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Dickerson v. Andrew (4/17/98), 956 P 2d 458
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, phone (907)
264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
M. ASHLEY DICKERSON, aka )
MAHALA ASHLEY DICKERSON, ) Supreme Court No. S-7871
WILLIAM ANDREW, and MARY )
ANDREW, ) Superior Court No.
) 3AN-95-7637 CI
Appellants, )
)
v. ) O P I N I O N
)
DUKE WILLIAMS, JEAN WILLIAMS, ) [No. 4968 - April 17, 1998]
and MATANUSKA-SUSITNA BOROUGH,)
)
Appellees. )
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Stephanie E. Joannides, Judge.
Appearances: M. Ashley Dickerson, Dickerson &
Gibbons, Inc., Anchorage, for Appellants. James T. Stanley,
James T. Stanley Corporation, P.C., Anchorage, for Appellees Duke
Williams and Jean Williams. Allan E. Tesche, Russell, Tesche &
Wagg, Anchorage, for Appellee Matanuska-Susitna Borough.
Before: Matthews, Chief Justice, Compton,
Fabe, and Bryner, Justices. [Eastaugh, Justice, not participating.]
COMPTON, Justice.
I. INTRODUCTION
This is an appeal from an order enforcing an oral
settlement agreement after one side refused to sign the papers
embodying it. The underlying suit concerns a roadway easement
across the land of Duke and Jean Williams to that of M. Ashley
Dickerson. The Matanuska-Susitna Borough (Borough) had vacated the
public interest in half the easement on condition that the
Williamses build an alternate road to Dickerson's land;
dissatisfied with the new road, she had sued. She agreed to settle
when the Williamses and the Borough promised to pay $6,500 within
seven days and to widen the easement so that she could build a new
road. Two weeks later, though, she refused to sign the settlement
because defendants had missed the seven-day deadline and because,
she had learned, the land for the new road includes federal
wetlands, which will complicate roadbuilding. The court ordered
her to sign, and she appeals. We affirm.
II. FACTS AND PROCEEDINGS
A. The Land
William and Mary Andrew subdivided the land at issue in
1976. They recorded a roadway easement, benefitting adjacent
owners and the public, across the upper 200' of the Williamses'
eventual lot to Dickerson's eventual lot. They apparently made the
roadway easement so wide because the upper part of the lot was
swampy.
Dickerson bought her lot in 1981. [Fn. 1] When the
Williamses bought their lot in 1986, a road or jeep trail ran over
it to Dickerson's lot. [Fn. 2] The parties dispute whether the
road/trail met Borough road standards, whether it lay wholly within
the 200' easement, and whether the Williamses intentionally
destroyed it in the late 1980s. The road/trail is now blocked and
overgrown.
B. The Federal Suit
In 1990 the Williamses asked the Borough Platting Board
to vacate the public interest in most of the 200' easement across
their lot. After Borough Deputy Director of Engineering George
Strother opined that the easement's upper 100' could support a
road, the Platting Board in June 1991 vacated the public interest
in the lower 100', contingent on the Williamses providing "equally
constructed access"within the remaining upper 100'. The
Williamses built a road, Strother approved it, and the Board
finalized the vacation.
Upon concluding that the new road was sinking into a
swamp, Dickerson, who is African-American, sued in federal court,
alleging that the Williamses and Borough officials, who are white,
had conspired to deny her the equal protection of the law. [Fn. 3]
The court granted the defendants summary judgment on Dickerson's
federal claims for lack of evidence of a conspiracy, and dismissed
her pendent state-law claims without prejudice; the United States
Court of Appeals for the Ninth Circuit affirmed, and the Supreme
Court denied certiorari. [Fn. 4]
C. The State Suit
While the certiorari petition was pending in 1994,
Dickerson's then-coplaintiff, William Bocast (who is not a party to
this suit), asked the Army Corps of Engineers (Corps) to inspect
the new road. The Corps found that the road lay in federal
wetlands. It wrote the Williamses in January 1995 that building
the road had violated federal law and that any further work on the
road would require permits. Dickerson sent a copy of the letter to
the Borough's attorney, Allan Tesche, concluding that it was
impossible to improve the new road so as to enable Dickerson to
subdivide her land. Tesche replied that the need for a permit
"does not necessarily preclude . . . construction altogether; you
simply should comply with federal permitting requirements . . . ."
