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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mullins v. Oates (02/29/2008) sp-6233
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| MARGRET A. MULLINS, | ) |
| ) Supreme Court No. S- 11623 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 4FA-02-00824 Civil |
| ) | |
| ALICE OATES, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6233 February 29, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Niesje J. Steinkruger, Judge.
Appearances: Margret A. Mullins, pro se,
Delta Junction, Appellant. Kenneth P.
Ringstad, Paskvan & Ringstad, P.C.,
Fairbanks, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
Margret Mullins appeals a final judgment of the
superior court terminating her rights and interests in three lots
of real property located in Tok. Because the superior court did
not err in enforcing the settlement agreement that Mullins
ultimately breached, we affirm the superior courts judgment.
II. FACTS AND PROCEEDINGS
A. Facts
On November 17, 1997, Margret Mullins contracted with
Alice Oates to buy three lots of real property located in Tok.1
The initial contract for sale provided that the purchase price
for these properties was $170,000; the down payment was $5,000;
the monthly payment was $600; interest on the principal would
accrue at a rate of $6,000 per year or five percent, whichever is
less; Mullins would maintain a minimum of $60,000 worth of
insurance on a commercial log structure located on one of the
lots; and the price of this insurance would not be deducted from
the payments Mullins made to Oates. These terms were to last
fifteen years, at the end of which Mullins would pay Oates any
remaining balance of principal and interest. In addition to
establishing this particular price and payment scheme, the
initial contract for sale also established a three-stage method
for transferring title to Mullins. Under the prescribed method,
title to one lot would transfer to Mullins after she had paid
$30,000 in principal; title to a second lot would transfer after
she had paid an additional $50,000; and title to the final lot
would transfer after she had paid the remaining amount. Finally,
the initial contract for sale established the consequences of a
breach by Mullins:
Should buyer default on this agreement, all
title and interest unto any Lots which remain
unpaid at the time shall revert to Seller,
and all previous interest/principal payments
made by Buyer unto Seller under this contract
shall be deemed earned by Seller, thereby
completely satisfying Sellers damages from
Buyers Default.
Upon execution, the initial contract for sale immediately
transferred full use and possession of all three lots to Mullins,
with all rental and other revenues from this date forward being
the property and possession of the buyer. Mullins was to begin
monthly payments to Oates thirty days from the date of [the
contract].2
On June 15, 1998, Mullins and Oates signed an Addendum
to the Contract of Sale, the purpose of which was to set forth
additional items of agreement which were overlooked in the
initial contract. In this addendum, Mullins and Oates set forth
two additional items of agreement, both of which appear to have
been intended to clarify past events and unwritten agreements.
First, the addendum retroactively clarified that Mullins and
Oates had agreed to delay Mullinss first monthly payment until
January 15, with no interest accruing for that free rent period.3
The addendum explained that this delay in payment was necessary
because Oates had without the knowledge or assent of Mullins
given the business renting space in the commercial log structure
permission to forgo paying rent until January 1, 1998. Second,
the addendum retroactively clarified that the original asking
price for the land had been $160,000 but that Mullins had offered
and Oates had accepted an additional $10,000 in exchange for a
guarantee that seller would work with buyer as and when needed,
giving buyer leeway without harm to buyers credit, when
necessary, concerning the monthly payments.
On December 11, 2001, Oates, acting through her
attorney, sent a letter to Mullins, asserting that Mullins had
defaulted on the contract by failing to make payments4 and
failing to provide proof of insurance.5 On December 28, 2001,
Oates, again acting through her attorney, sent a follow up letter
to Mullins. In this letter, Oates noted that she had not yet
received a response from Mullins and threatened to begin legal
action to terminate Mullinss rights under the contract if a
response was not received within ten days. Mullins asserts that
she was away from Tok when these letters were sent and that her
response was therefore necessarily delayed. Mullins insists,
however, that she did eventually mail a response on January 7,
2002. According to Oates, Mullinss response was never received.
B. Proceedings
On April 9, 2002, Oates filed a complaint in superior
court seeking an order and judgement declaring that Mullinss
rights, title and interests in and to the . . . real property are
foreclosed and title to the . . . real property is vested in
[Oates] free and clear of any right, title and interest [Mullins]
may have. Mullins was served on June 17, but failed to timely
appear, file an answer to the complaint, or otherwise defend
herself. On July 15 Oates filed an application for entry of
default against Mullins for her failure to plead in or defend the
[c]omplaint. Two days later, the court granted this application
and entered a default judgment against Mullins.
