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Ahwinona v. Alaska (8/16/96), 922 P 2d 884
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska, 99501, telephone (907) 264-0607, fax (907) 264-
THE SUPREME COURT OF THE STATE OF ALASKA
RODNEY AHWINONA, )
) Supreme Court No. S-6750
) Superior Court No.
v. ) 3AN-94-3450 Civil
STATE OF ALASKA and CLARENCE )
JACKSON, ) O P I N I O N
Appellees. ) [No. 4387 - August 16, 1996]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Milton M. Souter, Judge.
Appearances: Rodney Ahwinona, pro se,
Anchorage. Raymond M. Funk, Assistant
Attorney General, Fairbanks, and Bruce M.
Botelho, Attorney General, Juneau, for
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Shortell,
Justice, pro tem.
RABINOWITZ, Justice, concurring.
This case concerns the effect of a personal injury
release executed by Rodney Ahwinona in 1991. The superior court
granted a Civil Rule 12(b)(6) motion dismissing a 1992 lawsuit
Ahwinona brought against two of the releasees. We affirm.
II. FACTS AND PROCEEDINGS
Rodney Ahwinona suffered a broken leg while he was in
custody of the State of Alaska, Department of Corrections (DOC),
and riding on a snowmachine driven by Clarence Jackson, a DOC
employee. Through his attorney, Ahwinona sued Jackson, the State,
and the Maniilaq Association for personal injury damages arising
out of the accident. At the time of the accident, Ahwinona was
incarcerated at a rehabilitation camp run by Maniilaq. The
accident occurred while Ahwinona was being transported to Kotzebue
to obtain supplies. The complaint was filed November 2, 1990, in
the superior court in Nome.
On May 21, 1991, Ahwinona signed a document entitled
"Release of All Claims." It recited that for consideration of
$6,000, receipt of which was acknowledged, Ahwinona "hereby
releases and forever discharges Clarence Jackson, the Maniilaq
Association, and the State of Alaska." Ahwinona's signature was
affixed before a notary public. His attorney signed an attached
"Attorney's Representation"dated May 28 stating that she had
explained and discussed the nature and purpose of the release with
Ahwinona and that to the best of her knowledge, "my client
understands the nature and effect of this document and assents to
its terms." On May 15, prior to signing the release, Ahwinona
executed a document entitled "Special Power of Attorney,"which
permitted his attorney "as my attorney-in-fact"to endorse and cash
"the settlement check in the amount of $6,000.00"and sign release
documents in the case "against the State of Alaska, Clarence
Jackson, and Maniilaq Association." That power was also executed
before a notary. On June 24 Ahwinona's attorney sent to Ahwinona
a letter which enclosed his "full and final settlement check in the
amount of $4,000.00 and a copy of your Settlement Sheet." The
settlement sheet, countersigned by Ahwinona on June 18,
acknowledged that the "full settlement amount"was $6,000 and that
$4,000 was the "total due client"after deduction of attorney's
fees. The attorney's trust account check to Ahwinona in the amount
of $4,000 bore the notation "Full & Final Settlement."
In April 1994 Ahwinona filed in the superior court in
Anchorage a pro se complaint against Jackson and the State. He
claimed personal injury damages arising from the snowmachine
accident and other damages from the alleged failure of Jackson and
the State to honor the settlement agreement. Ahwinona attached to
his new complaint copies of various documents, including the
release of all claims, the attorney's representation, the special
power of attorney, the $6,000 settlement check payable jointly to
Ahwinona and his attorney (apparently issued by the insurer for
Maniilaq Association), the letter from Ahwinona's attorney
conveying the settlement check, and the settlement sheet discussed
The State and Jackson filed an answer to Ahwinona's
complaint, raising the 1991 settlement and release as a defense.