Dickerson did not seek a permit. She sued, seeking, inter alia,
damages and an order nullifying the vacation of the lower 100' of
the public easement.
D. The Settlement
After a year of litigation, Superior Court Judge
Stephanie E. Joannides convened a settlement conference on
August 30, 1996. The parties reached a settlement, and the court
detailed their agreement on the record.
Dickerson agreed to a release and a dismissal with
prejudice. The Williamses agreed to regrant the upper 50' of the
half of the public easement that had been vacated (the 50' strip).
In other words, the public easement, which had been narrowed from
200' to 100', would be rewidened to 150'. Dickerson could then
build a new road primarily in the 50' strip. The parties agreed
that Dickerson would "bear[] the risk of any action that the Corps
of Engineers might take with respect to the building of the new
road." The Borough and the Williamses agreed to pay $6,500 within
seven days and $1,500 more within sixty days, and the court
directed them to prepare the settlement papers.
Dickerson also said that "with winter approaching . . .
I'd like to get started right away on constructing this road." The
court replied that "it's a matter of getting the paperwork done,
and whether it's this week or 10 days from now, I can't imagine
that there's gonna be that big of a difference." Dickerson did not
object. Dickerson, Judge Joannides, and Tesche then agreed that
Dickerson could survey the 50' strip at once, but not begin
building until "the paperwork's signed."
E. The Settlement's Collapse
After the conference, Tesche and the Williamses' attorney
began to draft settlement papers. On September 11, twelve days
after the conference, Dickerson notified the court that over seven
days had passed, but defendants had not tendered the papers or the
$6,500. She filed her own proposed settlement stipulation. It
said, inter alia, that she is "solely"responsible for "clearing"
the new road's "freedom from Wetland . . . violation"with the
Corps. On September 13 Tesche delivered settlement papers to
Dickerson.
On September 16 Dickerson moved the court to award her
costs and fees; to find defendants in contempt for their lateness;
and to enforce the agreement, presumably as embodied in her
stipulation. Defendants moved to enforce the agreement as embodied
in their papers.
Meanwhile, Dickerson had asked the Corps on September 4
to determine whether the 50' strip includes federal wetlands. On
September 23 they told her that it does. She moved the court to
nullify the agreement, to modify it to restore the public easement
fully to 200', or to order a new settlement conference.
F. The Conclusion
Judge Joannides approved defendants' settlement papers
and made them "enforceable as an order of [the] Court." She
ordered the parties to execute the papers, ordered defendants to
tender the $6,500 within three days thereafter, and dismissed the
case with prejudice. Judge Joannides never responded to
Dickerson's request for sanctions for defendants' lateness. She
only alluded to the alleged seven-day deadline once, in her order
enforcing the agreement. "[A]s soon as the settlement agreement is
signed,"she added by hand, "the funds already due shall be paid to
plaintiffs within three days . . . ."
Apparently before receiving those orders, Dickerson moved
to "finalize"the agreement "with amendments." Claiming "mistake
and possible fraud . . . as covered by Rule 60(b),"she proposed
that the court amend the agreement to restore the entire 200'
easement. The court did not respond. Dickerson appeals.
III. DISCUSSION
A. Summary of Issues and Standards of Review
Dickerson first argues that the court erred in failing to
rule that defendants had materially breached the settlement
agreement when they failed to meet the seven-day deadline, and that
they thus could not enforce it. We review a court's response to a
motion to enforce a settlement agreement for abuse of discretion.
See Rice v. Denley, 944 P.2d 497, 499 (Alaska 1997). Dickerson
also claims, in light of both the missed deadline and the wetlands
discovery, that the court was wrong to deny her a new settlement
conference under Alaska Civil Rule 59 or relief from the agreement
under Rule 60(b). We review denials of such relief for abuse of
discretion. See Nelson v. Jones, 781 P.2d 964, 968 (Alaska 1989).
[Fn. 5]
B. The Court Did Not Abuse Its Discretion in Finding that
there Was No Material Issue of Fact Concerning the Alleged
Deadline.