On August 15, 2002, Mullins filed a pro se pleading in
which she moved the superior court to (1) set aside the default
judgment; (2) grant her extra time to prepare her pleadings; (3)
allow her to file her pleadings by fax; (4) dismiss Oatess
complaint against her; and (5) award punitive damages against
Oates for frivolously using the court as a means of defrauding
and harassing her. On August 28 the superior court granted
Mullinss motion to set aside the default but did not decide her
remaining motions, other than to rule that she could not file
pleadings by fax. On October 8, 2002, the superior court denied
Mullinss motions to dismiss the complaint and to award punitive
damages. The superior court then entered a pretrial order
setting trial for the week of May 26, 2003. On February 19,
2003, the superior court ordered a settlement conference to be
held before Standing Master Katherine Bachelder, as mediator.6
As ordered, a settlement conference took place on April
4, 2003. During the settlement negotiations, Mullins and her
husband and Oates and her attorney were in separate rooms, while
Master Bachelder went back and forth between the two parties.
After several hours of off-the-record settlement negotiations,
both Mullins and Oates went on the record, in open court, and
orally agreed to the terms of a settlement. The basic contours
of the settlement were as follows: (1) Mullins would make
payments to Oates in the amount of $600 per month for the months
of November through May and $1,200 per month for the months of
June through October; (2) Mullins would pay an additional $600 to
Oates on the first of each month for ten months in order to make
up for back payments; (3) payments would be made into an escrow
account and escrow fees would be split between Mullins and Oates;
(4) the interest rate would be five percent of the unpaid
principal balance; (5) after ten years, a balloon payment would
come due for the remaining amount of the principal; and (6) Oates
would not enter onto Mullinss property or slander Mullins.
On April 7, 2003, the superior court entered a notice
of intent to dismiss the case because the parties [had] reach[ed]
a settlement agreement which was placed on the court record. The
superior court noted that Mullins and Oates had until May 15,
2003, to file a good cause objection to the suit being dismissed.
On May 14 Oates requested that the court not dismiss the case
until final settlement documents had been executed. Five days
later, Mullins also requested that the court not dismiss the case
and instead vacate the settlement agreement and reset the case
for trial. In her request, Mullins maintained that she had been
coerced into accepting the terms of the settlement agreement.
According to Mullins, Master Bachelder had erroneously advised
her that she would lose her property and would be responsible for
Oatess attorneys fees if the case proceeded to trial and that
this advice, because she accepted it as true, left her with no
other choice but to accept the terms of the settlement agreement.
Finding good cause, the superior court declined to dismiss the
case at that time.
On August 13, 2003, the superior court issued an order
denying Mullinss motion to vacate the settlement and granting
Oatess motion to enforce the settlement. According to the order,
the superior courts review of the settlement on the record had
convinced it that Mullins freely and voluntarily entered into the
settlement agreement. The superior court listed the essential
terms of the April 4, 2003 settlement agreement in its order
granting the motion to enforce the settlement.
On September 22, 2003, Oates, acting through her
attorney, mailed Mullins two original settlement agreements, an
original deed of trust, and an original promissory note for
review and signature. Mullins apparently refused to sign or
return the documents. Instead, over the next month, Mullins
filed a number of motions, including a request on October 16,
2003, that the court reconsider its order denying Mullinss motion
to set aside the settlement agreement.
On November 12, 2003, Oates, acting through her
attorney, sent another letter to Mullins. In this letter, Oates
noted that, under Civil Rule 77(k)(4), if a motion for
reconsideration is not ruled upon by the Court within 30 days of
the date of the filing of the motion, the motion shall be taken
as denied. Oates then pointed out that it had been thirty days
since Mullins filed her motion for reconsideration and the court
had not yet ruled upon it. Consequently, Oates asserted,
Mullinss motion had been denied. Oates requested that Mullins
execute the settlement agreement and pay all of her past due
payments immediately. Failure to do so, Oates concluded, would
result in a material breach of the settlement agreement.
