s determination of damages is a question of fact which we will affirm unless clearly erroneous.

We review the record with the knowledge that it is the province of the trial court to judge witnesses’ credibility and weigh conflicting evidence. We review a trial court’s discovery rulings for abuse of discretion. The determination of which rule applies to a party’s motion for attorney’s fees is a question of law to which we apply our independent judgment.

IV." DISCUSSION

Peterson raises numerous points of error on appeal. He argues that the superi- or court erred by failing to credit him for his labor and for materials that he allegedly purchased for the vessel; requiring him to pay for moorage costs, cell phone bills, repossession costs, and independent contractors who worked on the vessel; failing to address his claim that Ek misappropriated an anchor; ordering him to disclose his father’s phone number and address; basing its decision on his “bizarre” behavior; requiring him to pay damages for trespass to the vessel; making factual findings that there were no noticeable improvements to the vessel; and awarding attorney’s fees to Ek. Ek argues that Peterson is not entitled to recovery under a theory of quantum meruit, that the trial court inadvertently neglected to award her damages for Peterson’s unauthorized use of her credit card, and that the trial court erred in awarding her only $260 in damages for trespass to the vessel.

A. The Trial Court Did Not Err in Failing To Compensate Peterson for the Value of His Labor and for Materials Purchased for the Vessel.

Peterson argues that the trial court erred by failing to compensate him for his labor or for materials that he allegedly purchased for the vessel.

We interpret the contractual language in accordance with Washington law due to the contract’s choice of law clause. Washington courts reject the “plain meaning” rule of contractual interpretation and interpret the terms of a contract in light of conduct, subsequent acts of the parties, and circumstances surrounding contract formation, as well as the literal meaning of the language itself.

The contract reads in pertinent part:

At his own cost and expense, and utilizing his own labor, Russell Peterson shall completely refurbish the Boat and complete efforts to renovate the Boat, converting it to a pleasure boat with the goal of maximizing resale value. Mr. Peterson agrees not to ask Ms. Ek to contribute or advance any of her financial resources to the effort, and further agrees that said renovation shall be completed no later that June 15, 2001.

The only argument set forth by Peterson for reimbursing his labor is his personal belief that he has been treated unfairly and that his labor was devalued by the superior court. There is nothing in the circumstances surrounding the formation or performance of the contract, nor in the language of the contract itself, to suggest that either party intended that Peterson be paid as an hourly employee. The parties clearly contemplated that Peterson would be compensated, not with an hourly wage, but instead by being allowed to live on the vessel rent free and by sharing in half of the potential profit from the vessel’s sale.

Peterson was entitled to be reimbursed for expenses related to the renovation of the vessel once Ek had fully recouped her own financial investment. But Ek did not fully recoup her own investment. Moreover, the contract provided that Peterson was to be reimbursed only for those costs related to the vessel’s renovation that he could verify by receipt. Judge Collins found that Peterson’s receipts were completely lacking in credibility, a determination that is supported by the record and to which we defer. Each of these reasons fully supports denying Peterson’s claim for expense reimbursement.

In sum, our independent review of the contractual language supports the trial court’s denial of Peterson’s claims for reimbursement for labor and its finding that Peterson’s documentation of alleged expenses was not credible. For these reasons, the trial court did not err in failing to award Peterson for labor or materials.

B. The Trial Court Did Not Err in Its Award of Contractual Damages.

Under Washington law, “the injured party is entitled to recovery of all damages naturally accruing from the [contractual] breach, and to be put in as a good a position as he would have been in had the contract been performed.” Parties in breach of contract are liable for foreseeable damages or for damages resulting from special circumstances of which the breaching party had reason to know.

1. The trial court did not err in awarding Ek costs associated with repossessing the vessel.

Judge Collins awarded Ek $3,829.38 for the costs of repossessing the vessel and travel expenses associated with the repossession. Peterson argues that this award was in error because he would have given up the vessel voluntarily if Ek had allowed him to remove his personal property from the vessel.

