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text:
    In the MATTER OF the Termination of Parental Rights to: BAD, CMS, and ACS, minor children.
    Cathy Ann Dunlap, Appellant (Respondent), v. State of Wyoming, Department of Family Services, Appellee (Petitioner).
    S-18-0236
    Supreme Court of Wyoming.
    August 7, 2019
    Representing Appellant: Timothy C. Cotton, Timothy C. Cotton, PC, Casper, Wyoming.
    Representing Appellee: Peter K. Michael, Wyoming Attorney General; Misha Westby, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Christina F. McCabe, Senior Assistant Attorney General. Argument by Ms. McCabe
    Representing Guardian Ad Litem: Dan S. Wilde, Deputy State Public Defender; Aaron S. Hockman, Chief Trial and Appellate Counsel, Wyoming Guardian ad Litem Program, a Division of the Office of the State Public Defender, Cheyenne, Wyoming. No argument.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   KAUTZ, Justice.

[¶1] Appellant Cathy Ann Dunlap (Mother) challenges a district court decision terminating parental rights to three of her minor children pursuant to Wyo. Stat. Ann. § 14-2-309(a)(iii) and (v) (LexisNexis 2019). Her only claim is that the evidence was insufficient to support the termination. We affirm.

ISSUE

[¶2] Whether the district court correctly found clear and convincing evidence supported termination of Mother's parental rights.

FACTS

[¶3] The following facts are based on the standard of review which requires us to examine the evidence in the light most favorable to the State, as the party prevailing below, assuming all favorable evidence to be true while discounting conflicting evidence presented by Mother. See SAS v. State of Wyo., Dep't of Family Servs. (In re AGS), 2014 WY 143, ¶ 19, 337 P.3d 470, 477 (Wyo. 2014).

[¶4] Mother has four children: BD, age 14 at the time of trial; CS, age 8 at the time of trial; AS, age 6 at the time of trial; and JE, age 3 at the time of trial. All four children were removed from Mother's home due to neglect - CS on April 21, 2015, and BD, AS and JE on July 22, 2015. JE was reunified with his father, who satisfactorily completed a case plan and, for a time, disassociated himself from Mother. The other children have been in foster care ever since.

[¶5] Mother originally lived in Florida, and BD was born there. Florida child protective services became involved with the family two or three times (Mother testified she was not sure if there were two or three interventions) beginning when BD was 2. Mother then moved to Minnesota for two months, and then to Illinois. In Illinois, Mother lived in a truck with BD and her ex-husband. Illinois child protective services became involved, and Mother placed BD, then age 5, in a crisis nursery to avoid having her placed in a foster home. From there, Mother returned to Florida for two weeks, but did not stay due to conflict with her siblings. Mother then moved to Tennessee with her ex-husband and BD. After a very short stay in Tennessee, Mother moved to Minnesota, and when "things [didn't] pan out in Minnesota" Mother, BD and the ex-husband moved to Arkansas. After staying in Arkansas for two months, Mother moved to California for a month, and then relocated to North Dakota in July 2009. Shortly thereafter, CS was born.

[¶6] In North Dakota, Mother and her children (BD and CS) first lived in a campground, then someone's basement, then a trailer, and then a camper. In December 2009, the State of North Dakota took custody of BD and CS due to inadequate living conditions. BD and CS remained in state custody until September 2012. Mother gave birth to AS in August 2011, who was also placed in foster care by North Dakota. While the children were in the custody of North Dakota child protective services, Mother had a case plan, but did not complete it. At that point, the children's maternal grandmother became their guardian and moved the children back to Florida with her. Mother moved to Florida about five months later.

[¶7] One year later, in February 2013, the children's maternal grandmother died, and "the children were just back" with Mother. Mother had encounters with police due to verbal altercations with her family, and with child protective services due to allegations of inadequate living conditions for the children. By the end of 2013, Mother moved to Converse County, Wyoming. Child protective services from Florida contacted the Department of Family Services (DFS) in Wyoming, which investigated the family and identified concerns for the children because CS was not potty trained and was not properly dressed.

[¶8] In September 2014, Wyoming DFS opened a case regarding the children based on school concerns that CS was dirty and suffered from social, academic and emotional issues. Mother refused services offered by DFS. School officials continued to report CS was excessively hungry, inadequately dressed for the weather, and reported her sister, BD, was responsible for feeding her and getting her ready for school. DFS visited Mother's home in January 2015 and found it very dirty. After that visit, DFS provided a counselor for BD, who diagnosed the 11-year-old as suffering from anxiety due to taking on the role of parenting her younger siblings and suffering from PTSD because she had frequently been removed from Mother's home.

[¶9] In February 2015, the State filed a juvenile case alleging Mother had neglected the children. Mother admitted the allegations. The children remained with Mother, who agreed to "get up in the morning and get her children ready for school and send them out in appropriate attire." Mother failed to do so, resulting in CS being placed in foster care in April 2015. Next, Mother signed a case plan outlining what she should do to properly care for her children. She failed to comply with the basic portions of the plan, and the other children were placed in foster care in July 2015, based on the recommendations of a Multidisciplinary Team (MDT).

[¶10] Four months later, Mother moved to Casper (although the children remained in foster care in Douglas) and lived in a homeless shelter. She ultimately obtained an apartment in Casper, where she lived for the next year. DFS assisted her with visitation and provided counseling and parenting training. Mother mostly cooperated with DFS but was unable to sufficiently recall and apply parenting strategies to obtain custody of the children. Her counselor described the situation as one where Mother did not remember "what the kids needed every morning, to make sure the laundry was done, to make sure homework was done, backpacks were packed, to make sure that appropriate discipline was used."

[¶11] From May 8, 2015, to March 1, 2016, Mother agreed to three "Family Service Plans" with DFS, each of which was designed to accomplish "family preservation" (before the children were removed) and "family reunification" (after the children were placed in foster care). Each of those plans advised Mother there was a risk of termination if reunification was not timely accomplished. Each of those plans required Mother to cooperate with therapy for the children, participate in parenting instruction and counseling, put lessons learned into practice, fully cooperate and remain in contact with DFS, seek employment, visit with the children, maintain an appropriately clean and safe household, obtain appropriate housing for the children, obtain and comply with medical care for Mother's seizures, enroll in and successfully complete a parenting class, and obtain services from vocational rehabilitation leading to employment.

[¶12] In December 2016, Mother had not sufficiently completed the case plan to accomplish reunification with the children. She participated in counseling but was unable to put the things she learned into practice. She visited with the children but was often distracted and did not relate to the children. At times she engaged in inappropriate interactions with them. She qualified for vocational rehabilitation but resisted obtaining employment, fearing it would interfere with her disability income and would cause her "stress." She participated in counseling for the children but became irate and refused to cooperate with a plan for BD because she disagreed with it.

[¶13] That month, Mother moved to North Dakota to reunite with JE's father. She did not notify DFS before she moved, and after the move, she gave DFS a false address. In North Dakota, she did not participate in any counseling, did not take parenting classes, did not work with vocational rehabilitation, and did not maintain employment. She also did not obtain treatment for her seizures.

STANDARD OF REVIEW

[¶14] In a termination of parental rights case we use the following standard of review:

Due to the tension between the fundamental liberty of familial association and the compelling state interest in protecting the welfare of children, application of statutes for termination of parental rights is a matter for strict scrutiny. As part of this strict scrutiny standard, a case for termination of parental rights must be established by clear and convincing evidence. Clear and convincing evidence is that kind of proof that would persuade a trier of fact that the truth of a contention is highly probable. Rigorous though this standard may be, we apply our traditional principles of evidentiary review when a party challenges the sufficiency of the evidence supporting termination. Thus, we examine the evidence in the light most favorable to the party prevailing below, assuming all favorable evidence to be true while discounting conflicting evidence presented by the unsuccessful party.

In re AGS, ¶ 19, 337 P.3d at 477.

DISCUSSION

[¶15] While the district court found clear and convincing evidence supported termination of Mother's parental rights under both § 14-2-309(a)(iii) and (v), we need only determine whether clear and convincing evidence supports one of the bases for termination. DMM v. State of Wyo., Dep't of Family Servs. (In re ZMETS), 2012 WY 68, ¶ 18, 276 P.3d 392, 397 (Wyo. 2012). We will review the district court's finding of clear and convincing evidence to support termination under § 14-2-309(a)(v).

[¶16] To terminate the parent-child relationship under § 14-2-309(a)(v), the district court must find by clear and convincing evidence the child has been in foster care for fifteen of the most recent twenty-two months and the parent is unfit to have custody and control of the child. The statute does not define the term "unfit," but this Court has previously stated:

Fitness includes the ability to meet the ongoing physical, mental and emotional needs of the child. Whether a parent is fit to have custody and control of a child is a decision that must be made within the context of a particular case and depends upon the situation and attributes of the specific parent and child.

AJJ v. State of Wyo., Dep't of Family Servs. (In re KMJ) , 2010 WY 142, ¶ 15, 242 P.3d 968, 971 (Wyo. 2010) (quoting JLW v. CAB , 2010 WY 9, ¶ 17, 224 P.3d 14, 19 (Wyo. 2010) ). We have further explained a parent's unfitness is generally demonstrated by a variety of factors:

We have previously recognized that in the ordinary parental rights termination case consideration must be given to a combination of factors, incidents, and conditions that demonstrate the neglect required to justify termination of parental rights. Rarely do we find a single condition or incident that, standing alone, would justify termination. Rather, neglect is usually manifested by numerous incidents and conditions extending over a considerable length of time.