The State then moved to dismiss pursuant to Civil Rule 12(b)(6),
asserting that the claims were barred by the prior settlement. In
support, the motion to dismiss relied upon Ahwinona's 1994
complaint and the documents which Ahwinona attached to that
complaint, including the 1991 release and attorney's
Ahwinona opposed the motion in an unsworn memorandum
which asserted that the release he signed released only Maniilaq
Association. He asserted that when he agreed to settle, he
expected settlement from all three defendants, including the State
and Jackson, but learned "while in the process of signing [the]
release for Maniilaq Association"that the State was not going to
pay for the settlement. He also asserted that the State's lawyers
did not send him release papers to sign to release the State and
Jackson "formally." He further asserted that Jackson and the State
were responsible for his injury, and that they had agreed to settle
but then "turned around"and said that they were not going to pay
for the settlement. The trial court granted the State's motion to
dismiss and dismissed Ahwinona's claims with prejudice.
Ahwinona sought reconsideration, and elaborated on his
theory that the State and the Department of Law had agreed to
settle but "went back on their word"when they failed to pay the
settlement and provide a release of liability for him to execute.
It appears to have been Ahwinona's theory that the State could not
settle the claims against itself and Jackson unless the State
itself paid the settlement proceeds to Ahwinona and provided him
with a release document authored by the Attorney General's Office.
It was also apparently his theory that the check and the release
did not discharge the State's responsibility to settle the claims
against the State and Jackson. The trial court denied the motion
The State moved for entry of final judgment. Ahwinona
filed an unsworn statement in opposition, asserting that when he
agreed to settle with all the defendants, he was expecting
settlement from each defendant in the amount of $6,000.
The trial court entered final judgment against Ahwinona.
It is uncertain what documents the trial court considered
apart from the complaint. Normally, if the trial court in deciding
a Rule 12(b) motion to dismiss relies on "matters outside the
pleadings,"the motion is to be treated as one for summary
judgment, and resolved in accordance with Rule 56. Alaska R. Civ.
P. 12(c). Maynard v. State Farm Mutual Auto. Ins. Co., 902 P.2d
1328, 1329 (Alaska 1995); Shatting v. Dillingham City Sch. Dist.,
617 P.2d 9, 11 n.4 (Alaska 1980). In Brice v. State, 669 P.2d
1311, 1314 (Alaska 1983), we summarized the three alternatives
available to a reviewing court when it is unclear whether the trial
court relied on matters outside the pleadings. We stated:
The reviewing court may either (1) reverse the
decision and remand for proper consideration
as either a Rule 12(b)(6) motion or a Rule 56
summary judgment motion; (2) review the
decision as if it were a Rule 12(b)(6)
decision, with accompanying exclusion of the
materials external to the pleadings; or (3)
review the decision as if it were the grant of
summary judgment after conversion of the Rule
12(b)(6) motion to one for summary judgment.
Id. (citing Martin v. Mears, 602 P.2d 421, 427 (Alaska 1979)).
In this case the documents evidencing the prior
settlement and terms of the release were attached to Ahwinona's
1994 complaint. Under these circumstances, the trial court could
properly rely upon these materials in deciding the State's motion
to dismiss under Rule 12(b)(6) without converting it into a motion
for summary judgment under Rule 56. Industrial Constructors Corp.
v. Bureau of Reclamation, 15 F.3d 963, 964-65 (10th Cir. 1994);
Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.), cert. denied, __
U.S. __, 114 S. Ct. 2704 (1994); Hall v. Bellmon, 935 F.2d 1106,
1112 (10th Cir. 1991); Hal Roach Studios v. Richard Feiner & Co.,
896 F.2d 1542, 1555 n.19 (9th. Cir. 1990); Chester County
Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812
(3d Cir. 1990); Morton v. Becker, 793 F.2d 185, 187 (8th Cir.
1986); Sullivan v. United States, 788 F.2d 813, 815 n.3 (1st Cir.
1986); Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067, 1069
(11th Cir. 1984), cert. denied, 476 U.S. 1124 (1986); 2A James W.