Dickerson argues that defendants had agreed to tender the
papers and the $6,500 within seven days of the settlement
conference; that time was of the essence of that agreement; that
missing the deadline was thus a material breach that caused the
settlement agreement to "lapse"; and that the court erred in
ignoring that breach and unilaterally extending the seven-day
deadline.
A settlement agreement is a contract "provided that it
meets minimal contractual requirements." Singh v. State Farm Mut.
Auto. Ins. Co., 860 P.2d 1193, 1199 (Alaska 1993). No one disputes
that this agreement does so. "In ruling upon a motion to enter
judgment on a settlement agreement reached on the record, the
superior court 'has discretion to deny the motion if . . . material
issues of fact exist as to . . . a material term of the
settlement.'" Rice, 944 P.2d at 499 (quoting Pavek v. Curran, 754
P.2d 1125, 1126 (Alaska 1988)). In declining to grant Dickerson
relief, the court implicitly found no material issue of fact as to
the alleged seven-day deadline, a term of the settlement.
Defendants accept Dickerson's claim that the agreement
required them to tender the documents and the $6,500 within seven
days of the conference. [Fn. 6] They reject, however, her further
claim that time was of the agreement's essence. If it was, their
failure to perform by the specified time may well have been a
material breach, barring them from enforcing the agreement. See
Restatement (Second) of Contracts sec.sec. 237, 241(c) (1981). [Fn.
7]
In terms of Rice and Pavek, the seven-day deadline concededly was
a term of the agreement, and the question is whether it was a
material term, so that a genuine dispute about it would bar entry
of a judgment enforcing the agreement.
The court did not abuse its discretion in treating the
seven-day term as immaterial. The contract -- i.e., the settlement
conference transcript -- unambiguously did not make time of the
essence. [Fn. 8] Dickerson unilaterally stressed that she wanted
to start building as soon as possible, but the judge demurred,
replying that whether defendants "get[] the paperwork done . . .
this week or 10 days from now . . . can't [make] . . . that big of
a difference."Dickerson did not object. [Fn. 9] Tesche acceded to
Judge Joannides' request to let Dickerson begin surveying at once,
but never manifested acceptance of Dickerson's suggestion that time
was essential. Neither defendants nor the court made Dickerson's
desire to build as quickly as possible part of the contract, beyond
the carefully limited permission to survey. Her claim that "time
was of the essence as this was clearly the intention of the
parties"is thus half-right. It was clearly her intention, but
clearly not anyone else's. Dickerson thus cannot avoid the
agreement over a missed deadline, and the court did not abuse its
discretion in enforcing it. [Fn. 10]
C. The Court Did Not Abuse Its Discretion in Declining to
Order a New Settlement Conference under Rule 59.
Dickerson claims that the court erred in not ordering "a
new settlement conference"under Rule 59. That rule does not
mention settlement conferences or authorize courts to grant
anything but new trials. [Fn. 11] Rule 16(a) authorizes a court
"in its discretion"to order parties to confer for "such purposes
as . . . settlement,"but no rule governs that discretion.
Dickerson argues that newly found evidence necessitated
a new conference. We could, for the same reasons that Rule 59
authorizes courts to undo trials and order new ones in order to
consider new evidence, construe it to authorize courts to undo
settlements and order new conferences to renegotiate in light of
new evidence. Whatever the merit of that idea, however, we need
not reach it in this case. Dickerson's appeal turns mainly on
newly discovered evidence. The same analysis governs motions based
on new evidence whether made under Rule 60(b) or Rule 59. See
Grothe v. Olafson, 659 P.2d 602, 610 (Alaska 1983). Even were we
to recognize a new-settlement-conference motion under Rule 59,
Dickerson suggests no reason why our analysis of its denial would
differ from the analysis that we already must conduct under
Rule 60(b), and to which we now turn.
D. The Court Did Not Abuse Its Discretion in Denying
Dickerson Relief from the Judgment Enforcing the Settlement
Agreement under Rule 60(b).
Rule 60(b) allows relief from final judgments or orders
for six reasons, of which Dickerson invokes the first three:
1) mistake, inadvertence, surprise or
excusable neglect;
2) newly discovered evidence which by due
diligence could not have been discovered in time to move for a new
trial under Rule 59(b); [or]
3) fraud . . . , misrepresentation, or other
misconduct of an adverse party[.]
