author: MAASSEN, Justice. WINFREE, Justice, concurring. STOWERS, Chief Justice, concurring. WINFREE, Justice, concurring. STOWERS, Chief Justice, concurring.

text:
    Nixola Jean DOAN, Petitioner, v. BANNER HEALTH, INC., d/b/a Fairbanks Memorial Hospital; Northern Hospital Association, LLC; James W. Cagle, D.O.; Golden Heart Emergency Physicians ; Faye Lee, M.D. ; Interior Aids Association/Project Special Delivery ; and Nicole Fliss, M.D., Respondents.
    Supreme Court No. S-16322
    Supreme Court of Alaska.
    May 31, 2019
   MAASSEN, Justice.

I. INTRODUCTION

A mother was in the hospital waiting area when her daughter died. The mother sued a number of medical care providers for wrongful death and medical malpractice, as well as for the emotional distress she suffered upon seeing her daughter's body. The superior court dismissed the mother's claim for negligent infliction of emotional distress, reasoning that the tort was not viable absent evidence that the plaintiff contemporaneously understood that her loved one's death had been negligently caused. The mother petitioned for review of this order; we granted review.

We conclude that under our case law, a viable bystander claim for negligent infliction of emotional distress does not depend on the plaintiff's contemporaneous realization that the injuries she observes were negligently caused. We therefore reverse the superior court's grant of summary judgment.

II. FACTS AND PROCEEDINGS

One morning in March 2011, Nixola Doan went to Fairbanks Memorial Hospital with her adult daughter, Tristana, who was coughing and having trouble breathing. Doan stayed with Tristana for much of the day. Around 7:00 p.m. Tristana's condition worsened, and Doan was "ushered ... out" of the room while Tristana was intubated. Doan remained in the waiting area and did not see Tristana again until approximately the time of her death at 11:41 p.m., when Doan reentered the room and saw her daughter's body.

In 2013 Doan, as the personal representative of Tristana's estate, filed suit against a number of medical care providers, alleging medical malpractice and wrongful death. Doan also brought her own claim for negligent infliction of emotional distress (NIED). Several of the defendants (collectively "the doctors") moved for summary judgment on the NIED claim, arguing that it was legally untenable without evidence that Doan understood, while Tristana was undergoing care, that her caregivers were acting negligently.

The superior court granted summary judgment and dismissed the NIED claim, concluding that Doan failed to satisfy a requirement of the tort that she have "a contemporaneous understanding of the cause of Tristana's death." (Emphasis in original.) Doan sought reconsideration, which the court denied. Doan filed a petition asking us to review the dismissal of her NIED claim; we granted her petition.

III. STANDARD OF REVIEW

We review a grant of summary judgment de novo. "When reviewing a grant of summary judgment, our duty is to determine whether there was a genuine issue of material fact and whether the moving party was entitled to judgment on the law applicable to the established facts." We apply our independent judgment to questions of law and adopt "the rule of law that is most persuasive in light of precedent, reason, and policy."

IV. DISCUSSION

In its decision on summary judgment, the superior court concluded that "[i]nherent in [Alaska's] cases [allowing recovery for NIED] is the contemporaneous comprehension of the cause of the injury"; the court held, therefore, that "in a medical malpractice case, the plaintiff must have a contemporaneous understanding that the cause of the injury is the result of the malpractice." The court acknowledged this effect of its ruling:

[B]ystanders may validly assert bystander NIED claims for blatant medical errors obvious to laypersons, such as negligently amputating a healthy limb or neglecting to care for a patient whose symptoms obviously require immediate attention. But where the causation is beyond the understanding of the lay bystander an NIED claim is not available.

The doctors argue that the superior court correctly stated Alaska law: "As a matter of law, [Doan] cannot recover on [an] NIED bystander claim unless she contemporaneously comprehended that allegedly negligent medical treatment was causing injury to her daughter."

That an injured victim, in order to recover, must contemporaneously comprehend that her injuries were negligently caused is not a usual requirement of a negligence claim. Indeed, tort victims may not know or even suspect that their injuries were negligently caused until they have had some time to investigate; our tort law has long recognized this. Here, the doctors contend that our case law treats NIED claims differently, but-although we acknowledge "the policy favoring reasonable limitations on liability" in this context -we disagree that the doctors' proposed rule is one such reasonable limitation.

We first recognized the NIED cause of action in 1986 in Tommy's Elbow Room, Inc. v. Kavorkian ( Kavorkian III ). In that case, a father and daughter attended a function together but the daughter left first to ride home with another family. A drunk driver struck the family's car. Driving home later, the father passed the scene of the accident without realizing that his daughter was involved. When he arrived home and his daughter was not there, he returned to the scene of the accident in time to see police and medical personnel attempting to remove her from the wreckage.

Accepting the viability of NIED claims under Alaska law, we looked to the guidelines set out by the California Supreme Court in Dillon v. Legg :

(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

We declined, however, to interpret Dillon as imposing a "rigid requirement of sensory and contemporaneous observance of the accident," instead requiring only "the reasonable foreseeability that the plaintiff-witness would suffer emotional harm." After concluding that it was reasonably foreseeable that the father in Kavorkian III would appear at the scene of the accident, we allowed his NIED claim to go forward.

A year later, in Croft ex rel. Croft v. Wicker , we reiterated our rejection of the "strict application of the Dillon guidelines" under which it is "necessary for the plaintiff to have witnessed the tortious event." The plaintiffs in Croft alleged that Wicker molested their teenaged daughter Sarah while giving her a ride on a three-wheeler; the parents did not allege that they witnessed the assault itself but only that they "were in close proximity when Wicker sexually assaulted Sarah and witnessed their daughter's extreme emotional distress, and consequently suffered emotional distress themselves." We explained in Croft our recognition of the NIED tort in Kavorkian III and cited several California cases in which parents who did not witness the tortious event were nonetheless allowed to recover after coming upon the event's immediate consequences. We held that the parents in Croft stated a claim under Alaska law:

[C]oncededly the Crofts did not sensorily and contemporaneously observe the incident of sexual assault alleged here. Our discussion of Kavorkian and the other cases cited makes clear, however, that it is the reasonable foreseeability to the defendant of harm to the plaintiff that generates the defendant's duty to exercise reasonable care.[ ]

Because "the Crofts were in close proximity to Wicker and Sarah when the alleged incident occurred," because "[t]hey observed her extreme distress just after the alleged assault occurred," and because there was some question as to whether it was "reasonably foreseeable to Wicker that Sarah's parents would be in close proximity and therefore harmed by his actions," the Crofts' claim was sufficiently pleaded to go to the jury.

In this case, in a clarifying order on reconsideration, the superior court focused on a sentence in Mattingly v. Sheldon Jackson College , in which we said that "the shock [must] result more or less contemporaneously with the plaintiff's learning of the nature of the victim's injury." The superior court interpreted this to mean that Doan's recovery depended on her subjective understanding of events; the court read the phrase "the nature of the victim's injury" to mean that an NIED plaintiff must understand not just the physical nature of the injury-traumatic bodily injury or death-but also the legal nature of the injury-negligence.

Mattingly concerned the collapse of a trench in which Mattingly's son had been working. The accident happened in Sitka, but Mattingly was in Ketchikan when he learned of it. The facts of Mattingly thus did not require the court to distinguish between the physical and the legal nature of an injury-Mattingly was not in a position to have directly perceived either one. But explaining why geographical distance precluded Mattingly's NIED claim, we noted that "it cannot be said that the shock of observing his injured son ... followed 'closely on the heels of the accident,' " that Mattingly "had time to steel himself during his flight to Sitka," and that "[t]here was no sudden sensory observation of his injured son ." Thus, in the context of describing "the nature of the victim's injury," our focus was on the victim-the sight of whom is likely to cause the emotional harm-rather than the actions of the tortfeasor. And to support the sentence in Mattingly that contained the phrase "the nature of the victim's injury," we cited Croft , which, as noted above, explicitly rejected a requirement that the plaintiff observe the tortious act as opposed to its immediate impact on the victim.

We reaffirmed this interpretation of the NIED claim in Beck v. State, Department of Transportation & Public Facilities , in which we declined to follow the California Supreme Court's tightening of the Dillon test. A mother was at home when she learned that her daughter had been involved in an accident six miles away. The mother immediately drove to the scene, but rescue workers prevented her "from approaching the wrecked vehicle which still contained her injured daughter." The mother then drove to the hospital, where she "saw her injured daughter for the first time." She later sued the State for negligent maintenance, repair, and signage, alleging that road crews had negligently left "rain soaked slide debris on the roadway" which both obscured the lane markings and caused her daughter to lose control.

The State in Beck urged us to follow the approach taken by the California Supreme Court in Thing v. La Chusa . Decided after Kavorkian III , Croft , and Mattingly -and concluding that the Dillon factors were leading "to uncertainty and 'ever widening circles of liability' " - Thing adopted a "bright-line" interpretation of Dillon that required, as its second element, that the plaintiff be "present at the scene of the injury[-]producing event at the time it occurs and [be] then aware that it is causing injury to the victim." In Beck we decided, however, "that both justice and the policy favoring reasonable limitations on liability [could] be served with a less restrictive approach than that taken by the Thing court": We held

that one who is thrust, either voluntarily or involuntarily, into such dramatic events and who makes a sudden sensory observation of the traumatic injuries of a close relative in the immediate aftermath of the event which produced them is no less entitled to assert a claim for his or her emotional injuries than one who actually witnessed the event.[ ]

Because in Beck the mother's "emotional shock resulted from her observation of her daughter's traumatic injuries during the continuous flow of events in the immediate aftermath of the accident, and because it cannot be said that she had time to 'steel herself' as did the plaintiff in Mattingly ," we concluded "that her injury was foreseeable" and her NIED claim should be presented to the jury.

