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Walton v. Ramos Aasand & Co (8/21/98), 963 P 2d 1042
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
PETER TOLL WALTON, )
) Supreme Court No. S-7870
) Superior Court No.
v. ) 3AN-95-5048 CI
RAMOS AASAND & CO., ) O P I N I O N
Appellee. ) [No. 5025 - August 21, 1998]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Joan M. Woodward, Judge.
Appearances: Michael Jungreis, Anchorage, for
Appellant. Mark P. Melchert, Jermain, Dunnagan & Owens, P.C.,
Anchorage, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, and Bryner, Justices. [Fabe,
Justice, not participating.]
Peter Toll Walton and Ramos Aasand & Company (RACO)
disagreed over the amount that Walton owed RACO for its accounting
services. The superior court found that no genuine issue of
material fact remained regarding Walton's liability to RACO for
RACO's work, and that the parties had not mutually assented to a
settlement agreement proposed by Walton. Because we agree with
that reasoning, and because we find no abuse of discretion in the
superior court's attorney's fees award, we affirm its entry of
summary judgment and award of attorney's fees to RACO.
II. FACTS AND PROCEEDINGS
Walton retained RACO to perform accounting services for
Walton and his business entities between July 1992 and August 1994.
Disputes arose over the bills RACO sent Walton for the work.
Walton sued RACO in June 1995, requesting that the court order RACO
to produce its records related to its work for Walton and determine
the amount Walton owed RACO. RACO counterclaimed for nearly
$49,000 -- the sum it contended Walton owed.
In the summer of 1995, Walton made a series of offers of
judgment, offering to settle only RACO's counterclaims. In
September 1995, in response to one of the offers, RACO's counsel
wrote that RACO would accept Walton's offer of $35,000 "in full
settlement of all claims." Walton then filed a proposed judgment
stating that only RACO's counterclaims against Walton were settled.
RACO filed a proposed judgment that appears to have encompassed
both Walton's claims and RACO's counterclaims. In October 1995
RACO notified the superior court and counsel of RACO's "rejection
of the offer of judgment previously submitted to the court by
[Walton] as having been accepted."
In February 1996 RACO moved for summary judgment for
$53,674.38 -- the amount that it alleged Walton owed, plus
interest. RACO also sought judgment on Walton's claim for
inspection of RACO's records, on RACO's breach-of-contract
counterclaim, and on RACO's argument that Walton was estopped from
denying his obligation to pay. RACO supported its motion with
affidavits and invoices. Walton opposed RACO's motion and
requested a 120-day continuance under Civil Rule 56(f) so that he
could depose certain witnesses. In February 1996 Walton also moved
for summary judgment, seeking to enforce what he contended was a
settlement agreement for $35,000 in settlement of RACO's
Having concluded that the issue was moot, the superior
court did not rule on Walton's Rule 56(f) motion. More than 120
days after Walton had filed his Rule 56(f) motion, the court
instructed Walton to "file any further opposition on the merits .
. . no later than July 22, 1996." The superior court heard
argument on the cross-motions for summary judgment in August 1996.
It granted summary judgment to RACO on RACO's motion, finding no
genuine issue of material fact regarding Walton's liability for the
underlying debt. It also granted summary judgment to RACO on
Walton's motion, finding that RACO had not accepted Walton's offer
of judgment. The court awarded $48,963.48 to RACO for its
professional services. RACO moved for full attorney's fees, and in
December 1996 the court awarded attorney's fees of $21,560 -- sixty
percent of RACO's claimed fees.
Walton appeals from the entry of summary judgment against
him on both motions and from the award of attorney's fees.
A. Summary Judgment for RACO on RACO's Motion
Walton argues that genuine issues of material fact
concerning Walton's liability to RACO precluded summary judgment
for RACO. RACO responds that Walton failed to present evidence
creating a genuine issue of material fact. RACO argues that Walton
merely "assert[s] error in a vague and conclusory fashion,"and
that his assertions to the superior court were insufficient to
overcome RACO's prima facie showing that its work had been
appropriate and that its bills were accurate. [Fn. 1]
The superior court granted RACO's motion for summary
judgment on the ground that RACO supplied "detailed invoices and
explanations of the billing process and the substance of the work
performed." RACO also submitted an affidavit from Kim Aasand, who
had performed much of the work, described the work performed, and
affied that it had been necessary. The affidavit made an initial
showing establishing the necessity for the services and the
accuracy of the charges. It made a prima facie showing that RACO
was "entitled to judgment on the established facts as a matter of
law." Broderick v. King's Way Assembly of God Church, 808 P.2d
1211, 1215 (Alaska 1991).
