Punches v. McCarrey Glen Apartments, LLC

• Decision Date: 12 February 2021
• Docket Number: Supreme Court No. S-17465
• Citation: 480 P.3d 612
• Parties: Evvie PUNCHES, Appellant, v. MCCARREY GLEN APARTMENTS, LLC and Weidner Property Management LLC, Appellees.
• Court: Alaska Supreme Court

480 P.3d 612

Evvie PUNCHES, Appellant,

v.MCCARREY GLEN APARTMENTS, LLC and Weidner Property Management LLC, Appellees.

Supreme Court No. S-17465

Supreme Court of Alaska.

February 12, 2021

Stephen Merrill, Anchorage, for Appellant.

Gregory R. Henrikson,Walker & Eakes, LLC, Anchorage for Appellee.

Before: Bolger, Chief Justice, Winfree, Maassen, and Carney, Justices. [Stowers, Justice not participating.]

OPINION

CARNEY, Justice.

I. INTRODUCTION

A tenant sued her former landlord and its property management company, asserting that the companies negligently failed to eradicate mold in her apartment, thereby breaching the habitability provisions of the lease and causing her to suffer personal injury and property damage. After considerable delay involving discovery disputes, the superior court granted summary judgment dismissing the tenant's personal injury claim. The parties went to trial on the tenant's property damage and contract claims after the superior court precluded the tenant from introducing evidence relating to her personal injury claim. The jury rejected the tenant's claims, and judgment was entered in favor of the companies. The tenant appeals, contending that the court erred by ruling against her in discovery disputes, by denying her a further extension of time to oppose summary judgment, and by limiting the evidence she could present at trial. We conclude that the court did not abuse its discretion when making the challenged rulings, and we therefore affirm the judgment against the tenant.

II. FACTS AND PROCEEDINGS

A. Punches's Tenancy And Health Issues

In March 2014, Evvie Punches rented a one-bedroom apartment in the Conifer Groves complex in Anchorage; she renewed the lease in April 2015. The complex was owned by McCarrey Glen Apartments, LLC and managed by Weidner Property Management, LCC.¹ Punches worked a three-weeks-on and three-weeks-off schedule at Prudhoe Bay. She would return to her apartment in Anchorage for her weeks off.

On April 1, 2014, Punches submitted a move-in report to Weidner. In the report Punches listed problems with her apartment, including "dirty" walls and floors. The report did not mention mold or smells.

In May Punches reported that the kitchen sink had begun to leak, "blister," and "stink." In July Punches reported that the sink was still leaking and that the kitchen walls "were streaked with a colored substance."

From September 2014 through March 2015 Punches made additional complaints to the property manager about air quality in her apartment and mold around her toilet. These issues continued despite a number of attempts by Weidner's maintenance staff to fix them, and Punches renewed her lease in April 2015.

In November 2015 Punches went to an Anchorage clinic for treatment of a rash on her head and neck. A physician's assistant diagnosed her with ringworm

and prescribed treatment with medication and a shampoo. A few days later Punches again complained to Weidner about mold and wet carpet. When the property manager tried to arrange an inspection, Punches refused to allow maintenance staff into her apartment because she would not be home.

Punches returned to the same clinic for a follow-up medical exam in January 2016. Because her symptoms had not disappeared completely following the prescribed treatment, the physician's assistant prescribed another six weeks of the same treatment and recommended that she see a dermatologist. The dermatologist noted that Punches had a rash on the back of her head and prescribed a dandruff shampoo.

Punches wrote letters to Weidner in December 2015 and January 2016, complaining that her requests for inspection and repairs due to mold and water damage had not been taken seriously. Punches scheduled a meeting with Weidner's area director in mid-February 2016. The necessary repairs were never completed, however, because Punches did not allow maintenance staff into her apartment. Punches stopped paying rent after February.

In early March while working at Prudhoe Bay, Punches visited the clinic there and reported that she had been ill for the previous three days. She received breathing treatment and an IV and was sent home to Anchorage. The next week she had a follow-up appointment at the Anchorage clinic; the physician's assistant noted that Punches was "feeling improved" and had neither influenza

nor a fever.