None of these formative cases- Kavorkian III , Croft , Mattingly , or Beck -supports the rule the doctors propose here: that Doan "cannot recover on [an] NIED bystander claim unless she contemporaneously comprehended that allegedly negligent medical treatment was causing injury to her daughter." The father in Kavorkian III brought a dram shop action against the bar that had served alcohol to the driver who allegedly caused the accident. The father clearly knew there had been an accident when he saw his injured daughter being extricated from the wreckage, but there is no indication he knew anything about its cause, let alone that it involved the negligence of a server in a bar some distance away. The parents in Croft knew that something had happened when they witnessed their daughter's emotional distress at the end of her three-wheeler ride, but there is no indication they "contemporaneously comprehended" that her distress was caused by Wicker's sexual assault. The father in Mattingly was denied relief because he had time to steel himself before viewing his son's injuries; whether he had any contemporaneous understanding of the cause of the trench's collapse played no part in our opinion (though under the doctors' proposed rule it could have been dispositive). And the mother in Beck , like the father in Kavorkian III , knew there had been an accident when she viewed its wreckage and then saw her daughter at the hospital, but again there is no indication that she contemporaneously comprehended the allegedly negligent cause-involving the State's work on the road. Determinative in each of these cases-entitling the parents to a possible tort recovery in Kavorkian III , Croft , and Beck and precluding the father's recovery in Mattingly -was simply whether there was a "sudden sensory observation of the traumatic injuries of a close relative in the immediate aftermath of the event which produced them."

It is the emotional impact of the injury that the NIED tort is intended to address. To require that an emotionally distressed plaintiff also recognize negligence as it is occurring is asking too much. As noted above, negligence is not always obvious; a conclusion that someone was negligent often follows the acquisition of facts not readily apparent from the scene itself, e.g., that one driver was under the influence of alcohol, that he was negligently served at a bar, that the roadway was poorly maintained, or that a vehicle's brakes failed. Requiring a contemporaneous perception of negligence adds an element of caprice that has no relationship to the harm suffered. When confronted with a sudden, terrible injury to a loved one, one plaintiff might retain the clarity of mind necessary to judge the reasonableness of the tortfeasor's actions, while another plaintiff might be overwhelmed by the trauma or consumed by concern for the loved one. Under the doctors' proposed rule the first plaintiff will recover but the second will not. Recovery may also depend on the plaintiff's level of sophistication, particularly in the area of medical malpractice (as the superior court recognized in limiting recovery to "blatant medical errors obvious to laypersons"). A physician who recognizes negligence in the care of a loved one may recover, whereas a layperson who suffers the same emotional hurt but lacks a medical education has no remedy. And the rule raises difficult questions of how closely the plaintiff's perception of negligence must match the proof at trial.

The doctors contend that this court "has never permitted recovery for negligent infliction of emotional distress in favor of a non-patient against a medical provider for treatment provided to a family member/patient," but the cases they cite do not preclude such a recovery. In Chizmar v. Mackie , which the doctors cite for the proposition that NIED claims cannot be based on "foreseeability alone," we held that "a plaintiff's right to recover emotional damages caused by mere negligence should be limited to those cases where the defendant owes the plaintiff a preexisting duty." Chizmar was not a bystander claim but rather involved a patient's claim against her physician; we held that the superior court erred by directing a verdict against the plaintiff on the claim. But we also held that we did not intend to "modify the requirements for 'bystander' recovery we applied in Mattingly ." Chizmar -and other "preexisting duty" cases on which the doctors rely -are largely irrelevant to our discussion today.

The doctors also cite M.A. v. United States , in which we determined, on a certified question from the federal court, that a mother did not have an NIED claim arising from a doctor's negligent failure to diagnose the pregnancy of her minor daughter. But the mother's claim failed for a number of reasons, none of which are determinative here:

[The mother] was not in close proximity to [the daughter], either at the time of the alleged misdiagnosis or when [the daughter] subsequently learned of her pregnancy; [the mother's] eventual "shock," if any, does not appear to have occurred contemporaneously with her daughter's discovery of the injury; and there is no indication that the immediate "shock" came in response to the alleged injury-the lateness of the pregnancy's discovery-rather than to discovery of the pregnancy itself.[ ]

Here, on the other hand, taking Doan's allegations as true, she was in close proximity to her daughter both at the time of the defendants' negligence and at the time of her daughter's death; the defendants' negligence caused the death; and Doan's shock occurred contemporaneously when she observed her daughter's body.

The doctors contend that Doan's NIED claim not only is barred by our existing case law but also contravenes legislative policy, evident in AS 09.55.530 - .560, setting out procedural and evidentiary rules for medical malpractice cases, including limitations on damages. But none of the cited statutes address the viability of a bystander NIED claim. And although the doctors predict that allowing NIED claims in circumstances like these "[will] greatly burden the medical community," we note that our case law has never excepted "the medical community" from NIED claims. Such claims involving medical care providers have been available since we decided Kavorkian III in 1986, subject to the same stringent requirements of proof applicable in other tort contexts, and they have not prompted a crisis of care or a legislative response.

We conclude, in sum, that a bystander's claim for NIED remains as it was explained in Kavorkian III , Croft , Mattingly , and Beck :

Where, as here, the plaintiff experiences shock as the result of a sudden sensory observation of a loved one's serious injuries during an uninterrupted flow of events following "closely on the heels of the accident," such emotional injury is foreseeable and the plaintiff is entitled to assert a claim for NIED.

The test contains no requirement that the plaintiff contemporaneously comprehend that the loved one's injuries were negligently caused. Doan's complaint stated a claim for relief under a bystander theory of recovery for NIED, and the claim should have survived summary judgment.

V. CONCLUSION

We REVERSE the entry of summary judgment against Doan on her claim for negligent infliction of emotional distress and REMAND the case to the superior court for further proceedings consistent with this opinion.

WINFREE, Justice, concurring.

STOWERS, Chief Justice, concurring.

WINFREE, Justice, concurring.

I write separately to (1) elaborate on the distinction between the negligent infliction of emotional distress (NIED) claim requirements that a bystander-plaintiff (a) be physically present at the injury-causing event and (b) contemporaneously recognize that the injury-causing event was the result of someone's tortious conduct; and (2) address the separate concurring opinion's focus on our past rejection of the physical presence requirement.

This matter comes to us on petition for review from the superior court's summary judgment order dismissing Nixola Doan's bystander NIED claim. The superior court's legal rationale was that our existing NIED case law requires a bystander-plaintiff-contemporaneously with the shocking observation of a loved-one's harm-to specifically recognize that a tort brought about that harm. We accepted Doan's unopposed petition for review to consider only that legal ruling. Today's decision correctly concludes that the superior court's interpretation of our existing case law was incorrect. A bystander-plaintiff, even a bystander-plaintiff asserting an underlying medical malpractice claim, does not need to prove a contemporaneous understanding that the loved-one's harm was caused by tortious conduct.

The separate concurring opinion suggests that today's decision expands liability under Alaska's NIED case law, especially in the medical malpractice context. Today's decision does nothing of the kind. Our existing NIED case law never has included, and does not now include, the legal requirement the superior court imposed; our existing NIED case law never has supported (or even suggested), and does not now support, a special carve-out for NIED claims based on underlying medical malpractice torts. Today's decision in no way expands NIED liability; it instead rejects a new legal theory which, if adopted, would limit NIED liability.

The bulk of the separate concurring opinion's discussion relates to a legal issue that was not ruled on by the superior court, was not a subject of our granted petition for review, was not briefed by the parties, and was not considered by this court. The separate concurring opinion questions our existing NIED case law regarding when a bystander must observe a loved-one's harm, and it posits that we should follow the California Supreme Court's Thing v. La Chusa decision by limiting NIED claims to bystanders who actually are present at the harm-causing event. This court rejected that course nearly 30 years ago in Beck v. State, Department of Transportation & Public Facilities . The separate concurring opinion concludes that Beck was erroneously decided and failed "to place sensible limits on NIED claims"-an issue not raised in this petition for review-and that it is only the doctrine of stare decisis that causes joinder in today's decision.

But even if this court had, nearly 30 years ago, decided Beck differently and followed Thing , today's decision-addressing whether a bystander-plaintiff must contemporaneously appreciate that tortious conduct underlies the injury-causing event-would be the same. The facts of Beck and Thing are similar. In Beck a mother drove to the site of her daughter's vehicle accident and then to a hospital where she first saw her daughter's injured body. The mother later sued the state for NIED for failure to maintain road conditions. In Thing a son was struck by a car. Although his mother was nearby, she did not see or hear the accident. The mother became aware of the accident moments later; she rushed to the scene and saw her son lying in the street. The mother subsequently sued the car's driver for NIED. In neither case was the bystander-plaintiff aware, upon first seeing the victim, that the injuries were a result of someone's negligence.