To avoid entry of summary judgment against him, Walton
had to demonstrate that a genuine issue of material fact still
existed, and that he could "produce admissible evidence reasonably
tending to dispute the movant's evidence." Id. Walton responded
by submitting his own testimony describing his suspicions of RACO's
improper work and billing. He made conclusory assertions that RACO
did things that were not requested, required, or appropriate.
The superior court found Walton's allegations
unpersuasive, explaining that he should have "come forward with
some evidence of where in fact there was unnecessary work done --
some evidence of overcharges, some evidence of any kind of
wrongdoing or wrongful billing. [He] has not done so." We agree
with the superior court. See Alaska-Canadian Corp. v. Ancow Corp.,
434 P.2d 534, 536 (Alaska 1967) (stating that "it was incumbent
that the party opposing the [summary judgment] motion clearly state
its position or defense and show the court how it planned to
support its position or defense with facts which would be
admissible in evidence at the trial"). Walton did not support his
allegations with evidence countering RACO's materials. Walton
stated that he "believed"RACO had acted improperly, and that he
would be able to provide more information after more discovery.
Walton, however, did not produce any admissible evidence to rebut
RACO's prima facie showing. His mere beliefs or suspicions,
unsupported by admissible evidence, were insufficient to create a
genuine issue of material fact. See French v. Jadon, Inc., 911
P.2d 20, 24-26 (Alaska 1996). We conclude that the superior court
properly granted summary judgment to RACO.
Walton also argues that the superior court improperly
denied him the opportunity to conduct discovery. He asserts that
he decided not to conduct thorough discovery on RACO's summary
judgment motion because he thought he would prevail on his motion
to enforce the alleged settlement agreement. He apparently
believed that, if his summary judgment motion failed, the superior
court would then allow him to conduct discovery on RACO's motion.
Walton requested a 120-day continuance on February 20,
1996. In April 1996 the court scheduled argument on both summary
judgment motions for August 1, 1996. Although the court never
ruled on Walton's motion for a 120-day continuance, Walton still
had more than 150 days to prepare for the hearing. Moreover,
Walton candidly acknowledges that, "[a] few weeks before"the
August 1 hearing, the court ordered him to file any further
opposition to RACO's motion by July 22, 1996. After receiving that
order, Walton did not seek a continuance, ask for a ruling on his
Rule 56(f) motion, or claim inability to submit responsive
affidavits before July 22. Nor did he argue at the August 1
hearing that he had been unable to meet the July 22 deadline, and
that the hearing should be continued and the July 22 deadline
extended. Only after judgment was entered did Walton gather and
submit affidavits that might have created a genuine issue of
material fact regarding RACO's work and billing. The superior
court, however, never denied him the opportunity to conduct
discovery and never prevented him from submitting affidavits in
time for the hearing on the summary judgment motions. We conclude
that Walton had ample opportunity to conduct discovery and oppose
RACO's summary judgment motion, and had adequate warning that the
court planned to hear argument on the summary judgment motions at
the August hearing. Because Walton failed to produce evidence
creating a genuine issue of material fact, the superior court
properly granted RACO judgment as a matter of law.
We also reject Walton's argument that, by granting
summary judgment against him, the superior court imposed
litigation-ending sanctions. Walton relies on cases involving
litigation-ending sanctions for discovery violations. See, e.g.,
White Mountain Mining Partners v. Ptarmigan Co., 906 P.2d 1357,
1362-63 (Alaska 1995); Otis Elevator Co. v. Garber, 820 P.2d 1072,
1074 (Alaska 1991). He cites no authority, and we are aware of
none, indicating that the entry of summary judgment after the
superior court concludes that there is no genuine issue of material
fact is a litigation-ending sanction.
B. Summary Judgment for RACO on Walton's Motion
Walton argues that he and RACO entered into an agreement
to settle RACO's counterclaims against him. He contends that his
offer was unambiguous, that RACO accepted it, and that the superior
court erred either in construing RACO's response as a rejection, or
in not finding a genuine issue of material fact regarding the
parties' intentions. RACO maintains that the parties did not enter
into a settlement agreement because they never agreed to the same
terms. The superior court found that the parties did not mutually
assent to a settlement, and that no genuine issue of material fact
remained. [Fn. 2]
We apply basic contract-law principles of contract
formation to settlement agreements. See, e.g., Davis v. Chism, 513
P.2d 475, 481 (Alaska 1973) (stating, "[a]n offer of judgment and
acceptance thereof is a contract,"and requiring a meeting of the
minds about the essential terms of the agreement). When deciding
whether parties have formed a contract, we have emphasized the
importance of mutual assent: "In order for a contract to have been
formed, it was essential that acceptance of [the] offer be
unequivocal and in exact compliance with the requirements of the
offer that [the offeror] had made." Thrift Shop, Inc. v. Alaska
Mut. Sav. Bank, 398 P.2d 657, 659 (Alaska 1965).