Moore, Moore's Federal Practice 12.09 n.6, at 12-107 (2d ed.
1995); 5A Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure 1357, at 299 (2d ed. 1990). (EN1) Therefore, under
alternative two outlined in Brice, we can review the superior court
decision as a Rule 12(b)(6) motion with reference to the documents
attached by Ahwinona to his complaint.
The release documents attached to Ahwinona's complaint
are clear on their face. They compel a conclusion as a matter of
law that Ahwinona agreed to settle his claims against Maniilaq,
Jackson, and the State for a total of $6,000, and that Ahwinona
received the agreed-upon consideration. The settlement clearly
contemplated payment of a single consideration of $6,000 to
discharge all three defendants. The settlement clearly did not
contemplate payment by each defendant of the $6,000 consideration
recited in the release. Nothing Ahwinona subsequently argued to
the court permits a different conclusion. His assertion that the
State and Jackson had not been released because the State had
failed to provide the check and a separate release is irrelevant.
It does not matter which defendant paid or advanced the settlement
proceeds, or which defense attorneys prepared the release
documents. Consequently, as a matter of law, Ahwinona's claim is
one for which relief cannot be granted. The superior court
correctly granted the State's Rule 12(b)(6) motion.
Because we have the discretion to review the superior
court's decision as if that court converted the State's motion to
a summary judgment motion, Brice, 669 P.2d at 1314 (citing Douglas
v. Glacier State Telephone Co., 615 P.2d 580, 591-92 (Alaska
1980)), we alternately review and affirm the superior court
decision under that standard.
After the court granted the motion to dismiss, denied
Ahwinona's motion for reconsideration, and was considering entry of
final judgment, Ahwinona asserted that he understood he would be
paid $6,000 by each defendant. This was the first time he
expressly made this factual assertion. Ahwinona did not make this
assertion in any sworn documents. Nonetheless, disregarding the
fact that this unsworn assertion was not timely raised and did not
qualify as evidence creating a genuine fact dispute, (EN2)
Ahwinona's misunderstanding of the terms of the release raised no
material factual issue.
In Witt v. Watkins, 579 P.2d 1065 (Alaska 1978), we
articulated the test for setting aside a release:
Once the party relying on a release
establishes that it was given with an
understanding of the nature of the instrument,
the burden is on the releasor to show by clear
and convincing evidence that the release
should be set aside. Factors that may be
considered are the manner in which the release
was obtained including whether it was hastily
secured at the instigation of the releasee;
whether the releasor was at a disadvantage
because of the nature of his injuries; whether
the releasor was represented by counsel;
whether he relied on representations of the
releasee or a physician retained by the
releasee and whether liability was seriously
in dispute. The relative bargaining positions
of the parties and the amount to be paid
should also be considered.
Id. at 1069-70.
Ahwinona presents no persuasive argument that his signing
of the release was coerced, the result of disadvantaged bargaining
ability due to his injury or otherwise, or founded on
representations made to him by the State or Jackson or their
agents. Rather, Ahwinona's claim is based on his misunderstanding
of the settlement agreement. Ahwinona states "[w]hen I agreed with
the defendants to settle out of court, I was expecting settlement
of six thousand dollars from each of the defendants." In support
of this expectation, Ahwinona argues that "[t]he release of
liability signed by me states that each side bear their own cost
and attorney's fees. That means specifically that . . . the state
has its own cost for personal injury; . . . [and] Clarence Jackson
has his own cost for personal injury."