CL v. State of Wyo., Dep't of Family Servs. (In re AD) , 2007 WY 23, ¶ 26, 151 P.3d 1102, 1108 (Wyo. 2007) (quoting MN v. Dep't of Family Servs. (In re MN) , 2003 WY 135, ¶ 13, 78 P.3d 232, 236 (Wyo. 2003) (internal citations omitted)).

[¶17] The statute requires the district court make a finding of a parent's unfitness at the time of the termination proceedings; however, the court need not ignore evidence of the parent's previous unfitness. In re KMJ , ¶ 17, 242 P.3d at 971. "Evidence of a parent's past behavior is 'plainly relevant in determining current parental fitness.' " In re AGS , ¶ 24, 337 P.3d at 478 (quoting HJO v. State of Wyo., Dep't of Family Servs. (In re KMO) , 2012 WY 99, ¶ 19, 280 P.3d 1203, 1211 (Wyo. 2012) ). Therefore, " '[i]t is appropriate for a district court to consider a parent's history and pattern of behavior over time in determining whether rights should be terminated.' " In re KMJ, ¶ 17, 242 P.3d at 971 (quoting JLW , ¶ 24, 224 P.3d at 20 ).

[¶18] Mother conceded the children had been in foster care with DFS for more than fifteen of the last twenty-two months at the time of the termination petition. However, she asserts the evidence did not establish she was unfit to parent at the time of trial because she testified she had a clean home and took care of JE while living in North Dakota with JE's father. She claims she has made "long term changes" that improved her life. Of course, our standard of review requires us to discount Mother's evidence if it conflicts with evidence supporting the trial court's decision. That is the case here. Although Mother cooperated to some extent in counseling and visitation during the year before she moved to North Dakota, the evidence showed she did not demonstrate an ability to appropriately parent. The evidence showed Mother's relationship with, and ability to meet the needs of, the children did not change much during that time, and any changes were not necessarily positive. Similarly, although Mother claimed to have improved her living conditions in North Dakota, the evidence showed she gave DFS a false address and entirely disregarded many portions of her case plan which were designed to assure she could meet the children's basic needs.

[¶19] The trial judge made specific findings about Mother's fitness. The findings related to her history included: (1) "[an] extensive history of unstable and unsanitary living arrangements, " (2) "constant relocations to at least eight different states in various environments such as campgrounds, campers, trucks, homeless shelters, storage units, basements, trailers and hotels," (3) "history of inability to properly parent her children," (4) failure to "seek appropriate assistance," (5) "constant failure to follow case plans," and (6) inability to provide "the basic necessities for her children even when she is afforded ample opportunities." The findings related to her current situation included: (7) "she is not employed ... (and) elects not to [seek employment] for fear of losing her disability checks," (8) she "has not sought an individual counselor or family counselor," and (9) she "has not sought a doctor for her seizures or treatment of her disability." The trial court discounted Mother's proclamations that she had changed in North Dakota, finding "no evidence her situation is any different than it has been in the past." The totality of these findings, both historical and current, led the trial court to conclude Mother is unfit to parent.

[¶20] After a careful review of the record, we find each of the district court's findings was supported by clear and convincing evidence. The district court heard testimony from various DFS case workers, counselors, and Mother herself. This testimony demonstrates a clear pattern of the inability to recognize and provide for the ongoing physical, mental and emotional needs of the children. When we review both the evidence of Mother's current situation and her history, the district court's decision finding Mother unfit is supported by clear and convincing evidence.

[¶21] Affirmed.

FOX, Justice, specially concurring, in which GRAY, Justice, joins.

[¶22] I concur with the majority's result. I write separately because I would hold that Wyo. Stat. Ann. § 14-2-309(a)(v) (LexisNexis 2019) requires the Department to prove by clear and convincing evidence that it made reasonable efforts to reunite parent and child before terminating parental rights.

I. The State should be required to demonstrate its reasonable efforts to reunify the family as part of its showing the parent is unfit

[¶23] Although consistent with our precedent, I believe the majority's interpretation of Wyo. Stat. Ann. § 14-2-309(a)(v) continues to unfairly stack the deck against parents in termination proceedings. Our interpretation of (a)(v) makes it too easy for the State to permanently sever parent relationships with their children and deprive parents of their fundamental rights. In many termination cases, the Department will bring multiple grounds that it believes justify termination. Subsection (a)(v) allows termination on clear and convincing evidence that: 1) "The child has been in foster care under the responsibility of the state of Wyoming for fifteen (15) of the most recent twenty-two (22) months," and 2) "a showing that the parent is unfit to have custody and control of the child." See, e.g. , In re AGS , 2014 WY 143, ¶ 18, 337 P.3d 470, 477 (Wyo. 2014) ; In re KAT , 2012 WY 150, ¶ 15, 288 P.3d 1217, 1221-22 (Wyo. 2012) ; Wyo. Stat. Ann. § 14-2-309(a)(v). Because (a)(v) is largely a simple "mathematical question," In re AGS , 2014 WY 143, ¶ 21, 337 P.3d at 477, we will often affirm a termination on that ground without considering any alternative ground. See, e.g. , Matter of KCS , 2019 WY 15, ¶ 11, 433 P.3d 892, 895 (Wyo. 2019) ; In re AGS , 2014 WY 143, ¶ 20, 337 P.3d at 477.

[¶24] Our precedent affirming on (a)(v) grounds has essentially read the fitness prong out of the equation, so that the basis for termination is the purely mathematical question of whether the child has been in foster care for 15 of the most recent 22 months. This is because virtually every parent involved in termination proceedings is likely "unfit" to begin with. But "the Department's very existence is premised on the assumption that it will deal with dysfunctional, disturbed and/or irresponsible parents." Jeanne M. Kaiser, Finding a Reasonable Way to Enforce the Reasonable Efforts Requirement in Child Protection Cases , 7 Rutgers J. L. & Pub. Pol'y 100, 118 (Fall 2009). Concerning fitness, we have said:

"[F]itness includes the ability to meet the ongoing physical, mental, and emotional needs of the children." LeBlanc [v. State Dep't of Family Servs. , 2017 WY 107,] ¶ 22, 401 P.3d [932,] 936 [ (Wyo. 2017) ] (citations omitted). Fitness also "relates to a parent's ability to provide or maintain a 'positive, nurturing parent-child relationship.' " Id. (quoting Matter of GP , 679 P.2d 976, 1005 (Wyo. 1984) ).

Matter of KCS , 2019 WY 15, ¶ 13, 433 P.3d at 896. Factors we have considered when evaluating fitness include:

1) inability to assist with therapy and recovery of a child with significant mental health needs; 2) lack of contact with and expressed lack of desire to take custody of the child; 3) contribution to the child's mental health or behavioral problems; 4) unstable living situation relating to employment or maintenance of a suitable home; 5) criminal record, particularly one primarily related to drug use, or a pattern of ongoing drug use; 6) failure to take responsibility for past conduct; 7) lack of emotional bond with the child; 8) failure to develop child-rearing skills; 9) convictions for crimes involving a potential for harming the child; 10) inability to monitor or make healthy nutritional choices or to provide a safe environment; 11) a history of surrounding herself and the children with unsafe individuals; and 12) the child has become upset by or resistant to visitation with the parent.

LeBlanc v. State Dep't of Family Servs. , 2017 WY 107, ¶ 23, 401 P.3d 932, 936 (Wyo. 2017) (citations omitted). In my view, most of the fitness factors we consider are precisely the kinds of problems that lead the State to become involved with the child in the first instance. Thus, the fitness factor must require something more as the case moves toward termination.

[¶25] The purpose of the 15-month minimum is to allow the Department to attempt to rehabilitate the family and achieve reunification. The fitness prong under (a)(v) was meant to provide context for the 15-month "waiting period." We are to consider whether there has been some discernable change in the parent's situation during the intervening 15 months since the child was removed. See Catherine J. Ross, The Tyranny of Time: Vulnerable Children, "Bad" Mothers, and Statutory Deadlines in Parental Termination Proceedings , 11 Va. J. Soc. Pol'y & L. 176, 202 (Winter 2004). Otherwise, there would be no reason to wait the 15 months. See In re A.D. , 2007 WY 23, ¶ 32, 151 P.3d 1102, 1110 (Wyo. 2007) ("The Wyoming legislature followed the federal lead and adopted statutes which require the parent to rehabilitate, with the aid of state services , within a reasonable amount of time.") (emphasis added). During that 15-month period, the State is obligated to continue to make reasonable efforts to reunify the family to ensure possible achievement of fitness.

[¶26] The legislature has identified certain situations in which no delay is required because efforts at reunification would be futile and unsafe for the child, which further supports the conclusion that the Department's reasonable efforts to reunify should continue through the 15-month period. Section 14-2-309(a)(ix)(B) expressly excludes the reasonable efforts requirement when termination proceedings are brought on the ground that the "parent committed sexual assault and the child was conceived as a result of the sexual assault." Wyo. Stat. Ann. § 14-2-309(a)(ix)(B). Likewise, Wyo. Stat. Ann. § 14-2-309(b) states that parental rights may be terminated upon evidence that the parent has committed certain crimes "with no requirement that reasonable efforts be made to reunify the family." Subsection 14-2-309(c) also expressly dispenses with the reasonable efforts requirement when clear and convincing evidence establishes certain specified circumstances, such as chronic abuse or torture. This exclusionary language indicates that reasonable efforts is an implicit requirement in termination of parental rights proceedings and that the State is only relieved of that obligation when the legislature expressly says so.