Peterson’s argument is not supported by the record. When Ek traveled to Juneau she located Peterson on the vessel, but he refused to turn over possession of the vessel. In violation of Ek’s express instructions not to move the vessel, Peterson took the vessel to Petersburg, where he registered it under a false name. He then traveled to Taku Harbor, where he remained until the vessel was located and seized by police. There is also evidence in the record that Ek made numerous attempts to allow Peterson to pack up his personal items and transfer possession of the vessel without resorting to repossession, including loaning Peterson money for a storage space. Because repossession of the vessel was a foreseeable result of Peterson’s material breach of the contract and his failure to surrender possession, it was appropriate for the trial court to award Ek for costs associated with repossessing the vessel.

2. The trial court did not err in awarding Ek moorage costs up to the date of repossession.

Judge Collins awarded Ek $3,784.95 for moorage fees up to the date that the vessel was repossessed. Peterson argues that this was error because Ek paid for private moor-age, rather than opting for public moorage, which would have been cheaper. Although injured parties do have a duty to make reasonable efforts to mitigate their damages, it was not unreasonable for Ek to moor the boat at Trucano Construction rather than at a public mooring space. In fact, during the time that the vessel was in his possession, Peterson also moored the vessel at Trucano Construction. The trial court did not err in awarding Ek private moorage costs incurred until the date of repossession.

3. The trial court did not err in awarding Ek damages for unauthorized cell phone usage.

The trial court found that Peterson ran up very high bills on the cell phone Ek loaned to Peterson, and required Peterson to pay Ek $1,211.31 in damages. Peterson argues that this was error because Ek gave him permission to use her phone and nearly all of the calls were to her. Because the charges were excessive and because the phone would have been returned months earlier had Peterson not breached the contract, the trial court did not err in awarding Ek for damages resulting from Peterson’s excessive cell phone usage.

C. The Trial Court Did Not Err in Determining that Peterson Was Responsible To Pay Individuals Whom He Hired To Work on the Vessel.

Peterson argues that the trial court erred by holding him financially responsible to contractors who worked on Ek’s vessel. Peterson claims that a “Permission of Use” signed by Ek gave him the authority to hire workers who Ek would be liable for paying. The “Permission of Use,” which was revoked by Ek on September 3, 2000, stated that Peterson’s permission of use “shall include but not be limited to repairs, maintenance, navigation, seaworthiness, storage, berthing, and safe travel through national and international waterways without restriction through Canada and its borders.” At trial, Peterson’s testimony implied that the “Permission of Use” gave him permission to hire workers without consulting Ek and that Ek would be liable for paying the workers. Ek testified that the “Permission of Use” was intended only to give Peterson authority to take necessary actions concerning the vessel while traveling through Canada. Judge Collins found that Ek’s testimony was “far more credible” than Peterson’s and that “[n]o credible testimony was introduced that Ek agreed to pay [workers hired by Peterson] for [their] work.” Because we defer to the trial court on issues of witness credibility, and because Judge Collins found Ek’s testimony regarding the “Permission of Use” to be more credible, we affirm the trial court’s ruling that the “Permission of Use” did not authorize Peterson to hire workers to whom Ek would be financially liable.

D. Judge Collins Was Not Personally Biased Against Peterson.

Peterson argues that Judge Collins was biased against him, that this bias prejudiced her decision, and that with the benefit of hindsight he would have preferred a jury trial. To support his claim of bias, Peterson points to Judge Collins’s comments that Peterson’s behavior was “childish, inappropriate, thoughtless and, at times, mean-spirited and obnoxious,” which she made when ruling on Ek’s claims for negligent and intentional infliction of emotional distress.