Punches moved out of her apartment on March 14, 2016 after delivering Weidner a "Notice of Defects in Essential Services." Her notice listed issues with the front door, mold on the ceiling, mold on the carpet, damage from a previous fire, water damage, and "insufficient windows" that permitted "free flowing air throughout" the apartment.

Punches moved to Minneapolis some time after she left her apartment. She sought care in Minnesota for various skin infections and reported that she had been exposed to mold for two years. She continued to pursue a connection between mold exposure and her recurring skin infections and other ailments.

B. Initial Proceedings

In May 2017 Punches filed a complaint in superior court against Weidner and filed an amended complaint in June. Punches alleged that from the outset of her lease "the apartment suffered from major defects needing immediate repair." Punches claimed that her sink was "leaking substantially"; her ceiling was leaking and required repairs; and "the entryway door to the apartment had been damaged ... leaving a large open gap to the outside even when the door was closed and locked." Punches also alleged that her apartment had suffered damage from a fire in the building. She claimed that Weidner's failure to make necessary repairs violated the Alaska Residential Landlord-Tenant Act² and as a result she lost the "reasonable enjoyment of her apartment." She also alleged that Weidner's failure to make repairs "constituted negligence ... that caused serious illnesses" and that Weidner's actions amounted to "reckless disregard of [her] health and property interests."

In addition Punches claimed that mold in her apartment had caused other problems for which she was entitled to damages. She alleged that Weidner raised the temperature in her apartment to try to dry out mold, that her electric bill was therefore higher than it should have been, and that personal items were damaged by mold. She also claimed that she had suffered health problems from the mold. She alleged that the rash on her head and neck was due to "an unusual illness known as Mucormycosis

, a flesh-eating fungal infection" and that she had contracted an upper respiratory tract infection, both of which she attributed to mold exposure. Punches sought $2 million in compensatory damages and $10 million in punitive damages from Weidner.

Weidner filed its answer a week later, denying all of Punches's allegations. In September, after Punches filed initial interrogatories and requests for discovery, Weidner responded by objecting to most of them.

Weidner deposed Punches in mid-December. Punches described the condition of the apartment and blamed mold in her apartment for causing her health problems. She admitted that no medical provider had diagnosed her with the "flesh eating fungal infection

" alleged in her complaint.

Punches filed a second set of interrogatories and requests for production. Weidner answered in early March 2018, again objecting to nearly all of them. Four days after receiving Weidner's response, Punches filed a motion to compel discovery replies, arguing that Weidner's objections were without merit and contained "[key] omissions."

C. Weidner's Protective Order And Partial Summary Judgment

Weidner opposed the motion to compel and filed a cross-motion for a protective order in April. Weidner argued that Punches had not made a good faith effort to obtain discovery, as required by rule,³ because she had filed her motion only four days after Weidner's response without attempting to resolve the situation.

In its motion for a protective order Weidner asked the court to limit discovery until Punches could "prove that she can establish a prima facie case of her claimed bodily injuries." Weidner argued that Punches had provided no evidence that she suffered any bodily injuries or property damage as a result of Weidner's negligence nor had she provided any evidence that she ever had mucormycosis

. Weidner conceded that it "would certainly make sense" to provide information such as the names of tenants who had lived in Punches's apartment but only after Punches had shown some evidence that she suffered any injury.

A week after filing its opposition to Punches's motion to compel, Weidner filed a motion for partial summary judgment to dismiss Punches's personal injury claim,⁴ arguing that Punches had failed to meet her burden of proof showing a connection between her medical issues and exposure to mold. Weidner argued that because the conditions with which she had been diagnosed "are common in the general population" Punches needed to provide expert testimony to link them to mold. Weidner asserted that Punches had "not even raised the possibility that [her] common conditions were caused by mold, let alone ... mold in her home."

Punches then filed her reply to the opposition to her motion to compel and attached photographs allegedly showing her belongings "caked with mold" which she said happened whenever she returned from a shift at work. She argued that the photographs connected conditions in her apartment to her health issues and that she had not yet been able to hire a medical expert because she had only recently obtained health insurance. She also argued that the medical professionals she had seen "took a lax approach diagnosing and treating" her condition, but that she expected the allergist she had seen to conclude that mold in her apartment had caused her health issues.

After objecting that Weidner's opposition to her motion "reads like a summary judgment motion," Punches argued that Weidner's refusal to provide discovery was the cause of her delay in...