The Thing court reversed precedent and created a new physical-presence requirement for bystander-NIED claims: The plaintiff must be "present at the scene of the injury-producing event at the time it occurs and ... then aware that it is causing injury to the victim." But the Thing court did not require a bystander-plaintiff to understand, when witnessing the victim's injury, that the injury was caused by negligence or other tortious conduct. It was only later, in Bird v. Saenz , that the California Supreme Court further required-in the context of a medical malpractice claim-that a bystander-plaintiff demonstrate contemporaneous awareness of medical negligence in connection with the injury-producing event. In that case plaintiffs sued defendant medical providers for NIED related to healthcare provided to the plaintiffs' mother. Because the rule adopted in Thing required the plaintiff to "be aware of the connection between the injury-producing event and the injury," the Bird court decided that "unperceived medical errors hidden in a course of treatment" could not serve as an injury-producing event for purposes of NIED claims. But the Bird court indicated that some forms of medical malpractice still may support an NIED claim, explaining:

This is not to say that a layperson can never perceive medical negligence, or that one who does perceive it cannot assert a valid claim for NIED. To suggest an extreme example, a layperson who watched as a relative's sound limb was amputated by mistake might well have a valid claim for NIED against the surgeon. Such an accident, and its injury-causing effects, would not lie beyond the plaintiff's understanding awareness. But the same cannot be assumed of medical malpractice generally.[ ]

Although Bird relied on Thing to create an additional NIED requirement, at least in the medical malpractice context, Thing itself did not require a bystander-plaintiff claiming NIED to be aware of underlying tortious conduct when seeing the injury-producing event.

The doctors in this case understand the distinction between the Thing and Bird holdings. They posit that, notwithstanding Beck 's rejection of Thing 's requirements that the bystander be physically present and observe the injury-causing event, we should follow courts defining "injury-causing event" in the medical malpractice context to mean obviously (to the bystander) negligent medical care. Under this view-which today's decision rejects-the absence of a contemporaneous recognition of negligent medical care is cast as the bystander's failure to recognize that an injury-causing event has occurred.

Adherence to Beck is not at issue in this petition for review. The question raised by the petition for review is whether we should impose a new restriction for NIED claims based on allegations of underlying medical malpractice. I agree with today's decision to reject the proposed restriction; I disagree with the separate concurring opinion that the result is mandated by stare decisis adherence to Beck .

STOWERS, Chief Justice, concurring.

I concur in the result reached by the court, but only under the compulsion of our precedent in Tommy's Elbow Room, Inc. v. Kavorkian ( Kavorkian III ), Croft ex rel. Croft v. Wicker , Mattingly v. Sheldon Jackson College , and especially Beck v. State, Department of Transportation & Public Facilities . While the court concludes here that a "bystander's claim for negligent infliction of emotional distress remains as it was explained in Kavorkian III , Croft , Mattingly , and Beck ," I worry this case represents another expansion of liability-particularly in the medical malpractice context where the legislature has acted to constrain tort liability.

In our formative bystander negligent infliction of emotional distress (NIED) cases, the plaintiffs observed a relative's injuries contemporaneously with or closely on the heels of learning of the events that caused them. In contrast, Doan was in the hospital waiting room when much of the alleged medical malpractice occurred, and upon seeing her daughter's body, she was not contemporaneously aware of the "nature" of Tristana's injuries, i.e., that Tristana's death was allegedly caused by the conduct of her doctors, rather than by her underlying condition.

Doan's case is similar to Beck . As the court explains above, in Beck a mother was at home when she learned that her daughter had been involved in an automobile accident six miles away. The mother immediately drove to the scene, but rescue workers prevented her "from approaching the wrecked vehicle which still contained her injured daughter." The mother then drove to the hospital where she "saw her injured daughter for the first time." Among other claims the mother sued the State for NIED. The State argued that we should limit NIED claims to cases where the plaintiff was actually present at the scene of the injury-producing event and was aware that it caused the injury to the victim. We explained: "The State urges us to restrict NIED claims by applying the Dillon factors as strict requirements rather than guidelines, the approach taken by the California Supreme Court in Thing v. La Chusa ." But we expressly declined to adopt the California Supreme Court's limitation on NIED liability, explaining "that both justice and the policy favoring reasonable limitations on liability [could] be served with a less restrictive approach." We held "that one who is thrust, either voluntarily or involuntarily, into such dramatic events and who makes a sudden sensory observation of the traumatic injuries of a close relative in the immediate aftermath of the event which produced them is no less entitled to assert a claim for his or her emotional injuries than one who actually witnessed the event."

In my view this court missed the opportunity to place sensible limits on NIED claims in Beck . The rule articulated by the California Supreme Court in Thing was a reasonable and necessary approach to bystander NIED claims:

[A] plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if , said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim ; and (3) as a result suffers serious emotional distress-a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.[ ]

The Thing court rightly recognized that "[l]ittle consideration [was] given in post- Dillon decisions to the importance of avoiding the limitless exposure to liability that the pure foreseeability test of 'duty' would create." The court retreated from its unwieldy precedent in Dillon , which had created a progressively expansive class of possible plaintiffs for bystander NIED claims. As the court concluded, "the societal benefits of certainty in the law, as well as traditional concepts of tort law, dictate limitation of bystander recovery of damages for emotional distress."

Because this court purposefully and explicitly declined to join California in tightening the law for bystander NIED claims in Beck , respecting the doctrine of stare decisis I am compelled to follow the law as this court expressed it. I therefore concur in the opinion of the court. But I am concerned that our case law is expanding the boundaries of NIED into an ever-widening circle of liability; at some point, almost any conceivable emotional injury following injury to a closely related relative will be foreseeable, and if foreseeable, then actionable.

      Whether Tristana died shortly before or shortly after Doan last entered the room is unclear from our record but not material to our decision.

      Harrell v. Calvin , 403 P.3d 1182, 1185 (Alaska 2017) (citing Hurn v. Greenway , 293 P.3d 480, 483 (Alaska 2013) ).

      Id. at 1185-86 (quoting Palmer v. Borg-Warner Corp. , 818 P.2d 632, 634 (Alaska 1990) ).

      Dixon v. Dixon , 407 P.3d 453, 457 (Alaska 2017) (quoting Vezey v. Green , 35 P.3d 14, 20 (Alaska 2001) ).

      See Yurioff v. Am. Honda Motor Co. , 803 P.2d 386, 389 (Alaska 1990) ("When the nature of the injury, or the nature of the cause of the injury, prevents a plaintiff from discovering facts essential to his claim, the discovery rule tolls the statute [of limitations] until the plaintiff discovers or reasonably should have discovered that he has a case."); see also Palmer , 818 P.2d at 634 ("Upon notification of an airplane crash, a reasonable person has, as a matter of law, enough information to be alerted that she 'should begin an inquiry' concerning a potential cause of action against the pilot, the carrier or the manufacturer.").

      See Beck v. State, Dep't of Transp. & Pub. Facilities , 837 P.2d 105, 110 (Alaska 1992).

      727 P.2d 1038, 1043 (Alaska 1986).

      Id. at 1040.

      Kavorkian v. Tommy's Elbow Room, Inc. (Kavorkian I ), 694 P.2d 160, 162 (Alaska 1985).

      Kavorkian III , 727 P.2d at 1040.

      Id.

      Id. at 1041 (quoting Dillon v. Legg , 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, 920 (1968) ).

      Id. at 1043.

      Id .

      737 P.2d 789, 791 (Alaska 1987).

      Id. at 790.

      Id. at 792 ; see also id. at 791-92 (summarizing California cases as concluding "that there were triable issues of fact as to whether the alleged harm to the mother resulted from an emotional shock caused by the direct emotional impact from the contemporaneous observation of the immediate consequences of the defendant's negligent act causing the injury and death of her son" and "that the shock of seeing a child severely injured immediately after the tortious event may be just as profound as that experienced in witnessing the accident itself, and that therefore the plaintiff had met the contemporaneous observance requirement" (first citing Nazaroff v. Superior Court, 80 Cal.App.3d 553, 145 Cal. Rptr. 657 (1978) ; then citing Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal. Rptr. 723 (1969) )).

      Id. at 792.

      Id.

      743 P.2d 356, 365-66 (Alaska 1987).

      Id. at 358.

      Id. at 358, 365.

      Id. at 365-66 (emphasis added).

      Id. at 366 n.3 (citing Croft , 737 P.2d 789 ).

      837 P.2d 105, 110 (Alaska 1992) (citing Thing v. La Chusa , 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 (1989) ).

      Id. at 109.

      Id.

      Id. at 109-10.

      Id. at 108.

      Id. at 110.

      Id. at 110 n.2 (quoting Thing , 257 Cal.Rptr. 865, 771 P.2d at 819 ).

      Thing , 257 Cal.Rptr. 865, 771 P.2d at 829-30 ; see Beck , 837 P.2d at 110 n.2. The second Dillon element, which we decided in Kavorkian III to give its "more liberal interpretation," 727 P.2d 1038, 1043 (Alaska 1986), had previously required that "the shock result[ ] from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence." Id. at 1041 (quoting Dillon v. Legg , 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, 920 (1968) ).

      Beck , 837 P.2d at 110.

      Id. at 111.

      727 P.2d at 1039-40 ; see also Kavorkian v. Tommy's Elbow Room (Kavorkian II ), 711 P.2d 521 (Alaska 1985) (detailing alcohol-related aspects of case).

      Beck , 837 P.2d at 110 ; see Mattingly v. Sheldon Jackson Coll. , 743 P.2d 356, 366 (Alaska 1987) ("There was no sudden sensory observation of his injured son."); Croft ex rel. Croft v. Wicker , 737 P.2d 789, 792 (Alaska 1987) ("[The parents] observed [the daughter's] extreme distress just after the alleged assault occurred."); Kavorkian III , 727 P.2d at 1043 ("Upon arriving at the scene, ... [the father] perceived and suffered shock from observing his child's injury.").