Alaska R. Civ. P. 60(b)(1) (3). [Fn. 12] Her arguments all fail to
overcome defendants' main point on appeal, and the court's
rationale in denying relief: [Fn. 13] she expressly assumed the
risk of wetlands problems and cannot complain now that they have
arisen. [Fn. 14]
We begin with facts relevant to all three potential
grounds for relief. Dickerson alleges that in the late 1980s the
Williamses "completely destroy[ed] any access to [her] property"by
bulldozing the old road that she claims existed in addition to the
jeep trail, and that they have "barred [her] from her [property] by
all vehicular traffic . . . for a total of 10 years." The
Williamses had the easement's upper 100' inspected in 1991 to
determine its fitness for a road. Borough Deputy Director of
Engineering Strother walked through the area, and a hired engineer,
Floyd Dollerhide, tested its soil for water. "Pending the soil
investigation by . . . Dollerhide,"Strother stated, "the
practicality of constructing a road in the north 100' . . . can't
be determined. But from initial field walkthrough, I do not see
any great difficulty . . . ." Dollerhide sank test holes in the
upper 100', and the Board found that the results "proved that a
[Borough-]standard road can be built in the northern 100'."
Dickerson inspected the old roadsite in the easement's
lower 100' with a draftsman in May 1991 and had various people
inspect the new road in the upper 100' in 1992. They found the new
road ill-made and undrained. In August 1994 her federal
coplaintiff prompted the Corps to investigate it. Dickerson has
largely based this suit on the Corps' conclusion that the road had
been illegally built in federal wetlands.
The superior court, in reciting the settlement, stated
the parties' agreement that "the plaintiffs are bearing the risk of
any action that the Corps . . . might take with respect to the
building of the new road." Dickerson did not object. Five days
after the conference she asked the Corps to inspect the 50' strip.
Before they had done so, she proposed to the court a settlement
stipulation saying that "the obligation to clear with the . . .
Army as to [the new roadsite's] freedom from Wetland . . .
violation will rest solely with [her]."After the Corps told her
that the 50' strip encompassed wetlands, she filed her motion(s)
for relief from the judgment, noting the "newly discovered
evidence"and claiming that she had been "misled." She refines her
arguments on appeal to claim that she committed "excusable neglect"
or made a "mistake"in agreeing to settle; that the Corps' finding
constituted "newly discovered evidence"; and that defendants had
committed "fraud or misconduct."
a. The court did not abuse its discretion in finding
no mistake, inadvertence, or excusable neglect under Rule 60(b)(1).
This court's decisions, like those of its federal
counterparts, have neither expressly distinguished the separate
grounds for relief under Rule 60(b)(1) nor set forth tests for
them. [Fn. 15] We have stressed, though, that to gain relief for
excusable neglect a party must show not only "neglect,"but a valid
"excuse"therefor. See Rill v. State, Dep't of Highways, 669 P.2d
573, 576 (Alaska 1983). We also note that a leading commentator
heads its discussion of federal Rule 60(b)(1) with the maxim:
"deliberate . . . conduct is never mistake or excusable neglect."
12 James T. McLaughlin et al., Moore's Federal Practice
60.41(1)(c)(i), at 60 88 (3d ed. 1997); see also Andrulonis v.
United States, 26 F.3d 1224, 1235 (2d Cir. 1994) ("[Rule 60(b)]
does not allow [trial] courts to 'indulge a party's discontent over
the effects of its bargain.' Accordingly, 'when a party makes a
deliberate, strategic choice to settle she cannot be relieved of
such a choice merely because her assessment of the consequences was
incorrect.'") (quoting Kozlowski v. Coughlin, 871 F.2d 241, 246 (2d
Cir. 1989) and United States v. Bank of N.Y., 14 F.3d 756, 759 (2d
Cir. 1994)).
Defendants insist that Dickerson in no way "neglected"
the wetlands risk, but "understood and accepted [that contingency]
as part of the settlement [she] made." This characterization may
well be apt, but we assume arguendo that Dickerson did show
"neglect"in accepting the risk of wetlands without requiring an
inspection of the land. Even so, she has shown no "excuse"for
that neglect.
Dickerson had been keenly aware of the wetlands issue for
years. She knew that the easement's upper 100' contain wetlands.