On November 26, 2003, after her original motion for
reconsideration had been denied by operation of Alaska Rule of
Civil Procedure 77(k)(4), Mullins filed a document entitled Time
is of the Essence Motion to Vacate Settlement Agreement Because
It Has Now Been Rejected By Both Parties. In this motion Mullins
argued for the first time that the promissory note and deed of
trust that Oates had sent to her for review and signature
contained a number of terms never mentioned or agreed to at the
settlement conference. Mullins then went on to assert that the
addition of these terms represented a rejection of the settlement
agreement and converted the promissory note and deed of trust
into a counteroffer a counteroffer that she claimed she was now
free to reject. Mullins asked the court to declare the
settlement agreement null and void and to stay execution of the
agreement until her motion could be heard or appeal taken.
On January 14, 2004, the superior court entered an
order in response to several of Mullinss motions. In this order,
the superior court denied Mullinss motion to reconsider its
earlier order refusing to set aside the settlement agreement.
On March 1, 2004, Oates filed a motion to declare
Mullinss title and interests terminated and requested an order
requiring Mullins to vacate the property. On July 23, 2004, the
superior court entered an order once again rejecting Mullinss
contention that her acceptance of the settlement agreement had
been the product of coercion, duress, or misrepresentation. The
court also rejected Mullinss claim that the promissory note and
deed of trust mailed to her for review and signature represented
a counteroffer. According to the superior court, these documents
did not contain terms that meaningfully deviated from the
settlement agreement. The court concluded by noting that Mullins
had exhausted her remedies in the superior court and that her
proper recourse now was to file an appeal. On September 3, 2004,
the superior court issued a final judgment against Mullins. This
final judgment terminated Mullinss rights and interests in the
property. Mullins now appeals.
III. STANDARD OF REVIEW
We review a superior courts decision to enforce a
settlement agreement under the clear abuse of discretion
standard.7 We review questions of constitutional law de novo.8
We may affirm a judgment on any grounds that the record supports,
even grounds not relied on by the superior court.9
IV. DISCUSSION
Mullinss primary claims fall within three general
categories: (1) claims that Mullinss acceptance of the settlement
agreement was the product of coercion, duress, or
misrepresentation; (2) claims that the settlement documents Oates
sent to Mullins included a number of terms not previously agreed
to at the settlement conference; and (3) claims that the superior
court violated Mullinss constitutional rights.10 We address each
of these categories of claims in turn.
A. The Superior Court Did Not Err in Rejecting Mullinss
Claims of Coercion, Duress, or Misrepresentation.
Mullins argues that her acceptance of the April 4, 2003
settlement agreement was the product of coercion, duress, and
misrepresentation. According to Mullins, the master overseeing
the settlement conference left her with no choice but to accept
the terms of the settlement agreement by erroneously advising her
that she would secure less favorable terms at trial. An
affidavit signed by Mullinss husband and submitted to the
superior court characterized the masters advice in the following
manner:
According to Master [Bachelder], there
were only three possible outcomes to the
case:
The judge could determine, at trial,
that the contract was terminated; in such
case, the Defendant would be responsible for
the Plaintiff[]s attorneys fees.
The judge could reformulate the contract
at trial, based on the equity established by
Mrs. Mullins during the renovations to the
property. However, that process would
involve contract changes that would favor
Mrs. Oates, to provide the consideration for
the reformulation. Again, Defendant would be
responsible for the Plaintiffs attorneys
fees.
Or, the parties could negotiate a
settlement that would avoid termination of
the contract.
The superior court rejected Mullinss claims of
coercion, duress, and misrepresentation at length and on at least
two occasions. On the first occasion, the superior court noted
that it had reviewed the portions of the settlement that had been
placed on the record and had found no evidence of coercion,
duress, or mistake:
Master Bachelder stated at the beginning of
the hearing that if Mullins disagreed with
something, she needed to let the court know.
The tape also indicated that Mullins
understood the terms and their meaning. She
had the opportunity to object to the terms of
the settlement agreement as well as the
settlement in its entirety. She participated
in clarifying terms of the settlement on the
record.