      Assume, for example, that the plaintiff perceives that a nurse is providing negligent care when the nurse is actually following the negligent instructions of a supervisor. May the plaintiff recover for NIED even though she misidentified the negligent actor? If the plaintiff perceives one actor's negligence but later learns that others were negligent as well, are her emotional distress damages prorated to reflect only the negligence she contemporaneously recognized? May the plaintiff recover if the evidence shows negligence but not as the plaintiff contemporaneously perceived it (e.g., she thought a nurse failed to give a necessary medication when actually the nurse gave too much)?

      896 P.2d 196, 203 (Alaska 1995).

      Id. at 205.

      Id. at 204.

      The doctors discuss the preexisting duty cases of Hawks v. Department of Public Safety , 908 P.2d 1013, 1016-17 (Alaska 1995), and Karen L. v. State, Department of Health & Social Services, Division of Family & Youth Services , 953 P.2d 871, 875-78 (Alaska 1998). The doctors point out that we discussed bystander cases in Karen L. , but we explicitly noted that they were decided "[i]n another context," id. at 875, and we cited them only to illustrate the concept of foreseeability common to all NIED claims. See Kallstrom v. U.S. , 43 P.3d 162, 165-66 (Alaska 2002) (outlining distinction between bystander and preexisting duty theories of NIED recovery).

      The doctors assert that we "affirmed the trial court's 'finding that no duty was owed to the [plaintiff's] children under a negligent infliction of emotional distress claim,' " quoting our discussion of the trial court proceedings, but the children's NIED claim was not at issue on appeal. We did address the children's separate loss of consortium claim. Chizmar , 896 P.2d at 212-13.

      951 P.2d 851, 856 (Alaska 1998).

      Id.

      See Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 757-58 (Alaska 2008) ("[T]he non-movant's version of the facts must be accepted as true and capable of proof, and we make no attempt to weigh the evidence or evaluate witness credibility. All reasonable inferences to be drawn from the facts presented must be drawn in favor of the non-moving party." (footnote omitted)).

      The doctors rely on cases from several other states besides the later California cases that narrowed the Dillon test. Other jurisdictions reject NIED claims in the medical malpractice context for different reasons. Several disallow them because of the bystander's likely inability to distinguish between proper and negligent medical care-a rationale which supports our decision here. See Squeo v. Norwalk Hosp. Ass'n , 316 Conn. 558, 113 A.3d 932, 946 (2015) ("[T]he rule [limiting NIED claims to cases of gross negligence obvious to a lay observer] recognizes that laypeople are not qualified to assess whether most types of medical judgments and procedures meet the relevant standard of care."); Edinburg Hosp. Auth. v. Treviño , 941 S.W.2d 76, 81 (Tex. 1997) ("A bystander may not be able to distinguish between medical treatment that helps the patient and conduct that is harmful."). The Wisconsin Supreme Court has decided that the state's Medical Malpractice Act "exclusively governs all claims arising out of medical malpractice" and that bystander NIED claims are not allowed because they are not included in the Act. Phelps v. Physician's Ins. Co. of Wis., Inc. , 319 Wis.2d 1, 768 N.W.2d 615, 635-36 (2009). We do not discern a consistent treatment of such claims by other state courts that should make us reconsider our own case law.

      Beck v. State, Dep't of Transp. & Pub. Facilities , 837 P.2d 105, 110 (Alaska 1992).

      We note finally that the doctors raise several alternative arguments that were not addressed by the superior court, including: (1) that Doan's NIED claim is entirely barred by the wrongful death statute, AS 09.55.580, and (2) that Doan has a disqualifying conflict of interest as both representative of the estate and individual plaintiff on the NIED claim. Because the superior court has not addressed these issues, we do not decide them on this petition.

      727 P.2d 1038 (Alaska 1986).

      737 P.2d 789 (Alaska 1987).

      743 P.2d 356 (Alaska 1987).

      837 P.2d 105 (Alaska 1992).

      Op. at 713.

      See AS 09.55.530 -.560.

      837 P.2d at 109.

      Id .

      Id. at 110.

      Id .

      Id . (citing Dillon v. Legg , 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968) and Thing v. La Chusa , 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 (1989) ).

      Id .

      Id .

      48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, 829-30 (1989).

      837 P.2d 105, 110 (Alaska 1992).

      Id. at 109.

      Id.

      257 Cal.Rptr. 865, 771 P.2d at 815.

      Id.

      Id.

      Id.

      Id.

      28 Cal.4th 910, 123 Cal.Rptr.2d 465, 51 P.3d 324, 330 (2002).

      Id. 123 Cal.Rptr.2d 465, 51 P.3d at 325-26.

      Id. 123 Cal.Rptr.2d 465, 51 P.3d at 331.

      Id. 123 Cal.Rptr.2d 465, 51 P.3d at 329.

      Thing , 257 Cal.Rptr. 865, 771 P.2d at 829-30 (emphasis added) (footnotes omitted).

      Id. 257 Cal.Rptr. 865, 771 P.2d at 821 (referencing Dillon , 69 Cal.Rptr. 72, 441 P.2d 912 ).

      Id. 257 Cal.Rptr. 865, 771 P.2d at 828-30.

      Id. 257 Cal.Rptr. 865, 771 P.2d at 815.


source: Caselaw Access Project

author: CARNEY, Justice.

license: Public Domain

text:
    SABRINA V., Appellant, v. State of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
    Supreme Court No. S-17188
    Supreme Court of Alaska.
    May 31, 2019
    Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.
    Mary Ann Lundquist, Senior Assistant Attorney General, Fairbanks, and Kevin G. Clarkson, Attorney General, Juneau, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   CARNEY, Justice.

I. INTRODUCTION

A mother appeals the termination of her parental rights after she signed and then attempted to withdraw a voluntary relinquishment of parental rights. At the time she signed the relinquishment, her child was living with his paternal grandmother, who hoped to adopt him. When it later became clear that the grandmother would not be able to adopt the child, the mother signed a notice of her withdrawal of relinquishment although the ten-day window for withdrawal had passed. Three days later she filed the notice in superior court. That same day, apparently without being aware of the withdrawal notice, the court issued an order terminating the mother's parental rights. The mother appeals. She argues that the court retained discretion to allow her withdrawal even though the ten-day period had passed and that termination of her parental rights was not in the child's best interests. Because, assuming the superior court had discretion to allow the untimely withdrawal, it did not abuse its discretion by declining to do so, we affirm the termination of her parental rights.

II. FACTS AND PROCEEDINGS

A. Background

Sabrina V. is the mother of Kaleb D., who was born in 2005. By 2016 Kaleb was living in Wasilla with his father, who is now deceased. Sabrina had apparently been living outside of Alaska for some years. It does not appear that the parents had a court order regarding Kaleb's custody.

Sabrina also has an older daughter, Lizzie, from a previous relationship. Lizzie was committed to the custody of the Office of Children's Services (OCS) in September 2014 in an earlier child in need of aid (CINA) case. In February 2016, after a successful six-month home visit with Sabrina in Montana, OCS released Lizzie to Sabrina.

B. Pre-Relinquishment CINA Proceedings

Kaleb's father died in April 2016; the cause of death was unknown but may have been related to complications from a recent surgery. OCS filed an emergency petition for temporary custody and to adjudicate Kaleb as a child in need of aid. The petition stated that Kaleb's father had been Kaleb's "sole caregiver." OCS claimed to have "no current contact information" for Sabrina despite having released Lizzie to her roughly two months earlier; Sabrina later testified that her residence had not changed between her reunification with Lizzie and the initiation of CINA proceedings for Kaleb. At the emergency probable cause hearing an OCS caseworker testified that Kaleb had told OCS he had not seen Sabrina in roughly two years and that she "wasn't a good mom." The court granted OCS temporary custody.

OCS apparently found contact information for Sabrina by June 2016. In an August 2016 predisposition report OCS stated that, when contacted, Sabrina had said she was unable to care for Kaleb because she was about to move from Montana to Washington. In late August the court adjudicated Kaleb in need of aid and granted OCS custody pending disposition. By September 2016 OCS had begun to investigate two of Kaleb's paternal relatives to determine if they could adopt him. Because the relatives lived in Oklahoma, OCS was working with its counterpart there pursuant to the Interstate Compact on the Placement of Children (ICPC).

At the disposition hearing the following month the court found that Sabrina had not yet established a relationship with Kaleb and had "made very little effort to stay in contact with him when she left Alaska." The court also found that because of Sabrina's history of drug use and involvement with OCS, it would be contrary to Kaleb's best interests to place him with her. The court committed Kaleb to OCS's custody for up to two years.

Around June 2017 OCS changed the primary goal for Kaleb from reunification with Sabrina to adoption. Kaleb was then living in Oklahoma with a paternal uncle, who OCS hoped would be able to adopt him. At a permanency hearing in August, Sabrina's attorney reported that the parties had negotiated a consent to adoption. Sabrina later signed the consent to adoption by Kaleb's paternal uncle, and the court approved it in January 2018.

In February 2018 OCS petitioned to terminate Sabrina's parental rights. The petition alleged that Sabrina "ha[d] not engaged in any of the identified case plan activities [or] maintained consistent contact" with OCS despite "consistently stat[ing] ... her desire to reunify" with Kaleb. In March the guardian ad litem reported that Kaleb's uncle would not be able to adopt Kaleb and that he had been moved to his paternal grandmother's home. His grandmother also lived in Oklahoma and OCS was considering her as a possible adoptive parent.