When he settled in 1991 Ahwinona was represented by
counsel who attested to the fact that she explained the release and
that Ahwinona understood "the nature and effect of [the release]
and assent[ed] to its terms." Absent any showing of coercion or
fraud, Ahwinona's mistaken understanding of the release is not
sufficient to set it aside. See Mitchell v. Mitchell, 655 P.2d
748, 753 (Alaska 1982) (refusing to set aside a settlement, stating
that the releasor's mistake was "legally irrelevant because the
[settlement] clearly and unambiguously dismisses the entire
lawsuit."). Despite Ahwinona's misinterpretation, the release
clearly discharges all claims against the State and Jackson arising
out of the snowmobile incident. Even if we assume Ahwinona was
seeking reformation of the release to reflect his alleged
understanding of the release terms, Ahwinona fails to raise
material fact issues sufficient to succeed on such a claim. (EN3)
Therefore, Ahwinona did not raise any genuine issues of material
fact sufficient to avoid the clear terms of the release and the
effect of the prior settlement.
Given the record before it, the superior court could not
permissibly have denied judgment to the State of Alaska and
Clarence Jackson. It consequently did not err in dismissing
Ahwinona's complaint. Accordingly, we AFFIRM the trial court's
entry of final judgment against Ahwinona. RABINOWITZ, Justice, concurring.
I think it essential to a proper resolution of the Civil
Rule 12(b)(6) issue in this appeal to keep in mind that Ahwinona
filed pro se complaints against Maniilaq, Jackson, and the State.
Given that Ahwinona was unrepresented at all times in connection
with the proceedings in the superior court, I am of the view that
considerations of basic fairness require that the superior court's
grant of the State's Civil Rule 12(b)(6) motion dismissing
Ahwinona's complaint be reversed.
In regard to its treatment of the State's motion as a
Civil Rule 12(b)(6) motion, the court first notes that if the
superior court in deciding such a motion relies on matters outside
the pleadings, the motion is normally to be treated as one for
summary judgment and is to be resolved in accordance with Civil
Rule 56. Secondly, the court observes in part:
[T]he documents evidencing the prior
settlement and terms of the release were
attached to Ahwinona's 1994 complaint. Under
these circumstances, the trial court could
properly rely upon these materials in deciding
the State's motion to dismiss under Rule
12(b)(6) without converting it into a motion
for summary judgment under Rule 56 . . .
Branch v. Tunnell, 14 F.3d 449, 453 (9th
Cir.), cert. denied, ___ U.S. ___, 114 S. Ct.
Relying on Branch and similar federal authorities to analyze and
dispose of Ahwinona's Civil Rule 12(b) motion, the court concludes
that the documents attached to Ahwinona's complaint compel the
conclusion as a matter of law that Ahwinona agreed to settle his
claim against Maniilaq, Jackson, and the State for a total of
In Branch, 14 F.3d at 453-54, the Ninth Circuit wrote:
We have said that a document is not "outside"
the complaint if the complaint specifically
refers to the document and if its authenticity
is not questioned. Townsend v. Columbia
Operations, 667 F.2d 844, 848-49 (9th Cir.
1982). The leading commentators state that
"when [the] plaintiff fails to introduce a
pertinent document as part of his pleading,
[the] defendant may introduce the exhibit as
part of his motion attacking the pleading." 5
Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure 1327, at 762-
63 (2d ed. 1990); accord Romani v. Shearson
Lehman Hutton, 929 F.2d 875, 879 n.3 (1st Cir.
1991). . . . As it makes sense and comports
with existing practice, we hold that documents
whose contents are alleged in a complaint and
whose authenticity no party questions, but
which are not physically attached to the
pleading, may be considered in ruling on a
Rule 12(b)(6) motion to dismiss. Such
consideration does "not convert the motion to
dismiss into a motion for summary judgment."
Romani, 929 F.2d at 879 n.3.