The superior court also noted that Mullinss vague accusations
that Master Bachelder told her she would lose were insufficient
to establish any of the elements of duress or misrepresentation.
Accordingly, the court held that Mullins freely and voluntarily
entered into the settlement agreement.
When the superior court rejected Mullinss claims of
coercion, duress, and misrepresentation for a second time, it did
so on the grounds that Mullins [had] fail[ed] to state how Master
Bachelder misrepresented the contract and Alaska law. According
to the court:
Mullins merely states that in settlement
negotiations Master Bachelder offered her
three alternatives: (1) defendant could go to
trial, the judge would determine an incurable
breach of contract, and defendant would be
responsible for attorney[s] fees; (2)
defendant could go to trial to have a judge
reformulate the contract under principles of
equity, defendant would be responsible for
additional consideration and attorney[s]
fees; or (3) defendant could enter into a
settlement agreement. It is unclear from
Mullins[s] motion which part of Master
Bachelders list of alternatives misrepresents
the contract or the law.
The superior court reasoned that because the masters advice had
accurately reflected the contract and the law, it could not have
resulted in any sort of coercion, duress, or misrepresentation.
As we have noted on several occasions, [t]here is a
strong public policy in favor of the settlement of disputes.11
Settlements and settlement hearings facilitate communication and
compromise; they encourage litigants to voluntarily resolve their
disputes; and they simplify, shorten and settle litigation
without taking up valuable court resources.12 Accordingly,
private settlements and stipulations . . . are to be favored and
should not be lightly set aside.13 Nevertheless, settlement
agreements are, at base, merely a species of contract and are
therefore binding only if they meet minimal contractual
requirements.14 In order to meet these requirements, settlement
agreements must be entered into voluntarily and knowingly; they
cannot be the product of coercion, duress, or misrepresentation.15
With these principles in mind, we turn first to
Mullinss claims of coercion and duress. As we have previously
explained, [d]uress generally requires a threat that arouses such
a fear as to preclude a party from exercising free will and
judgment. . . . Coercion, though not synonymous with duress, is
similar and implies compulsion or constraint.16
In the case at hand, the record simply does not support
Mullinss claims that her free will was overborne by the masters
actions. First, the settlement conference lasted over three
hours. This suggests that a great deal of time was dedicated to
negotiating an agreement that was acceptable to both parties.
Second, the superior courts review of the settlement establishes
that Mullins agreed to the terms of the settlement that were
placed on the record after actively negotiating those terms.
During the placement of the settlement on the record, the master
instructed Mullins to object if she disagreed with the terms of
the settlement.17 Mullins did not object, but instead
affirmatively participated in clarifying and defining several of
the settlements terms, including the date that payments were due,
who would be responsible for escrow fees, and the number of deeds
that needed to be drawn up. Mullins even demanded that Oates
agree to not enter onto her property or slander her again.18
Under our case law, these observations strongly support the
superior courts conclusion that Mullins entered into the
agreement voluntarily and of her own free will.19
At base, Mullinss argument amounts merely to a
complaint that Master Bachelder offered an assessment of the case
that cast the option of agreeing to the settlement in a positive
light. But it was not improper for Master Bachelder to offer
such an assessment. When a mediator attempts to aid a party in
reaching a settlement agreement, he or she may legitimately adopt
a number of different styles of interaction. A mediator who is
conducting a settlement conference may opt to remain entirely
neutral and express no opinion about the relative merits of the
parties claims. On the other hand, as one state supreme court
has noted, a settlement judge also acts within the bounds of
propriety when the judge offers an assessment of a case as he or
she understands it and recommends a settlement.20 Indeed, were
mediators required to remain neutral or only provide the parties
with positive assessments of the relative merits of their cases,
it is likely that settlements would be reached less often.
Stated another way, a mediators assessment, even a negative
assessment, can at times be beneficial to the parties as they try
to reach a settlement agreement.
Given these considerations, as well as Mullinss
agreement to the settlement in open court and her active
participation at the settlement conference, we conclude that the
superior court did not err when it rejected Mullinss claims of
coercion and duress.