C. Proceedings Relating To The Relinquishment And Withdrawal

Sabrina signed a voluntary relinquishment of her parental rights on May 30, 2018, and filed it with the court on June 14. The relinquishment acknowledged that the grandmother's adoption of Kaleb depended upon a positive home study and Kaleb's living with her for six months before the adoption; Sabrina retained the privilege to be notified if the adoption would not proceed. The relinquishment stated that Sabrina could withdraw it "for any reason" within ten days after signing it, and that after ten days the court could order her parental rights terminated at any time if it found termination to be in Kaleb's best interests. The relinquishment also provided that, after a termination order was signed but before the entry of an adoption or legal guardianship decree, Sabrina could seek a review hearing to reinstate her parental rights. The relinquishment incorporated the statutory standards governing such a review hearing: to have the termination order vacated, Sabrina would have to show, by clear and convincing evidence, that reinstatement would be in Kaleb's best interests and that she had been rehabilitated from the issues that led to termination of her parental rights.

In late June 2018 OCS filed a permanency report stating that Kaleb's grandmother's home was now "seen as a short-term placement given [the grandmother's] medical needs." The report explained that Oklahoma's ICPC home study had determined that her health made her unsuitable to adopt Kaleb.

Sabrina received a copy of the permanency report shortly after it was filed; this seems to have been her first notice that the grandmother would not be able to adopt Kaleb. On June 29, 2018, Sabrina signed a notice that she was withdrawing her relinquishment of parental rights. The notice stated that she had "signed the relinquishment with the understanding that the permanent plan for [Kaleb was] adoption by [his] paternal grandmother." It also stated that Sabrina "[did] not believe it [was] in [Kaleb]'s best interests to be a legal orphan" and would have withdrawn the relinquishment earlier if she had known of the grandmother's inability to provide a permanent adoptive placement.

Although Sabrina signed the Notice of Withdrawal and served it on the parties on June 29, it was not logged as filed with the court until July 2. She suggests that this was likely due to the fact that June 29, 2018, fell on a Friday, when Alaska courts and court offices closed at noon. Also on July 2, and apparently without being aware of the Notice of Withdrawal, the court ordered termination of Sabrina's parental rights to Kaleb. Neither Sabrina nor her counsel was present at a hearing addressing permanency the following day, as the court had found that based on the relinquishment and termination, Sabrina was not entitled to notice of the hearing.

Sabrina moved for reconsideration on July 11. She argued that "[t]he CINA statutes do not directly speak to whether a parent can withdraw [a] relinquishment" more than ten days after signing it, but that nothing in the statutes or rules prohibited it. She urged the court to treat her withdrawal as a motion to amend a pleading, for which leave should be freely given under Alaska Civil Rule 15(a). The court invited OCS and the guardian ad litem to respond; both argued that reconsideration should be denied because Sabrina's withdrawal was untimely.

On July 25, 2018, the superior court denied reconsideration. The court rejected Sabrina's argument that she should be permitted to withdraw the relinquishment under Civil Rule 15(a), noting that both AS 47.10.089(c) and the terms of the relinquishment specifically provided for a ten-day deadline to withdraw the relinquishment. The court also found that the grandmother's disqualification from adopting Kaleb was not a serious change of circumstances that justified allowing late withdrawal of the relinquishment because Sabrina had only retained the right to be notified, and not the right to withdraw her relinquishment, if the adoption was not possible.

Sabrina appeals.

III. STANDARD OF REVIEW

"We review the denial of a motion for reconsideration for abuse of discretion." An abuse of discretion exists if the superior court's decision "is arbitrary, capricious, manifestly unreasonable, or ... stem[s] from an improper motive."

"When interpreting CINA statutes and rules, we apply our independent judgment, 'adopting the rule of law that is most persuasive in light of precedent, reason, and policy.' "

IV. DISCUSSION

Sabrina argues that the superior court should have granted her motion for reconsideration of its order terminating her parental rights. She concedes that a parent "does not have the absolute right" to withdraw a relinquishment more than ten days after signing it, but she argues that after those ten days and until a termination order is issued, the superior court retains "the discretion to allow such withdrawal if it is in the child's best interests." She points out that, although it was more than ten days after she signed her relinquishment, she signed and served her Notice of Withdrawal three days before the court signed the termination order. She argues that the court should have granted her motion for reconsideration both because it was not aware of her Notice of Withdrawal when it signed the termination order and because it retained jurisdiction under AS 47.10.100(a) to modify, set aside, or revoke termination of her parental rights if doing so was in Kaleb's best interests.

OCS responds that Sabrina's purported withdrawal was "ineffective" because it was signed, served, and filed after the ten-day period during which she was entitled to withdraw her relinquishment. OCS argues that the relevant statutes and rules do not permit the court to allow withdrawal of a relinquishment solely on the basis of the child's best interests, without considering the parent's rehabilitation, during the period after the ten-day window and before termination. It argues that after ten days had passed Sabrina's only avenues for recourse were to obtain OCS's written consent to the withdrawal under AS 25.23.180(g) or to seek a review hearing under AS 47.10.089(h). OCS also argues that Sabrina waived her arguments under AS 47.10.100(a) by failing to raise them before the superior court.

A. No Rule Or Statute Clearly Governs Sabrina's Attempted Withdrawal.

Alaska Statute 47.10.089 governs voluntary relinquishments. Under subsection (c) of the statute, "[a] voluntary relinquishment may be withdrawn within 10 days after it is signed." Subsection (h) provides:

After a termination order is entered ... a person who voluntarily relinquished parental rights ... under this section may request a review hearing, upon a showing of good cause, to vacate the termination order and reinstate parental rights relating to that child. A court shall vacate a termination order if the person shows, by clear and convincing evidence, that reinstatement of parental rights is in the best interest of the child and that the person is rehabilitated and capable of providing the care and guidance that will serve the moral, emotional, mental, and physical welfare of the child.[ ]

The parties do not dispute that Sabrina's Notice of Withdrawal fell outside the ten-day period during which she retained a right of withdrawal. She signed the relinquishment on May 30, 2018, and filed it with the court on June 14; the Notice of Withdrawal is dated June 29, 2018-15 days after the relinquishment was filed. But the court did not order her parental rights terminated until July 2, 2018, three days after Sabrina signed the withdrawal notice. The certificate of service shows that the notice was faxed to OCS June 29. Sabrina's Notice of Withdrawal therefore preceded the termination order and thus does not clearly fall within AS 47.10.089(h)'s provisions for post-termination review hearings.

Sabrina argues that the superior court had discretion to allow her to withdraw her relinquishment even if the ten-day period had passed. She points to AS 47.10.089(e), which provides: "Not less than 10 days after a voluntary relinquishment is signed, the court shall enter an order terminating parental rights if the court determines that termination of parental rights under the terms of the relinquishment is in the child's best interest." Sabrina contends that this section requires the court to conduct a best interests analysis prior to termination and to reinstate parental rights if doing so would serve the child's best interests. She concedes that a parent has no "absolute right" to withdraw a relinquishment after ten days, but she argues that the superior court retains "the discretion to allow such withdrawal" until a termination order is issued, and that in this case a proper exercise of its discretion would have been to grant her motion for reconsideration and hold a best interests hearing. She asserts that AS 47.10.100(a) authorizes the court to do this because it states that the court retains jurisdiction for up to two years in a CINA proceeding to modify, set aside, or revoke a judgment or order based on the child's best interests.

OCS argues that the court does not have discretion to allow withdrawal of a relinquishment solely based on the child's best interests, without considering the parent's rehabilitation, during the period after the ten-day window and before termination. It claims that Adoption Rule 9 and AS 25.23.180(g) govern this period, and that under these provisions a parent must either obtain consent for the withdrawal from the agency having custody of the child or establish good cause for a review hearing.

The rule and statutes the parties cite do not clearly resolve this case. Even assuming that AS 47.10.089(e) permits the court to accept a late withdrawal, the subsection does not require the court to do so. Adoption Rule 9(g), meanwhile, allows a parent to "move the court to permit withdrawal of the ... relinquishment after the 10 day period pursuant to ... AS 25.23.180(g) or AS 47.10.089(h)." (Emphasis added.) But by its terms AS 47.10.089(h) applies "[a]fter a termination order is entered and before the entry of an adoption or legal guardianship decree." (Emphasis added.) And AS 25.23.180(g) explicitly limits itself to relinquishments executed under AS 25.23.180 -that is, in the course of adoption rather than CINA proceedings:

Notwithstanding the provisions of (b) of this section, a relinquishment of parental rights with respect to a child, executed under this section , may be withdrawn by the parent, and a decree of a court terminating the parent and child relationship on grounds set out in (c)(1) of this section may be vacated by the court upon motion of the parent, if the child is not on placement for adoption and the person having custody of the child consents in writing to the withdrawal or vacation of the decree.[ ]

Sabrina's relinquishment was executed under AS 47.10.089, not under AS 25.23.180, so AS 25.23.180(g) does not apply. Thus none of the rules or statutes cited by either party appear to apply to Sabrina's situation.

B. Assuming The Superior Court Had Discretion To Accept A Late Withdrawal, It Did Not Abuse Its Discretion By Declining To Do So.

We need not decide what additional hearings or procedures might have been allowable because, even assuming the superior court had the discretion to accept Sabrina's late withdrawal notice, its refusal to do so was not an abuse of discretion. Sabrina concedes that the superior court was not required to accept her withdrawal; she asserts only that under AS 47.10.089(e) and AS 47.10.100 it "had the discretion" to do so based on Kaleb's best interests. She argues that it should have exercised this discretion to hold a hearing on whether termination was in Kaleb's best interests after it became clear that his grandmother could not adopt him. We read this as an argument that the court abused its discretion by failing to hold such a hearing. OCS responds that granting her a best interests hearing would require trial courts "to conduct a mini-termination trial to decide whether the parent's withdrawal should be given effect," which would undermine the finality that the ten-day rule aims to provide.