Yet she claims that it did not occur to her that the next 50' may
as well -- even after the court reminded her on the record of the
parties' agreement that she would "bear[] the risk of any action
that the Corps . . . might take with respect to the building of the
new road." She claims that defendants had denied her access to the
50' strip. She argues that this left her no choice but to infer,
from Strother's and Dollerhide's 1991 suggestions that the upper
100' was suitable for a road, that "at least 150' [i.e., the upper
100' plus the 50' strip] would . . . yield stable ground." Yet she
filed this very suit to redress harm caused by the error of
Strother's and Dollerhide's suggestions; for her to claim now that
it was "excusable"to rely on those very suggestions is
unpersuasive.
Dickerson expressly accepted the "risk"of wetlands
without addressing her known ignorance of the 50' strip's
condition. She had the time and ability to make arrangements to
address her ignorance by insisting that the Corps first inspect the
land. See Rill, 699 P.2d at 576 (finding attorney's neglect to
inform court or client that he would miss trial for medical reasons
inexcusable where attorney "clearly had the time and ability to
. . . make adequate arrangements"). Even if she felt a need to
settle quickly, she could have conditioned her assent on the result
of a later inspection. To neglect to do so was inexcusable.
We analyze Dickerson's "mistake"claim similarly. We
disfavor appeals from judgments embodying settlement agreements
absent contract defenses like duress or mistake. See Gravel v.
Alaskan Village, Inc., 409 P.2d 983, 986 (Alaska 1966); see also
Dewey v. Dewey, 886 P.2d 623, 625 26 (Alaska 1994) ("Absent a
showing of a cognizable contract defense . . . we hold parties to
their voluntary bargains."); Interior Credit Bureau, Inc. v.
Bussing, 559 P.2d 104, 105 n.2 (Alaska 1977) (dictum) ("[R]elief
from a stipulation which settles a case may be granted in
situations similar to those in which relief from a contact is
authorized.").
Turning to contract principles, we note that a party who
makes a unilateral mistake "as to a basic assumption on which the
contract was made"may void the contract if she "does not bear the
risk of the mistake." Restatement (Second) of Contracts sec. 153.
One bears that risk if the contract allocates it to her. See id.
sec. 154(a). We have adopted these standards and denied relief to
many parties who bore the risk of mistake. See, e.g., Stormont v.
Astoria Ltd., 889 P.2d 1059, 1061 62 (Alaska 1995) (denying relief
for mistake as to condition of building condemned after purchase,
because contract stressed that sale was "as is"); State, Div. of
Agric. v. Carpenter, 869 P.2d 1181, 1183 (Alaska 1994) (denying
relief where contract expressly disclaimed warranty that land could
serve given purpose, even though "both parties may have intended"
that it so serve).
This case features not only the contract's express
assignment of the risk to Dickerson, but her own surprising
admission on appeal that she "should have been warned by
[defendants'] representations . . . that they made no guarantee
[that a road] meeting federal standards[] could be constructed in
the additional 50' offered." That is precisely why her appeal
lacks merit. Had the agreement recited that the 50' strip was free
of wetlands -- or even had it said nothing in a context permitting
an inference that it was based on such an assumption -- Dickerson
might have a claim. Such is not the case. The trial court did not
abuse its discretion in denying Dickerson relief.
b. The court did not abuse its discretion in finding
neither newly discovered evidence nor misconduct to warrant relief
under Rule 60(b)(2) or (3).
Dickerson's claims under Rule 60(b)(2) and (3) overlap,
for her excuse for not having timely discovered her new evidence is
that defendants kept her from doing so by misconduct and
misrepresentations. We have analyzed one such hybrid claim under
Rule 60(b)(2). See Palmer v. Borg-Warner, 838 P.2d 1243 (Alaska
1992) (applying Rule 60(b)(2), not (3), to claim that defendants
fraudulently concealed evidence). [Fn. 16] To warrant relief under
Rule 60(b)(2), newly discovered evidence must (1) be likely to
change the result on a new trial; (2) have been discovered after
trial; (3) not have been discoverable, with due diligence, before
trial; (4) be material; and (5) not be cumulative or impeaching.