[¶27] If the legislature had intended to exclude the reasonable efforts requirement from section (a)(v) it would have done so expressly, as it did in sections 14-2-309(a)(ix)(B), 309(b), and (c), and 14-3-431(e). Section 14-3-440, the statute which requires reasonable efforts to reunify in neglect and abuse cases, also specifically provides that such efforts are not required in termination proceedings brought under circumstances defined in Wyo. Stat. Ann. § 14-2-309(a)(vi), (b) or (c), again suggesting that section 14-3-440's reasonable efforts requirement is applicable when termination is sought on other grounds. See Wyo. Stat. Ann. § 14-3-440(g), referencing Wyo. Stat. Ann. § 14-2-309(a)(vi), (b) or (c).

[¶28] In addition, when the Wyoming legislature adopted the 15/22 subsection, it included three exceptions to the requirement that the State file a petition to terminate once the child has reached the 15/22 threshold:

(m) When a child has been placed in foster care under the responsibility of the state for fifteen (15) of the most recent twenty-two (22) months the state shall file a petition to terminate parental rights or seek to be joined as a party to the petition if a petition has been filed by another party, unless :
(i) The child is in the care of a relative;
(ii) The state agency has documented in the case plan a compelling reason for determining that filing the petition is not in the best interest of the child; or
(iii) The state agency has not provided services to the child's family deemed to be necessary for the safe return of the child to the home, if reasonable efforts described in W.S. 14-3-440 are required to be made.

Wyo. Stat. Ann. § 14-3-431 (emphasis added). The inclusion of subsection (m)(iii) is further support that proof of "reasonable efforts" must play a role in the termination action under (a)(v).

[¶29] Because "[t]ermination of parental rights is the family law equivalent of the death penalty in a criminal case," we have recognized that "parents facing the termination of their parental rights-fundamental constitutional rights-must be afforded every procedural and substantive protection the law allows." In re FM , 2007 WY 128, ¶ 28, 163 P.3d 844, 851 (Wyo. 2007). We strictly construe the "applicable statutes against those seeking termination and in favor of the non-consenting parent." In re AE , 2009 WY 78, ¶ 11, 208 P.3d 1323, 1326 (Wyo. 2009) (citations omitted). The purpose of the 15-month delay in (a)(v) is to allow the Department time to make reasonable efforts to aid the parent in becoming fit. Thus, I would interpret the fitness prong to incorporate the requirement that the Department show by clear and convincing evidence its reasonable efforts to reunite parent and child.

[¶30] Legislative history further supports this interpretation. In 1980, Congress enacted the Adoption Assistance and Child Welfare Act (AACWA) that established a reimbursement program for states that made "reasonable efforts" to reunify children in foster care with their parents. See Suter v. Artist M. , 503 U.S. 347, 350-51, 112 S.Ct. 1360, 1363-64, 118 L.Ed.2d 1 (1992) ; Martin Guggenheim & Vivek S. Sankaran, Representing Parents in Child Welfare Cases § 1.03, at 4 (Amer. Bar Ass'n 2015) (stating that the AACWA was meant to ensure, among other things, that "reunification services are made available to the child and his or her parents after removal from the home") (citing H.R. Rep. No. 96-136, at 6 (1979)). Despite the laudable goal of requiring "reasonable efforts" at reunification, however, it soon became apparent that this goal of reunification resulted in children "languishing in foster care." See In re H.G. , 197 Ill.2d 317, 259 Ill.Dec. 1, 757 N.E.2d 864, 866 (2001). So, in 1997, Congress passed the Adoption and Safe Families Act (ASFA). Pub. L. No. 105-89, 111 Stat. 2115 (1997). Part of the Act created the 15/22 ground for termination and tied federal funding to a state's adoption of it. In re H.G. , 259 Ill.Dec. 1, 757 N.E.2d at 866. In 1998, the Wyoming legislature added the 15/22 subsection to our termination statutes, including the "fitness" prong. Wyo. Stat. Ann. § 14-2-309(a)(v) (LexisNexis 1998 Supp.). Section (a)(v) is an attempt to balance the sometimes conflicting goals of reunification of the family and permanency for the child; it is not intended to sacrifice the goal of reunification to the goal of permanency.

II. Reasonable efforts to reunify do not cease with the end of the juvenile case

[¶31] Some of the challenge for the district courts in termination cases lies in our statutory structure, which relegates certain proceedings to juvenile court, and others to district court, and makes an arbitrary distinction between the two. The Child Protection Act, Wyo. Stat. Ann. §§ 14-3-401 through 14-3-440, vests the juvenile court with jurisdiction over "proceedings concerning a minor alleged to be neglected." Wyo. Stat. Ann. § 14-3-403(a). It contains procedures that "must be followed upon an allegation that a person has neglected a child in his custody." In re SJJ , 2005 WY 3, ¶ 34, 104 P.3d 74, 83-84 (Wyo. 2005). Among those procedures is the express requirement that the Department make reasonable efforts to preserve and reunify a family before removing a child from the home. Wyo. Stat. Ann. § 14-3-440. However, we have repeatedly held that the Act only applies to neglect and abuse proceedings in juvenile court. In re AM-LR , 2018 WY 76, ¶¶ 8-10, 421 P.3d 551, 554 (Wyo. 2018) ; In re SJJ , 2005 WY 3, ¶ 34, 104 P.3d at 83 ; In re MN , 2003 WY 135, ¶ 37, 78 P.3d 232, 240 (Wyo. 2003). We treat termination of parental rights proceedings in district court as "entirely separate and distinct from neglect proceedings." In re AM-LR , 2018 WY 76, ¶ 9, 421 P.3d at 554 (quoting In re MN , 2003 WY 135, ¶ 37, 78 P.3d at 240 ). Yet, despite our insistence that termination and neglect proceedings "are entirely separate," we have acknowledged that "the two enactments are in some cases closely intertwined," In re SJJ , 2005 WY 3, ¶ 34, 104 P.3d at 83, and that the distinction between them is "technical" because "district judges also sit as juvenile court judges." KC v. State , 2015 WY 73, ¶ 26 n.3, 351 P.3d 236, 244 n.3 (Wyo. 2015).

[¶32] This technicality has profound consequences for parents navigating the procedural nuances between the two proceedings. Here, for example, Ms. Dunlap admitted to allegations in the juvenile court neglect petition without appointed counsel. That admission adversely affected her in the later termination proceeding, where the district court twice cited it in its decision terminating her parental rights. District court reliance on juvenile neglect proceedings is not uncommon in termination proceedings. E.g. , In re AM-LR , 2018 WY 76, ¶ 10, 421 P.3d at 554 ("Mother does not challenge the juvenile court's jurisdiction in the neglect proceedings in which she admitted the allegations brought against her."); In re SJJ , 2005 WY 3, ¶ 38, 104 P.3d at 84 ("We hold that use of the juvenile court records in the termination proceedings was entirely appropriate.... The juvenile court records concerning the children in this case were directly related to the termination of parental rights proceeding and were necessary for determining the issue of whether parental rights should be terminated. The two proceedings were closely entwined."). Indeed, the majority opinion relies significantly on Mother's "previous unfitness," and expressly states that "[i]t is appropriate for a district court to consider a parent's history and pattern of behavior over time in determining whether rights should be terminated." In re KMJ , 2010 WY 142, ¶ 17, 242 P.3d 968, 971 (Wyo. 2010) (quoting JLW v. CAB (In re WDW) , 2010 WY 9, ¶ 24, 224 P.3d 14, 20 (Wyo. 2010) ).

[¶33] If the courts may consider the parent's history (which necessarily includes the reasonable efforts in the preceding neglect case) in termination proceedings, as the district court and the majority did here, then we should give up the fiction that the termination case is entirely separate and distinct from the neglect proceedings. And, we should take into account the important fact that a neglect proceeding in juvenile court entails a less demanding standard of proof than a district court termination. KC , 2015 WY 73, ¶¶ 20, 37, 351 P.3d at 242, 246 (explaining that the State's burden of proof in a juvenile neglect proceeding is a preponderance of the evidence, while termination of parental rights requires clear and convincing evidence of grounds for termination).

[¶34] Compounding the problem is that parents have limited recourse from this Court on appeal. For one, we review a juvenile court's neglect decision for an abuse of discretion, meaning that parents will have a difficult time persuading us to reverse a decision that very well may be used against them in a subsequent termination proceeding. See KC , 2015 WY 73, ¶¶ 18, 51, 351 P.3d at 242, 248-49 ("We give considerable deference to the trial court's determination") (alterations omitted). We also decline to address issues arising from neglect proceedings when a parent appeals the result of a termination. E.g. , In re AM-LR , 2018 WY 76, ¶ 10, 421 P.3d at 554 ("Mother's remedy, if she had one, was in juvenile court. Mother failed to appeal the Order Upon Permanency Hearing and cannot collaterally attack that order here under the guise of appealing the district court's order terminating Mother's parental rights."); In re KGS , 2017 WY 2, ¶ 23, 386 P.3d 1144, 1148 (Wyo. 2017) ("Any issues that Appellant had with improper notice [in the juvenile proceeding] should have been raised in those proceedings."); In re SJJ , 2005 WY 3, ¶ 35, 104 P.3d at 84 ("In the neglect proceeding ... DFS was required to make reasonable efforts to reunify the family prior to placing the children outside the home. The neglect proceeding, however, is not before us-paternal grandmother did not appeal from the juvenile court neglect determination claiming that DFS failed to make reasonable efforts to reunify the family."). Thus, a parent's failure to appreciate the distinction between two proceedings concerning the same children and presided over by the same judge may result in the unwitting sacrifice of important rights.