We turn now to Mullinss claim of misrepresentation. As
we have previously explained, a claim of misrepresentation
requires proof of four separate elements: (1) that there was a
misrepresentation, (2) which was fraudulent or material, (3)
which induced the party to enter the contract, and (4) upon which
the party was justified in relying.21
According to Mullins, the master advised her of three
legal alternatives: (1) go to trial, have the judge determine an
incurable breach, and be responsible for Oatess attorneys fees;
(2) go to trial, have the judge reformulate the contract in a
manner that provided additional consideration to Oates, and be
responsible for Oatess attorneys fees; or (3) reach a settlement
agreement. We agree with the superior court that none of these
alternatives represented a material or fraudulent
misrepresentation of the law and conclude therefore that the
superior court did not err when it rejected Mullinss claim of
misrepresentation.
B. The Superior Court Did Not Abuse Its Discretion in
Rejecting Mullinss Claim of a Counteroffer.
Mullins argues that the deed of trust and promissory
note that Oates mailed to her for review and signature contained
a number of terms never mentioned or agreed to at the settlement
conference. Specifically, Mullins maintains that the documents
contained the following changes and additions: It omitted the
incremental title transfer, contained an unconscionable insurance
provision, made the balloon payment due in 2003, overcharged
Mullins on its calculation of the contracts balance, charged
retroactive insurance, and more. According to Mullins, the
addition of these terms represented a rejection of the settlement
agreement by Oates and converted the promissory note and deed of
trust into a counteroffer a counteroffer that she was free to
reject under basic contract law.
The superior court addressed a majority of these
alleged changes at length22 and concluded that none of the
settlement documents contained any terms that meaningfully
deviated from the settlement agreement. According to the
superior court, every allegedly changed or added term was either
(1) not actually changed or added, (2) nothing more than a basic
clause[] commonly found in contracts, or (3) insignificant.
Consequently, the superior court rejected Mullinss argument.23
A review of the settlement documents reveals that Oates
did in fact add at least one term not agreed upon in the
settlement conference. The settlement documents proposed an
annual interest rate of five percent per year and this interest
rate was effectively higher than the interest rate specified in
the original contract for sale. Although both parties generally
agreed to this increase in interest at the settlement conference,
the settlement documents appear to go further than what was
agreed to at the settlement conference and attempt to apply this
increased rate to interest due and unpaid from August 12, 2002.
In other words, the settlement documents attempt to apply the
increased rate to interest that accrued prior to the
restructuring of the contract at the April 4, 2003 settlement
conference. Apparently, this retroactive increase in the amount
that Mullins owed to Oates was never discussed or agreed to by
the parties, and, thus, Oates should not have added it to the
settlement documents. We have previously condemned these sort of
unannounced additions to settlement agreements as inherently
deceptive and wrongful, and we do so again today.24 Such terms
are void.
However, although Oates added at least one non-
negotiated term to the settlement documents, this term did not
convert the settlement documents into a counteroffer. As we
noted in Murphy v. Murphy, when a stipulation is recognized in
open court . . . and filed with the clerk, and there is no
dispute as to the material terms of the settlement, the
stipulation is enforceable.25 In other words, both Mullins and
Oates were bound to the terms of the settlement agreement that
they reached and orally agreed to on the record on April 4, 2004.
Under standard contract law, Oates was no more able to change the
terms of the settlement agreement or to proffer a counteroffer
than Mullins.26 The settlement as originally articulated at the
settlement conference remained in effect despite the flawed
attempt to insert a new term into the final settlement documents.27
Judge Niesje J. Steinkrugers August 13, 2003 order
granted Oatess motion to enforce the settlement and set out the
basic terms of the settlement agreed to by the parties on the
record during their April 4, 2003 settlement conference. On
September 22, 2003, Oates sent Mullins the settlement documents.
Mullins then filed an untimely motion for reconsideration of the
order to enforce the settlement on October 20, 2003. The motion
for reconsideration made no mention of the non-negotiated terms.
Mullinss October 20 motion for reconsideration had, by November
19, been denied by operation of Alaska Rule of Civil Procedure
77(k)(4).28
Seven days later, on November 26, 2003, Mullins filed a
motion asserting that time is of the essence and seeking to
vacate the settlement, in which she claimed for the first time
that the settlement documents included non-negotiated terms.