See McCall v. Coats, 777 P.2d 655, 657 (Alaska 1989) (applying test
established by Montgomery Ward v. Thomas, 394 P.2d 774, 776 (Alaska
1964)). We need only address the third element, due diligence.
Dickerson alleges that, although duly diligent, she could
not investigate the 50' strip before she settled. The Williamses,
she claims, have for years denied her access to her land by
blocking the old road. She suggests that she feared violence had
she entered the vacated part of the easement. She also claims that
defendants misrepresented the 50' strip's condition.
Our precedent would support relief for such wrongdoing if
proved. We have reversed a denial of Rule 60(b)(2) relief where
plaintiffs, who had sued after the period of limitation, discovered
new evidence that defendant had intentionally, fraudulently
concealed evidence of its liability. See Palmer, 838 P.2d at 1252.
The vital questions in this case are thus whether Dickerson has
proved wrongdoing and, if so, proved that it, and not a want of
diligence, kept her from timely discovering evidence. We conclude
that she did not adequately raise a claim that misconduct (i.e.,
threats) overcame her due diligence, and that she did raise, but
did not prove, a claim that misrepresentations did so.
Dickerson only twice hinted that the Williamses had by
threats kept her from the easement's lower 100'. She never
mentioned a denial of access to the 50' strip when the court
reminded her that she had agreed to bear the risk of any problem
therein and asked, "Have I missed anything?" Even after learning
of the wetlands problem, she never suggested threats as a ground
for relief. Dickerson did not adequately claim below that
misconduct kept her from discovering her new evidence. See Hagans,
Brown & Gibbs v. First Nat'l Bank of Anchorage, 783 P.2d 1164, 1166
n.2 (Alaska 1989) ("Issues not properly raised . . . at trial are
not properly before this court on appeal.").
Shorn of her threat claims, Dickerson's due-diligence
argument is reduced to a claim that defendants misled her to settle
by misrepresenting the 50' strip's condition. [Fn. 17] The only
"misrepresentations"she specifically alleges, however, are
Strother's opinion that, pending soil investigation, he saw no
trouble in building a road in the upper 100', and Dollerhide's soil
investigation. Neither statement concerned the 50' strip. The
statements concerned the upper 100', and they addressed its
physical and not its legal condition -- i.e., not whether it
contained federal wetlands. Strother expressed an explicitly
qualified opinion. Dollerhide's "statement"comprises a map and
data.
Although Dickerson refers loosely to "fraud,"she never
claims, or identifies evidence, that either "misrepresentation"was
intentional. Misrepresentations, though, need not be intentional
to merit relief under Rule 60(b)(3); negligent misrepresentations
can suffice. See Babinec v. Yabuki, 799 P.2d 1325, 1333 (Alaska
1990). We thus assume arguendo that reliance on an adverse party's
negligent misrepresentations could also in some cases enable one to
satisfy Rule 60(b)(2)'s due-diligence requirement, and that one or
both of the statements Dickerson identifies was a negligent
misrepresentation. If so, then Dickerson claims that in 1996, as
she decided whether the 50' strip would be legally suitable for a
road, she relied on Strother's and Dollerhide's 1991 statements
about the upper 100'. She did so despite knowing that when the
Board relied on those statements, it approved a road whose proven
illegality was the reason she had sued. This strains credulity;
any such reliance was not reasonable.
We have never addressed whether one seeking relief under
Rule 60(b) for reliance on a negligent misrepresentation must show
that said reliance was reasonable or justifiable. [Fn. 18] To
dispose of Dickerson's appeal, we need not establish a
comprehensive rule. Even if Dollerhide's and Strother's statements
constituted negligent misrepresentations when made in 1991,
Dickerson had actual knowledge that they were unreliable when she
allegedly relied on them in 1996; she had sued the Borough largely
because it had relied on them. Such patently unreasonable reliance
cannot constitute due diligence under Rule 60(b)(2).
IV. CONCLUSION
We AFFIRM the superior court's decision in all respects.
FOOTNOTES
Footnote 1:
Dickerson owns the lot in common with Larry Card, Minnie Card,
William Browner, and Pat Browner. The Cards and Browners attended
the settlement conference and were to sign the release, but they
are not parties. For simplicity we refer to "the Dickerson
property"and to "Dickerson"(as owner).