III. Clear and convincing evidence of reasonable efforts in this case?

[¶35] Turning to whether the Department made adequate efforts to reunite Ms. Dunlap with her children, I am skeptical of the district court's conclusion. In considering termination under section 14-2-309(a)(iii), the district court found:

The Department also showed by clear and convincing evidence that it made reasonable reunification efforts and that those efforts were unsuccessful. Starting in the Fall of 2014, the Department attempted to help Dunlap with her parenting until at least December of 2016. It was in December of 2016 that the permanency goal changed from reunification to termination and adoption. During this two and half year period, the Department provided numerous services for Dunlap including wrap-around services, counseling for Dunlap and the children, arranged various types of visitation with Dunlap and the children (both in person and by telephone), arranged parenting classes, provided applications for services for the children for counseling and tutoring, arranged for public health nurse meetings, implemented the early head-start program, provided "successful families" services, and continued to offer services throughout the time the Department was involved.

[¶36] Perhaps because we often affirm termination of parental rights on grounds we have concluded do not require reasonable efforts, the reasonable efforts requirement is not well defined. See In re L.A. , 2009 WY 109, ¶ 24, 215 P.3d 266, 271 (Wyo. 2009) (declining to consider reasonable efforts because termination action was not brought on section 14-2-309(a)(iii) grounds, the only ground requiring the Department to prove reasonable efforts by clear and convincing evidence) (citing In re SJJ , 2005 WY 3, ¶¶ 30-32, 104 P.3d at 82-83 (same)); In re AE , 2009 WY 78, ¶¶ 14-16, 208 P.3d at 1327 (same); In re KMJ , 2010 WY 142, ¶¶ 21-22, 242 P.3d at 972-73 (same); Matter of KCS , 2019 WY 15, ¶ 12, 433 P.3d at 896 (same). Some guidance is found at Wyo. Stat. Ann. § 14-3-440(e), which states: "Reasonable efforts determinations shall include whether or not services to the family have been accessible, available and appropriate." We discussed what reasonable efforts might include in In re FM , 2007 WY 128, ¶ 14, 163 P.3d at 848.

There, we held that the Department had not shown by clear and convincing evidence that it made reasonable efforts under Wyo. Stat. Ann. § 14-2-309(a)(iii) because it had done nothing to facilitate communication between the child and his mother, who was incarcerated. Id. We compared the Department's lack of efforts to efforts made in In re HP , 2004 WY 82, ¶ 26, 93 P.3d 982, 990 (Wyo. 2004). Id. at ¶ 14 n.3, 163 P.3d at 848 n.3. There, Mother was also incarcerated, and the Department had "tailored case plans to her situation" by "arrang[ing] overnight-unsupervised visits between the children's maternal grandmother and the children," which "allowed Mother visitation with her children because [the grandmother] took the children to the Women's Center twice a month." Id. The Department also "requested and the court appointed a CASA worker to facilitate providing services to Mother and the children." Id. When Mother was released from the Women's Center, the Department allowed visitation with the children, "offered Mother transportation to visitation, recommended Mother for counseling services, and assisted Mother in procuring suitable housing." Id.

[¶37] I believe Wyo. Stat. Ann. § 14-3-440(e) 's "accessible, available and appropriate" language and In re HP 's discussion of "tailored" case plans suggest that the Department is obligated to make reasonable efforts suitable to the unique situation of the family involved. While the Department is only required to make "reasonable efforts," those efforts must "go beyond mere matters of form, such as the scheduling of appointments, so as to include real, genuine help to see that all things are done that might conceivably improve the circumstances of the parent and the relationship of the parent with the child." Matter of Welfare of J.A. , 377 N.W.2d 69, 73 (Minn. Ct. App. 1985). As noted, most parents who come into contact with the Department are likely to have significant, unique challenges that make parenting difficult. "Thus, it seems only fair that the reasonable efforts requirement be tailored to meet the propensities of those parents, and not those of the average, responsible parent who might be expected to eagerly accept available services." Kaiser, supra at 118.

[¶38] Here, evidence concerning how or if the Department sought to tailor its rehabilitative efforts to Ms. Dunlap's unique challenges is thin. Although the Department made referrals and arranged services, such as parenting classes, the record is sparse as to the Department's efforts beyond referrals. Rather, the record suggests the Department left the case in Ms. Dunlap's hands with little follow up. It is unclear what the classes consisted of or how the Department assisted Ms. Dunlap with implementing what she learned. As to Ms. Dunlap's ability to find a job, other than the referral to vocational rehabilitation, the record does not provide how the Department ensured that Ms. Dunlap was pursuing employment that would meet her and her children's needs. What we do know is that Ms. Dunlap was disabled and had a high school education. She received social security disability because she suffered from seizures and the reason she qualified for that assistance was because of her inability to work. The record is vague as to how the Department took this into consideration. The record does not reveal how or if the Department assisted Ms. Dunlap in securing government or private assistance to meet her financial needs to better provide appropriate clothing for her children-one of the initial reasons they were taken into DFS custody. Compare SD v. Carbon Cty. Dep't of Family Servs. , 2002 WY 168, ¶ 16, 57 P.3d 1235, 1239-40 (Wyo. 2002) ("The record is filled with instances of DFS meeting this responsibility. A summary indicates a community-wide response by nearly every available resource made up of individuals committed to family reunification.... The organizations providing services to this family include soup kitchen, faith-based services, DFS, Public Health, Carbon County Extension Office, Project Reach, Carbon County Counseling, Southeast Mental Health, Needs, Inc., and the Department of Vocational Rehabilitation.").

[¶39] That said, under our standard of review, I cannot say the district court committed reversible error. Examining the evidence in the light most favorable to the Department and discounting any conflicting evidence, the evidence was sufficient to support a finding of adequate reasonable efforts. Thus, I concur in the result of the majority opinion.

      I recognize that we have appeared to interpret these "exceptions," not as precluding the filing of a petition, but rather as circumstances where the Department's decision to file the petition to terminate is "optional." See In re KMO , 2012 WY 99, ¶ 16, 280 P.3d 1203, 1210-11 (Wyo. 2012). But that interpretation in KMO conflicts with the language in Wyo. Stat. Ann. § 14-3-409(b) that requires the court to inform a parent at a shelter care hearing that the State must file a petition to terminate if the child reaches the 15/22 threshold "unless the court finds that one (1) of the exceptions listed in W.S. 14-3-431(m) applies." In re DRT , 2010 WY 137, ¶ 9, 241 P.3d 489, 494 (Wyo. 2010) (quoting Wyo. Stat. Ann. § 14-3-409(b) ). This suggests that a court must first determine whether reasonable efforts were made before it can terminate the parent's rights under (a)(v). This determination must happen within the termination action and the Department must carry the burden that it did in fact provide reasonable efforts.

      Other jurisdictions incorporate more precise definitions of "reasonable efforts" in their statutes, which make clear that meaningful, rather than perfunctory, efforts are required. See, e.g. , M.S.A. § 260.012 (defining reasonable efforts to require "the exercise of due diligence by the responsible social services agency to use culturally appropriate and available services," including consideration of whether services were "(1) relevant to the safety and protection of the child; (2) adequate to meet the needs of the child and family; (3) culturally appropriate; (4) available and accessible; (5) consistent and timely; and (6) realistic under the circumstances."); C.R.S.A. § 19-3-208 (enumerating services the Department should provide "as determined necessary and appropriate by individual case plans," including child care, transportation, in-home supportive homemaker services, mental health and health care services, after care services to prevent a return to out-of-home placement, and financial services). Some cases from these jurisdictions "suggest that simply providing a more comprehensive definition of reasonable efforts in the state statute serves to motivate the state to take the requirement more seriously." Kaiser, supra at 131-32. For example, in People ex rel. J.M. , 74 P.3d 475, 477 (Colo. App. 2003) :
      a developmentally disabled mother challenged the state's efforts because the state did not assure that she received services from a specific agency specializing in serving individuals with developmental disabilities. The Colorado Court of Appeals found that the reasonable efforts requirement was nonetheless satisfied because for eleven months the mother received forty-four hours of weekly in-home family preservations services. These services included hands-on repetitive instruction about parenting skills, nutrition, budgeting, and basic life skills. The family preservation worker and the mother's case worker were aware of her developmental disabilities and adjusted their services to accommodate issues associated with her problems. Moreover, the mother ultimately received services from the agency specializing in developmental disabilities, including being placed with a host family. Thus, although the mother may have been disappointed with the outcome, the court's determination that the mother had received sufficient help from the state seems completely reasonable.
      Kaiser, supra at 132.

      In any event, there is not much conflicting evidence to consider. Ms. Dunlap's counsel does not appear to have made any great effort to contest the State's reasonable efforts in the lower court. This is understandable given that the Department sought termination under Wyo. Stat. Ann. § 14-2-309(a)(v), which, I believe mistakenly, does not require reasonable efforts under our precedent and the majority opinion.


author: BOLGER, Chief Justice.

text:
    Deverette L. WILLIAMS, Appellant, v. Violeta BAKER; Last Frontier Assisted Living, LLC.; Johnny Lee Williams; Personalized Tax Solutions ; and Personalized Tax Solutions, LLC., Appellees.
    Supreme Court No. S-16951
    Supreme Court of Alaska.
    August 2, 2019
    Ronald A. Offret and J.E. Wiederholt, Aglietti Offret & Woofter, LLC, Anchorage, for Appellant.
    Thomas S. Gingras and Debra J. Fitzgerald, Eide & Gingras, P.C., Anchorage, for Appellees Violeta Baker and Last Frontier Assisted Living, LLC.
    No appearances by Appellees Johnny Lee Williams, Personalized Tax Solutions, and Personalized Tax Solutions, LLC.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   BOLGER, Chief Justice.