Mullins was well within her rights to refuse to sign the
settlement documents until the error was corrected and to seek
assistance from the courts in getting the error corrected. But
both Mullins and Oates were obligated to abide by the original
negotiated settlement agreement that was placed on the record,
particularly since the material terms of the settlement had been
set out by the trial court in its order of August 13, 2003, and
were not affected by the inclusion of non-negotiated terms in the
settlement documents.
Under the oral agreement entered at the settlement
conference, which was set out in detail by Judge Steinkruger in
her August 13, 2003 ruling, Mullinss immediate obligation was to
resume payments to Oates. She was to pay $1,200 monthly from
June to October and $600 monthly from November to May, with ten
additional $600 payments for the first ten months to compensate
for back payments. At the settlement conference, the parties
agreed that these obligations would begin as of June 1 (with
payments due on the first and eighteenth of the month). Oates,
through counsel, communicated with Mullins twice after the
settlement agreement about her late monthly obligations. First,
on September 22, 2003, Oates wrote in a cover letter to the
settlement documents that Mullins owed $6,000 total in payments
from June September and that [a]n escrow is being set up at
Wells Fargo. Please make all future payments at this account.
Second, on November 12, 2003, Oates claimed in a letter to
Mullins that she was $8,600 in arrears and requested immediate
payment.
Although the settlement documents applied the increased
interest rate retroactively to August 12, 2002, affecting the
total amount Mullins would owe over the life of the contract, the
inclusion of this non-negotiated term did not affect Mullinss
immediate obligation, which was to begin fixed monthly payments
after June 1, 2003.29
In sum then, although Mullins was not obligated to
abide by any term that Oates added to the settlement documents,
she was obligated to abide by the terms negotiated and agreed to
at the settlement conference. Mullins failed to do so and
ultimately materially breached the settlement agreement.30
C. Mullinss Constitutional Rights Were Not Violated.
Finally, Mullins advances a number of constitutional
challenges, none of which has any merit. First, Mullins claims
that the superior court violated her rights to equal protection
and due process by discriminating against her on the basis of age
and religion. The only evidence she offers in support of this
claim is her own unsupported observation that Oatess attorney . .
. mentioned [Oatess] age at the very top of almost every pleading
he . . . filed. However, this observation, even if true, calls
into question not the superior court, but Oatess attorney.
Attorneys regularly paint their clients in a sympathetic manner.
This is not a violation of any right.
Second, Mullins claims that the superior court was
biased against her and that this bias represented a violation of
her rights to equal protection and due process. The primary
evidence Mullins offers in support of this claim is that the
superior court consistently ruled against her motions. Absent
more, this evidence tends only to establish that the superior
court was not persuaded by Mullinss argument. It does not
establish a violation of Mullinss constitutional rights.
Third, Mullins claims that the superior court violated
her right to due process when it denied her motion to compel
Oates to answer her interrogatories. However, the superior court
properly denied this motion since the settlement agreement had
already been reached.
Fourth, Mullins claims that the superior court violated
her rights to equal protection and due process when it denied her
motion to be allowed to fax her pleadings from her home in Tok to
the courthouse in Fairbanks. According to Mullins, the postal
delivery times between Tok and Fairbanks are so long that she was
unable to file her motions in a timely fashion without either (1)
mailing her motions well in advance of the filing date or (2)
driving her motions to Fairbanks. However, it does not appear
that the superior court ever rejected any of Mullinss filings as
untimely. As such, Mullins was not denied equal protection or
due process of law.
Finally, Mullins claims that lawyers in Alaska are
forced to take up residence in urban settings because they cannot
file pleadings via fax or email. This, she argues, violates
rural Alaskans constitutional rights by depriving them of easy
access to local counsel. However, this constitutional challenge
does not appear to have been raised below and, given its scope,
was not adequately briefed on appeal. The argument is therefore
waived.31
V. CONCLUSION
For the reasons detailed above, we AFFIRM the judgment
of the superior court.