It strikes me that the instant appeal is an inappropriate
vehicle to announce a completely new interpretation of Civil Rule
12(b)(6). I say this because Ahwinona was acting pro se in regard
to all proceedings before the superior court. The Branch rule is
a fairly esoteric rule to announce in the context of pro se
litigation against the State, particularly where the pro se
litigant was not apprised of the potential Civil Rule 12(b)(6)
consequences of attaching documents to his complaint. (EN1)
However, I concur in the court's alternative holding to
the effect that reviewing the superior court's decision as if that
court had converted the State's motion to a summary judgment
motion, Ahwinona has failed to raise material fact issues
sufficient to avoid the terms of the release and the effect of the
1. See also Murat v. F/V Shelikof Strait, 793 P.2d 69, 75 (Alaska
1990) (stating that unauthenticated documents can be considered in
support of a motion when no timely objection to the documents is
made, relying on "the well-recognized principle that a failure to
timely raise any evidentiary objection constitutes waiver of that
objection and permits the court to consider the proffered
evidence") (citing Kvasnikoff v. Weaver Bros., Inc., 405 P.2d 781,
784 (Alaska 1965) (holding that unauthenticated documents may be
considered in support of a motion for summary judgment where the
documents were not objected to or their authenticity disputed)).
2. In Brock v. Rogers & Babler, Inc., 536 P.2d 778, 782 (Alaska
1975), we held that the respondent in a summary judgment motion
"must set forth specific facts showing that he could produce
admissible evidence reasonably tending to dispute the movant's
evidence. Assertions of fact in pleadings and memoranda are not
admissible evidence and cannot be relied upon for the purposes of
summary judgment." (Citations omitted.)
3. Ahwinona's mistaken belief that he would receive $6,000 from
each defendant is not a sufficient basis for reformation of the
release. "Reformation of an instrument is the proper remedy where
it is alleged that the instrument does not conform to the actual
intentions of the parties." D.M. v. D.A., 885 P.2d 94, 96 (Alaska
1994) (citing Oaksmith v. Brusich, 774 P.2d 191, 197 (Alaska
Under Alaska law, the equitable remedy of
reformation is available only in certain well-
defined circumstances. These include
situations involving mistake of fact, fraud,
mutuality of mistake, and cases in which "a
party executes a written instrument knowing
the intention of the other party as to the
terms to be embodied therein, and knowing that
the writing does not accurately express that
Lathrop Co. v. Lampert, 583 P.2d 789, 790 (Alaska 1978) (footnotes
omitted) (quoting Holiday Inns of America, Inc. v. Peck, 520 P.2d
87, 94 (Alaska 1974)). See also Riley v. Northern Commercial Co.,
648 P.2d 961, 969 (Alaska 1982) ("The general rule is that
reformation is not available to obtain relief from a unilateral
Ahwinona does not argue that the State or Jackson knew of his
alleged understanding of the intended release terms or that they
induced this mistaken understanding.
1. In Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987), cert.
denied, 485 U.S. 1023 (1988), we said:
We agree with Breck that the pleadings of
pro se litigants should be held to less
stringent standards than those of lawyers.
See Haines v. Kerner, 404 U.S. 519, 520, 92 S.
Ct. 594, 595, 30 L. Ed. 2d 652, 654 (1972)
(per curiam). In this regard we note that
several courts have explicitly imposed a duty
on the trial judge to advise a pro se litigant
of his or her right under the summary judgment
rule to file opposing affidavits to defeat a
motion for summary judgment. See Hudson v.
Hardy, 412 F.2d 1091, 1094 (D.C. Cir. 1968)
(per curiam); Roseboro v. Garrison, 528 F.2d
309, 310 (4th Cir. 1975) (per curiam).
Likewise, we believe the trial judge should
inform a pro se litigant of the proper
procedure for the action he or she is
obviously attempting to accomplish; here Breck
should have been advised of the necessity of
submitting affidavits to preclude summary
judgment, and of the possibility of amending
See also Murphy v. City of Wrangell, 763 P.2d 229, 233 n.8 (Alaska
1988); Smith v. Sampson, 816 P.2d 902, 906 (Alaska 1991); Keating
v. Traynor, 833 P.2d 695, 696 (Alaska 1992); and Zok v. State, 903
P.2d 574, 576 n.2 (Alaska 1995).