We assume without deciding that the superior court had the discretion to grant Sabrina's motion for reconsideration and hold a hearing on whether to permit her to withdraw her relinquishment based on Kaleb's best interests. A trial court abuses its discretion if it makes a decision that "is arbitrary, capricious, manifestly unreasonable, or ... stem[s] from an improper motive." Sabrina does not allege any improper motive, so we need only consider whether the superior court acted arbitrarily, capriciously, or unreasonably when it declined to reconsider its termination order or hold a best interests hearing. We conclude that it did not.

In its order denying Sabrina's motion for reconsideration, the court first found that the ten-day withdrawal deadline under AS 47.10.089(c) clearly governed Sabrina's attempt to withdraw her relinquishment. The court therefore found the withdrawal untimely. The court also emphasized that the relinquishment itself expressly incorporated this withdrawal provision, as required by statute. The relevant sections of the relinquishment stated:

2. I may withdraw this relinquishment within 10 days after it is signed for any reason. I understand that the court will not sign either the order terminating my parental rights or an adoption decree sooner than ten days after I have signed this relinquishment....
3. Ten (10) or more days after I sign this relinquishment the court may enter an order terminating my parental rights if the court finds that termination of my parental rights ... is in the child's best interests.

Given this language, the court's decision to reject the withdrawal as untimely cannot be considered arbitrary or unreasonable.

In addition, the court found that the failure of the planned adoption did not provide grounds to reconsider termination, because the relinquishment expressly contemplated the possibility that the adoption might fall through. The court noted that Sabrina had not retained the right to withdraw her relinquishment if Kaleb was not permanently placed with his paternal grandmother; she had only retained "the privilege to be notified if placement with [Kaleb's grandmother] no longer [was] available." The court found that OCS had complied with this term "by notifying [Sabrina] on July 23, 2018, when Oklahoma denied the home study and determined [Kaleb's grandmother] was not an appropriate permanent placement."

These findings are also not arbitrary, capricious, or unreasonable; like the court's findings on the withdrawal deadline, they comport with both AS 47.10.089 and the relinquishment's language. The relinquishment stated:

The department has decided to place my child for adoption with [his paternal grandmother] in accordance with the permanency plan. The department must receive a positive home study and the child must be in the adoptive home for 6 months before the department can consent to adoption of my child.... If [his grandmother] becomes unable to care for my child for any reason, I retain the privilege to be notified that the placement is no longer available. If the placement is no longer available, the department will send me a letter by regular and certified mail to tell me that the placement is no longer available.

The relinquishment expressly acknowledged that the adoption might fail as a result of a negative home study or the grandmother's inability to care for Kaleb-as it subsequently did. While a consent to adoption would have allowed Sabrina to condition her consent on the grandmother's ability to adopt Kaleb, the relinquishment was unconditional, and only retained a privilege to be notified if the adoption fell through. And as the court found, Sabrina was promptly notified via the permanency report. But even if she had not been, AS 47.10.089 provides that generally "[a] voluntary relinquishment may not be withdrawn ... on the ground that a retained privilege has been withheld from the relinquishing parent." Rather, the parent must request a review hearing to seek enforcement of the retained privilege. It was therefore reasonable for the superior court to conclude that the failure of the adoptive placement did not entitle Sabrina to be permitted to withdraw her relinquishment based solely on a best interests determination.

C. We Do Not Reach Sabrina's Argument That Terminating Her Parental Rights Was Not In Kaleb's Best Interests.

In her Notice of Withdrawal Sabrina asserted that she was entitled to withdraw her relinquishment because the anticipated adoption had failed and termination of her parental rights would therefore not be in Kaleb's best interest. In her briefing she urges us to treat this assertion not as a claim that the failed adoption itself allows the withdrawal-an argument that the superior court properly rejected-but as a separate, direct attack upon the court's termination order.

But by filing the relinquishment, Sabrina voluntarily removed herself from CINA proceedings relating to Kaleb. She "voluntarily relinquish[ed] to the Department of Health and Social Services ... any and all rights and responsibilities of a parent with respect to [Kaleb]." If she wished to reinsert herself in subsequent proceedings, she could only do so in the following ways: (1) by withdrawing the relinquishment, either within ten days or, assuming the court could allow late withdrawal, with the court's permission; (2) by attacking the validity of the relinquishment on some other ground; (3) by moving to enforce an explicitly retained privilege; or (4) by showing good cause for a review hearing to vacate the termination order. Sabrina has done none of these. Instead she attempts to directly appeal the termination order via an argument that, under the explicit terms of the relinquishment, cannot be a basis for reinstating her parental rights: that the adoption did not take place. Unless and until she is able to resume participation in the proceedings by withdrawing or voiding her relinquishment, she has no standing to bring such a challenge. We therefore do not consider Sabrina's argument that termination of her parental rights was not in Kaleb's best interests.

V. CONCLUSION

We AFFIRM the superior court's denial of reconsideration and its termination of Sabrina's parental rights.

      We use pseudonyms for all family members.

      See AS 47.10.142 (governing emergency custody); CINA Rule 6.

      Despite this, the court's temporary custody order, issued in July 2016, found that "OCS made efforts to locate [Sabrina] but her whereabouts are unknown."

      See AS 47.10.081 (requiring OCS to file predisposition report prior to disposition hearing); CINA Rule 16(a) (listing required parts of predisposition report).

      Codified at AS 47.70.010.

      See AS 47.10.080(c) ; CINA Rule 17.

      See AS 47.10.080(c)(1).

      See AS 25.23.040 -.070 (governing consents to adoption); AS 47.10.084(c) (providing that parent whose child has been placed in OCS's custody but whose parental rights have not been terminated retains right to consent to adoption).

      See AS 47.10.089 (providing for voluntary relinquishment of parental rights).

      See AS 47.10.089(h) (outlining requirements for review hearing to reinstate parental rights after termination based upon relinquishment).

      See Press Release, Alaska Court System, Office of the Administrative Director, Beginning July 1, 2016 Court System to Close Courts Statewide on Fridays at Noon to Help Reduce Operating Costs (June 15, 2016), https://public.courts.alaska.gov/web/media/docs/fri-closure.pdf; Palmer , Alaska Court System , http://www.courts.alaska.gov/courtdir/3pa.htm (last visited Apr. 22, 2019) (listing regular Friday business hours for court in Palmer, where Sabrina filed withdrawal notice, as 8:00 a.m. to 12:00 p.m.).

      Alaska R. Civ. P. 15(a) (providing that when a pleading may not be amended as a matter of course, a party may only amend it "by leave of court or by written consent of the adverse party," but that "leave shall be freely given when justice so requires").

      See AS 47.10.089(c) ("A voluntary relinquishment may be withdrawn within 10 days after it is signed. The relinquishment is invalid unless the relinquishment contains the right of withdrawal as specified under this subsection.").

      Alaskan Adventure Tours, Inc. v. City & Borough of Yakutat , 307 P.3d 955, 959 (Alaska 2013).

      Sharpe v. Sharpe , 366 P.3d 66, 68 (Alaska 2016) (alterations in original) (quoting Morris v. Horn , 219 P.3d 198, 203-04 (Alaska 2009) ).

      Danielle A. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 215 P.3d 349, 353 (Alaska 2009) (quoting Brynna B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs. , 88 P.3d 527, 529 (Alaska 2004) ).

      See AS 47.10.089(c), (e).

      See AS 47.10.100(a) (providing that superior court retains jurisdiction over CINA case for up to two years unless child turns 19 or case is resolved sooner, and may set aside or revoke previous judgment or order if doing so is in child's best interests).

      AS 25.23.180(g) provides for withdrawal of a relinquishment "if the child is not on placement for adoption and the person having custody of the child consents in writing to the withdrawal." AS 47.10.089(h) provides that a parent who has relinquished rights may, after a termination order is issued, seek a review hearing to vacate the order upon a showing of good cause.

      While Sabrina did not directly cite AS 47.10.100(a) in her motion for reconsideration, she did argue that the superior court had the authority to allow her to withdraw her relinquishment under a different provision, Alaska Civil Rule 15(a), which governs amendment of pleadings. Alaska R. Civ. P. 15(a). But as we discuss below, even assuming that this argument is properly raised on appeal and that AS 47.10.100(a) would allow the court to permit late withdrawal of a relinquishment, the court did not abuse its discretion by declining to do so here.

      AS 47.10.089(h). We note that had the termination order been signed prior to service of Sabrina's withdrawal, this provision would clearly govern this case.

      See Alaska Adopt. R. 9(g) (providing that notification of withdrawal of a consent to adoption or relinquishment may be provided to "the court[ ] or the person or agency obtaining the consent or relinquishment").

      See AS 47.10.089(c), (e).

      See AS 47.10.100(a) (providing that superior court retains jurisdiction over CINA case for up to two years unless child turns 19 or case is resolved sooner, and may set aside or revoke previous judgment or order if doing so is in child's best interests).

      See Alaska Adopt. R. 9(g); AS 25.23.180(g) ; AS 47.10.089(h).

      AS 23.25.180(g) (emphasis added).

      Sharpe v. Sharpe , 366 P.3d 66, 68 (Alaska 2016) (alterations in original) (quoting Morris v. Horn , 219 P.3d 198, 203-04 (Alaska 2009) ).