_______________________________
1 The initial contract for sale described the real
property in the following manner:
Lots 47B, 47C, 47E3B of the SUBDIVISION OF
GOVT LOTS 3 and 47, WITHIN SECTION 20, T18N,
R13E, COPPER RIVER MERIDIAN, ALASKA RECORDS
OF THE FAIRBANKS RECORDING DISTRICT, FOURTH
JUDICIAL DISTRICT, STATE OF ALASKA . . . .
2 Mullins and Oates disagree over who drafted the initial
contract for sale. According to Mullins, she and Oates drafted
the contract in concert. According to Oates, Mullins drafted the
contract by herself.
3 The addendum states that under the original contract,
Mullins was obligated to begin monthly payments on November 15,
1997. However, the initial contract for sale was dated November
17, 1997 and provided that monthly payments would begin thirty
days from the date of the contract.
4 According to Oates, Mullinss payments for October,
November, and December were all past due.
5 According to Oates, [i]mplicit in . . . a provision
[requiring a buyer to maintain insurance] is the requirement that
the seller be provided proof of insurance and be named as an
additional named insured.
6 Alaska Rule of Civil Procedure 100(i)(3) provides that
the court may order a settlement conference on its own motion.
7 Barber v. Barber, 837 P.2d 714, 716 n.2 (Alaska 1992).
8 Evans ex rel. Kutch v. State, 56 P.3d 1046, 1049
(Alaska 2002).
9 Van Sickle v. McGraw, 134 P.3d 338, 341 n.10 (Alaska
2006).
10 In addition to these three general categories of
claims, Mullins also advances a number of claims that have no
basis in law or fact. First, Mullins argues that Oatess original
filing of the lawsuit was somehow improper, claiming that the
filing of the lawsuit represented a breach of contract and was
part of a bait and switch fraud. However, this argument goes to
the merits of the original lawsuit and the time to raise such an
argument expired when Mullins entered into the settlement
agreement. Second, Mullins argues that the settlement agreement
should be set aside because it did not provide her with any
consideration. However, Mullins did in fact receive
consideration in the form of Oatess promise to abide by the
settlement agreement instead of pursuing the lawsuit. Third,
Mullins argues that Oates failed to establish an escrow account
as required by the settlement agreement and that this failure
represented a breach of contract that somehow relieved Mullins of
her obligation to make monthly payments. However, even assuming
that Oates did in fact fail to establish an escrow account, this
failure did not represent a material breach of the settlement
agreement and therefore did not excuse Mullinss contractual
obligations. Moreover, even a material breach would not have
allowed Mullins to both retain possession of the real property
and avoid making payments. Finally, Mullins argues that Master
Bachelder was not an attorney. This, however, is factually
incorrect. We take judicial notice of the fact that Katherine
Bachelder is a member of the Alaska Bar.
11 Municipality of Anchorage v. Schneider, 685 P.2d 94, 98
(Alaska 1984); see also Murphy v. Murphy, 812 P.2d 960, 965
(Alaska 1991).
12 Interior Credit Bureau, Inc. v. Bussing, 559 P.2d 104,
106 (Alaska 1977).
13 DeSalva v. Bryant, 42 P.3d 525, 528 (Alaska 2002)
(quoting Henash v. Ipalook, 985 P.2d 442, 450 (Alaska 1999)).
14 Rice v. Denley, 944 P.2d 497, 499 n.4 (Alaska 1997).
15 Indus. Commercial Elec., Inc. v. McLees, 101 P.3d 593,
597 (Alaska 2004) (noting that settlement agreements are
susceptible to attack for mistake, fraud, misrepresentation, and
duress).
16 Crane v. Crane, 986 P.2d 881, 887 (1999).
17 The master told Mullins, So listen to what he [Oatess
attorney] says, and then if theres something you disagree with,
then well ask you that.
18 Based upon the audio recording, it is not entirely
clear whether these terms had been agreed to during the extended
negotiations or whether they were raised for the first time when
the settlement was placed on the record. Either way, the evident
firmness with which Mullins demanded these terms belies her
claims of coercion and duress.
19 See, e.g., Pavek v. Curran, 754 P.2d 1125, 1127 (Alaska
1988) (noting it was proper to conclude that a party was bound by
a settlement agreement when that party was present at the
hearing, made no objection to the terms of the agreement, and did
not in any way indicate that she did not understand the
settlement); see also Ford v. Ford, 69 P.3d 1258, 1264 (Alaska
2003) (noting that it was proper to conclude that a party was
bound by a settlement because that party actively participated in
the settlement discussions).