We conclude that the superior court did not err in
finding no mutual assent. RACO apparently attempted to accept an
offer that Walton never made: RACO's letter referred to settling
"all claims"and dismissing the litigation, while Walton only
offered to settle the counterclaims asserted by RACO. The parties'
subsequent conduct supports this conclusion: Walton prepared a
proposed judgment that would have resolved only the counterclaims,
and RACO prepared a judgment form that would have resolved all
claims. RACO also promptly filed a rejection of Walton's offer of
judgment, explaining that a misunderstanding had occurred between
Walton also argues that further discovery is necessary to
ascertain the parties' intent. Because it is clear that Walton and
RACO did not reach agreement on the terms of a settlement, no
amount of discovery from RACO or its attorney or principals could
have established a meeting of the minds. Indeed, Walton conceded
in the superior court that RACO's attorney had not intended to
accept Walton's offer to settle only RACO's counterclaims. We hold
that no genuine issue of material fact remains, and that the
superior court properly granted judgment to RACO as a matter of
On appeal, Walton argues for the first time that partial
performance can be the basis for finding that RACO accepted
Walton's offer. Because he did not assert this argument in the
superior court, we decline to address it. See Zeman v. Lufthansa
German Airlines, 699 P.2d 1274, 1280 (Alaska 1985).
C. Attorney's Fees
Finally, Walton asserts that the superior court erred in
awarding RACO attorney's fees of $21,560 -- sixty percent of RACO's
claimed actual attorney's fees and approximately three times the
award RACO would have received under Alaska Civil Rule 82(b)(1).
[Fn. 3] The superior court explained that it departed from the
Rule 82(b)(1) schedule because, although it did not find that
Walton had proceeded in bad faith, it did find that he had
increased RACO's costs by filing redundant pleadings and by
requesting time to respond to RACO's counterclaims and then failing
to address them. The superior court characterized Walton's conduct
Having reviewed the record, we find no abuse of
discretion in awarding RACO sixty percent of its attorney's fees.
See, e.g., Brunet v. Dresser Olympic Div. of Dresser Indus., Inc.,
660 P.2d 846, 847-48 (Alaska 1983) (upholding attorney's fees award
of over sixty percent of actual fees despite no finding of bad
faith); Hausam v. Wodrich, 574 P.2d 805, 811 (Alaska 1978)
(upholding attorney's fee award of eighty-six percent of actual
We AFFIRM the superior court's grant of summary judgment
to RACO on both motions, and we AFFIRM the attorney's fees award.
We review a superior court's grant of summary judgment de
novo. Public Safety Employees Ass'n v. State, 895 P.2d 980, 984
(Alaska 1995). Summary judgment is appropriate if "the evidence in
the record fails to disclose a genuine issue of material fact and
the moving party is entitled to judgment as a matter of law."
Dayhoff v. Temsco Helicopters, Inc., 848 P.2d 1367, 1369 (Alaska
1993) (quotation and citation omitted).
When ruling on a motion to enter judgment on an alleged
settlement agreement, the superior court "has discretion to deny
the motion if the court determines that material issues of fact
exist as to the existence of the settlement agreement or to a
material term of the settlement." Pavek v. Curran, 754 P.2d 1125,
1126 (Alaska 1988). We review the superior court's decision for
abuse of discretion. See Rice v. Denley, 944 P.2d 497, 499 (Alaska
1997). A finding about whether the parties to an alleged
settlement agreement reached a meeting of the minds turns on a
question of fact; we will set aside a finding of fact only if it is
clearly erroneous. See Young v. Hobbs, 916 P.2d 485, 487-88
(Alaska 1996). A factual finding is clearly erroneous "when we are
left with a definite and firm conviction on the entire record that
a mistake has been made, even though there may be evidence to
support the finding." Martens v. Metzgar, 591 P.2d 541, 544
Trial courts have broad discretion in awarding attorney's fees
under Civil Rule 82. Grimes v. Kinney Shoe Corp., 938 P.2d 997,
1000 n.4 (Alaska 1997). We will disturb a trial court's award of
attorney's fees only if we find that the trial court abused its
discretion -- that is, if the award is manifestly unreasonable.
Palfy v. Rice, 473 P.2d 606, 613 (Alaska 1970).