      See AS 47.10.089(c) (providing that a relinquishment is invalid unless it "contains the right of withdrawal as specified under this subsection").

      The superior court's finding that July 23, 2018, was the date OCS notified Sabrina of the failed adoption appears to be based on OCS's response to Sabrina's motion for reconsideration, in which it stated that it had sent her a letter on July 23 with the results of Oklahoma's ICPC home study. We note, however, that Sabrina actually received notice via the permanency report, which was sent to her on June 27, 2018, two days after OCS received the ICPC home study results. This apparent error does not render clearly erroneous the court's ultimate finding that Sabrina was promptly notified.

      See AS 25.23.040(a) (providing for written consent to be given to "a particular adoption").

      AS 47.10.089(f).

      AS 47.10.089(g). Alaska Civil Rule 60(b) provides certain exceptions to this general rule, but as Sabrina has not contested the relinquishment on any of the grounds set forth in Rule 60(b), we do not address them here.

      See AS 47.10.089(c).

      See, e.g. , Alaska R. Civ. P. 60(b) (allowing motions for relief from judgment on grounds such as mistake, newly discovered evidence, and fraud).

      See AS 47.10.089(g).

      See AS 47.10.089(h).

      Although we reject Sabrina's attempt to challenge the termination order, we note the absence of explicit best interest findings in that order. We emphasize that AS 47.10.089(e) requires the court to "determine[ ] that termination of parental rights under the terms of the relinquishment is in the child's best interests" before issuing a termination order, and we remind trial courts of the obligation to make findings adequate to support meaningful appellate review. See, e.g. , Borchgrevink v. Borchgrevink , 941 P.2d 132, 139 (Alaska 1997).


author: MAASSEN, Justice.

text:
    Leonard T. KELLEY, Appellant, v. MUNICIPALITY OF ANCHORAGE, BOARD OF EQUALIZATION, Appellee.
    Supreme Court No. S-16980
    Supreme Court of Alaska.
    May 31, 2019
    Leonard T. Kelley, Kelley & Canterbury, Anchorage, for Appellant.
    Quincy H. Arms, Assistant Municipal Attorney, and Rebecca A. Windt Pearson, Municipal Attorney, Anchorage, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   MAASSEN, Justice.

I. INTRODUCTION

The superior court affirmed a municipality's tax valuation of a landowner's property. The landowner argues on appeal that the municipality's valuation review board abused its discretion by excluding certain evidence of value on timeliness grounds; we find no abuse of discretion. The landowner also argues that the board applied fundamentally wrong principles of valuation by failing to consider, as definitive evidence of value, either his purchase price for the property or the price for which he sold a neighboring lot. But the assessor explained at the hearing why he considered certain evidence of value more persuasive and more consistent with the municipality's usual methods of appraisal, and it was well within the board's broad discretion to accept the assessor's explanation.

We therefore affirm the superior court's decision upholding the board's valuation of the property.

II. FACTS AND PROCEEDINGS

A. Facts

In September 2016 Leonard Kelley bought Thunderbird Falls Lot 5 from the Mancel O. Pederson Estate for $ 160,000. Located in a subdivision within the Municipality of Anchorage, Lot 5 is 93,006 square feet and has a residence on it. The Municipality's assessor valued Lot 5 at $ 318,900 using a market adjusted cost approach, which he described as "includ[ing] land value as if vacant plus depreciated replacement cost of the improvements ... calibrated to specific market segments based on a large sampling of sales data."

In February 2017 Kelley appealed the valuation to the Municipality of Anchorage Board of Equalization, asking for time to gather additional evidence. With his appeal he submitted the settlement statement from his purchase of Lot 5, along with a letter describing various "building deficiencies" in the residence: problems with the septic system, rot in the garage and deck, a leaky roof, and windows that needed replacing, as well as a general need for improvements and repairs. In response, the Municipality's assessor asked Kelley to submit "[c]ontractors['] itemized estimates of the cost to repair damage, as indicated in your [letter]," by April 1, but Kelley did not do so.

The assessor nonetheless made a number of adjustments to his valuation of the property following a March site inspection, including correcting the square footage, removing the garage and carport from the assessed property, and changing the condition "from average to poor plus for deferred maintenance." Kelley then submitted additional evidence: a Multiple Listing Service (MLS) listing for Lot 5 showing an asking price of $ 298,000; his purchase agreement; photos of the property; and a 2016 article describing economic trends in Alaska. Kelley later submitted the name of the seller's agent for his purchase, along with information about his August 2016 sale of a neighboring lot to a developer, Troy Davis Homes, for $ 77,000.

The assessor emailed the seller's agent seeking an explanation for Lot 5's purchase price; he noted that the property had been listed for months, had a sale pending at $ 225,000, then, when that sale "fell through," was sold to Kelley for "his cash offer of $ 160,000" just a few weeks later. The seller's agent later responded to Kelley, who forwarded her response to the assessor. She explained that the property "was marketed heavily" but failed to sell because of "the age and deferred maintenance of the property," making financing "a challenge," and ultimately "the owner decided to accept an offer lower than list price, taking into consideration the cost of repairs the buyer would need to address." In the meantime, on March 29, the Municipality sent Kelley a new valuation of $ 259,800, based on the assessor's revised recommendation following his site inspection. Kelley did not accept this valuation either, however, and his appeal was forwarded to the Board.

B. Proceedings

The Board held an appeal hearing on April 20 and upheld the assessor's recommended value of $ 259,800. Kelley asked for reconsideration, alleging two procedural errors: (1) the Board's refusal to admit "documentary evidence" of the value of two other properties in the subdivision and (2) the Board's refusal to allow Kelley to directly question the assessor. The Board granted reconsideration and scheduled another hearing for May 10.

At the start of the second hearing, the Board chair announced that new procedures would allow "both parties [to] have an opportunity to ask each other questions before we close the testimony." The chair also ruled that absent the Municipality's agreement, the Board would not accept Kelley's offered documentary evidence related to other properties because he had failed to comply with the deadline for submitting that information to the assessor. The assessor, while maintaining the Municipality's objection to that evidence, agreed that Kelley could "speak to it"; the chair allowed this, reasoning that if the evidence was really from municipal records, as Kelley claimed, "it should be very easy for anyone to find."

Kelley testified that Lot 5 had been "fairly marketed, openly marketed" by a realtor and listed on MLS for over 15 months and that the seller "was under no duress" when he bought it. He testified that neighborhood lot values ranged from $ 77,000 to $ 90,000, referring to the documentary evidence to which the Municipality had objected. He argued that the comparable sales figures used by the assessor were higher because they were "pre-recessionary." He said that his own valuation of $ 160,000-the price he paid for Lot 5-was based on the poor condition of the building, necessitating over $ 45,000 in repair costs.

The assessor then testified about his use of the "market adjusted cost approach" in valuing Kelley's property. He explained that "[p]art of the definition of market value is [whether the property was] exposed to an open market, was [the sale] between knowledgeable buyers, between reasonably informed buyers or reasonably informed sellers." He testified that the open market was usually accessed through the MLS, and that if owners sold their property without an MLS listing, the Municipality's "operating procedure" required that he "not consider that [as] exposure to the open market." He believed Kelley's purchase of Lot 5 to be a "discounted cash sale" which did not represent fair market value; factors he considered were that previous pending sales had fallen through, Kelley offered cash ("an atypical financing transaction type"), and Kelley accepted the property "as is" without an inspection. He pointed to Lot 5's listing history, in which the price dropped from $ 225,000 to $ 160,000 in ten days, as evidence of some sort of duress on the seller. He also testified that purchases from estates "generally are not considered at-market sales, especially when they have condition issues," because the heirs "may have just [given] up on it and wanted to unload the property...." He conceded that "[b]ecause of the condition of the subject [property], it is difficult to find comparable sales that support the revised value," but he stood by that value as equitable and consistent with the Municipality's usual methods of assessment.

The Board again affirmed the Municipality's valuation of $ 259,800. Kelley appealed to the superior court, which affirmed the Board's decision. Kelley now appeals to us.

III. STANDARD OF REVIEW

We "independently review the merits of an administrative board's decisions." We will affirm an administrative decision involving questions of fact or law requiring agency expertise if the decision has a reasonable basis. We have consistently held that "[t]axing authorities are to be accorded broad discretion in deciding among recognized valuation methods." The taxing authority is "not bound by any particular formula, rule or method, either by statute or otherwise. Its choice of one recognized method of valuation over another [is] simply the exercise of a discretion committed to it by law." What concerns us is "nothing less than fraud or the clear adoption of a fundamentally wrong principle of valuation." If the appraiser has not "transgressed the bounds of honest judgment," the taxing authority's selected valuation should be upheld.

"An agency adjudicator's decision to exclude evidence is reviewed for abuse of discretion."

IV. DISCUSSION

Kelley raises three arguments on appeal, one procedural and two substantive. He first challenges the Board's exclusion of certain evidence of value, but we conclude that the Board's action was consistent with the governing provisions of the Anchorage Municipal Code and not an abuse of discretion. Kelley's substantive arguments focus on the Board's failure to accept as determinative of value two sale prices: one the amount Kelley paid for the lot at issue and the other the amount Kelley received a month earlier for his sale of the neighboring lot. But we conclude that the Board acted well within its broad discretion in considering the evidence of value and reached a decision that had a reasonable basis in the evidence.