Footnote 2:
Dickerson claims that, beyond the current jeep trail, a well-
developed road existed, which the Williamses destroyed; the
Williamses contend that there was never more than a jeep trail.
Footnote 3:
The Board, at a meeting of which Dickerson received no notice,
had "clarified"its initial order to explain that "equally
constructed"meant equal to the then-existing jeep trail across the
Williamses' lot, not equal to the minimal Borough road standard
that would allow Dickerson to easily subdivide her property.
Dickerson claimed that racial animus toward her and her African-
American co-owners had led the Williamses and the Borough, upon
learning of her and her co-owners' intent to subdivide and build
homes on their land, to conspire to vacate the public easement and
block their access to their land.
Footnote 4:
See Dickerson v. Williams, No. A92 281, slip op. at 8 (D.
Alaska, Mar. 10, 1993), aff'd, 29 F.3d 831 (9th Cir.), cert.
denied, 513 U.S. 963 (1994).
Footnote 5:
Dickerson claims to have moved for reconsideration, and
appeals the denial thereof. The record, however, contains no such
motion, and the court never addressed it. Some time after
Dickerson filed this appeal, the superior court rejected her motion
to correct the record on appeal by including her motion for
reconsideration, finding that she had "offered no proof
specifically indicating that the disputed documents were ever
actually filed." We need not consider whether Judge Joannides
abused her discretion in not granting a motion that Dickerson
cannot prove that the judge ever saw.
Dickerson also briefly claims that defendants violated
the Alaska Constitution by, respectively, denying her access to her
land and condoning the denial. She has failed to develop this
claim. See Adamson v. University of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1991) (declining to consider a point "given only a cursory
statement in . . . a brief").
Footnote 6:
The court actually stated no deadline for the papers. It said
only, "there will be $6,500 paid within seven days [and] defendants
will be responsible for preparing the appropriate paperwork." One
can read this to require defendants to prepare the papers within a
reasonable time and to pay the $6,500 within seven days after that.
Judge Joannides likely meant it thus, for she mentioned "getting
the paperwork done,"and said, "whether it's this week or 10 days
from now, I can't imagine [that it will make] that big of a
difference." Defendants, however, accept Dickerson's reading, and
so shall we.
Footnote 7:
To prove the breach material, Dickerson would also have to
show that it prejudiced her. See Restatement (Second) of Contracts
sec.sec. 241(a) (b), 242(a) (b). Our finding that time was not
essential
makes it unnecessary to decide whether she has shown prejudice.
Footnote 8:
The Restatement says that, even if a contract has no express
time-of-the-essence clause, the circumstances of its formation can
make time implicitly of the essence. See Restatement (Second) of
Contracts sec. 242(c) & cmt. d. We have never addressed that
theory,
and do not do so today, for Dickerson has not raised it, arguing
only that the agreement expressly made time essential.
Footnote 9:
And her original motion in response to defendants' lateness
requested fees, costs, and a contempt finding, but did not ask the
court to nullify the agreement. Indeed, she asked the court in the
same filing to enforce the agreement; she only sought to nullify it
after she discovered the wetlands problem.
Footnote 10:
Judge Joannides gave no reason for denying -- indeed, she
never mentioned -- Dickerson's initial request for fees and costs
and a finding that defendants' alleged lateness was contemptuous.
Dickerson's request for relief on appeal, however, asks us only to
set aside the settlement, restore the full 200' easement, and void
all actions taken to destroy her access to her land. We thus need
not address whether the superior court erred by not awarding relief
in the form of fees, costs, or contempt; Dickerson has abandoned
any claim to those remedies. See State v. O'Neill Investigations,
Inc., 609 P.2d 520, 528 (Alaska 1980) ("Failure to argue a point
constitutes an abandonment of it.").
Footnote 11:
Rule 59(a) allows a court to grant a new trial "in
an action in which there has been a trial by jury or in an action
tried without a jury." Alaska R. Civ. P. 59(a). Although
Dickerson refers to a "new trial"as well as a new settlement
conference, her action was never tried, with or without jury.
Obviously a court cannot abuse its discretion by declining to grant
a "new"trial in a case that has settled without a trial.
Footnote 12:
Dickerson filed most of her motions before the court's final
order and not after, as Rule 60(b) contemplates. See Alaska R.