I. INTRODUCTION

The superior court found Deverette and Johnny Williams liable for defrauding Johnny's employer, Violeta Baker, after concluding that both owed her fiduciary duties and therefore had the burden of persuasion to show the absence of fraud. The court totaled fraud damages at nearly five million dollars and trebled this amount under Alaska's Unfair Trade Practices and Consumer Protection Act (UTPA). After final judgment was entered against Deverette and Johnny, Johnny died. Deverette now appeals her liability for the fraud. We affirm Deverette's liability for the portion of the fraud damages that the superior court otherwise identified as her unjust enrichment. But we reverse the superior court's conclusion that she owed Baker a fiduciary duty, and we reverse the UTPA treble damages against Deverette. We vacate the superior court's fraud conclusion as to Deverette and remand for further proceedings.

II. FACTS AND PROCEEDINGS

Johnny Williams worked for Violeta Baker and her home healthcare services company, Last Frontier Assisted Living, LLC (Last Frontier), from 2004 to 2009. Baker hired Johnny to provide payroll, tax-preparation, bookkeeping, and bill-paying services. She authorized him to make payments from her accounts, both for tax purposes and business expenses, such as payroll. She also gave him general authority to access her checking account and to execute automated clearing house (ACH) transactions from her accounts. Finally, Baker allowed Johnny to write checks bearing her electronic signature.

Johnny did not invoice Baker for his labor. Rather he and Baker had a tacit understanding that he would pay himself a salary from Baker's payroll for his services. Baker and Johnny never discussed a precise amount for this salary, and Johnny did not keep a record of the hours he worked for Baker. Johnny presented himself as working for Baker in a personal capacity, but he also maintained the business Personalized Tax Solutions.

Deverette Williams, Johnny's wife, was not an employee of Baker, Last Frontier, Johnny, or Personalized Tax Solutions. During Johnny's employment with Baker, Deverette primarily managed their home, though at times she also ran her own part-time businesses from home. Deverette discussed Johnny's business with him; she knew of advice he had given and services he had provided Baker. She witnessed Johnny using their home printer and computers in his work for Baker, and she relayed Baker's phone messages to him.

In 2009 the Internal Revenue Service (IRS) notified Baker that her third-quarter taxes had not been filed and she owed a penalty and interest. Baker contacted Johnny to find out why the taxes had not been filed. When he could not produce a confirmation that he had e-filed them, Baker contacted her son for help. Baker's son discovered that several checks had been written from Baker's accounts to Personalized Tax Solutions and Deverette. Baker hired Mary Jones, a certified public accountant, to perform an audit of her accounts from 2004 to 2009.

Jones concluded that payments from Baker's accounts to Johnny, Personalized Tax Solutions, and Deverette totaled a little over one million dollars. Transfers from Baker to Deverette equaled $135,125. The final destination of some ACH transfers from Baker's accounts could not be verified; these "unidentified" transfers totaled $3,644,978. Jones estimated that Johnny's services over the time period could be valued between $47,500 and $55,000. Subtracting this from the total in transfers to Johnny, Deverette, and Personalized Tax Solutions resulted in an overpayment to the Williamses of approximately $950,000. Jones also documented damages resulting from mistakes in Johnny's tax filings for Baker.

In light of Jones's findings, Baker sued Johnny, individually and doing business as Personalized Tax Solutions and Personalized Tax Solutions, LLC, in October 2011. Baker amended the complaint in December, adding Deverette as a defendant. The amended complaint alleged negligence, breach of contract, and unfair trade practices against Johnny, Personalized Tax Solutions, and Personalized Tax Solutions, LLC; unjust enrichment against Deverette; and fraud and punitive damages against all four defendants.

In December 2014 Baker asked the court to shift to Johnny and Deverette the burden of proving by clear and convincing evidence (1) where Baker's lost money had gone and (2) that it was properly spent. Baker argued that this shift in the burden of proof was warranted because both Johnny and Deverette owed Baker fiduciary duties. In response the superior court issued an order for a two-part trial format. In "Phase I" of trial, Baker would have the burden of proving that a fiduciary relationship existed between one or both of the Williamses and Baker. If the court found any such fiduciary duty, in "Phase II" the burden would be on Johnny and/or Deverette to prove by clear and convincing evidence that they did not breach the duty. Otherwise the burden of proof would remain with Baker.

In Phase I of trial, Deverette and Johnny characterized the sums of money Johnny transferred to Deverette as "allotments" from his salary, i.e., portions of Johnny's lawful salary that were allotted and paid directly to Deverette. The court found that Johnny had a fiduciary duty to manage Baker's payroll and other funds to which he was given access; to record all related transactions; to provide competent payroll, IT, and tax advice; and to affirmatively advise Baker as to the limits of his fiduciary duty. The court found that Deverette did not owe Baker a direct fiduciary duty.

The court shifted the burden of proof to Johnny but not Deverette on all but Baker's fraud and unjust enrichment claims. With respect to the fraud claim, the court shifted the burden of proof to both Deverette and Johnny. It stated that this claim had a "broader scope" than the others because it alleged the taking of money and improper use of those funds, not just their negligent mismanagement. According to the court, such alleged fraud would violate Johnny's "direct fiduciary duty" and Deverette's "indirect duty" to "not take any actions that would result in ... or assist in ... [Johnny] improperly using [Baker's] funds."

Phase II of trial took place in July 2015 and 2016. In June 2017 the superior court issued oral findings of fact and conclusions of law. It made extensive findings about Johnny's culpability but very few findings about Deverette. It found that Johnny had committed negligence, breach of contract, UTPA violations, and fraud. The court concluded that Deverette was unjustly enriched by Johnny's payments to her from Baker's accounts. And it found that Deverette's acceptance of these funds was inconsistent with Johnny's fiduciary duties. The court concluded that both defendants had "acted in bad faith and with little regard to [Baker's] interests" and were liable for fraud. This fraud consisted of Johnny's misrepresentations about his competency and trustworthiness as a fiduciary and tax preparer. The court made no specific findings providing the basis for its conclusion that Deverette had also committed fraud.

In November 2017 the court adopted Jones's final damages calculation of $4,956,774. It trebled the damages since it concluded that the acts causing them were violations of Alaska's UTPA. The court entered a final judgment of $20,274,763.77 jointly and severally against the Williamses, individually and doing business as Personalized Tax Solutions and Personalized Tax Solutions, LLC.

Johnny died later in November 2017, and Deverette notified the court of this fact in December. In early 2018 she filed this appeal.

III. DISCUSSION

Deverette argues that the superior court erred in concluding she owed Baker fiduciary duties and that the record does not support her liability for the fraud claim. Reviewing the superior court's legal conclusions de novo and its factual findings for clear error, we agree that the record does not support a conclusion that Deverette was a fiduciary of Baker. We reverse that conclusion and remand for further proceedings on the fraud claim.

A. The Superior Court Erred When It Concluded That Deverette Owed Fiduciary Duties To Baker.

The superior court concluded that Deverette owed an "indirect" fiduciary duty to Baker based on the following findings: first, that Deverette represented herself to Baker as an agent of Johnny on the jobs he performed; second, that Deverette knew of the scope of work performed by Johnny and of the level of trust placed in Johnny by Baker; and third, that Deverette knew that Baker trusted her to pass on correct and timely information and to not take actions that would be inconsistent with Johnny's fiduciary duties.

Having reviewed the entire record, we are left with a "definite and firm conviction" that the superior court was mistaken in reaching certain of these findings. Specifically it erred by finding that Deverette represented herself as Johnny's agent in all the work he performed for Baker and by finding that Deverette knew Baker trusted her to not take actions inconsistent with Johnny's fiduciary duties. The evidence in Phase I of trial showed that while Deverette knew the scope of Johnny's fiduciary relationship with Baker, Deverette herself had never been an employee of Baker; had never assisted Johnny in, or been delegated, work for Baker; and was not perceived as Johnny's or Personalized Tax Solutions's agent by Baker. There was evidence that Deverette took Baker's calls for Johnny and delivered messages to him, but nothing established that she acted or represented herself as an agent of Johnny in his fiduciary capacities. And there was also no evidence that Baker had come to trust Deverette as a co-fiduciary with Johnny. It was thus clear error for the court to find that Deverette generally represented herself as Johnny's agent and to find that she was aware of elevated trust placed in her by Baker. We reverse these findings.

The findings that remain do not support the court's conclusion that Deverette owed fiduciary duties to Baker. We have stated that a fiduciary relationship "exists when one imposes a special confidence in another, so that the latter, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one imposing the confidence." "Fiduciary relationships are generally defined by a level of trust beyond that in ordinary business relationships," and "[l]oyalty and the disavowal of self interest are hallmarks of the fiduciary's role." The factual findings supported by the record do not establish the existence of such a relationship between Deverette and Baker. And since the record contains no evidence supporting such a relationship, we reverse the superior court's erroneous conclusion.