20 Assoc. Fin. Servs. Co. of Hawaii, Inc. v. Mijo, 950
P.2d 1219 (Hawaii 1998) (internal quotations omitted).
Similarly, the Alaska Judicial Council has explained the
following:
The mediators role can take various forms.
Some mediators favor a facilitative style,
encouraging parties to generate their own
settlement options and seldom suggesting
settlement terms. At the other end of the
spectrum are evaluative mediators, who will
propose settlement options, assess the merits
of claims or defenses, predict the likely
outcome in court and try to persuade parties
to make concessions. Some mediators can use
both facilitative and evaluative techniques,
depending on what the parties want and what
the situation requires.
Alaska Judicial Council, Mediation, Alternative Dispute
Resolution (ADR) and the Alaska Court System (1999) at 7,
available at http://www.ajc.state.ak.us/reports/medguide99.pdf.
21 Bering Straits Native Corp. v. Birklid, 739 P.2d 767,
768 (Alaska 1987).
22 The superior court did not address Mullinss claim that
the settlement documents charged her retroactive insurance.
23 Mullins contends that the settlement documents
submitted by Oates to the superior court and used by the superior
court in evaluating Mullinss argument differ from the documents
that Oates originally mailed to Mullins. However, it is unclear
in what way Mullins believes the settlement documents she
received differ from those submitted to the court.
24 Adams v. Adams, 89 P.3d 743, 749 (Alaska 2004); see
also Pierce v. Pierce, 949 P.2d 498, 500 (Alaska 1997)
(invalidating a term that was added to a document by one party
without giving notice to the other party).
25 812 P.2d 960, 965 (Alaska 1991) (explaining our holding
in Interior Credit Bureau, Inc. v. Bussing, 559 P.2d 104 (Alaska
1977)).
26 See 1 Joseph M. Perillo, Corbin on Contracts 3.31
(1993) (noting [a]n exact and unconditional acceptance of an
offer is not afterwards turned into a conditional acceptance so
as to invalidate the contract . . . by one partys attempt to
alter the terms of the contract in some respect).
27 See id. 2.9 (noting that when parties intend a writing
to merely memorialize a prior contract, the contract is valid
even though they try and fail to agree upon the form and terms of
the memorial).
28 Under Alaska Rule of Civil Procedure 77(k)(4),
[i]f the motion for reconsideration has not
been ruled upon by the court within 30 days
from the date of the filing of the motion, or
within 30 days of the date of filing of a
response requested by the court, whichever is
later, the motion shall be taken as denied.
The trial court also elected to deny this motion in an order
dated January 14, 2004.
29 Mullins claims that no escrow account was ever
established. Oates does not address this argument and there is
no evidence in the record that an escrow account was established
other than Oatess September 22, 2003 letter, which says one is
being set up. However, Mullins failed to raise this argument in
the superior court and therefore it is not properly before this
court. See Olivit v. City and Borough of Juneau, 171 P.3d 1137
(Alaska 2007); Jeffries v. Glacier State Telephone Co., 604 P.2d
4 (Alaska 1979).
30 Mullins also asserts that her claim that the settlement
documents resulted in a counteroffer calls into question the
existence of the original settlement agreement and that this
entitles her, at the very least, to a hearing on the matter.
Mullins is correct to point out that she would be entitled to a
hearing if a material issue of fact existed as to the existence
of the settlement agreement. See Brooks Range Exploration Co. v.
Gordon, 46 P.3d 942, 944-45 (Alaska 2002). However, Mullinss
claim that the settlement documents resulted in a counteroffer
does not raise a material issue of fact. As a matter of law, the
settlement documents were not a counteroffer. Moreover, it
should be noted that Mullins does not appear to have requested a
hearing until November 26, 2003 more than three months after the
superior court first granted Oatess motion to enforce the
settlement agreement.
31 Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska
2001) (noting that [a] party may not raise an issue for the
first time on appeal and cursory treatment of an issue is
considered by this court to be waiver of that issue).
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