Civ. P. 60(b) (requiring party to move for relief "for reasons (1),
(2) and (3) not more than one year after . . . notice"of final
order). This does not bar us from analyzing them under Rule 60(b)
principles and precedents. See Princiotta v. Municipality of
Anchorage, 785 P.2d 559, 563 (Alaska 1990) (applying Rule 60(b) to
motion filed after party had signed confession of judgment, but
before court had entered judgment thereon, because "we have by
analogy extended the application of Rule 60(b) to . . . judgments
rendered but not yet finally entered") (citing Brown v. Hawkins,
418 P.2d 28, 30 n.5 (Alaska 1966)).
Footnote 13:
In denying Dickerson's proposed order nullifying the
agreement, the court noted its "distinct recollection that the
contingency or possibility that the fifty feet at issue was still
in 'wetlands' was discussed with plaintiffs and was recognized by
them when [they] enter[ed] into the settlement."
Footnote 14:
We could analyze Dickerson's arguments about neglect, mistake,
misrepresentations, and misconduct under the standards of Rice v.
Denley, 944 P.2d 497, 499 (Alaska 1997), as we did her claim
regarding the missed "deadline." The parties did not specify any
standards to govern our review of the deadline issue, however, and
so we applied the Rice framework. They have, in contrast,
consistently and solely argued the remaining issues in terms of
Rule 60(b), and so we analyze them thus -- without thereby
establishing any general rule as to which framework courts should
apply in similar disputes over unconsummated agreements to settle.
Footnote 15:
See 12 James T. McLaughlin et al., Moore's Federal Practice
60.41(1)(a), at 60 83 (3d ed. 1997) ("[C]ourt language rarely
sets out any meaningful guide to what will or will not be found to
be 'mistake, inadvertence, surprise, or excusable neglect'
sufficient to justify relief . . . ."); cf. Weiss v. State, 939
P.2d 380, 397 n.27 (Alaska 1997) (stating that, because Alaska
Civil Rule 60(b) is modeled on its federal counterpart, federal
authorities are instructive in interpreting it) (citing Agostinho
v. Fairbanks Clinic Partnership, 821 P.2d 714, 716 n.4 (Alaska
1991)).
Footnote 16:
We mainly evaluate Dickerson's claim under Rule 60(b)(2),
although we rely on Rule 60(b)(3) precedents as well. Analysis
under those two subsections could differ in other cases, but in
this case the same facts prevent Dickerson from showing that
defendants' alleged misrepresentations either enable her to satisfy
the due-diligence requirement of Rule 60(b)(2) or compel relief
under Rule 60(b)(3).
Footnote 17:
Dickerson also alleges fraud regarding the old road that she
claims existed in addition to the jeep trail. She claims that
defendants falsely told the court that the Borough never maintained
the old road, and claims that defendants concealed the old road's
destruction by misidentifying photographs that they submitted to
the court. Dickerson has not shown, however, that this dispute
affected the settlement agreement whose enforcement she appeals.
Footnote 18:
Nor, it seems, have federal courts. See 12 Moore's
Federal Practice, supra note 14, 60.43, at 60 128 to 138. We
note that we have not in prior cases required parties seeking
relief under Rule 60(b)(3) for proven misrepresentations to show
that reliance thereon was "reasonable"or "justifiable,"as must
one who seeks to avoid a contract or establish tort liability for
a misrepresentation. Compare McCall v. Coats, 777 P.2d 655, 658
(Alaska 1989) and Babinec v. Yabuki, 799 P.2d 1325, 1333 (Alaska
1990), with Restatement (Second) of Torts sec.sec. 537, 552(1)
(1977)
(requiring "justifiable"reliance) and Restatement (Second) of
Contracts sec. 164 (similar). McCall and Babinec, however,
involved
intentional deceit. In deciding the diligence due when an
adversary fraudulently conceals evidence, we held that "[w]here
there is an intent to mislead . . . [one] should be charged with
knowledge of the fraudulent misrepresentation or concealment only
when it would be utterly unreasonable . . . not to be aware of the
deception." Palmer v. Borg-Warner, 838 P.2d 1243, 1251 (Alaska
1992). Palmer, though, also involved intentional deceit.