Reversing the superior court's fiduciary duty conclusion also requires us to reverse its ruling that shifted the burden of proof on Baker's fraud claim to Deverette. In a civil action, trial courts may shift the burden of proof to the defendant if the defendant is a fiduciary of the plaintiff. Under such circumstances burden shifting helps ensure that those entrusted with the weighty obligations of a fiduciary are held responsible for those duties. Absent special circumstances, however, burden shifting is not appropriate when there is no fiduciary relationship, and there were no such circumstances here. Because the superior court erred in concluding that Deverette owed fiduciary duties to Baker, its reversal of the burden of proof was also erroneous.

B. We Remand The Fraud Claim.

The superior court made Deverette liable for the entire judgment, but its findings only referenced Deverette with respect to Baker's unjust enrichment and fraud claims. Deverette does not dispute her liability for the approximately $135,000 awarded for unjust enrichment. She does, however, contest her liability for the remaining damages, which are encompassed by the fraud claim. These are the overpayments made to Johnny and Personalized Tax Solutions, the unverified ACH transfers, and the damages resulting from improper tax filing, all trebled as violations of the UTPA. Deverette argues that she is not responsible for these damages because she is not liable for fraud. Baker claims that Deverette can be found jointly liable, either as an agent who assisted Johnny in his wrongdoing or as a joint tortfeasor in Johnny's misconduct.

Because we have reversed the superior court's burden-shifting ruling, on remand the burden will remain with Baker to prove by a preponderance of the evidence that Deverette is liable for fraud. Baker may attempt to do so under a theory of direct common law fraud or on a theory that Deverette is jointly liable for Johnny's fraud. Should the superior court on remand find that Deverette is liable as a co-conspirator or joint tortfeasor in Johnny's fraud, it should be mindful that co-conspirators and joint tortfeasors are liable only for the acts of their collaborators that fall within the scope of their common tortious design.

C. We Reverse The Treble Damages Verdict Against Deverette.

The superior court ruled that Deverette's fraud liability was sufficient to support UTPA liability. But Baker conceded at oral argument that Deverette was not liable under the UTPA. Therefore, we also reverse the court's treble damages verdict against Deverette.

IV. CONCLUSION

We AFFIRM Deverette's unjust enrichment liability. We REVERSE the superior court's fiduciary duty conclusion and the UTPA treble damages. We VACATE the superior court's fraud conclusion as to Deverette and REMAND for further proceedings consistent with this opinion.

      Johnny filed to establish Personalized Tax Solutions as a limited liability company in early 2011.

      Baker's company, Last Frontier Assisted Living, was also a plaintiff in the lawsuit. For convenience we refer to the two plaintiffs collectively as "Baker."

      The superior court entered default judgment against Personalized Tax Solutions, LLC in October 2012. Because the Williamses chose to represent themselves and neither was a licensed attorney, they could not file an answer on behalf of the limited liability company.

      Because unjust enrichment liability does not depend on the existence of a fiduciary duty, the court did not reverse the burden of proof on this claim.

      Offshore Sys.-Kenai v. State, Dep't of Transp. & Pub. Facilities , 282 P.3d 348, 354 (Alaska 2012) (citing Labrenz v. Burnett , 218 P.3d 993, 997 (Alaska 2009) ).

      Labrenz , 218 P.3d at 997.

      Whether a fiduciary relationship exists is a legal question reviewed de novo. Thomas v. Archer , 384 P.3d 791, 795 (Alaska 2016) ; see also Munn v. Thornton , 956 P.2d 1213, 1220 (Alaska 1998) ("We exercise our independent judgment in reviewing questions of law, such as whether a cost-plus contract creates a fiduciary relationship.").

      Seybert v. Cominco Alaska Expl. , 182 P.3d 1079, 1090 (Alaska 2008) (quoting Munn , 956 P.2d at 1220 ).

      Munn , 956 P.2d at 1220 (citing Fiduciary duty , Black's Law Dictionary (6th ed. 1990)).

      Id. (alteration in original) (quoting Wagner v. Key Bank of Alaska , 846 P.2d 112, 116 (Alaska 1993) ).

      See Miller v. Sears , 636 P.2d 1183, 1190 (Alaska 1981).

      See id . (stating that once a fiduciary relationship is established, burden shifting is "in accord with general tenets of the duties of a fiduciary and ensures that [the fiduciary] discharges his general duties of loyalty and fair play").

      In her reply brief, Deverette also raises a claim for apportionment of damages under AS 09.17.080, but this claim was not raised in the superior court. We will not address this claim on appeal because it was not raised in her opening brief. See Maines v. Kenworth Alaska, Inc. , 155 P.3d 318, 326 (Alaska 2007). But the superior court on remand is free to consider whether to allow Deverette to assert this claim.

      Baker also argues that Deverette is liable for Johnny's misconduct because the judgment is a "marital debt" and because Deverette, as Johnny's surviving spouse, will inherit his judgment debt. But whether Johnny's judgment debt would be classified as "marital" in a divorce proceeding or whether it would be inherited by Deverette in a probate proceeding are questions irrelevant to the central issue in this appeal: whether Deverette is legally culpable for the fraud.

      See Halberstam v. Welch , 705 F.2d 472, 484 (D.C. Cir. 1983) (stating that civil co-conspirators are liable for "acts pursuant to, in furtherance of, or within the scope of the conspiracy"); Restatement (Second) of Torts § 876 cmt. a ( Am. Law Inst. 1979) ("Whenever two or more persons commit tortious acts in concert, each becomes subject to liability for the acts of the others.").


author: STOWERS, Justice.

text:
    John DIAMOND III, Appellant, v. PLATINUM JAXX, INC., Appellee.
    Supreme Court No. S-16908
    Supreme Court of Alaska.
    August 9, 2019
    Whitney A. Power, Power & Power Law, LLC, Anchorage, for Appellant.
    No appearance by Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   STOWERS, Justice.

I. INTRODUCTION

John Diamond III was assaulted and sustained severe injuries while a patron at Platinum Jaxx, a restaurant and bar. He filed suit against Platinum Jaxx, Inc., its landlord, and his assailant, Noel Bungay. A default was entered against Bungay, and the landlord was later granted summary judgment on the claims against it. Diamond proceeded to trial on his remaining claims against Platinum Jaxx. After an eight-day trial, the jury returned a special verdict finding Platinum Jaxx criminally negligent. The jury awarded Diamond $1.85 million in damages and apportioned fault between Platinum Jaxx and Bungay. Platinum Jaxx was found to be 20% at fault for the injuries Diamond received, and Bungay was found 80% at fault. Diamond appeals the superior court's pre-trial order that precluded him from proceeding on a piercing the corporate veil theory. He asks us to reverse the order and remand to allow the superior court to make findings of fact and conclusions of law on the veil piercing issue. He also appeals other pre-trial orders excluding evidence, as well as the superior court's post-judgment cost award allocation.

Because Diamond did not plead the veil piercing issue, we affirm the superior court's order. The superior court also did not abuse its discretion by excluding the challenged evidence and by allocating costs according to the percentage of fault of each defendant. We therefore affirm the court's pre-trial orders and post-judgment cost award.

II. FACTS AND PROCEEDINGS

In October 2013 John Diamond, III and his girlfriend were patrons at Platinum Jaxx, a restaurant and bar in downtown Anchorage. While the two were sitting at the bar, another patron, Noel Bungay, hit Diamond in the head with a pint glass, causing severe disfigurement. In June 2015 Diamond and his girlfriend filed suit against Platinum Jaxx, Inc., its landlord, La Mexicana, Inc., and Bungay. Diamond alleged that (1) Platinum Jaxx violated the dram shop statute by serving alcohol to a "drunken person," (2) Platinum Jaxx was negligent in the operation of its premises and failed to exercise reasonable care to protect its patrons, (3) La Mexicana was negligent in its duties as landlord and owner of the property, (4) Bungay assaulted Diamond causing serious physical injury, and (5) all parties negligently caused the girlfriend to suffer severe emotional distress and loss of consortium. By the time suit was filed, the bar had been closed for one year, and Platinum Jaxx, Inc. was subsequently involuntarily dissolved in September 2015.

In May 2016 the superior court entered a default against Bungay. In June 2017 the court granted summary judgment against the girlfriend's claims for emotional distress and loss of consortium. In July the court granted La Mexicana's motion for summary judgment on the landlord liability claim, and the remaining parties - Diamond and Platinum Jaxx - proceeded to a jury trial.

Prior to trial, in February 2017, Diamond's attorney sent a letter to Platinum Jaxx's attorney, stating: "Plaintiffs did not plead piercing the corporate veil as a count in the Complaint.[ ] Nevertheless, for notice purposes, please be advised that Plaintiffs intend to argue at trial that [the] corporate veil should be pierced." But Diamond did not seek to amend his complaint to plead a veil piercing theory or to join the individual owners of Platinum Jaxx as defendants. Diamond later sought to introduce evidence of Platinum Jaxx's lack of liability insurance to show that Platinum Jaxx was undercapitalized and therefore its corporate veil should be pierced. Platinum Jaxx moved to preclude the evidence and argued that Diamond did not plead a veil piercing theory. In two pre-trial orders the superior court precluded Diamond from mentioning liability insurance at trial and stated that it would "not allow [Diamond] to proceed on a piercing the corporate veil [theory] to pursue claims against the individual, non-named officers or shareholders of Platinum Jaxx, Inc." The court reiterated at trial that Diamond was precluded from proceeding on a veil piercing theory because "it wasn't pled" and "would be grossly prejudicial ... this late in time."