It cannot be said that a judge has a personal bias against a party simply because she forms an opinion of the case before her based on the evidence she hears at trial. In order to prove a claim of judicial bias, Peterson must show that Judge Collins formed an opinion of him from extrajudicial sources. In this case, Judge Collins had to consider and evaluate Peterson’s conduct in order to determine whether Ek had made out a prima facie case for negligent or intentional infliction of emotional distress. Judge Collins’s comments were supported by the record and do not imply judicial bias.

E. It Was Not an Abuse of Discretion for the Trial Court To Compel Peterson To Release His Father’s Contact Information.

Judge Collins ordered Peterson to release his father’s address and telephone number to Ek. Peterson argues that this was an abuse of discretion.

Under Alaska Civil Rule 26 “[p]arties may obtain discovery regarding any matter, not privileged which is relevant to the subject matter involved in the pending action.” It is not necessary that the information actually be admissible at trial, only that the information sought might reasonably lead to the discovery of admissible evidence. This court reviews discovery rulings for abuse of discretion and will find error only when “left with a definite and firm conviction after reviewing the whole record that the trial court erred.” Ek stated that Peterson had discussed the contract with his father. The parties’ understanding of the contract at the time of its execution was central to many of Peterson’s claims at trial, and Peterson’s father might have been able to provide Ek with relevant and admissible evidence. The trial court’s order to compel Peterson to disclose his father’s address was appropriate under Civil Rule 26 and was well within the court’s discretion.

F. Ek Has Waived Her Claims on Appeal by Not Filing a Cross-Appeal.

In her brief, Ek argues that the trial court incorrectly awarded Peterson recovery in quantum meruit, that the trial court inadvertently forgot to credit Ek for damages resulting from Peterson’s unauthorized use of her credit card, and that the trial court’s award of damage for trespass to chattels was too low.

Alaska Appellate Rule 204(a)(2) provides that, once one party has filed a timely notice of appeal, any other party may file its notice of appeal within fourteen days or within thirty days of the clerk’s date of distribution, whichever is longer. We have consistently held that failure to file a cross-appeal waives the right to contest rulings below. Because Ek failed to file a cross-appeal, all three claims of error raised in her brief are waived.

G. The Trial Court Did Not Err in Awarding Ek Thirty Percent of Her Reasonable Attorney’s Fees.

The trial court awarded Ek $7,053.75 in attorney’s fees pursuant to Alaska Civil Rule 68. Civil Rule 68 applies in this case because Ek made an offer of settlement, that offer was not accepted, and Ek ultimately recovered an amount that was more than five percent less favorable to Peterson than the amount offered in settlement.

Peterson argues that the trial court erred in granting attorney’s fees to Ek because he was the prevailing party and that Ek should pay his attorney’s fees for the specific issues on which he prevailed. Civil Rule 68(c) mandates that an offeror who receives costs and fees be considered the prevailing party for the purposes of an award of attorney’s fees; therefore, Ek must be considered the prevailing party for the purposes of Civil Rule 82. Peterson’s claim that he is the prevailing party under Rule 82 is without merit.

Peterson also claims that the amount of the award was unjustified. Because Rule 68 mandates that Ek be granted thirty percent of her reasonable actual attorney’s fees incurred after the date of her offer of judgment, there was no abuse of discretion.

The award of attorney’s fees is affirmed.

Y. CONCLUSION

We AFFIRM the decision of the superior court in all respects.

      . Sepel conducted another survey of the vessel in March 2001, which indicated that the vessel was worth $55,000. Sepel concluded that much of the increase in value after February 2000 was due to the fact that the engine had been rebuilt, a task which had been completed primarily by someone other than Peterson.

      . Ek revoked the Permission of Use on September 3, 2000. The superior court made a factual finding based on testimony presented at trial that the "Permission of Use” was only intended to give Peterson the powers necessary to travel through Canada with the vessel.

      . Jackson v. Barbero, 776 P.2d 786, 788 (Alaska 1989).

      . Demoski v. New, 737 P.2d 780, 784 (Alaska 1987).