A. The Board Did Not Err By Refusing To Admit Kelley's Offered Documentary Evidence Of Other Lots' Values.

The documentary evidence Kelley offered at the two hearings, and which the Board refused to admit on timeliness grounds, consisted of public inquiry statements showing the assessed values of two neighboring lots. The Anchorage Municipal Code (AMC) provides that "[d]ocuments to be submitted as evidence by the appellant must be filed with the assessor no later than 15 days from the close of the appeal period," which is "30 days after a tax assessment is mailed to the property owner." "The appellant is precluded from introducing at the Board hearing any evidence not submitted by the deadline."

Kelley argues that he made "good faith attempts to comply with the [Municipality's] deadlines," but he does not elaborate on what those attempts were. The date of the original assessment does not appear in the record, but Kelley responded to it on February 13, 2017, requesting an extension of the evidence-submission deadline "until assessor review." The assessor conducted his site inspection on March 8 and sent Kelley a reduced valuation on March 29; in the meantime Kelley had sent the assessor a variety of additional evidence, not including the public inquiry statements. He first attempted to introduce those statements at the April 20 appeal hearing, over 60 days after he had first requested an extension of the 15-day time limit for the submission of evidence.

While maintaining the documents' exclusion at the second appeal hearing, on May 10, the Board still allowed Kelley to testify about the property values shown in the excluded statements. Kelley was also allowed to question the assessor about the differences between those values and the one assigned to Lot 5; the assessor theorized that the different values could reflect differences in topography or wells and septic systems. In Brandner v. Municipality of Anchorage , the record suggested that the property owner "did not make a good faith attempt to comply with the Municipality's deadline" for the submission of repair estimates, and the Board nonetheless allowed the owner to testify about them; we concluded that the Board did not abuse its discretion by excluding the documentary evidence. Because the record does not reveal a good faith attempt at compliance, and because the Board in any event allowed Kelley to introduce the substance of the omitted evidence through testimony, we reach the same conclusion here.

B. The Board Was Not Required To Find That Kelley's August 2016 Sale Of A Different Lot For $ 77,000 Was Definitive Evidence Of Value.

Kelley contends that the Board erred "in refusing to consider" his sale of a different lot in the same subdivision a month earlier to a developer for $ 77,000 "as a fair market value transaction." But the Board heard the assessor's testimony about that sale in response to Kelley's questions; we cannot conclude that the Board refused to consider the evidence, only that the Board, after considering it, failed to find the evidence definitive.

Rejecting the sale as definitive proof of Lot 5's value has support in the assessor's testimony. He testified that the Municipality defined market value based on how the property was "exposed to the open market"; when property is not listed on MLS, the Municipality considers the purchase price as unreliable evidence of market value and will not use it for that purpose. Kelley counters that there are "many ways" for an owner to expose a property to the open market, such as posting a "For Sale" sign, and that the Municipality's reliance on the MLS exclusively for determining exposure to the open market is a "fundamentally wrong principle of valuation." In support of this argument he cites CH Kelly Trust v. Municipality of Anchorage, Board of Equalization , though without a clear explanation of why he considers the case supportive.

We held in CH Kelly Trust that the Municipality's appraisals of four vacant lots used "a fundamentally wrong principle of valuation" because of the appraiser's "total failure even to consider" the prices the owners paid at auction for the lots the year before. We also observed, however, that "[t]horough analysis of the subject sales might well indicate that the auction prices paid did not represent true market value"; it was the failure to consider them at all-for purposes of deciding whether they were relevant-that justified reversal.

In this case, the assessor testified that he considered Kelley's sale of the lot to the developer but concluded that the price did not reflect true market value because, absent an MLS listing, there was no assurance that the lot had actually been exposed to the open market. The assessor testified that a property owner "ha[s] the option" to list the property on MLS; while the listing may carry a cost, it has the benefit of assuring exposure to the open market for tax valuation purposes. Kelley's conclusory discussion of this issue does not persuade us that the Municipality's reliance on the MLS to demonstrate exposure to the market made its valuation methodology "fundamentally wrong."

C. The Board Was Not Required To Find That Kelley's Payment Of $ 160,000 For Lot 5 Was Definitive Evidence Of Its Value.

Kelley also argues that the Board "erred when it declined to consider the cash sale price of $ 160,000" as conclusive evidence of Lot 5's fair market value. He argues that cash sales are "the accepted definition of the concept of market value," and he cites AS 29.45.110(a)'s definition of "full and true value" for purposes of municipal taxation: "the estimated price that the property would bring in an open market and under the then prevailing market conditions in a sale between a willing seller and a willing buyer both conversant with the property and with prevailing general price levels." Kelley contends that the "sales comparison approach is the most reliable method" of estimating full and true value, and he cites an appraisal manual in support of the proposition that the sales comparison approach is usually employed for the "valuation of a single[-]unit residential property."

The Municipality counters that it does employ a comparable sales approach for the land and did so in valuing Lot 5; it simply selected different sales for comparison purposes than those Kelley advocates. The Municipality submitted to the Board a "Land Sales Adjustment Grid" listing three comparable land sales and concluding that "[t]he indicated value range from $ 96,800 to $ 161,000 supports the [Municipality's] land-assessed value of $ 112,900." But the assessor declined to consider the price Kelley paid for Lot 5 in determining its market value, concluding that the sale "was not an arm's length sale, but rather a discounted cash sale."

The assessor explained this further at the May appeal hearing. He testified that Kelley's purchase of Lot 5 from the Pederson Estate was not considered proof of market value because "estate sales generally are not considered at-market sales, especially when they have condition issues"; the heirs may have "just [given] up on it and wanted to unload the property." He also pointed to the MLS listing history, showing the price falling from $ 225,000 to $ 160,000 in just ten days, as evidence of seller duress. The assessor explained the Municipality's standard practice of valuing the improvements by estimating their replacement cost minus depreciation, and he described the various reductions he made in Lot 5's valuation following his site inspection.

Kelley argues that it is "a fundamentally wrong principle of valuation" to categorically exclude from consideration cash sales and sales by estates, again citing CH Kelly Trust . But the assessor did not purport to apply arbitrary rules; rather, he testified that the Municipality generally considered such circumstances as evidence that the price did not reflect market value. He testified that "estate sales generally are not considered at-market sales, especially when they have condition issues ," as here, and he testified that the cash sale in this case was evidence "that it could be under some sort of duress." (Emphasis added.) As noted above, CH Kelly Trust only counsels against arbitrarily ignoring sales information; it does not require that the assessor accept the property owner's proffered sales as definitive evidence of value.

The assessor gave a cogent explanation of his methodology, and the taxing authority had broad discretion in deciding whether to implement it. We are not persuaded that the Municipality applied "a fundamentally wrong principle of valuation" when it declined to accept the price Kelley paid for Lot 5 as definitive evidence of its value. Because the Board's valuation decision had a reasonable basis in the evidence, we see no reason to disturb it.

V. CONCLUSION

We AFFIRM the superior court's decision affirming the May 10, 2017 decision of the Board of Equalization.

      The lot Kelley sold to Troy Davis Homes was identified as "Thunderbird Falls #1 lot 5," not to be confused with the Lot 5 at issue here, which was purchased by Kelley a month later.

      See AMC 12.05.053(C)(7) (2018) ("Documents to be submitted as evidence by the appellant must be filed with the assessor no later than 15 days from the close of the appeal period unless the appellant and the assessor agree to an extension. If an appellant has refused or failed to provide the assessor or assessor's agent full access to property or records, the appellant shall be precluded from offering evidence on the issue or issues affected by that access and those issues shall be decided in favor of the assessor.").

      Lakloey, Inc. v. Univ. of Alaska , 157 P.3d 1041, 1045 (Alaska 2007) (quoting Gunter v. Kathy-O-Estates , 87 P.3d 65, 68 (Alaska 2004) ).

      N. Star Alaska Hous. Corp. v. Fairbanks N. Star Borough Bd. of Equalization , 778 P.2d 1140, 1144 n.7 (Alaska 1989).

      Cool Homes, Inc. v. Fairbanks N. Star Borough , 860 P.2d 1248, 1262 (Alaska 1993) (quoting N. Star Alaska Hous. Corp. , 778 P.2d at 1143-44 ).

      Twentieth Century Inv. Co. v. City of Juneau , 359 P.2d 783, 788 (Alaska 1961) (internal citations omitted).

      Id.

      Id.

      Brandner v. Municipality of Anchorage , 327 P.3d 200, 202 (Alaska 2014).

      AMC 12.05.053(C)(7).

      Brandner , 327 P.3d at 203.

      Id.

      Id.

      We note that Brandner involved an unrepresented party and the leniency we extend to pro se litigants. See id. Kelley is an attorney representing himself. Our decision of this issue does not require us to distinguish their cases; Kelley's argument fails even if we grant him the lenience we grant to unrepresented litigants.

      See Cool Homes, Inc. v. Fairbanks N. Star Borough , 860 P.2d 1248, 1262 (Alaska 1993) ("If a reasonable basis for the taxing agency's method exists, the taxpayer must show fraud or the 'clear adoption of a fundamentally wrong principle of valuation.' " (quoting Hoblit v. Greater Anchorage Area Borough , 473 P.2d 630, 632 (Alaska 1970) )).

      909 P.2d 1381 (Alaska 1996).

      Id. at 1382.

      Id.

      See The Appraisal Institute, The Appraisal of Real Estate 45 (14th ed. 2013).

      909 P.2d at 1382.

      See Twentieth Century Inv. Co. v. City of Juneau , 359 P.2d 783, 788 (Alaska 1961) (holding that taxing authority is "not bound by any particular formula, rule or method, either by statute or otherwise" (internal citations omitted)).