The jury returned a special verdict in favor of Diamond, finding that (1) Platinum Jaxx, with criminal negligence, violated the dram shop statute; (2) Platinum Jaxx was negligent as a possessor of land; (3) Platinum Jaxx's negligence was a legal cause of harm to Diamond; (4) Diamond suffered severe disfigurement and damages of $1.85 million; and (5) Platinum Jaxx was 20% at fault and Bungay was 80% at fault. Final judgment was entered against Bungay and Platinum Jaxx in September 2017, with costs awarded in October. The judgment against Platinum Jaxx was for $331,332.93 in damages (20% of Diamond's total damage award) and $2,619.34 in costs (20% of Diamond's total allowable costs).

Diamond appeals pre-trial orders by the superior court that (1) precluded him from proceeding on a piercing the corporate veil theory, (2) excluded evidence related to the veil piercing theory, and (3) excluded evidence related to Platinum Jaxx's reputation that Diamond argues might have increased the jury's percent allocation of fault to Platinum Jaxx. Diamond also appeals the superior court's award of costs based on a percentage-of-fault formula. Diamond requests that we reverse the aforementioned orders and remand for specific findings relating to his veil piercing theory. Platinum Jaxx did not participate in this appeal.

III. STANDARDS OF REVIEW

The superior court precluded Diamond from proceeding on a piercing the corporate veil theory because it was not pleaded. Whether a party provided adequate notice to argue a claim is a question of law we review de novo, and "we will adopt the rule of law that is most persuasive in light of precedent, reason, and policy."

The superior court excluded evidence related to Diamond's veil piercing theory and to Platinum Jaxx's reputation. We review trial court "decisions to admit or exclude evidence under the abuse of discretion standard." We will find that a trial court abused its discretion if "the reasons for the exercise of discretion are clearly untenable or unreasonable."

The superior court denied Diamond's requested reallocation of costs. "We review a trial court's cost award for abuse of discretion." "When a review of an award of ... costs requires an interpretation of the Alaska Civil Rules, we apply our independent judgment."

IV. DISCUSSION

A. The Superior Court Did Not Err By Precluding Diamond From Proceeding On A Piercing The Corporate Veil Theory.

In its July 2017 pre-trial order the superior court stated that it would "not allow [Diamond] to proceed on a piercing the corporate veil [theory] to pursue claims against the individual, non-named officers or shareholders of Platinum Jaxx, Inc." Diamond argues that "[i]n ordering that [he] was precluded from proceeding on a veil piercing theory, the trial court did not analyze the veil piercing factors on the record," and that the court "failed to make any findings of fact or conclusions of law related to its corporate veil piercing order." He requests that we "reverse the trial court's order related to corporate veil piercing ... [and] remand this case to the trial court for the purpose of making detailed and explicit findings."

Diamond is correct that the superior court did not make findings of fact or conclusions of law in its order - but it did not need to. The court's explanations at trial - that the theory "wasn't pled" and that allowing the theory in "would be grossly prejudicial ... this late in time" - are adequate to give us "a clear understanding of the basis of the trial court's decision." The question before us instead is whether Diamond adequately raised the veil piercing issue.

Diamond did not plead a piercing the corporate veil theory in his complaint, and he did not seek to file an amended complaint asserting this claim at any point in the proceedings. Diamond argues that his February 2017 letter to Platinum Jaxx provided sufficient notice to overcome his failure to plead, and he relies on L.D.G., Inc. v. Brown for the proposition that "if a party has notice of the conduct for which the opposing party is seeking relief, the opposing party may recover under any theory supported by the evidence."

In L.D.G. we considered whether failure to plead the veil piercing theory was "sufficient to keep the question from going to the jury." The plaintiff in L.D.G. indicated "six months before the start of trial[ ] that he was prepared to argue that L.D.G.'s corporate veil should be pierced," and he "submitted supplemental proposed jury instructions ... pertaining to piercing the corporate veil, accompanied by a notice indicating that ... he would also argue that the corporate veil should be pierced." We held that the parties "were on sufficient notice of [the plaintiff's] piercing the corporate veil theory." But L.D.G. is distinguishable because the plaintiff originally filed suit against both L.D.G. and the sole shareholder of the company personally. The sole shareholder was thus on notice that the plaintiff sought to hold him personally liable. Diamond's complaint did not name any of the individual owners of Platinum Jaxx, and he never sought to join the owners as parties to the suit. They therefore were not required - nor did they have the opportunity - to defend themselves individually.

We also evaluated failure to plead in Alakayak v. British Columbia Packers, Ltd. , reviewing a superior court ruling "that the plaintiffs did not properly plead corporate 'alter ego' claims" and were therefore precluded from conducting discovery on those claims. While we acknowledged that the complaint "did not specifically request piercing of the corporate veil," we also observed that "it did name the [parent corporations] as defendants, and it stated that it would seek recovery from those defendants for the actions of the subsidiaries." We concluded that because the parent corporations had "notice of the conduct for which the opposing party [was] seeking relief," the plaintiffs' "alter ego" theory was therefore adequately pleaded. Alakayak is thus also distinguishable because the parent corporations "were independently sued ... and the complaint expressly alleged that they were 'responsible for the liabilities' of their wholly owned subsidiaries." Diamond's complaint contains no such language that would put the individual owners of Platinum Jaxx on notice that they might be held personally liable.

In both L.D.G. and Alakayak we relied on McCormick v. City of Dillingham for the proposition that notice can be sufficient to overcome the failure to plead. In McCormick we considered whether a party who originally brought suit on a de facto partnership theory could later proceed on a piercing the corporate veil theory. We concluded that because the initial complaint named McCormick as the sole defendant, he was on notice that he might be held personally liable. Accordingly, L.D.G. , Alakayak , and McCormick all involved some form of actual notice - in the pleadings, to a party to the case - that the plaintiff sought to hold the party liable.

Here, Diamond's complaint provides no notice to the individual owners of Platinum Jaxx that they might be held personally liable. And because the individual owners were not parties to Diamond's suit against Platinum Jaxx, Diamond's February 2017 letter to Platinum Jaxx's counsel did not provide the owners notice of Diamond's intent to pierce the corporate veil. Being actually named as a party is important. A named party has the right to assert affirmative defenses, counterclaims, and cross-claims and to conduct discovery, file motions, and make its own defense at trial. And a named party may be held personally liable for its share of damages. It is difficult to understand how Diamond believes he could pierce Platinum Jaxx's corporate veil and obtain a judgment against Platinum Jaxx's individual owners when they were not joined as parties to the action.

Diamond also did not pursue other opportunities to raise his veil piercing theory. He presumably became aware of the need to pierce the corporate veil by at least February 2017, the date his attorney sent the letter, yet he did not seek to amend his complaint to plead a veil piercing theory or to join the individual owners of Platinum Jaxx as defendants.

Because Diamond did not plead a veil piercing claim, the claim was not adequately raised. The individual owners of Platinum Jaxx were not parties to the case and therefore did not receive notice that they might be held personally liable. The superior court did not err in precluding this claim for failure to plead. We also conclude that the superior court did not abuse its discretion in concluding it would be "grossly prejudicial" to allow Diamond to introduce this theory so late in the proceedings. We affirm the superior court's order precluding Diamond from proceeding on a piercing the corporate veil theory.

B. The Superior Court Did Not Abuse Its Discretion By Excluding Evidence Related To Piercing The Corporate Veil.

Diamond argues that the superior court erred by (1) precluding mention of liability insurance and (2) precluding mention of Wallie Scott Vierra, a former owner of Platinum Jaxx.

Under Alaska Evidence Rule 411, evidence of liability insurance "is not admissible upon the issue whether the person acted negligently or otherwise wrongfully." But Diamond argues he "sought to offer the evidence not for the issue whether Platinum Jaxx acted negligently or otherwise wrongfully, but rather to demonstrate that it was undercapitalized and subject to corporate veil piercing." But whether Platinum Jaxx was undercapitalized was not at issue in Diamond's case. Because a veil piercing claim was not pleaded, and therefore was not at issue, this evidence was not relevant under Alaska Evidence Rule 402, was not admissible under Evidence Rule 411, and was unfairly prejudicial under Evidence Rule 403. The superior court did not abuse its discretion by excluding this evidence.

Vierra was a former owner of Platinum Jaxx who was convicted in 2008 of money laundering and drug distribution and forced to forfeit his 25% ownership interest in the corporation. Diamond intended to use evidence related to Vierra, the history of Platinum Jaxx's operation, and its ownership structure to pierce the corporate veil. But again, Diamond did not plead this claim and therefore this evidence was not relevant under Evidence Rule 402 and was unfairly prejudicial under Rule 403. The superior court did not abuse its discretion by excluding this evidence.

We affirm the superior court's orders excluding evidence related to piercing Platinum Jaxx's corporate veil because this evidence was not relevant to the trial on Platinum Jaxx's negligence.

C. The Superior Court Did Not Abuse Its Discretion By Excluding Evidence Related To Platinum Jaxx's Reputation .

1. Media coverage of shootings outside Platinum Jaxx

Diamond argues that the superior court erred by excluding media evidence regarding the reputation of Platinum Jaxx. He asserts that media coverage of prior shootings outside Platinum Jaxx demonstrates (1) that Platinum Jaxx had notice that violent acts had occurred, (2) that it was foreseeable that such acts might occur again, and (3) that Platinum Jaxx had a duty to take precautions and provide reasonable protections to its patrons. Diamond argues this "evidence would likely have increased the jury's allocation of fault to Platinum Jaxx" and that we should reverse the superior court's exclusion of this evidence and remand for the court to make specific findings under Alaska Civil Rule 52.