      . Maloney v. Maloney, 969 P.2d 1148, 1150 (Alaska 1998).

        . Beaux v. Jacob, 30 P.3d 90, 97 (Alaska 2001).

      . Fletcher v. South Peninsula Hosp., 71 P.3d 833, 844 (Alaska 2003).

      . Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003).

      . Ek argues that Peterson waived all of his claims on appeal because he failed to cite legal authority for any of his arguments and relied on personal knowledge of the trial rather dran the record. We judge a pro se litigant's performance by a less demanding standard. Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987). But even when a pro se litigant is involved, an argument is considered waived when the party "cites no authority and fails to provide a legal theory” for his or her argument. See A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995) (pro se appellant waived claims due to cursory briefing that did not cite to legal authority); Gates v. City of Tenakee Springs, 822 P.2d 455, 460 (Alaska 1991) (pro se appellant waived claims on appeal when claims briefed "cursorily or not addressed at all"). Although Peterson often failed to cite legal authority to support his arguments, his briefing was such that we could discern his legal arguments and Ek could reply to them. We therefore find that Peterson's briefing of his case was adequate and that he has not waived his claims on appeal.

      . Peterson also claims that his friend, Greg Dockery, loaned him an anchor, line, and chain so that he could make the trip to Seattle. According to Peterson he paid Dockery for the anchor, rope and chain and Ek sold the vessel with the anchor, rope, and chain still on it. Even if Ek did misappropriate these items, Peterson does not have standing to assert the claim of a third party. Standing in this court is a rule of judicial self-restraint that asks whether the person raising a particular claim is a " 'proper party to request an adjudication of a particular issue.' ” Moore v. State, 553 P.2d 8, 23 n. 25 (Alaska 1976) (quoting Flast v. Cohen, 392 U.S. 83, 100-01, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)). We cannot consider the purported transfer of the materials lien from Dockery to Peterson because it was not in the record before the superior court and was improperly included in Peterson's excerpt of record. Alaska R.App. P. 210. See also B.B. v. D.D., 18 P.3d 1210, 1214 (Alaska 2001) (holding that "we cannot properly receive and consider evidence that was not presented to and considered by the trial court”). Furthermore, any payment that Peterson did make for the anchor, line, and chain would have been considered materials for which he could not be reimbursed because Ek did not recoup her own financial investment.

      . A choice of law clause in a contract will generally be given effect unless (1) the chosen state has no substantial relationship with the transaction or there is no other reasonable basis for the parties’ choice, or (2) the application of the law of the chosen state would be contrary to a fundamental public policy of a state that has a materially greater interest in the issue and would otherwise provide the governing law. Restatement (Second) of Conflict of Laws § 187 (1971).

      . Berg v. Hudesman, 115 Wash.2d 657, 801 P.2d 222, 229 (1990).

      . Alaska Foods, Inc. v. American Mfrs. Mut. Ins. Co., 482 P.2d 842, 845-48 (Alaska 1971).

      . Northwest Land & Inv. Inc. v. New West Fed. Sav. & Loan Ass'n, 57 Wash.App. 32, 786 P.2d 324, 329-30 (1990).

      . Wilkins v. Grays Harbor Cmty. Hosp., 71 Wash.2d 178, 427 P.2d 716, 721 (1976).

      . Westland Const. Co. v. Chris Berg, Inc., 35 Wash.2d 824, 215 P.2d 683, 691 (1950).

      . Peterson also argues that the contract was modified to make Ek responsible for moorage, among other things, a claim the superior court found to be not credible.

        . Harrower v. Hatrower, 71 P.3d 854, 861 (Alaska 2003) (quoting Davila v. Davila, 876 P.2d 1089, 1092 (Alaska 1994)) (holding that it is function of trial court "to judge witnesses' credibility and to weigh conflicting evidence”).

      . State v. City of Anchorage, 513 P.2d 1104, 1113 (Alaska 1973), overruled on other grounds by State v. Alex, 646 P.2d 203 (Alaska 1982).

      . See U.S. v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966) ("The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.”).

      . A claim of intentional infliction of emotional distress requires the court to form an opinion on the nature of the conduct at issue in order to determine whether a party has made a prima facie case. Lybrand v. Trask, 31 P.3d 801, 803 (Alaska 2001) (plaintiff must prove that defendant intentionally or recklessly engaged in conduct that was extreme or outrageous in order to make prima facie case for intentional infliction of emotional distress).

      . Alaska R. Civ. P. 26(b)(1).

      . In re Mendel, 897 P.2d 68, 73 (Alaska 1995).

      . Fletcher v. South Peninsula Hosp., 71 P.3d 833, 844 (Alaska 2003).

      . Id. (quoting Christensen v. NCH Corp., 956 P.2d 468, 473 (Alaska 1998)).

      . See, e.g., Municipality of Anchorage v. Gentile, 922 P.2d 248, 265 n. 26 (Alaska 1996); McQueary v. McQueary, 902 P.2d 1326, 1327 n. 3 (Alaska 1995); Cameron v. Hughes, 825 P.2d 882, 885 n. 5 (Alaska 1992); Jackson v. Nangle, 677 P.2d 242, 247 n. 3 (Alaska 1984).

      . Alaska Rule of Civil Procedure 68 provides in pertinent part:
      (a) At any time more than 10 days before the trial begins, either the party making a claim or the party defending against a claim may serve upon the adverse party an offer to allow judgment to be entered in complete satisfaction of the claim....
      (b) If the judgment finally rendered by the court is at least 5 percent less favorable to the offeree than the offer ... the offeree ... shall pay all costs as allowed under the Civil Rules and shall pay reasonable actual attorney fees incurred by the offeror from the date the offer was made as follows:

      (3) if the offer was served 90 days or less but more than 10 days before the trial began, the offeree shall pay 30 percent of the offeror’s reasonable actual attorney fees.

      . Alaska R. Civ. P. 68(c). Ek served an offer of judgment on Peterson on August 24, 2001 offering to settle the case for $10,000. Peterson did not accept the offer and trial began eleven days later. Elc's recovery of over $13,680 in damages was "at least 5 percent less favorable to [Peterson] than the offer.”

      . Id.


author: MANNHEIMER, Judge.

text:
    James T. GOLDSBURY, Appellant, v. STATE of Alaska, Appellee.
    No. A-8528.
    Court of Appeals of Alaska.
    June 18, 2004.
    Michael P. Heiser, Ketchikan, for the Appellant.

      Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

This case has a tortured procedural history. James T. Goldsbury filed a petition for post-conviction relief, and his current attorney was appointed to represent him. After investigating the case, Goldsbury’s attorney filed a certificate conceding that Goldsbury had no arguable claim for relief. Notwithstanding this concession, Goldsbury’s attorney proceeded to appeal the superior court’s dismissal of the post-conviction relief action. Then, in his reply brief, Goldsbury’s attorney conceded that Goldsbury has no non-frivolous issues to raise in this appeal.

Although Goldsbury’s attorney has now twice conceded (once to the superior court, and now to this Court) that Goldsbury has no non-frivolous claims for relief, we have independently reviewed the record of the post-conviction relief proceedings, and we conclude that procedural error was committed. The superior court failed to require Golds-bury’s attorney to give a detailed explanation of why the attorney concluded that Golds-bury had no arguable claims for relief. We accordingly vacate the decision of the superi- or court and remand this case to the superior court for further proceedings.