The two shootings in question occurred in 2011 and 2012, and both took place outside and off the premises of Platinum Jaxx. This evidence would not be relevant to the security measures in place inside Platinum Jaxx over a year later or to the propensity for violence inside the bar, which is where Diamond's assault took place. And Evidence Rule 404 specifically excludes evidence of prior bad acts to show a general propensity to act in conformity therewith. It was reasonable for the superior court to conclude that any relevance of the evidence would likely have been substantially outweighed by the risk of unfair prejudice and the potential for the jury to use the evidence for an improper purpose - i.e., to conclude that because Platinum Jaxx may have been negligent in the past that it was also negligent on the night of Diamond's assault. The superior court did not abuse its discretion by excluding media coverage evidence.

2. Cherie Lee Burno's testimony

Diamond also challenges the superior court's preclusion of testimony by Cherie Lee Burno, an employee of Platinum Jaxx during the time period when Diamond was assaulted by Bungay. Diamond sought to admit Burno's testimony to demonstrate that (1) Platinum Jaxx was a dangerous place, (2) it was on notice of the violence within its bar, and (3) its management of the bar was negligent given the foreseeability of harm to a patron. He asserts that her testimony "would likely have increased the jury's allocation of percentage of fault to Platinum Jaxx."

But Burno was not present at the time of Diamond's assault and therefore did not have "personal knowledge of the matter" as required by Evidence Rule 602, and she could not share an opinion "rationally based on [her] perception" as required by Evidence Rule 701. Of greater significance, her testimony about prior acts of violence within the bar may have been relevant to Platinum Jaxx's notice and duty, but as with the media coverage evidence, her testimony would be inadmissible propensity evidence under Rule 404(b). It was reasonable for the superior court to conclude that any relevance of her testimony would have been substantially outweighed by the risk of unfair prejudice and the potential for the jury to use the evidence for an improper purpose. The superior court did not abuse its discretion by excluding Burno's testimony.

D. The Superior Court Did Not Abuse Its Discretion By Awarding Diamond's Costs Based On Percentage Of Fault .

Diamond argues that the superior court abused its discretion by awarding his costs against Bungay and Platinum Jaxx in accordance with each tortfeasor's percentage of fault. He posits that equitable apportionment in fact "would require only that Bungay be responsible for costs incurred in proving damages, not those incurred in proving Platinum Jaxx's liability." Because the majority of Diamond's litigation costs were associated with proving Platinum Jaxx's liability, not Bungay's, he argues it would be unjust to require the defaulted defendant to subsidize the defendant which litigated the case. Diamond requests that we reverse the superior court's order denying his motion for review of the clerk's costs award and allocate the majority of costs to Platinum Jaxx.

While Diamond's motion to reallocate costs was filed late and failed to meet the standard for excusable neglect, the superior court nevertheless reviewed the motion on the merits before denying it; the court found that the clerk properly allocated costs based on the jury award. Under Civil Rule 79, "[i]n a case in which damages are apportioned among the parties ... costs must be apportioned and awarded according to the provisions of Civil Rule 82(e)." Rule 82(e) provides that fees awarded must "be apportioned among the parties according to their respective percentages of fault." The clerk therefore allocated 80% of the costs to Bungay and 20% of the costs to Platinum Jaxx in accordance with the jury's allocation of fault to each party.

Diamond argues that Civil Rule 94 "permits the relaxation of the [civil] rules to advance justice" and that it would be unjust to hold Bungay liable for the majority of Diamond's costs associated with litigating against Platinum Jaxx. We have never held that the superior court has the discretion under Rule 94 to alter the allocation of costs if it believes that injustice would otherwise occur, and it is not necessary for us to do so here. We will assume without deciding that the superior court has that discretion. But under an abuse of discretion standard we will uphold an award of attorney's fees and costs "unless it is manifestly unreasonable." Costs were correctly awarded as provided by Rules 79 and 82(e), and we conclude that the superior court's cost award was not manifestly unreasonable and did not result in manifest injustice. We affirm the court's order and the costs award.

V. CONCLUSION

The superior court's pre-trial orders and its post-judgment costs award are AFFIRMED.

      See AS 04.16.030(a) ("A licensee, an agent, or employee may not with criminal negligence (1) sell, give, or barter alcoholic beverages to a drunken person; .... [or] (3) allow a drunken person ... to consume an alcoholic beverage within licensed premises ....").

      Generally, "courts seek to recognize and uphold 'the principles that the corporation exists as a separate legal entity and that owner liability for the debts of the corporation is limited.' " L.D.G., Inc. v. Brown , 211 P.3d 1110, 1125 (Alaska 2009) (quoting Pyramid Printing Co. v. Alaska State Comm'n for Human Rights , 153 P.3d 994, 1000 (Alaska 2007) ). But the corporate veil may be pierced - and the corporate status disregarded - to hold the individual owners liable for the acts of the corporation "if the corporate form is used to defeat public convenience, justify wrong, commit fraud, or defend crime," or if the "corporation is nothing more than a 'mere instrument' of a shareholder." Id. (first quoting Elliott v. Brown , 569 P.2d 1323, 1326 (Alaska 1977) ; and then quoting Uchitel Co. v. Telephone Co. , 646 P.2d 229, 235 (Alaska 1982) ).

      This amount is based on 20% of $1,567,750 - the damages award was reduced from $1.85 million based on statutory tort caps - plus prejudgment interest of $17,782.93. See generally AS 09.17.010.

      Alakayak v. British Columbia Packers, Ltd. , 48 P.3d 432, 448 (Alaska 2002).

      Healy Lake Vill. v. Mt. McKinley Bank , 322 P.3d 866, 871 (Alaska 2014) (quoting John v. Baker , 982 P.2d 738, 744 (Alaska 1999) ).

      Loncar v. Gray , 28 P.3d 928, 930 (Alaska 2001).

      Burke v. Maka , 296 P.3d 976, 980 (Alaska 2013) (quoting Lewis v. State , 469 P.2d 689, 695 (Alaska 1970) ).

      Alexander v. State, Dep't of Corr. , 221 P.3d 321, 324 (Alaska 2009).

      Kozevnikoff v. Tanana Vill. Council , 89 P.3d 757, 759 (Alaska 2004).

      Beaulieu v. Elliott , 434 P.2d 665, 670 (Alaska 1967).

      211 P.3d 1110, 1124 (Alaska 2009) (quoting McCormick v. City of Dillingham , 16 P.3d 735, 743 (Alaska 2001) ).

      Id. at 1124-25.

      Id.

      Id. at 1125.

      Id. at 1116.

      48 P.3d 432, 459 (Alaska 2002).

      Id. at 460.

      Id. (quoting McCormick v. City of Dillingham , 16 P.3d 735, 743 (Alaska 2001) ).

      Id.

      McCormick , 16 P.3d at 743.

      Id.

      Id.

      Cf. Alaska R. Civ. P. 19 ("A person ... shall be joined as a party in the action if ... the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may ... as a practical matter impair or impede the person's ability to protect that interest ....").

      See Alaska R. Civ. P. 15(a) ("[A] party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.").

      While Diamond first asserted his veil piercing theory in the February 2017 letter to Platinum Jaxx, it does not appear that he argued this theory before the superior court until June 2017 - only a month and a half before trial - in his opposition to Platinum Jaxx's motion to preclude evidence of liability insurance.

      Alaska R. Evid. 411.

      Alaska R. Evid. 402 ("Evidence which is not relevant is not admissible.").

      Alaska R. Evid. 411 ("Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.").

      Alaska R. Evid. 403 ("Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ....").

      We do not understand why Diamond asks us to remand for the superior court to make specific findings of fact. The relief Diamond would actually need would be for us to reverse the court's orders and judgment and remand for a new trial.

      Alaska R. Evid. 404(b)(1).

      Alaska R. Evid. 403.

      Cf. Oakly Enters., LLC v. NPI, LLC , 354 P.3d 1073, 1083-84 (Alaska 2015) ("Oakly Enterprises argues that the environmental report was admissible ... to show that the spill ... was due to 'NPI's corporate culture [which] allowed for polluting' .... [But] [t]he proposed use of the [environmental report] can only reasonably be characterized as to show a propensity - i.e., because NPI was responsible for pollution found at a different location, it must be responsible for the pollution on [another] property three years earlier. ... [T]he superior court, in excluding the report, further noted that it would confuse the jury, likely because of its remoteness from the events at issue in terms of both time and geography. For all these reasons, we see no abuse of discretion in the superior court's exclusion of the report." (third alteration in original)).

      Alaska R. Evid. 602 ("A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.").

      Alaska R. Evid. 701 ("If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.").

      If what Diamond really hoped for was to inflame the jury's passion against Platinum Jaxx, that is precisely the type of improper effect the Evidence Rules are intended to prohibit. See Alaska R. Evid. 403.

      Alaska R. Civ. P. 79(h).

      Alaska R. Civ. P. 82(e).

      Alaska R. Civ. P. 94 ("These rules are designed to facilitate business and advance justice. They may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work injustice.").

      Circle De Lumber Co. v. Humphrey , 130 P.3d 941, 946 (Alaska 2006) ; see also Dickerson v. Goodman , 161 P.3d 1205, 1207 (Alaska 2007) ("A refusal to apply Civil Rule 94 is reviewed for abuse of discretion.").