In Griffin v. State, 18 P.3d 71 (Alaska App.2001), we addressed and clarified the obligations placed on an attorney who is appointed to represent an indigent petitioner for post-conviction relief. Alaska Criminal Rule 35.1(e)(2)(B) declares that if the attorney, after investigating the ease, concludes that the defendant has no non-frivolous claims for post-conviction relief, the attorney must file a certificate declaring this fact. However, when the attorney files this kind of certificate, Criminal Rule 35.1(f)(2) requires the superior court to independently assess

the potential merits of the defendant’s case. In Griffin, we concluded that it was impossible for the superior court to carry out this duty unless the attorney’s certificate contained substantially more than a bare-bones assertion that the defendant has no arguable claims for relief:

[I]f the [defendant’s] attorney is permitted to file a certificate containing only the four bare assertions listed in [Criminal] Rule 35.1(e)(2)(B)(i)-(iv) ..., it will be impossible for the trial court to perform the independent assessment required by Rule 35.1(f)(2).
In order for the court to perform its role under Rule 35.1(f)(2) — and thereby fulfill its duty to make sure that indigent litigants do in fact receive zealous investigation and presentation of any colorable claims for post-conviction relief — the attorney seeking to withdraw from the case must provide the court with a full explanation of all, the claims the attorney has considered and why the attorney has concluded that these claims are frivolous. Only then can the court meaningfully assess and independently evaluate the attorney’s assertion that the petitioner has no arguable claim to raise.
To reconcile Rule 35.1(e)(2)(B) with Rule 35.1(f)(2), and to avoid the constitutional problems that would arise if we interpreted Rule 35.1(e)(2)(B) narrowly, we hold that the “certificate” described in Rule 35.1(e)(2)(B) must fully explain why the attorney believes that the petitioner has no colorable claim to post-conviction relief.

Griffin, 18 P.3d at 76-77.

The State concedes that the certificate filed by Goldsbury’s attorney does not satisfactorily explain why the attorney concluded that Goldsbury had no arguable claim for post-conviction relief. The test is whether the attorney’s certificate contained sufficient detail to allow the superior court to fulfill its duty to independently assess whether Golds-bury had any potentially arguable claims for relief. We have reviewed the certificate, and we conclude that the State’s concession of error is well-founded.

For instance, Goldsbury’s initial pro se petition for post-conviction relief contained assertions that his trial attorney (1) failed to cross-examine one or more police officers concerning their personal involvement with other members of Goldsbury’s family, (2) failed to investigate whether there was evidence to corroborate Goldsbury’s version of events, (3) waited until the eleventh hour to begin work on Goldsbury’s case, and then (4) spent only three hours preparing for trial. The “no merit” certificate filed by Golds-bury’s post-conviction relief attorney dealt with all of these allegations in a single paragraph:

[Goldsbury] has made several ineffective assistance [of counsel] claims related to evidence and witness statements produced at trial. I consulted with [the] defendant’s trial attorney ..., and she recalls having reasons for doing or not doing the actions set forth by [the] defendant. For instance, she decided that [she] could .not convince a jury that the police were lying. All the questionable actions appear to be tactical decisions and [these] actions would not likely [have] changefd] the outcome of this matter. [Under Alaska law, a] defendant has the burden of proving his counsel’s lack of competence by clear and convincing evidence.... Accordingly, I do not believe [that] these claims could succeed.

This sort of eonclusory explanation does not allow the superior court to independently and meaningfully evaluate the potential merit of Goldsbury’s claims. The attorney’s explanation failed to address any of Goldsbury’s claims in an identifiable way. For instance, when Goldsbury’s attorney asserts that the trial attorney “decided that [she] could not convince a jury that the police were lying”, it is impossible to tell whether the trial attorney was responding to Goldsbury’s claim that she failed to cross-examine the police officers about their personal involvement with members of Goldsbury’s family or, instead, Golds-bury’s claim that the trial attorney failed to investigate whether there was evidence to corroborate Goldsbury’s version of events.

Turning to Goldsbury’s claim that his trial attorney worked on the case for only three hours just before trial, the post-conviction relief attorney’s certificate did not even identify this claim individually. Moreover, the attorney attempted to dispose of this claim with one eonclusory sentence, “All the questionable actions appear to be tactical decisions [of the trial attorney,] and [these] actions would not likely [have] change[d] the outcome of this matter.”

The post-conviction relief attorney then addressed Goldsbury’s claim that the district attorney made false statements in the State’s sentencing memorandum (false statements which Goldsbury’s trial attorney apparently failed to rebut):

[Goldsbury] also claims that [the district attorney] made false statements in the State’s Sentencing Memorandum. It appears that none of the statements made in the sentencing memorandum are deliberately false or misleading. [Moreover, this] information was not given to [the] jury[, nor did it affect the defendant’s] conviction in any way.

From the attorney’s certificate, it is impossible to determine what statements Goldsbury believed were false, and it is likewise impossible to determine how or why the post-conviction relief attorney concluded that none of Goldsbury’s assertions of falsity had any arguable merit. Indeed, only one thing is clear from this paragraph of the attorney’s certificate: the attorney failed to understand that Goldsbury did not have to prove that the jury’s decision was affected by false statements; rather, Goldsbury could obtain post-conviction relief if he showed that the sentencing judge’s decision was affected by false statements.

In short, the attorney’s certificate was so eonclusory, so lacking in factual detail and explanation, that it was impossible for the superior court to fulfill the duty imposed by Criminal Rule 35.1(f)(2): the duty to independently assess the potential merit of Goldsbury’s claims. The superior court should not have dismissed Goldsbury’s petition for post-conviction relief based on this certificate. Rather, the court should have required Goldsbury’s attorney to provide a more detailed explanation of the facts of the case and the reasons why the attorney concluded that these facts gave rise to only frivolous claims.

Accordingly, we VACATE the decision of the superior court and we einstate Golds-bury’s petition for post-conviction relief. This case is remanded to the superior court for further proceedings consistent with Griffin and with this opinion.

In addition, the superior court should consider whether, given the circumstances of this case, a new attorney should be appointed to represent Goldsbury during these further proceedings.

      . See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (holding that an appellate court must independently assess the State’s concession of error in a criminal case).


text:
    Jeremy A. RIDLINGTON, Appellant, v. STATE of Alaska, Appellee.
    No. A-8533.
    Court of Appeals of Alaska.
    June 18, 2004.
    William R. Satterberg Jr., Fairbanks, for the Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

In the early morning hours of July 23, 2002, Nenana Police Chief Milton J. Haken arrested Jeremy A. Ridlington for driving while intoxicated. Haken initially filed a misdemeanor DWI complaint against Ri-dlington in the Nenana district court. Later that same day, after Haken learned that Ridlington had two prior DWI convictions, he filed a second complaint — this one charging Ridlington with felony DWI (ie., driving while intoxicated after having previously been convicted of DWI or breath-test refusal at least twice).

Two days after his arrest (ie., on July 25), Ridlington appeared for arraignment in front of Nenana Magistrate Paul Verhagen. Ri-dlington was assisted by counsel, who appeared telephonically.

Ridlington and his attorney were aware that two complaints — the misdemeanor DWI complaint and the felony DWI complaint— had been filed against Ridlington based on the same conduct. Acting on the advice of his attorney, Ridlington attempted to plead guilty to the misdemeanor charge — -anticipating that his guilty plea to this lesser included charge would then bar the State from pursuing the felony charge. But because the felony charge was also pending, Magistrate Ver-hagen refused to allow Ridlington to plead guilty to the lesser included misdemeanor offense.

The following week, the State formally dismissed the misdemeanor complaint and the grand jury indicted Ridlington for felony DWI. After Ridlington was indicted, he attacked the felony charge on double jeopardy grounds. Ridlington argued (1) that the Ne-nana magistrate had had no authority to refuse to accept his offered guilty plea to the misdemeanor, and (2) that if he had been allowed to plead guilty to the misdemeanor, his plea would have barred the State from pursuing the felony charge. When the superior court rejected this argument, Ridlington pleaded no contest to felony DWI, reserving his right to raise this double jeopardy issue on appeal.

In his brief to this Court, Ridlington renews his contention that the magistrate had no right to refuse to allow him to enter a guilty plea to the misdemeanor charge. But even if this were so, Ridlington would not be prejudiced by the magistrate’s action unless Ridlington’s second contention were also true — his contention that, had he succeeded in entering a guilty plea to the misdemeanor charge, this would have barred the State from pursuing the felony charge.

Ridlington’s second contention is, in fact, mistaken. The State could still prosecute Ridlington for felony DWI even if Ridlington had pleaded guilty on July 25 to the misdemeanor DWI charge.

In Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984), the defendant pleaded guilty to some of the charges in his indictment and then asserted that the double jeopardy clause barred the government from pursuing the remaining charges — because the charges to which the defendant had pleaded guilty were lesser included offenses of the remaining charges. The Supreme Court rejected the defendant’s argument:

Previously we have recognized that the Double Jeopardy Clause prohibits prosecution of a defendant for a greater offense when he has already been tried and acquitted or convicted on the lesser included offense. See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)....
We do not believe, however, that the principles of finality and prevention of prosecutorial overreaching applied in Brown reach [the present] case. No interest of respondent protected by the Double Jeopardy Clause is implicated by continuing prosecution on the remaining charges brought in the indictment. Here respondent offered only to resolve part of the charges against him, while the State objected to disposing of any of the counts against respondent without a trial. Respondent has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial. The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an “implied acquittal” which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses, [citations omitted] There simply has been none of the governmental overreaching that double jeopardy is supposed to prevent. On the other hand, ending prosecution now would deny the State its right to one full and fair opportunity to convict those who have violated its laws. Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978).
... Here respondent’s efforts were directed to separate disposition of counts in the same indictment where no more than one trial of the offenses charged was ever contemplated. Notwithstanding the trial court’s acceptance of respondent’s guilty pleas, respondent should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution on the remaining charges.

Johnson, 467 U.S. at 501-02, 104 S.Ct. at 2542.

In Alley v. State, 704 P.2d 233, 235 (Alaska App.1985), this Court endorsed this same resolution of the issue as a matter of state constitutional law.

Ridlington acknowledges that Ohio v. Johnson and Alley v. State are apparently counter to his contention in this appeal. But he points out that, unlike the situations in Johnson and Alley, the charges against him were not contained in the same charging document, but rather were contained in separate charging documents.

We do not view this as a material distinction. Both of the complaints against Ridling-ton were filed before he made his initial appearance in court. Ridlington and his attorney were well aware of the two complaints; indeed, Ridlington’s motivation for trying to plead guilty to the misdemeanor complaint was to stop the State from pursuing the felony complaint that had already been filed. Under these circumstances, the reasoning and policies described by the Supreme Court in Ohio v. Johnson apply with equal vigor to Ridlington’s case.

We note that at least two federal circuits have concluded that Ohio v. Johnson applies to circumstances like these — situations in which the pending charges against the defendant are contained in more than one charging document. See Buchanan v. Angelone, 103 F.3d 344, 349-350 (4th Cir.1996); and Bally v. Kemna, 65 F.3d 104, 108-09 (8th Cir.1995). See also State v. Nickens (unpublished), 1993 WL 291731, *6 & n. 11 (Tenn.Crim.App.1993).

Given our resolution of the double jeopardy issue, we need not reach the question of whether a judicial officer has the authority to refuse to accept an offered guilty plea on grounds other than the possibility that the plea is not knowing and intelligent.

The judgement of the superior court is AFFIRMED,

      . See AS 28.35.030(n).

      . See Cooksey v. State, 524 P.2d 1251, 1256-57 (Alaska 1974) (approving this type of conditional plea).

      . Johnson, 467 U.S. at 500, 104 S.Ct. at 2541.